The main legal point established in the judgment is the requirement to prove intentional permanent abandonment without consent and reasonable cause for the entire statutory period of two years before the presentation of the petition, as per Section 13(1)(i-b) of the Hindu Marriage Act.

JUDGMENT :

Pradeep Kumar Srivastava, J.

This appeal has been preferred against the judgment and decree dated 04.04.2015, passed by Principal Judge, Family Court, Jhansi, in Suit No. 177 of 2013 (Mukesh Soni v. Smt. Nisha Soni), under Section 13(1)(a) of the Hindu Marriage Act, whereby the divorce petition of the plaintiff-respondent has been decreed dissolving the marriage between the parties dated 18.06.2005.

2. The impugned judgment and decree has been challenged on the ground that the learned court below has passed the judgment on the basis of surmises and conjectures, hence, the same is perverse. The grounds of divorce has been made out beyond the pleadings and the learned court below has committed illegality by shifting burden of proof on the defendant-appellant. No cruelty was proved by the plaintiff-respondent. The learned court below has also not considered the pendency of the suit filed under Section 9 of the Hindu Marriage Act by the defendant-appellant. The judgment is contrary to law, hence, the impugned judgment and decree is liable to be set aside.

3. A divorce petition was filed by the plaintiff-respondent Mukesh Soni before the learned court below, under Section 13(1)(i-b) of the Hindu Marriage Act on the ground of desertion stating that the marriage between the parties took place on 18.06.2005 according to Hindu rites, rituals and traditions. After marriage, both plaintiff and defendant started living and performing their conjugal obligations as husband and wife in the house of plaintiff in Jhansi. The plaintiff did not give any opportunity to the defendant for any kind of complaint. The plaintiff was unemployed at the time of marriage. His father was not alive. The defendant used to live with his mother and always created trouble for her. Subsequently, the plaintiff got employment in Indian Railways and was posted in Brahmpur, Orissa, where he started living and doing his services. Time to time, he used to come to his home to meet his mother and his wife in Jhansi. The defendant created so much of trouble to his mother that she became agonized and ultimately expired on 10.12.2012. Later on the defendant went to her parental house with all her jewelery and gifts which were given to her in the marriage. The plaintiff made complaints to her parents but they did not care and started quarreling with him taking the side of his wife. The plaintiff took the defendant to Jhansi and after some days, he took her to Orissa, but there she insisted to live with her parents in Gwalior. Even after three years of marriage, no child was born to her. The plaintiff provided her all possible treatment in Brahampur, Orissa and Jhansi. Thereafter, the defendant insisted to go to her parental house on the ground that she is not getting proper treatment. When the plaintiff prevented her, she stopped doing domestic work and became very quarrelsome. She also committed mar-peet with him. Then the plaintiff agreed to send the defendant to her parental house.

4. In March, 2009, the plaintiff took his wife to Brahmpur, Orissa from Jhansi and provided her suitable treatment. The doctors advised that for giving birth to a child, she may try the test tube treatment. The plaintiff has also given his ATM Card to his wife in Orissa saying that he will not be able to live with her and whenever she required, she may draw money by ATM and whenever, he will come to her, he will provide more money for her expenses. Thereafter on information given by him to her parents, they came and took her to Jhansi, and from Jhansi to Gwalior. In December, 2010, the plaintiff came to Jhansi and called the defendant to Jhansi where he lived with her till December, 2010. After completing the investigation, the doctor suggested for test tube baby treatment and the plaintiff started her treatment in December, 2010 in Gwalior and since then they did not have any physical relations nor the defendant permitted him to make physical relationship. In February, 2011, test tube tr