Judgment

24/01/2023 This appeal is directed against the impugned judgment and decree dated 06.04.2021 passed by the Family Court, Sikar (hereinafter referred to as ‘the Family Court’) by which the appellant’s/plaintiff’s application for grant of decree of divorce on the ground of desertion, has been dismissed.

Appellant/plaintiff filed an application before the Family Court seeking a decree of divorce on the ground of desertion, on pleadings inter-alia that the appellant/plaintiff was married to respondent on 07.07.2014. In the plaint, it has been stated that the appellant’s/plaintiff’s wife has deserted him without any reasonable cause for a period of more than two years even though the appellant/plaintiff had made all efforts to bring his wife back to the matrimonial house and is still prepared, respondent-wife is not willing to reside with him anymore. It has also been pleaded that even after counselling done on 25.05.2018, respondent-wife did not agree to resume marital relationship, nor entered into any agreement, but she denied and stated that she cannot live with the appellant/plaintiff. It was also pleaded that the appellant/plaintiff never subjected the respondent to any physical or mental cruelty even then respondent-wife is not willing and, thus, her conduct would clearly show that she had finally deserted the appellant/plaintiff.

In her written statement, respondent-wife denied all the allegations and pleaded that she was subjected to physical and mental cruelty by the appellant/plaintiff in connection with the demand of dowry. She lodged report in the Police Station Laxmangarh, District Sikar on which the FIR No.274/2016 for alleged commission of offences under Section 498A, 406, 323, 313 and 120B of Indian Penal Code, 1860 has been registered on 19.09.2016. It was also pleaded that despite all physical and mental cruelty in connection with demand of dowry, when the parents of the husband came to Laxmangarh, District Sikar on 20.08.2014, they accepted their mistake and on their assurance that physical and mental cruelty will not be repeated, she came back to her matrimonial house and started residing with the husband. She also stated that she became pregnant in the year 2016. Lastly, it was pleaded that after respondent-wife became pregnant in 2016, she was subjected to physical and mental cruelty which resulted into lodging of FIR on 19.09.2016. She has reasonable cause for not residing with the appellant/plaintiff. In her further pleadings, she has stated that she resided with the appellant/plaintiff till June, 2016 in his place of work at Hospet, District Bellary (Karnataka).

On the basis of pleadings of the parties, learned Family Court framed issue as to whether the appellant/plaintiff is entitled to decree of divorce on the ground of desertion without any reasonable cause.

Learned Family Court allowed the parties to lead oral and documentary evidence. Taking into consideration the evidence of the appellant/plaintiff himself that he has failed to prove that the respondent-wife has deserted him for a period not less than two years immediately preceding the date of presentation of divorce petition and that application was filed on 02.07.2018, the same was dismissed. Present appeal arises out of the said judgment and decree.

Learned counsel for the appellant/plaintiff argued that the learned Family Court has completely misread the evidence on record. It has been argued that the evidence led by the appellant/plaintiff is required to be examined in its totality and not in isolated manner. He would submit that the appellant/plaintiff clearly pleaded that the respondent-wife deserted him since more than two years. In support of this pleading, the appellant/plaintiff examined himself as the witness. In his evidence, it has been clearly stated that after he returned back from his place of posting at Hospet, District Bellary (Karnataka), respondent-wife left the matrimonial house after sometime and went to her paternal hou