Judgment P.K.Deb, J. 1. Both the appeals are taken up together as they arise out of the common judgment passed by Shri L.K. Sahay, the then 3rd Additional Judicial Commissioner, Ranchi, in Matrimonial (Title) Suit No. 6 of 1988 and 10 of 1988, they were heard together as they arise out of the same party and same and similar dispute arose between the parties. 2. Admittedly the appellant and the respondent were married and their marriage was registered under the Special Marriage Act on 28.10.1986 in Calcutta within the jurisdiction of Marriage Officer, Alipore. In that marriage, from the side of the appellant, her father was present while for and on behalf of the respondent, her mother was also present. After the marriage they lived together in Calcutta then some times at Jamshedpur and lastly at Ranchi. 3. It is the allegation of the appellant that the marriage was an arranged one fraud was practised from the side of the respondent in giving biodata of the respondent. He was shown to be commerce Graduate having degree in M.B.A. and that he was proprietor of a Private Firm owned by him but soon after the marriage it could be found that he was neither a Graduate nor having degree of Business Management nor he was a proprietor of the Private Firm whereas it was owned by his mother. It was further alleged by the appellant that the respondent had connected another marriage before, marriage the appellant. His first wife is Mrs. Manjari Bhattacharjee having a daughter of 12 years named Anamika Bahttacharjee, but all these facts were suppressed and cancealed while contracting the marriage with the appellant. When those facts came in the knowledge of the appellant, she raised her voice, as a result of which she was tortured, assaulted and then she had to leave the matrimonial home in the injured condition and get herself treated by her family Physician at her parental home at Ranchi in Morabadi area. When those facts came in the knowledge of the appellant, she raised her voice, as a result of which she was tortured, assaulted and then she had to leave the matrimonial home in the injured condition and get herself treated by her family Physician at her parental home at Ranchi in Morabadi area. It was further alleged that the mother of the respondent brought false allegation of theft of ornaments by the appellant and she demanded dowry and being scared, for her protection of life and property made a petition before the Deputy Commissioner, Ranchi, which was referred to the Criminal Court and a criminal case was lodged against the respondent and his mother and they took bail in that criminal case and the case is still pending. It is also stated that the appellant is a Master degree-holder in the English literature and her father is a renowned Professor in the Ranchi college and she is also engaged as a Lecturer on Adhoc basis in Marwari College, Ranchi. The mental and social status and educational qualifications were dis-similar amongst the spouses and practically the matrimonial home and broken already. 4. On the other hand, the respondent claimed that it was never an arranged marriage and there was no scope of practicing any fraud or giving any false impression about the qualification and family status of the respondent. The fact was that the appellant and the respondent were both of progressive mind and they had participated in Dramas and other activities and they came in contact with each other for a long time and both the families were also known to each other for a long time through different social organizations in which both the mothers of spouses were the active members such as, Nari Samiti, Sharda Sangh and Ram Krishna Mission Ashram etc. The marriage between the two was arranged but on love affairs between the two for several years and after the marriage, the same was consummated and they lived happily for about two years. However, the appellant has no rhymes or reason to leave the matrimonial home although various attempts were made form the side of the respondent, the appellant some how avoided in joining the conjugal life between the two and afterwards she had with fill-advice of others had filed criminal case etc. However, the appellant has no rhymes or reason to leave the matrimonial home although various attempts were made form the side of the respondent, the appellant some how avoided in joining the conjugal life between the two and afterwards she had with fill-advice of others had filed criminal case etc. The appellant filed Matrimonial Suit No. 6 of 1988 under Sec. 9 of the Hindu Marriage Act for Restitution of Conjugal Rights while soon after filling of that suit, the appellant, filed Matrimonial Suit No. 10 of 1988 seeking divorce, alternatively declaration of marriage being void on practicing fraud from the side of the respondent. The respondent has totally denied of his first marriage to one Smt. Manjari Bhattacharjee as alleged from the side of the appellant and that having a female child out of that wed-lock. 5. As pleading were same and similar in both the suits, those were taken up together for disposed by the learned court below and on the basis of the pleadings, following issues were framed:- (i) Are the suits, as framed, maintainable? (ii) Have the petition got any cause of action for the suit? (iii) Whether the petitioner obtained the consent of the respondent to marry him by practising graud upon her? (iv) Whether the petitioner and his mother from the respondents father? (v) Whether the petitioner abused, assaulted arid tortured the respondent? (vi) Whether the respondent deserted the petitioner without any reason or justification? (vii) Whether the petitioner and his mother took away or withheld the ornaments of the respondent or the respondent has taken away the ornaments of the petitioners mother? (viii) Whether the petitioner was married to Mrs. Manjari Bhattacharaya from before his marriage with the respondent and whether the petitioner had also a daughter from his first wife? (ix) Whether the respondent has condoned the wrong of the petitioner? (x) Whether the respondent is entitled to permanent alimony, if so, how much ? (xi) To what relief or relief, if any, the parties are entitled? 6. It must be mentioned here that the parties have adduced evidence in the suit. For and on behalf of the husband only, he examined himself as A.W. 1 while the appellant examined herself as O.W. 1, her father was examined as O.W. 3 and Anr. as O.W. 2 Sambhu Sharban Mendal. 7. 