Desertion as a ground for divorce requires proof of intentional abandonment without consent; the court found constructive desertion by the husband, leading to the quashing of the divorce decree.

ORDER :

Prayer

1. The instant appeal has been filed challenging the legality and propriety of impugned judgment passed on 15.03.2012 by the learned Principal Judge, Family Court, Jamshedpur whereby and whereunder the Matrimonial Suit No. 227 of 2007, filed by the respondent-husband under Section 13(1)(ib) of the Hindu Marriage Act, 1955 for a decree of divorce, has been allowed.

Factual Aspect

2. The facts, briefly narrated in the plaint, is that the marriage of the petitioner-husband(respondent no.1 herein) was solemnized on 19.02.1988 with the opposite party 1- wife, appellant herein, according to Hindu rites and custom. After the marriage they lived together as husband and wife. It is further case of the petitioner-husband that Opp. Party-wife left the house of the petitioner-husband along with her ornaments and other articles on 26.02.1988 in absence of the petitioner-husband, when the petitioner-husband had gone to the official duty. Thereafter, the petitioner-husband searched his wife hither and thither but he did not find her.

3. However, the petitioner-husband learnt from several persons that his wife has illicit relationship with Opp. Party No. 2, the respondent no. 2 herein, and they are living as husband and wife at Hazaribagh. It is further alleged that the his wife, Meera Devi is leading an adulterous intimacy with the opposite party no. 2, namely, Birendra Pd. brother in law (Bahnoi) since before marriage and after marriage of the petitioner also. However, it is alleged later on the opposite party-wife on 26.02.1988 left the house of the petitioner and since then she is residing at Hazaribagh with her mother and brother. It is further alleged that the opposite party-wife, namely, Meera Devi has taken medicine regularly for abortion before marriage and after marriage. The petitioner and his family members though tried their best and persuaded the opposite party-wife to give up the bad habit and leading an adulterous life but there was no effect on her.

4. It is further averred in the plaint, as taken note in the impugned order that the cause for this petition arose on 26.02.1988 when the opposite party-wife first voluntarily deserted the petitioner and on 01.04.1988 when the petitioner saw the first opposite party and the second opposite party committing adulterous act. Under such circumstances, the petitioner filed suit seeking divorce after dissolution of marriage of the petitioner-husband with the opposite party No.1-wife.

5. The opposite party/wife appeared before the family court and filed the written statement alleging inter alia that according to Hindu rites and custom the marriage was solemnized in presence of the both the parties. The opposite party-wife, denying the statement made by the husband, has alleged that it is not a fact that the opposite party-wife has left the house of the petitioner- husband but she was badly beaten by the petitioner-husband and thrown out from his house. The opposite party-wife has further stated that the petitioner-husband is making a false and concocted allegation upon the opposite party 1 and 2 in the suit. She has also denied that she is leading an adulterous life, she is chaste lady, rather she has stated the petitioner is imposing a false allegation and left the opposite party no.1-wife because the petitioner has kept a second wife and the petitioner has several children from his second wife and the petitioner had been living with her. Therefore, it is prayed that the suit of divorce as filed by the petitioner may be dismissed with cost.

6. The learned Principal Judge, after hearing learned counsel for the parties, allowed the suit, against which, the instant appeal has been filed.

Submission by the appellant-wife

7. The learned counsel appearing for the appellant-wife has submitted that the learned family court without taking into consideration the availability of the ground of desertion has allowed the suit on the ground of proved desertion since the appellant and the responde