A petitioner cannot succeed in a divorce action based on cruelty or desertion if they fail to prove the necessary elements of the offense and are themselves responsible for the breakdown of the marriage through their own wrongful conduct, such as an illicit extra-marital union.

JUDGEMENT :
Heard Mr. D.C.K. Hazarika, learned counsel for the appellant and Mr. G. Choudhury, learned counsel for the respondent.

2. In this appeal, under Section 28 of the Hindu Marriage Act, 1955, the appellant has put to challenge the correctness or otherwise of the Judgment and Decree, dated 11.03.2019, passed by the learned Additional District Judge (FTC), Sonitpur (‘trial court’, for short), in Title Suit (M) No. 47/2016.

3. It is to be noted here that vide impugned Judgment and Decree, dated 11.03.2019, the learned trial court had dismissed the suit filed by the present appellant for dissolving his marriage with the respondent herein by way of a decree of divorce.

Background Facts:-

4. The background facts, leading to filing of the present appeal, are adumbrated herein below:-

“The marriage between the appellant and respondent was solemnized on 05.05.1986, as per Hindu rites and rituals at Barthekerabari village of Howajan of Lakhimpur district, Assam. After the marriage, both of them lived together as husband and wife in the marital home till 1988 and out of their wedlock a female child was born on 21.04.1989.

After the birth of the daughter, marital discord surfaced between them and the respondent herein started behaving towards the appellant in a cruel and inhuman manner and shown her unwillingness to continue her conjugal life. She used to suspect on the character of the appellant and also compelled the appellant to follow her direction on each and every matter and also threatened him of committing suicide. The mental torture meted out to him had reached the culminating point in the year 1998 and thereby, compelled him to live separately from the respondent.

The respondent also lodged several false and baseless complaints with the police against the appellant, being GR Case No. 1143/1998, under Sections 494/498(A) of the IPC and GR Case No. 590/2000, under Sections 498(A)/323/506 of the IPC and in both the cases he was discharged on compromise. The respondent had used to take financial benefits from him, but, did not want to join in the conjugal life and also keep their daughter away from him.

Being left with no other options, he preferred a petition under Sections 13(1)(i-a) & (i-b) of the Hindu Marriage Act, 1955 for dissolution of his marriage with the respondent herein and the same was registered as T.S.(D) No. 48/2002. Thereafter, the respondent contested said proceeding. In the meantime, the appellant was transferred to Allahabad and therefore, he had withdrawn the divorce proceeding, on being asked by the respondent to join the conjugal life on 22.05.2008.

Thereafter, in the year 2007, she shifted to her self-acquired residential flat at Usha Apartment with all the household goods such as TV set, Tape recorder, Almirah, Refrigerator, Inverter, Gas Stove, Furniture, etc. Even after withdrawal of the aforesaid divorce suit, the respondent instead of living in the matrimonial home continued to live in her self-acquired residential flat at Usha Apartment.

Thereafter, the respondent though not lived with the appellant, there are many instances of enjoying the matrimonial life by the respondent by condoning the unintentional act of the appellant, which amounts to cruelty as she pleaded by filing her written statement in the earlier divorce proceeding. The appellant was in his service at Allahabad till th