The main legal point established in the judgment is that the emotional and practical deadness of a marriage can constitute cruelty, and withdrawal from the company of a spouse without just and sufficient cause amounts to desertion under the Hindu Marriage Act.

Kumar, J

This appeal is by the wife challenging the judgment and order passed by the Family Court dismissing the petition for divorce.

2. For the purpose of convenience, parties are referred to as they are referred to in the family Court.

3. Petitioner-wife presented a petition under Section 13(1) (ia)(ib) of the Hindu Marriage Act, seeking dissolution of her marriage with the respondent by a decree of divorce. The case of the petitioner is she married the respondent in the year 1986 in accordance with Hindu rites at Hole Alurtown, Gadag; after marriage they led a happy marital life for one year since she was serving as nurse in Bijapur Govt. Hospital. Respondent was a permanent resident of Betegeri; he used to visit her to consummate their marriage; out of the wedlock, she delivered a male child namely Prahalad on 4.1.1988; the delivery was not normal and her health was not congenial for which she was taking treatment; unfortunately 12 days after the child was born, respondent's father died; respondent insisted that the petitioner should attend the funeral, but she was unable to do on health grounds. This is how ill-will between the parties commenced. Thereafter the respondent did not come to any understanding with the petitioner to perform his marital obligations; he did not care for her and started living a disturbed, shabby and senseless life. From that day onwards, they lived separately. He has treated the petitioner with cruelty and deserted her for 18 years. Therefore, she preferred the petition for divorce.

4. After service of notice, respondent entered appearance and filed detailed statement of objections admitting their marriage, birth of child and that they were living separately, but denied he forced her to attend his father's funeral. He did not know any work except that of a cob lie and stayed at Betegeri; when the petitioner persuaded him to come to Bijapur on the pretext that her mother and uncle had promised to find him a job, respondent stayed for. about 2 weeks; petitioner's uncle took him for 2-3 days to find a job, but gave up his efforts; thereafter the mother and uncle of the petitioner started humiliating him; therefore he came back to Betegeri and requested the petitioner to meet him regularly in that place, but she did not heed to his request. This attitude kept going for some time and he started understanding reality. In fact he is ready and willing to live with her; even now to meet his son, he goes to the petitioner's house, but she treats him cruelly; he has neither demanded money nor deserted her. Therefore, he sought for dismissal of the petition.

5. The petitioner examined herself as PWI. The respondent got himself examined as RW1. No documents were produced on either side. The family Court, on consideration of the aforesaid material, raised the following points for consideration:

1) Whether the petitioner proves that the respondent had deserted her company?

2) Whether the petitioner proves that the respondent subjected her to cruelty?

3) What order?

6. On consideration of the oral and documentary evidence on record, the family Court held that the petitioner has failed to prove that the respondent had deserted her company and also that he had treated her cruelly and therefore, dismissed the petition. Aggrieved by such judgment and order, the petitioner is before this Court.

7. Learned Counsel for the petitioner assailing the impugned judgment of the family Court, contended that the couple have been living separately for the past 18 years; their son who is now aged 20 years is completely being educated by the mother and is studying engineering course; No love is lost between the parties; the marriage is completely broken. Relying on the judgments of the Apex Court, he submitted very separation for 18 years is sufficient to hold cruelty as understood in criminal law is established and the petitioner is entitled to a decree of divorce. Even otherwise, respondent is admittedly living separately and i