Dinesh Kumar Singh, J. – I.A. No. 2052 of 2017 was filed for condonation of delay of 13 day in preferring the appeal. The delay has been condoned vide order dated 16.2.2018.

M.A. No. 778 of 2016

2. The present Miscellaneous Appeal has been preferred against the judgment and decree dated 16.5.2016 and 27.5.2016, respectively, passed in Divorce Case No. 75 of 2009 by the learned Principal Judge, Family Court, Samastipur, whereby the divorce case preferred by the appellant husband for dissolution of marriage between the appellant and the respondent wife on the ground of cruelty, desertion and adultery has been dismissed with cost of Rs.10000/-.

3. The factual matrix of the case is that the appellant being a Civil guard at Danapur Military Hospital, was married with the respondent wife according to Hindu rites and rituals on 4.3.1990 at Birsinghpur under Kalyanpur Police Station in the district of Samastipur and the couple were blessed with a male child namely, Brajesh Kumar. Subsequently, the appellant filed Divorce Case No. 17 of 1998 for a decree of dissolution of marriage on the ground of cruelty, adultery and desertion. The said suit was dismissed vide judgment and decree dated 17.4.2003 passed by the learned Ist Additinal Distric Judge, Samastipur. In the said divorce case, the appellant did not examine himself as a witness. Thereafter, the appellant again filed Divorce case no. 75 of 2009, six years after the dismissal of the earlier divorce case on the ground of cruelty and desertion claiming that the appellant was having no physical relationship with the respondent wife since last seven years and several criminal cases were lodged by the respondent wife but in spite of that, the appellant has allowed the respondent to reside at his village home at Mali Nagar since 1996. The respondent wife never allowed the parents of the appellant husband to reside in the said house, where she resides with her paramour. Thereafter, a dacoity was committed in the house on 13.2.2001 leading to registration of Chakmahesi P.S. Case No. 14 of 2001 against unknown wherein the uncle and relatives of the respondent wife were chargesheeted. Hence, the respondent wife is guilty of inflicting cruelty and deliberately deserting the appellant.

4. In the said matrimonial case, the respondent appeared and filed written statement claiming to be legally wedded wife of the appellant. Earlier Divorce Case no. 17 of 1998 was dismissed on merits, hence the present matrimonial case on the same grounds is not maintainable. The respondent is living at her parents house and not at the native village of her inlaws. There is no evidence that she used to live with paramour whose name has deliberately not been mentioned. The appellant is not providing maintenance to her and the child. The respondent wife tried her best to resume the conjugal life but it could not be resumed due to adamant attitude of the appellant. The maintenance was awarded vide order dated 20.12.2007 passed in Maintenance case no. 37 of 1999 by the learned Principal Judge, Family Court, Samastipur but the same was not paid resulting into filing of Execution Case no. 37 of 2009 by the respondent wife. The respondent wife is still ready to lead conjugal life with the appellant. The appellant husband has performed second marriage and the family of the appellant husband are selling properties in order to deprive the respondent of the same. On the basis of the pleadings, following seven issues were framed by the learned Court below which read as follows: –

“1. Whether the case/suit as filed is maintainable or not?

2. Whether the applicant has got valid cause of action to file this case?

3. Whether the O.P. has refused to cohabit with the applicant and thereby not fulfilling the basic requirement of marital life?

4. Whether the O.P. deserted the applicant and thereby caused mental cruelty to him?

5. Whether the divorce case No. 17/98 was lodged earlier by the applicant which was dismissed and so this case is m