MR.BHASKAR BHATTACHARYA, J

1. These two First Appeals were heard together as those have been preferred against the selfsame judgment and decree passed by the learned trial Judge thereby granting a decree for judicial separation on an application for divorce filed by the husband on the ground of desertion and cruelty. The learned Family Court has held that the allegation of cruelty has not been proved but the husband has proved desertion and on that ground, instead of passing a decree for divorce, the one for judicial separation has been passed.

2. Being dissatisfied, the husband has preferred First Appeal No. 2713 of 2008 thereby praying for converting the decree for judicial separation into one for divorce while the wife has filed a separate appeal, being First Appeal No. 2109 of 2009, thereby praying for dismissal of the suit.

3. The case made out by the husband in the application for divorce may be summed up thus:-

[a]. The parties were married on 9th May 1997 according to Hindu rites and customs. The initial 15 days after the marriage went peacefully but thereafter the wife started quarrelling on minor issues and used to insult the husband. The wife did not do household works and also did not permit the husband to have physical relation. The wife used to go to her parents’ house without any permission of the husband or intimation to him. She misbehaved with the husband and his family members when she was asked to come back on the death of the sister of the husband.

[b]. One Mr. Khodabhai once came to the residence of the husband to take back the wife to her father’s house but since the husband did not know him, he refused to send the wife with him. On this ground, the wife became angry and threatened the husband that she would commit suicide. Ultimately, on the request of the father of the wife, she was permitted to accompany Mr. Khodabhai.

[c]. Immediately after the marriage, the wife conceived and was asked by the husband to come back but she did not return. The family members of the husband decided to perform ‘shrimand’ ceremony of the wife, but she did not come. The wife threatened that if he forced her to come back to her matrimonial home, the legs of the husband would be broken. The wife also did not intimate the husband about the birth of the daughter and when the husband came to know about the birth of the daughter, he and other members of his family went to see the child but the wife and her parents insulted the husband and her parents threatened them and did not permit them to see the child. They were threatened that they would be roped in false cases.

[d]. Thereafter, the husband tried on many occasions to bring the wife back to the matrimonial home, but she refused to come back without any justifiable reason. The aforesaid behaviour on the part of the wife amounted not only to cruelty but it was also the case of desertion for a period of more than 2 years. Hence the suit.

4. The suit was contested by the wife by filing written statement thereby denying all the material allegations made in the plaint, and the defence of the wife may be summed up thus:

(i). After the marriage, the wife came to the husband’s house and used to perform all her duties properly as a wife but the husband and the members of his family used to quarrel with her on minor issues. They used to harass the wife mentally and physically alleging insufficiency of dowry and used to pressurize her to bring more amount of dowry. Thus, finding no other way, the wife had to go back to her parental house where she gave birth to a girl child.

(ii). The husband was well informed about the birth of the child but neither he nor his parents came to see the child. On 2nd September 2001 when the wife was at her parental house, the husband came with divorce papers and forced the wife to sign on them. But she having refused to sign on those papers, she was told that if she did not want divorce, she should bring dowry according to their demand and only on that co