JUDGMENT :

UDAY KUMAR, J.

1. The appellant and respondent are husband and wife. Appellant filed an application U/S 13 of Hindu Marriage Act 1955, for decree of divorce on the ground of cruelty and desertion, upon which Matrimonial Suit Number 145 of 2005 was started. By Judgment dated 25th March, 2014, the Court of Ld. Additional District Judge, Contai, dismissed the suit, which has been challenge in this appeal.

2. The facts emanating from the plaint are that petitioner Chandan Kumar Bera and respondent Atasi Bera are husband and wife. Their marriage was solemnized on 20th May 1994, as per Hindu rites and rituals and she started to live at her matrimonial home with her husband, ailing mother-in-law, handicapped sister-in-law, father-in-law, brother-in-law and other relatives since then. During her said stay she became pregnant and gave birth to her son Sankha on 22nd September 1995 at her father’s house as she left her matrimonial house on 29th April 1995, in certain differences and disagreements. She was not friendly nor accommodative nor caring to her ailing mother-in-law, handicapped sister-in-law, petitioner and other family members. Once, she opposed the excessive expense accrued in treatment of her mother-in-law, who died of cancer on 05th November, 1994. She was indifferent to the appellant due to her infatuation for a young man whom she wanted to marry, but it didn’t materialize. Resultantly, she lost her impulse to reciprocate his love and libido and was not liking to share bed with him. She also insisted appellant to live in a separate accommodation but he refused as he was dependant on his family due to his unemployment. So, it triggered her to leave her matrimonial home on 29th April 1995 without prior permission and took shelter at her parent’s house. Petitioner tried to meet his son and to persuade the respondent to return to her matrimonial home with Sankha to celebrate his first rice ceremony, but she refused.

3. So, he prayed for divorce on the ground of wilful desertion and cruelty.

4. In response, the respondent-wife has contested the suit by filing written statement in which she denied all the material allegations. The positive case as set up by her is that she was driven out by them from her matrimonial home when she failed to satisfy their demand of Rs. 50,000/- in dowry claimed against inferior quality of articles given as marriage gift and since then she compelled to take shelter at her father’s house, where she delivered her son on 29th October, 1995, but none from her matrimonial house had visited there either to attend birth ceremony or first rice ceremony of Sankha or to bring her back to her matrimonial home. All expenses relating to maintenance, upbringing and education of respondent and her son were borne by her retired father because she had no source of income to maintain herself and to educate her son. Therefore, she was compelled to file a maintenance case being Misc. Case No. 56 of 2003 dated 21.03.2003 U/S 125 of Cr.P.C before the court of Ld. S.D.J.M. Contai, against petitioner for her maintenance and maintenance of her son Sankha, which was allowed by court on contest. Indeed appellant contested the proceeding but he did not raise any allegation against respondent that she refused to share bed with him due to her pre-marriage infatuation with a young man therein. These allegations were neither raised by him in maintenance proceeding nor in plaint.

5. She specifically stated that appellant has married one Aperna Guria daughter of Tapan Guria after 2½ years from the date of her last expulsion from her matrimonial home i.e. 19th July, 1999. One Tanushree Bera was born from said wedlock. In support of her said assertion, she submitted copy of voter list of Kanaidighi north assembly election constituency West Bengal, part 1 Nachinda block Contai-3, P.S Marisada, Mouza Nachinda in which name of Aparna Bera has been shown as wife of Chandan Bera and in 2022 voter list name of Tanushree Bera has been