PRATIBHA RANI, J

1. The Appellant is aggrieved by the decision of the Family Court, Dwarka, whereby his prayer seeking dissolution of marriage and divorce under Section 13(1)(i-a) of Hindu Marriage Act was declined. However, the learned Judge, Family Court was of the view that a ground of desertion has been made out by the Appellant but in view of the peculiar facts and circumstances of the matter, instead of granting divorce, passed a decree of judicial separation under Section 10 of Hindu Marriage Act.

2. The Appellant filed a petition under Section 13(1)(i-a) of Hindu Marriage Act seeking dissolution of marriage by a decree of divorce pleading therein that the Appellant got married to the Respondent on 25.06.2004 at Katihar (Bihar). After marriage, the parties resided at the native place of the Appellant at Sonaili (Bihar) till 18.07.2004. Thereafter Appellant alongwith Respondent came to Delhi where he was living in a rented accommodation and was in private job. After reaching Delhi on 20.07.2004, the Respondent started misbehaving with the Appellant and his parents. She even used to shout at the top of her voice in presence of neighbours and relations causing embarrassment to the Appellant and his family. She was not happy with the standard of living enjoyed by the Appellant and used to taunt that the utensils, furniture or the accommodation were not even fit for servants and even her servants at Dhanbad had better crockery. She was also not interested in doing any household work. The Appellant, on the one hand, was attending to his old infirm father, whose one leg was amputated and chronically ill mother, on the other hand was even doing household work including kitchen work and sometime even had to leave empty stomach for his work. Due to non-cooperative and aggressive attitude of the Respondent which he has detailed in the petition, the Appellant lost his job. His father died on 15.11.2007 but despite being informed, even his cremation was not attended to by the Respondent and her family. Apart from that, Respondent used to threaten that she would commit suicide and teach him a lesson or commit his murder. The Appellant continued tolerating the behavior of the Respondent in the hope that with the passage of time, things would become normal but the temperamental problem subsisted.

3. When the Respondent became pregnant during her stay with the Appellant, she without knowledge of the Appellant informed her father who took her back. Her father came with his return ticket and also with the ticket of Respondent and left Delhi on 15.04.2005. Respondent gave birth to a female child on 20.05.2005 but the Appellant was not allowed to see the child nor his request to the Respondent to allow them access or come to Delhi to enable him and his family to see the face of his child, was acceded to. Rather the Appellant and his family were threatened with dire consequences.

4. It is further pleaded that all the efforts by the Appellant to lead a peaceful matrimonial life could not succeed as he could not provide the luxuries of life to the Respondent and refused to agree to the demands by the Respondent to ask for a share in the ancestral property to provide her the luxuries. Pleading that the behavior and attitude of the Respondent has caused him tremendous mental pain and agony resulting in mental trauma and mental imbalances, the Appellant alleged he being the only son of his mother, who is critically ill, finds it difficult to continue to suffer in this manner endlessly. The parties are not in contact with each other since 15.04.2005. The Respondent has deserted him since then. He prayed for a decree of divorce as the marriage has broken irretrievably.

5. Vide impugned judgment dated 16.12.2011 the learned Judge, Family Court though observed that cruelty was not proved, was of the view that a ground of desertion has been made out by the Appellant yet passed a decree of judicial separation under Section 10 of Hindu Marriage