Cruelty and desertion must be proven with specific evidence; irretrievable breakdown of marriage is not a statutory ground for divorce under the Hindu Marriage Act.

JUDGMENT :

1. Heard Shri Ramendra Asthana, learned counsel for the appellant and Shri Sanjay Singh, holding brief of Shri Amrendra Nath Rai, learned counsel for the respondent.

2. The present appeal has been filed under Section 19 of the Family Courts Act, 1984 arising from the judgment and order dated 31.08.2015 passed by the Principal Judge, Family Court, Shahjahanpur in O.S. No.1098 of 2014 (Mohit Saxena Vs. Smt. Pratibha Saxena). By that order the learned court below has dismissed the divorce suit instituted by the appellant on the ground of cruelty and desertion. In the present appeal ground of irretrievable breakdown of marriage has also been pressed.

3. By earlier order, we referred the matter to the Mediation Centre. Mediation has failed. Paperbook has been dispensed. Accordingly, the matter has been proceeded.

4. The marriage between the parties was solemnized on 09.11.2008. Then, the appellant was working on a Class-III post with Indian Railways whereas later the respondent started working as an Assistant Teacher under the Government of U.P. On 31.10.2009 a male child was born to the parties. According to the appellant the respondent deserted him on 26.02.2010. She continuously deserted the appellant for more than 2 years. Accordingly, on 05.03.2012 the divorce suit was instituted by the appellant. Written statement was filed by the respondent on 05.05.2012, issues were framed. Oral evidence was led by the parties. In that the present appellant and his mother were examined as plaintiff-witnesses PW-1 and PW-2, respectively. The respondent and her father were examined as defence witnesses DW-1 and DW-2, respectively. Mediation was also attempted by the learned court below. Thereupon, after hearing the parties, the divorce suit has been dismissed.

5. Learned counsel for the appellant would submit that the respondent had offered cruel behaviour towards the appellant and his family members. Immediately upon marriage between the parties she expressed her resentment at the marriage. She disclosed to the appellant that she wanted to be married to a gazetted officer but her parents had disappointed her by arranging her marriage with the present appellant. The respondent never accepted and/ or respected either the appellant or his mother. She instigated the appellant against his mother. In the meanwhile, she got selected for special B.T.C. Thereafter, she joined at Bilsanda, District- Pilibhit. The matrimonial discord between the parties continued.

6. In such circumstances, on 26.02.2010 the respondent left her matrimonial home along with her father and the child born to the parties and also took all her material belongings. She has never returned or co-habited with the appellant, since then. Therefore, she practiced desertion as well. Both, on ground of cruelty and desertion, the divorce suit was instituted. By way of evidence the appellant reiterated the assertions made in the plaint. However no specific instance or occurrence was proved with respect to the allegation of cruelty. Thus, neither with date specification, nor with occurrence specification evidence was led to establish either any word spoken or conduct offered by the respondent that may be construed as cruelty (either physical or mental), committed by the respondent.

7. At the same time, it is admitted to the parties that a male child was born to them on 31.10.2009 and that he has continued to reside with his mother. PW-2/ mother of the present appellant also testified in favour of the appellant. Critically, she did not specify any act of cruelty committed by the respondent, towards her. Rather, she feigned ignorance as to many facts especially pertaining to the separate living of the respondent at Bilsanda, Pillibhit.

8. Equally, it was admitted that the maternal home of PW-2/ mother of the appellant was at Bilsanda, Pillibhit. The suggestion thrown during cross-examination that the respondent resided at the maternal home of the PW-2, was not effectively denied. Howeve