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2012 Supreme(Gau) 384

IN THE HIGH COURT OF GAUHATI (AGARTALA BENCH)
B.D. Agarwal and Subhasis Talapatra, JJ.
Manidipa Bhowmik - Appellants
Vs.
Mihir Datta - Respondent
Mat Appeal No. 11 of 2007
Decided On : 23.03.2012

Advocates Appeared:
For Appellant/Petitioner/Plaintiff:Mr. A.K. Bhowmik, Sr. Advocate and Mr. R. Datta
For Respondents/Defendant:Mr. S. Deb, Sr. Advocate and Mr. S. Datta

Headnote:

Hindu Marriage Act, 1955 - Section 13(1) (ia) and (ib) - Code of Criminal Procedure,1973 - Sections 125, sub-section (4) of Section 125 and 13 - Family Courts Act, 1984 - Section 10 - Code of Civil Procedure - Indian Penal Code,1860 - Section 498A - Evidence Act - Sections 67 and 68 - Decree of Divorce - Flatly denied - Culmination of a love affair - Maintenance - Suit for dissolution of marriage - Appeal by wife is filed against judgment and order passed by the learned Judge, Family Court South in the Title Suit marriage between the parties took place as culmination of a love affair which developed during their study - Respondent herein the serving as an Assistant Teacher in a school located at the time of marriage which was solemnised as per Hindu Rites and Customs at in the residence of the wife, appellant herein - Parties started living together as husband and wife in a joint family of respondent consisting his widow mother and unmarried younger sister - After some days from the marriage it was noticed that appellant was reluctant to reside in the ancestral house of the respondent at and without any information she used to leave the matrimonial home at this or that pretext – Held, Court are of the that the respondent herein was successful in establishing the cruelty and desertion as pleaded against the appellant herein - On fresh appreciation of the records, we find still there remains an explorable room for settlement but at this stage, it would not be expedient to direct the appellant and the respondent to restore their conjugal life after their living separately for about ten years - Decree of divorce, except in so far as the petition is founded on the grounds mentioned in clauses (ii), (vi) and (vii) of sub-section (1) of Section 13, the Court may, if it considers it just so to do having regard to the circumstances of the case, pass instead a decree for judicial separation, the impugned decree of divorce dissolving the marriage as passed by the learned Judge, Family Court, South Tripura, Udaipur is converted to a decree of judicial separation - Appeal dismissed

JUDGMENT

S. Talapatra, J.

1. This appeal by the wife is filed against the judgment and order dated 27.07.2007 passed by the learned Judge, Family Court, Udaipur, South Tripura, in the Title Suit (Divorce) 07/2005. The marriage between the parties took place on 06.08.2000 as culmination of a love affair which developed during their study at Agartala. The husband, the respondent herein the serving as an Assistant Teacher in a school located at Amarpur at the time of marriage which was solemnised as per Hindu Rites and Customs at Udaipur in the residence of the wife, the appellant herein. The parties started living together as husband and wife in a joint family of the respondent consisting his widow mother and unmarried younger sister. After some days from the marriage it was noticed that the appellant was reluctant to reside in the ancestral house of the respondent at Amarpur and without any information she used to leave the matrimonial home at this or that pretext. The appellant could not tolerate the mother and younger unmarried sister of the respondent and for a reprieve therefrom the respondent had to send his unmarried younger sister to the house of his brother-in-law at Agartala. Even thereafter, the appellant could not adjust with the old widow mother of the respondent and she used to pick up quarrel with the mother of the respondent without any reasonable cause and on several occasions the appellant left the house of the respondent without any intimation and continued to stay in her parental house at Udaipur for a long spell. On most of the occasions, the respondent along with his elder brother-in-law, namely Sri Kajal Majumder had to assuage the appellant by prolonged persuasion for coming back to the house of the respondent. It has been further alleged in the petition filed under Section 13(1) (ia) and (ib) of the Hindu Marriage Act, 1955, hereinafter referred as the 'petition' in short, that on 05.08.2002 when the respondent was on duty in his school, the appellant deserted the respondent without any intimation either to him or to his mother. On coming back from the school when the respondent came to know that the appellant had left the house, he immediately rushed to the parental house of the appellant and requested her to return but the appellant flatly denied. The respondent also took help of the uncles of the appellant, namely Sri Sukhen Bhowmik and Sri Sailen Bhowmik to impress the appellant for returning to the matrimonial home but, all such endeavours as taken by the said uncles as well were frustrated by the appellant and from 05.08.2002 till filing of the petition, the appellant did never enquire about the respondent or his old widow mother. She was showing vehemence whenever any proposal for conciliation was made and thereby she frustrated all such initiatives. On 10.01.2003 the appellant delivered a male child but she did not make any contact with the respondent. Thus the respondent was deprived of even seeing his newly born child. Whenever the respondent tried to contact the appellant over phone, the appellant was not allowed to attend the phone calls or she was not attending the calls. It is alleged in the petition that even the father and younger brother of the appellant insulted him on many occasions. Ultimately, the appellant instituted one proceeding under Section 125 of the Code of Criminal Procedure for maintenance, for herself and for the newly born son.

2. The prayer of the appellant was rejected with a finding that since the appellant deserted the respondent without any reasonable cause, she had been disentitled from the maintenance, however, the learned Chief Judicial Magistrate, South Tripura, Udaipur, by the order dated 30.03.2005 made provisions for maintenance of Rs. 1,000/- per month for the newly born son. When the said proceeding under Section 125 of Cr.P.C. was pending, the petitioner was appointed as a Lecturer in the District Institute of Education and Training (DIET), Kunjaban on and fro
























































































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