ORAL JUDGMENT

(Per: HONOURABLE MR. JUSTICE DINESH KUMAR SINGH)

Date : 25-09-2020

Heard learned counsel for the appellant and learned counsel for the respondent.

I.A. No. 2953 of 2016 was filed for condonation of delay of one day in preferring the present appeal. Vide order dated 29.8.2017 the delay in filing the appeal has been condoned.

M.A. No. 262 of 2016

The present Miscellaneous Appeal is directed against the judgment and decree dated 3.2.2016 and 16.2.2016, respectively, passed by the learned Principal Judge, Family Court, Bhagalpur in Matrimonial (Divorce)Case No. 32 of 1999, whereby the marriage between the appellant and the respondent has been dissolved by a decree of divorce even when the grounds of cruelty, desertion and adultery being not proved by the petitioner-respondent-husband. However, the learned Court awarded monthly maintenance of Rs.10000/- from the date of judgment or Rupees Ten Lacs, as permanent alimony.

The factual matrix of the case is that the marriage between the appellant wife and respondent husband was performed on 22.5.1979 as per Hindu rites and rituals. Subsequently the appellant went to her parents’ house and stayed there for one and half year and she again came back to Bhagalpur at the husband’s house, and stayed there for two years.

On the ground of torture and cruelty being meted out by the respondent-appellant, as also on the ground that Title Suit No. 43 of 1993 was preferred by the respondent-appellant for partition of ancestral property of the petitioner-respondent- husband, Matrimonial (Divorce) Case No.32 of 1999 was filed at Bhagalpur for a decree of divorce by the respondent husband and in the alternative, the prayer for judicial separation was made before the learned Principal Judge, Family Court, Bhagalpur on 11.6.1999, which was admitted vide order dated 19.6.1999 and summons were issued to the appellant wife but she did not appear and lastly, the order for substituted service of notice was made by way of publication in a daily newspaper, but the order was not complied by the respondent husband, as a result the suit was dismissed vide order dated 8.7.2005 passed by the learned Principal Judge, Family Court, Bhagalpur. The said order was challenged in Civil Revision No. 80 of 2006, which led to restoration of the matrimonial case. Thereafter, service of notice through paper publication was made, but the appellant wife did not appear, hence, vide order dated 19.4.2010 the matter was posted for ex-parte hearing on 18.5.2010. Subsequently, the appellant wife appeared and prayed for recall of order for ex-parte hearing and the said order of ex-parte hearing was recalled.

The case of the respondent husband is that when the appellant wife returned after staying for one and half years at her parents’ house at Lucknow in 1980, her behaviour got changed, she used to shut the doors of the bedroom from inside over trivial issues, used to throw chili powder over the respondent husband and used to mix salt in his drinking water. It is further case of the respondent that the appellant wife used to consume medicines for termination of pregnancy, as a result, the couple were never blessed with any child. The appellant wife went to her parents’ house without the consent of the respondent husband after taking all her jewellery along with Rupees Fifteen Thousand while the respondent husband was suffering from high fever, in the year 1983. It also came to respondent husband’s knowledge that the appellant had taken away all her belongings and the belongings of respondent husband’s mother also. Thereafter, she returned in November, 1986 to Bhagalpur along with Deepak Kumar Singh, nephew of the respondent husband, with whom he was not on good terms. The appellant wife conveyed to the respondent that all her belongings were stolen during journey. The appellant wife visited the native place of aforesaid Deepak Kumar Singh, i.e. Bisunpur Jichh and stayed there against the wishes of respondent husband. Since 1991 t