IMPORTANT POINT
Desertion under the Hindu Marriage Act requires clear evidence of intention to abandon the marriage, and unsubstantiated allegations do not suffice to counter claims of desertion.

JUDGMENT

Arindam Sinha, J.

The matrimonial appeal has been preferred by appellant-wife against judgment dated 2nd February, 2017 made by the family Court in the civil proceeding by petition of respondent-husband, dissolving the marriage and directing deposit of Rs.50,000/- in favour of the child in any nationalized bank through her mother, within two months.

2. The appeal was presented on reported delay of 24 days. There was attempt of service in respect of the application for condonation of delay and the appeal, on respondent-husband. Coordinate Bench had directed substituted service, which was duly complied with. Ultimately, by order dated 11th October, 2023 the delay was condoned and the appeal admitted.

Respondent-husband continues to go unrepresented.

3. Mr. Mohanty, learned advocate appears on behalf of appellant-wife and submits, the family Court erred in finding his client had deserted respondent-husband, to dissolve the marriage on ground (i-b) in section 13(1) of Hindu Marriage Act, 1955. He points out from paragraph 6 in impugned judgment that the family Court had said, on perusal of the case record it appears that defendant-wife was ousted on 3rd May, 2011. The finding militates against direction for dissolution of the marriage on ground of desertion. On query from Court he refers to his client's written statement and submits, his client with the child was thrown out of the house. She spent the night outdoors and next morning travelled to her parental home in Bhilai. Subsequently, with intention to join society of respondent-husband, his client had filed for restitution of conjugal rights.

4. Perused impugned judgment. It appears the marriage was dissolved on ground of desertion and cruelty, in that order. Reason given by appellant-wife for having left the matrimonial home on allegation of affair of respondent-husband with his 'bhauja' was not found to be proved as a reasonable cause. The learned Judge found indication from materials on record that appellant-wife had no intention to resume good cohabitation unless and until respondent-husband acceded to her demand to live in her parents' house. That admittedly there had been no cohabitation between the parties since 3rd May, 2011.

5. Allegation was made in the written statement, as has been submitted by Mr. Mohanty, of appellant-wife thrown out of the house and she travelling to her parental home in Bhilai on the next day. A further allegation made was she had approached concerned police station but there was no proper response by the people-police. On query from Court we have ascertained that this was the local police station, within whose local limits the matrimonial home is situate, which allegedly had not responded.

Subsequently, appellant-wife made police complaint in concerned police station in Bhilai, whereafter there were arrests made and recovery of streedhan from the matrimonial home. Respondent-husband and others were arrested and later obtained bail.

6. Appellant-wife cross-examined respondent-husband but no suggestion even was given regarding her being thrown out of the house.

She had filed evidence-in-chief in shape of affidavit dated 4th April, 2016.

We have been shown somewhat similar but more vague allegation made in the affidavit. However, she in cross-examination deposed on 9th May, 2016 that respondent-husband had come to stay with her in her parental home in Bhilai. We reproduce below a passage from paragraph 14 from said deposition in cross-examination.

"14. The OP stayed at Bhilai for two months with my parents and was working in the factory. "wool work". It is not a fact that since the OP had no income so he had come down to my father's house. At that time he was maintaining good rapport with me. It is a fact that on my FIR police from Bhilai, arrested the OP, his brother and parents and now they are on bail. It is not a fact that by the order in the maintenance case which I had filed at Bhilai the OP has been giving me Rs.2500/- per month and also givi