Desertion as grounds for divorce requires proof of separation and intention to end cohabitation, which was not established in this case.

1. Challenge in this appeal is to the judgment and decree dated 1-9-2017 passed by the Judge, Family Court, Manendragarh, District Korea, in civil suit No.81 - A / 15 whereby the application filed by the appellant / husband for grant of decree of divorce on the ground of desertion, was rejected.

2. The appellant / husband pleaded that he was married to respondent / wife - Kayaso Bai prior to 26 years from the date of filing of the suit. After the marriage, the wife was residing with him at village Arjunpur and out of wedlock, three daughters were born, who were married. According to the appellant, for the last 25 years the respondent has deserted him without any lawful cause, therefore, he is entitled to get decree of divorce.

3. The respondent / wife denied the plaint averments and pleaded that she was subjected to physical and mental torture. The appellant kept one lady as his wife and asked the respondent to go away and stay at her parental village. Because of the fact that another lady was kept by the appellant in the house for which the torture was being meted out to respondent she was forced to stay at her parental village. The respondent further pleaded that in the marriages of three daughters the appellant came and participated, therefore, there was no question of desertion by either of the parties. She also pleaded that her name was recorded in the service book of the appellant as a legal representative. Since the appellant left her without any reasonable cause, an amount of Rs.500/- was ordered to be paid to the respondent in an application filed by her under S.125 of the Cr.P.C., that too was not being paid to her regularly, therefore, the respondent would be entitled for further relief and consequently, the appellant is not entitled for any relief.

4. After hearing the parties and on the basis of evidence adduced by both the parties, the learned Court below dismissed the suit filed by the appellant / husband. Hence, this appeal.

5. Learned counsel for the appellant / husband would submit that without any lawful cause the respondent herself left the company of the appellant for a continuous period of about 25 years prior to presentation of the suit. The respondent was not the legally weeded wife of the appellant which would be evident from the statement and hence the marriage itself from the inception was a nullity. Learned counsel would further submit that the statement of PW - 1 Uttamram would show that the respondent has deserted and living separately, which is further supported by the statement of PW - 2 Rajesh Kumar as such the Court below has committed gross error in not considering the said issue. The Court below ought to have granted the decree of divorce in favour of the appellant / husband.

6. Learned counsel appearing for the respondent / wife, per contra, would submit that the conduct of the appellant itself would show that the respondent was thrown out of the house forcibly as another lady was kept by him in the house. Thus, the respondent started staying at her parental village with her three children. Learned counsel would further submit that the statement of the parties would show that the maintenance amount was awarded to the respondent under S.125 Cr.P.C., because without any sufficient cause the husband failed to maintain his wife. Learned counsel would also submit that the appellant is at the verge of retirement and in order to deprive her lawful claim, the suit was filed by the appellant as in the service record of the appellant, the name of the respondent was recorded as his wife. H