Desertion is not a ground for dissolution of Christian marriage under the Indian Divorce Act, 1869, and a decree of divorce by mutual consent is not permissible under the said Act.

JUDGMENT :

P.C. Naik, J. - The challenge in this appeal by the Defendant-wife is to the order dt. 21-7-1994 whereby the Judge, Family Court, Cuttack has dissolved the marriage of Respondent No. 1 (Plaintiff) with her by a decree of diverce by mutual consent subject to the husband paying her a sum of Rs. 30,000/-towards lump sum alimony and maintenance.

2. Admittedly, the marriage of the Appellant with Respondent No. 1 was solemnised at the Baptist Mission Church on 27-8-1991 according to the Christian rights and custom. The Appellant and Respondent No. 1 stayed together for a short time, where after they were separated. The record indicates that earlier the wife has filed a petition u/s 125, Cr. P.C. (Cr. Misc. Case No. 321 of 1985) which was allowed by the Sub-Divisional Judicial Magistrate, Cuttack and the husband was ordered to pay maintenance of Rs. 200/- per month to her. Being dissatisfied with the quantum, the wife preferred Crl. Revision No. 212 of 1988 wherein this Court vide order dt. 24-10-1989 enhanced the maintenance from Rs. 200/- to Rs. 240/- per month. As the maintenance was not paid as directed, an execution was lodged whereupon a part of the maintenance due was paid. Execution proceeding was pending for subsequent period of maintenance. It is also on record that O.S. No. 141 of 1991 was filed u/s 10 of the Indian Divorce Act, 1869 by the husband before the Subordinate Judge, Balasore for a decree or divorce, We need not go into the details of the said suit as the same was withdrawn,

3. On 26-4-1991. C.P. No. 208 of 1991 which gave rise to this appeal was filed by the husband before the family Court, Cuttack for a decree of divorce in his favour u/s 14 of the Indian Divorce Act on the ground of desertion. It was specifically pleaded therein that as wife had intentionally withdrawn from the matrimonial house, it amounted to cruel as he was forced to lead an unholy life on account of desertion by the wife for no fault of the husband, who was left with no option, but to pay for pray for dissolution of marriage.

4. The wife entered appearance and filed her written statement refuting the allegations made by the husband that she had deserted him. It is her specific case that she was forced to leave the matrimonial home because of the cruel behaviour of her husband who was dissatisfied with her as she could not bring sufficient dowry and also because he was forced to marry her on the insistense of his father though he was in love with another lady.

5. Curiously, neither any issue was framed nor was any statement of the party recorded by the Judge, Family Court. Order No. 44 dt. 9-3-1994 recorded by the Judge, Family Court indicates that the petition filed by the husband along with the connected misc. cases was posted to 21-7-1994 for final disposal. Order No. 45 that was recorded on 21-7-1994 reads thus:

Ptr. and Respondent are present. Ptr, prays for 15 days time. Heard. The parties in the proceeding along with other misc. cases i.e. Cr. P. 1020/91. Cr. P. 234/93, Cr. P. 205/94 and Cr. P. 223/91 order is passed as follows:

Sd/-.

Judge, F.C.

And thereafter, order No. 46 of even date i. e. the impugned order was recorded wherein the marriage was dissolved. The opreative part of the order reads thus:

x x x the husband is directed to deposit Rs. 30,000/-in favour of the lady towards lump sum alimony and maintenance as a condition for effecting divorce in between themselves by mutual consent. The husband is given time to pay the amount of Rs, 30,000/- by way of bank draft in the name of the lady by 16-1-1995.

Put up this proceeding along with Cr. P. 1020/91. Cr. P. 234/93 and Cr. P. 205/94 on 16-1-1995 for further orders.

Sd/

Judge, Family Court, Cuttack.

6. The impugned order is assailed by the wife, inter alia, on the ground that the petition filed by the husband being wholly misconceived ought to have been rejected. It is contended that the Family Court has wrongly recorded the finding that the wife consented to the dissolution of