IMPORTANT POINT
If wife compelled to leave matrimonial home due to conduct of her husband and family, it would amount to desertion by husband.

Navita Singh, J.— Learned counsel for the appellant has been heard. Respondent was proceeded against ex parte vide order dated 24.1.2014.

2. The present appeal has been filed against the judgment and decree dated 20.8.2012 passed by District Judge, Fatehgarh Sahib, vide which the petition filed by Jasvir Kaur-appellant-wife was dismissed.

3. The case of the appellant, in the petition filed by her, was that the marriage between the parties took place on 19.11.1997 at village Bilaspur, District Fatehgarh Sahib by Anand Karaj Ceremony and one female child was born out of the wedlock. After the marriage, the respondent and his family members started maltreating the appellant and demanded various dowry articles including a motor-cycle. They started creating dispute over trivial matters and even beat the appellant. The respondent was a drug addict and used to consume some capsules and under intoxication, he used to subject the appellant to physical torture. The appellant tried to persuade the respondent to treat her properly but all her entreaties fell on deaf ears. The parties were residing separately for more than two years before the date of presentation of the petition and the respondent had deserted the appellant without any reasonable cause.

4. The respondent, admitting the marriage and the birth of the child, took a defence, denying the allegations on the ground that she had based her case on falsehood. There was no demand of dowry nor the appellant was ever physically or mentally tortured on account of dowry or for any other reason. Whatever she had stated was a bundle of lies. It was pleaded that rather the appellant was a careless woman and did not perform the marital obligations. She used to leave matrimonial home without information to the respondent or any other family member and did not take proper care of the daughter even. It was denied that the respondent was addicted to any kind of intoxicating stuff. It was admitted that the parties were residing separately for the period stated by the appellant but it was not admitted that the respondent had deserted the appellant. She had left the matrimonial home on her own and it was she who had actually deserted the appellant. The respondent along with his mother and some relatives including Gurbax Singh and Kuldeep Singh visited the parental home of the appellant for requesting her to return to the matrimonial home but the efforts proved fruitless.

5. The following issues were settled by the court below:

1. Whether the respondent had treated the petitioner (now appellant) with cruelty? OPP

2. Whether the respondent has deserted the petitioner (now appellant) continuously for a period of two years immediately preceding of filing of this petition, without any reasonable cause and excuse? OPP

3. Relief.

6. It may be pointed out, at the outset, that it is mentioned in paras 7 and 11 of the impugned judgment that the defence of the respondent was struck off vide order dated 4.5.2012 because he had not paid anything towards the maintenance fixed by the trial Court under Section 24 of the Hindu Marriage Act (Act for short). It is mentioned that the application filed under Section 24 of the Act was allowed and maintenance to the tune of Rs.3,500 per month was granted to the appellant and her daughter apart from litigation expenses from the date of filing the application i.e. 5.5.2011. A warning was issued to the respondent vide order dated 19.4.2012 that in case the maintenance was not paid by him, his defence would be struck off. He did not comply with the order and his defence was struck off on 4.5.2012. However, a perusal of the record shows that the case was not even fixed for 4.5.2012, what to talk of the defence of the respondent having been struck off on that date. A perusal of the entire order sheet of the court below shows that there was no order at any place regarding striking off the defence of the respondent. Furthermore, it is mentioned in para 7 of the ju