IMPORTANT POINT
Divorce – A dead marriage must be given a decent quietus.

JUDGMENT (CAV)

Amitendra Kishore Prasad, J.—This first appeal under Section 28 of Hindu Marriage Act read with Section 19(1) of the Family Courts Act, 1984 has been preferred by the appellant-husband against the judgment and decree dated 25.10.2023, passed by the learned Additional Third Principal Judge, Family Court, Durg District Durg (C.G.) in H.M.A. No. 905/2022, whereby the learned Family Court dismissed the suit/application filed by the appellant-husband under Section 13(1)(1-b) of the Hindu Marriage Act, 1955 for decree of divorce on the grounds of cruelty and desertion.

2. Parties are herein referred to their original status as in the trial Court.

3. Brief facts of the case are that the marriage between the applicant-husband and non-applicant-wife was solemnized on 26/12/1996 according to Hindu rituals and customs at Sector-6, Bhilai. After the marriage, both parties maintained their conjugal rights and were blessed with two children, a daughter namely Phalguni, aged about 19 years, and a son namely Aniket, aged about 16 years. According to the plaint, disputes arose between the parties after some years of marriage, during which the non-applicant allegedly began threatening to live separately. The non-applicant, who obtained a Ph.D degree and secured a position as a principal in Kurud with the applicant’s assistance, is said to have changed her behavior, becoming proud of her position and frequently quarreling over trivial matters, taunting the applicant regarding his job. During the COVID-19 pandemic, when the applicant’s income ceased, the non-applicant allegedly verbally abused him, calling him unemployed and demanding unnecessary things which the applicant could not fulfill, thereby subjecting him to cruelty. On 02/08/2020, the non-applicant left the matrimonial home with their daughter and went to her sister’s house, taking her belongings along. The applicant, along with his son, visited the non-applicant’s sister’s home on 08/08/2020 to bring her back, but she refused and allegedly ousted the applicant after a quarrel. Despite several efforts by the applicant, the non-applicant did not return. After about a month, the non-applicant returned with the applicant but left again after five days on 16/09/2020, leaving a letter stating that she is leaving the matrimonial home of her own will and intended to sever all relations with the applicant and her son, Aniket. Since 16/09/2020, the non-applicant has deserted the applicant without sufficient reason, prompting him to inform the Mahila Cell at Sector-6, Bhilai. The applicant and his son made multiple attempts to contact the non-applicant, who has not responded to calls, leading the applicant to file for dissolution of the marriage.

4. The record reveals that the non-applicant-wife was duly served with summons and the paper publication was also made. Despite service, she did not appear before the Family Court on any of the dates of hearing. The matter was adjourned on multiple occasions, but the non-applicant failed to avail herself of those opportunities. Ultimately, the learned Family Court, Durg proceeded ex-parte, framed one issue and decided the matter based on the oral and documentary evidence adduced by the applicant-husband, thereby dismissing the application.

5. Aggrieved by the ex-parte decree, the applicant-husband has filed the present appeal, contending that the non-applicant-wife neither appeared before the trial court nor filed any written statement, and also did not enter the witness box to record her evidence. Therefore, the applicant-husband has prayed that the ex-parte decree be set aside and the matrimonial relationship be dissolved.

6. On behalf of the applicant, in support of his case, the affidavit evidence of Anil Kumar Sonamni alias Anil Swami (PW-01) himself and Rajesh Kumar Sahu (PW-02) has been produced. The non-applicant, after initially appearing in the case, remained absent at the stage of filing the reply and did not produce any reply or