IMPORTANT POINT
Desertion under the Hindu Marriage Act is defined as the intentional permanent forsaking of one spouse by the other without consent and without reasonable cause, which can serve as grounds for divorce.

JUDGMENT

Arindam Sinha, J

The matrimonial appeal is at instance of the husband. It was taken up for hearing yesterday, when we perused the materials in the lower Court record. We adjourned the hearing on prayer of Mr. Mishra, learned advocate appearing for respondent-wife and fixed it today. We had requested Ms. Mohapatra, learned advocate appearing on behalf of appellant-husband to prepare a chart regarding her submission on the course taken by the matrimonial proceeding before the Court below, pursuant to her client's petition being struck off and thereupon restored on payment of arrear maintenance. Mr. Mishra was requested to point out from the written statement his client having said that the marriage was consummated.

2. Regarding course taken by the matrimonial proceeding in the Court below on, inter alia, the husband's petition struck down, the sequence of events began with a negotiated marriage solemnized on 5th December, 2003. Appellant-husband had alleged that respondent- wife left his Kolkata residence with her parents without his consent, firstly on 15th January, 2004 and later, on 29th May, 2004. On 22nd June, 2006 appellant-husband filed for divorce before civil Judge (Senior Division) at Berhampur. Respondent-wife filed for maintenance. On 8th May, 2007, civil Judge (Senior Division), Berhampur granted Rs. 3,000/- as maintenance and Rs. 5,000/- litigation cost. Appellant-husband challenged the order by way of revision. Respondent-wife similarly also filed revision for enhancement. By order dated 31st August, 2010, the learned single Judge enhanced the maintenance to Rs. 5,000/- and the litigation cost to Rs. 10,000/-. Ms. Mohapatra produces the order for our perusal. There is no illumination in it of facts in the case leading to the appeal.

3. The original matrimonial proceeding was transferred to family Court, Berhampur and registered as C.P. no.38 of 2010. By order dated 21st May, 2011, the family Court struck down the pleadings of appellant-husband for non-payment of maintenance. Respondent-wife then filed for execution leading to appeal therefrom by appellant- husband. On order dated 20th December, 2016 the earlier appeal was disposed of and pleadings of appellant-husband in the civil proceeding restored. Sometime in year 2017 respondent-wife filed counter claim praying for decree of restitution of conjugal rights. By impugned judgment dated 31st July, 2017 the civil proceeding of appellant- husband was dismissed and counter claim of respondent-wife allowed on contest.

4. On query made by us to Mr. Mishra he submits, it cannot be said that his client had not specifically pleaded there was consummation. He draws attention to paragraph 9 in her written statement. He relies on the entire paragraph and places it. We reproduce below the paragraph.

'9. The allegations made in the Plaint to the effect that during the short period of stay with the Plaintiff, the Defendant always avoided the Plaintiff to make a successful cohabitation and avoided physical relationship under some pretext or other and that she also used to apply turmeric paste on all her body before going to bed almost every day in order to avoid physical contact with the Plaintiff owing very well that the Plaintiff disliked turmeric application and that the request and advise of the Plaintiff (he being a doctor) to the Defendant to consult a Gynecologist/Psychologist for her examination and treatment for frigidity and lack of interest in conjugal relationship was refused vociferously by the defendant and her parents and that the defendant threatened the Plaintiff over phone many times to kill him by engaging local goondas also telling that she would spoil the service career of the Plaintiff if he tried to have physical relationship with her or make any complaints against her or utter any word against the behavior and attitude of her parents and that therefore finding no other alternative and under alleged severe state of mental torture, the Plaintiff lodg