JUDGMENT :

Goutam Bhaduri, J.

Heard.

1. The present appeal is against the judgment and decree dated 24.01.2017, passed in Civil Suit No. 18-A/2016 by the learned Family Court, Baikunthpur, District Koriya wherein the petition filed by the husband (appellant herein) seeking divorce on the ground of desertion has been dismissed.

2. The appellant/husband pleaded that he was married to the respondent on 28.11.2013 and after marriage the respondent/wife joined the company of the appellant. Thereafter, as per the ritual known as "Chauti Bidai" four-five people from the in-laws side came and took the wife/respondent along with them and advised the husband to come after 15 days to take the wife back. After 15 days when the husband went to the house of wife, again he was advised to come back after 15 days. He on different occasions also tried to contact the wife by phone also and lastly on 21.04.2014, when he finally went to take her back, he was advised to come after 10 days. Therefore, it is the contention of the husband that without any sufficient cause the wife has deserted the husband and all the efforts to bring the wife back failed. Thereafter, when the wife did not joined the company of the husband, the husband filed an application under Section 9 of Hindu Marriage Act, 1955 ( for short ' Act of 1955' ) for restitution of conjugal rights bearing No. 32A/14, wherein order was passed on 24.02.2015, for restitution of conjugal rights despite that when the husband went with the society members to bring her back on 20.02.2015, she refused to come along with the husband, therefore, before filing the petition on 16.03.2016 prior to 2 years of the date, the wife has deserted the husband without any lawful cause.

3. The respondent/wife filed the written statement and it was alleged that because of torture and demand of dowry she was forced to stay away and she has not deserted the husband and denied all the allegations made. It is further contended that she informed about the torture to the family members but she was advised to adjust herself but eventually the wife could not adjust because of the torture meted out to her and consequently she had to leave her matrimonial house. Therefore, it is stated that the wife has not deserted the husband.

4. During the proceeding before the learned Family court, the wife proceeded ex-parte on 22.12.2016. The husband examined himself as PW-1 and one Jai Prakash Sahu as PW-2 and Deepak Kumar as PW-3. The husband was examined and cross examined by the counsel of the wife on 27.09.2016. Subsequent statement of the witnesses shows that as the wife was proceeded ex-parte, as such unilateral statement was recorded of PW-2 (Jai Prakash Sahu) and PW-3 (Deepak Kumar) and after examination of the witnesses, the learned Family court dismissed the application of the husband. Hence this appeal.

5. Learned counsel for the appellant/husband would submit that there is nothing on record to show that any cruelty was meted out to the wife for the reason she was living separately. On the contrary, records would show that husband tried to bring back the wife and made sufficient efforts but she did not joined back his company. He further submits that the statement of the witnesses have not been negated and the fact of desertion has been corroborated by each other. Therefore, the Learned family court fell into error to draw the finding that since the decree of Section 9 of the Act, 1955 for restitution of conjugal right was not executed by the husband, as such, the ground of desertion was denied. He would further submit that finding of learned Family court is completely perverse and imaginary and cannot be sustained. Thus, the husband is entitled for divorce on the basis of the facts on record.

6. No representation is made on behalf of the wife. She remained ex-parte.

7. We have heard learned counsel for the appellant and perused the records.

8. Perusal of the records would show that primary grounds on which divorce was sought for