JUDGMENT :

N.V. Anjaria, J.

As the issue in this First Appeal for the purpose of disposal and for doing justice to the parties lie in narrow compass, the appeal was taken up for final consideration today as per the request and consent of the learned advocates for the parties.

1.1 Having regard to the admitted aspect on which the appeal is dealt with, it was not necessary to have recourse to Record and Proceedings.

2. Preferred under section 96 of the Civil Procedure Code read with section 19 of the Family Courts Act, 1984 read with section 28 of the Hindu Marriage Act, 1955, this appeal is directed against judgment and decree dated 29.03.2022 passed by the learned Principal Judge, Family Court, Jamnagar in Family Suit No. 94 of 2019.

2.1 It was the suit filed by the plaintiff husband-respondent herein under section 13(1) (i-a) of Hindu Marriage Act, 1955 for dissolution of marriage. The prayer for dissolution of marriage on the ground of cruelty was rejected and accordingly, suit was not entertained.

3. The case of the plaintiff, noticing in brief, was that as the marriage with respondent-appellant herein was registered on 13.04.2015 in Jamnagar. It was the third marriage of the wife. Out of the first wedlock, a baby boy was born, now aged 20 years. Another marriage was performed of the respondent on 18.12.2013 at Amreli, but divorce took place with the second husband within a span of one year.

3.1 It was the further case of the plaintiff husband that the wife did not discharge matrimonial duties and there was no cohabitation between them after the marriage and that the wife only used the name of the plaintiff as husband without fulfilling marital obligations. It was the say of the husband that he was engaged in the private job and had been earning Rs.5,000/- every month and had to shoulder the responsibility of sick mother.

3.2 The respondent wife in her written statement denied the allegations and submit that she used to go to the plaintiff's house during vacations and he also used to come to Amreli to meet her. It was stated by her that son Sarvansh born out of the previous wedlock was adopted by the plaintiff. The ground of physical and mental cruelty was urged by the husband to seek decree of divorce.

3.3 The trial court framed these issues, (i) Whether the petitioner proves that after marriage defendant has subjected him with physical and mental cruelty? (ii) Whether the petitioner is entitled to get decree of divorce? (iii) What order of decree?

3.4 The trial court considered the evidence and arguments of the parties to come to the conclusion as discussed in paragraphs 9 and 10, that cruelty as a ground for divorce was not made out and on that score, the husband was not entitled to have decree of divorce. The suit was consequently rejected.

4. In course of submissions, learned advocate for the appellant stated that the suit was based on two grounds, namely, cruelty and desertion. He submitted that under Order 6 Rule 17 of the Code of Civil Procedure, 1908, application exhibit 42 was filed by the plaintiff husband and ground under section 13(1) (1) (i)(b) was added, which application was granted by order dated 21.03.2022. The memorandum of appeal was amended and said ground was part of the pleading of the plaintiff.

5 The factum of filing of exhibit 42 and the order thereunder of the trial court adding the ground of desertion was not disputed by the other side. In other words, the court below was required to look into and assess the evidence in respect of said two grounds, namely, cruelty and desertion.

5.1 A plain look at the impugned judgment revealed that the trial court did not at all considered the ground of desertion though the ground was added as per order below exhibit 42. Even the issue in relation to that was not framed. The cruelty aspect was only advanced to and the impugned judgment and order was passed.

5.2 Desertion is a statutory ground for divorce provided in the Act. Desertion is just not withdrawal from a place, but