The Court held that the long desertion and separation of a spouse would constitute mental cruelty within the meaning of Section 13(ib) of the Hindu Marriage Act, 1955. However, the Court held that it had no power to grant a decree of divorce on the ground of irretrievable breakdown of marriage under Section 13 of the Hindu Marriage Act.

JUDGMENT :

1. The husband, who has failed before the two Courts below to secure a decree of divorce, has appealed under Section 100 of the Code of Civil Procedure, 1908, asking those decrees to be overturned and a decree of divorce granted.

2. The fact giving rise to this appeal are these:

3. Deepak Bose, the appellant here, instituted a petition for divorce against Smt. Shrabonee Bose, the sole respondent, before the Civil Judge (Senior Division), Ghaziabad, seeking a decree for divorce under Section 13 of the Hindu Marriage Act, 1955. The petition was registered as Marriage Petition No.1098 of 2010. It was pleaded in the petition, inter alia, that Deepak Bose and Shrabonee Bose were married according to Hindu rites on 11.07.2001. In course of time, two sons were born to the parties. Deepak Bose, who shall hereinafter be referred to as ‘the appellant’, says that he discharged his duties as a husband faithfully. It is asserted by the appellant that at the time of marriage, it was represented that Shrabonee Bose, who shall hereinafter be called ‘the respondent’, was of the same age as that of the appellant. It was also represented to the appellant that the respondent was unmarried, though, in fact, she is a divorcee. The appellant came to know of the fact that the respondent was a divorcee six years after the parties’ marriage in the year 2001.

4. It was pleaded that the respondent is three years’ older to the appellant. Upon further inquiry, it came to the appellant’s knowledge that the respondent was first married in the year 1990, and she and the man she had earlier married, divorced in the year 1996. It was asserted that in the aforesaid manner, the appellant and his family members were defrauded by falsehood into marrying the respondent. The respondent was also castigated as a woman of questionable character, inasmuch as after the appellant would go to sleep, she would be busy on her phone until late in the night and exchange e-mails and SMSs. It is said that when the appellant asked the respondent to desist from this kind of interaction, she refused and remained firm on her stand. It is pleaded that the respondent wants to stay away from the appellant. The respondent did not serve the appellant’s old, ailing and dependent mother in any way. The respondent is said to have exerted pressure upon the appellant to forsake his mother and in that endeavour of hers, she had the support of her family.

5. It is the appellant's further case that despite persuasion by him that the respondent ought to take care of his mother, she stuck course. After the appellant would go away to work, the respondent never served meals to his mother on time or gave her medicines. Any persuasion would lead the respondent to fight the appellant. It is the appellant's case that the daily bickerings mounted so much of anxiety that it resulted in him suffering from diabetes. It is the appellant's further case that it was heightened pain for him when the respondent and her family asked him to resign his job and move over to Jamshedpur forsaking his old mother. The appellant is employed with a company, that manufactures computers, on a good position. He draws a handsome salary. He takes care of his mother and cannot forsake her. It is pleaded that any attempt by the appellant to persuade the respondent to be amiable towards him and his mother would lead her to fight the appellant, to the extent of assaulting him. The respondent's behaviour is claimed to be casting an ill-effect upon the parties' sons.

6. It is the appellant's further case that in the backdrop of all that has been indicated, the respondent suddenly left her matrimonial home on 22.11.2007, along with her father and brother, quietly and without informing the appellant. The appellant went over to the respondent, asking her to come back along with her children a number of times, but to no avail. The appellant, upon visiting his in-laws, was insulted and turned away. The appellant had also addressed let