JUDGMENT

L. MOHAPATRA, J. — This appeal is directed against the judgment and order dated 22.1.2004 passed by the learned Judge, Family Court, Cuttack, in Civil Proceeding No.358 of 1995 dis¬missing the said petition.

2. The appellant had filed an application under Section 13 of the Hindu Marriage Act, 1955 against the respondent seeking dissolution of marriage.

3. The case of the appellant before the learned Judge, Family Court, Cuttack is that the respondent has come from a poor family and was brought up and educated by the elder brother of the appellant and after completion of her studies, she was ap¬pointed as an Asst. Teacher in Ranigola M.E. School. The appel¬lant was also working as a teacher at the relevant time. As per the proposal given by the elder brother of the appellant, the marriage of the appellant was solemnized with the respondent in the year 1971 according to Hindu rites and customs. Four daugh¬ters and one son (mentally retarded) were born to them in between 1971 to 1985. It is alleged by the appellant that after 1985, the respondent started interfering with the joint family affairs and developed hatredness towards his brothers and on one occasion she slapped his elder brother. It is also alleged by the appellant that the respondent persuaded him to sale his share of property and to reside in her village. Due to the differences for the aforesaid reasons, the respondent left her matrimonial home in the year 1987 and never came back in spite of all efforts made by the appellant. It is also alleged in the petition filed before the learned Judge, Family Court that the appellant once had gone to the village of the respondent and stayed with her from 9.3.1994 to 19.3.1994 in order to persuade her to come with children but it did not yield any result and during the said period, the respondent also denied to perform the marital rights of the appellant. The intervention of the gentlemen also did not yield any result and the respondent never came back to the matrimonial house with the children. The children thereafter filed an appli¬cation under Section 125 Cr.P.C. for maintenance and the order passed by the learned Magistrate was being complied with by the appellant. Having failed in his efforts to bring back the re¬spondent and the children, the appellant had no other option except seeking for a decree of dissolution of marriage by filing the aforesaid Civil Proceeding.

The respondent contested the case by filing a written state¬ment. She in her written statement not only admitted her marriage but also admitted birth of five children and the maintenance proceeding initiated by the children. It was the case of the respondent that the appellant was working in Sital High School and she was working in Sundargaon High School and that the appel¬lant not only misbehaved with her but also misbehaved with the children. It was also the case of the respondent that the appel¬lant has been staying with one Meenarani and therefore it was not possible on her part to go back to the matrimonial house.

In course of the proceeding before the learned Judge, Family Court, four witnesses were examined on behalf of the appellant and four witnesses were also examined on behalf of the respond¬ent. On analysis of the evidence adduced before the Court, the learned Judge, Family Court came to hold that the respondent and her children are not willing to stay with the appellant due to presence of Meenarani in the company of the appellant and there¬fore, it is the appellant who is responsible for such separation and accordingly declined to grant a decree for divorce.

4. The learned counsel for the appellant assailed the impugned judgment on the ground that the Civil Proceeding was initiated by the appellant on two grounds, i.e., desertion and cruelty. The learned Judge, Family Court instead of deciding the aforesaid two issues got swayed away by the evidence that the appellant was staying with one Meenarani and refused to grant the relief. The le