The main legal point established in the judgment is that in cases of desertion under the Hindu Marriage Act, the factum of separation and the intention to desert must be established, and the burden of proof lies on the petitioner to prove desertion without just cause.

JUDGMENT

Raghvendra Singh Chauhan, J. - The appellant, Shankaranand Pandey, has challenged the legality of the judgment and decree dated 15.02.2018, passed by the Family Court, District Udham Singh Nagar, in Civil Suit No. 166 of 2013, whereby the learned Family Court has dismissed the suit filed by the appellant-plaintiff under Section 13 of the Hindu Marriage Act, 1955.

2. Briefly the facts of the case are that Mr. Shankaranand Pandey, and Mrs. Manju Pandey were married on 22.01.2003 in accordance with Hindu customs and rites. During the wedlock, on 12.10.2003 they were blessed with a son. However, the child was physically challenged, and suffers from medical disabilities. According to the appellant-plaintiff, the child is being looked-after by him, and his aged parents. Moreover, according to the appellant-plaintiff, after the birth of the child, the respondent-wife did not care for the child. After taking all her Stridhan and Rs. 20,000/-, on 01.09.2011, the respondent-wife left the matrimonial home. Moreover, according to the appellant-plaintiff, after one year of marriage, the couple did not have any physical relationship. Furthermore, in order to harass the appellant-plaintiff, and his aged parents, the respondent- wife has filed cases against him, under Section 125 Cr.P.C., and has demanded maintenance from him. Despite the best efforts to bring back the respondent-wife from her paternal home, she has refused to join the appellant-plaintiff. Therefore, the plaintiff filed a suit for divorce on both the grounds of cruelty and desertion.

3. In order to support his case, the appellant-plaintiff examined three witnesses, including himself. In turn, the respondent-wife examined two witnesses, including herself. After going through the evidence produced by both the parties, the learned Family Court dismissed the divorce suit filed by the appellant-plaintiff. Hence, the present appeal before this Court.

4. The learned counsel for the appellant-plaintiff has vehemently pleaded as under:-

Firstly, the learned Family Court has not appreciated the evidence in proper perspective.

Secondly, the plaintiff had asserted and proven the fact that the respondent-wife is an educated and liberated woman, who does not wish to be saddled with matrimonial responsibilities. Instead, she wants to move freely with her own friends.

Thirdly, the respondent-wife never discharged her matrimonial responsibilities of either having physical relationship with her husband, or of looking-after her own child, or looking-after her aged in-laws.

Fourthly, on 01.09.2011, she left the matrimonial home during the absence of the plaintiff. Despite the best efforts of the plaintiff, the respondent-wife never returned to the matrimonial home. Hence, according to the learned counsel for the appellant, the appellant had produced sufficient cogent and convincing evidence to establish both the grounds of cruelty and desertion. But, despite the best evidence produced by the plaintiff, the learned Family Court has erred in dismissing the divorce suit.

5. On the other hand, Mr. Pooran Singh Rawat, the learned counsel for the respondent, has vehemently argued as under:-

Firstly, it is not the respondent-wife, who had left the matrimonial home without rhyme or reason. According to the respondent-wife, and even according to the testimony of Prema Pandey (P.W.3), the plaintiff's mother, the plaintiff used to physically assault the respondent-wife. Moreover, he was addicted to alcohol. He would come back home, and would accuse his wife of having illicit affairs with other men. He would also physically beat her up with kicks and slaps. Once or twice, even the in-laws intervened to protect her. Eventually, after a fight, according to Mrs. Prema Pandey (P.W.3), it is the father-in-law, who took the respondent-wife to her paternal home and dropped her there. He also assured her that once his son, the plaintiff, calms down, they will take her back to the matrimonial home. However, no one