JUDGMENT

DINESH KUMAR SINGH, J.

1. Heard learned counsel for the appellant and learned counsel for the respondent.

2. The present Miscellaneous Appeal is directed against the judgment and decree dated 26.7.2013 passed by the learned Principal Judge, Family Court, Katihar in Matrimonial Case No. 53 of 2005, whereby the matrimonial suit for decree of divorce on dissolution of marriage between the appellant and the respondent, has been dismissed on contest, however, without costs.

3. The marriage between the appellant husband and the respondent wife performed on 6.7.2003 at Katihar according to Hindu rites and ceremonies, is admitted. The respondent wife was not ready to reside at the husband’s place, hence, the appellant husband was compelled to file Matrimonial Case No. 50 of 2005 for restitution of conjugal rights. However, subsequently, the appellant husband withdrew the said matrimonial case on 15.7.2004, as the appellant was given assurance of bidagiri. Thereafter, the respondent wife came to the appellant husband’s house but she began threatening the appellant over trivial and petty issues. The respondent wife also used to insult the retired ailing father, old mother and handicapped brother of the appellant husband. The respondent also used to quarrel and abuse the appellant causing great mental pressure and humiliation. Hence, the appellant husband filed Matrimonial Case No. 53 of 2005 for a decree of divorce on dissolution of marriage on the ground of desertion and cruelty.

4. The respondent wife appeared, on notice, filed written statement and contested on the ground that the matrimonial suit is not maintainable and that the appellant husband has no cause of action. She denied the accusation of cruelty and desertion, admitted the marriage being performed on 6.7.2003 and the second marriage (Gauna) on 7.11.2003. For six months, the respondent wife stayed with the appellant husband (In the railway quarter of Amrendra Pandey, maternal uncle of the appellant) but the appellant did not behave properly, inflicted torture upon her and same was the behaviour of the maternal uncle of the appellant and his family members. The appellant filed Matrimonial Case No. 50 of 2004 for restitution of conjugal life on 30.6.2004 and himself withdrew the same on 15.7.2004 without any notice to the respondent wife, which was filed in anticipation of filing of criminal case by the respondent wife. The respondent never abused the appellant and the appellant’s claim that he was being abused at the house of Sanjay D’Cruz is absolutely false. Initially after the marriage the respondent wife was taken to village Bhura, the native place of the appellant and thereafter to Katihar.

5. Considering the pleadings of the parties, the learned court below framed five issues, which reads as follows:

“i. Is the suit as framed maintainable ?

ii. Is the plaintiff (applicant) got any cause of action for the suit ?

iii. Is the plaintiff subjected to torture physically and mentally ?

iv. Is the plaintiff entitled for a decree of divorce ?

v. Is the plaintiff entitled for any other relief or reliefs ?”

6. During the pendency of the matrimonial case, maintenance pedente-lite under Section 24 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act) @ Rs.1000/-per month and litigation cost of Rs.10000/- were awarded to the respondent.

7. The appellant husband in support of his case, examined five witnesses – P.W. 1 Sanjay Kumar Jha and P.W. 2 Krishna Murari Jha being cousin of the appellant, P.W. 3 Sanjay D’Cruz and P.W. 4 Aloysius D’Cruz are friends of the appellant husband and P.W. 5 Subhash Chandra Jha is the appellant himself.

8. The respondent wife has also examined four witnesses – R.W. 1 Jamuna Yadav, an acquaintance of the respondent, R.W. 2 Sri Krishna Mishra alias Manoj Mishra being brother of the respondent, R.W 3 Kapileshwar Mishra being father of the respondent and R.W. 4 Archana Mishra, the respondent herself. Apart from the oral evidence, doc