6. It must be mentioned here that the parties have adduced evidence in the suit. For and on behalf of the husband only, he examined himself as A.W. 1 while the appellant examined herself as O.W. 1, her father was examined as O.W. 3 and Anr. as O.W. 2 Sambhu Sharban Mendal. 7. A number of documents have been filed in the case, namely, Marriage Certificate (Ext. 1), Voter List (Ext. 2), affidavit of Manjari Bhattacharjee (Ext. 3), judgment of T.S. No. 29 of 1983 as Ext. 4 and decree of Title Suit No. 29 of 1993 as Ext. 5. It must be mentioned here that it is an admitted fact that the appellant was married earlier and that marriage also did not subsist long and her previous husband filed divorce suit being Title Suit No. 29 of 1983 on the ground of adultery and bad character. The said suit was not contested by the appellant and it was decreed ex-parte. It is no where the case of the respondent-husband that he did not know the fact of the appellant being a divorcee. The learned court below by a long judgment had decided all the issues in favour of the respondent and decreed the suit of conjugal rights while dismissing the suit for divorce filed by the appellant. The plea of maintenance was also rejected by the learned court below, hence this appeal. 8. Although notices were served in both the appeals on the husband Barun Kumar Bhattacharjee, he preferred not to appear and allowed the appeals to be heard ex-parte. 9. Mr. P.S. Dayal, learned Counsel appearing for and on behalf of the appellant has assailed the judgment by referring to the different portions of it to the effect that the learned court below had arrived on all the issues merely on conjectures and surmises and he did not approach the dispute in its proper perspective. His further submission is that as there was a previous decree against the appellant Smt. Moutushi Bhattacharjee for divorce by her previous husband on the ground of adultery and bad character, the learned court below was influenced by such decree to hold the appellant to be in the fault in maintaining the conjugal relation between the two. 10. His further submission is that as there was a previous decree against the appellant Smt. Moutushi Bhattacharjee for divorce by her previous husband on the ground of adultery and bad character, the learned court below was influenced by such decree to hold the appellant to be in the fault in maintaining the conjugal relation between the two. 10. A decree of divorce/nullity of the marriage was pleaded from the side of the appellant on the following grounds- (i) That there was suppression of material facts regarding qualification and status of the respondent Barun Kumar Bhattacharjee at the time of marriage and as such fraud was practiced on the appellant and her parents in arranging the marriage with Barun Kumar Bhattacharjee. (ii) That soon after the marriage, the appellant came to know that the respondent had a previous wife having a female child. (iii) That the appellant was subjected to torture and humiliated when she raised her voice about the existence of the first wife of the respondent and that being unable to bear such torture, she had to leave matrimonial home in injured condition and her injuries were examined by family physician. (iv) That the mother of the respondent brought allegation of theft against the appellant which itself is sufficient enough to prove the cruelty against the respondent and his family members. (v) That the criminal case is pending between the two families. 11. On the other hand, the respondents plea for restitution of conjugal rights is (i) that the marriage being not an arranged one and had culminated after long courtship and love affair, there remains no question of giving any false biodata of the respondent to the appellant or her family, (ii) That after the marriage any lived happily as husband and wife for two years and without any rhyme or reason, the appellant had withdrawn herself from the society of the respondent and on ill advice, she filed criminal case against the respondent (iii) That the respondent was agreeable all along to accept the appellant as his wife and he lounged for her association in Conjugal life, (iv) That the existence of first wife of the respondent is myth and concocted story only to malign the respondent and to procures the decree of divorce. 12. 12. The first assertion of the appellant regarding practising of fraud on the family members of the appellant by the respondent and his mother, the learned court below wrote a lengthy finding and he mainly based his finding to the effect that the marriage was a culmination love affairs an not an arranged one and as such question of practising fraud does not arise. Even if the marriage is a resultant of long courtship and love affairs then also it cannot be said that there cannot be any practising of fraud. Even at the time of courtship or making love, the spouses try to show off their goods to get hero-worship from the other spouse and in that way there may be a case of false impression of the status and educational qualification of the respondent. On the fact of it, it appears that social status of the two families are not at par. The appellant is a highly educated lady coming from high literate class of society while the respondent is from a business family having little educational qualification. In that view of the matter, definitely from the very beginning there was no adjustment between the spouse and if the respondent had given any false impression about his qualification and social status and where the falsity came to light just after the marriage, then definitely the appellant would be broken hearted and that also to some extent goes to support the charge of cruelty against the respondent. It is true that from the evidence adduced and the facts and circumstances revealed, it could be found that it was not an arranged marriage but it was a love marriage which was registered under the special Marriage Act not at Ranchi but in Calcutta. In that view pf the matter, practising of fraud for the purpose of violability of the marriage has got no substance but that fact of showing of equality of status and educational qualification might cause mental cruelty to the appellant. 13. About the existence of first marriage of the respondent, there is pritna-facie proof from the side of the appellant by producing voter list, admission register of Anamika Bhattacharjee and the oral evidence of the appellant and her father. There is denial from the side of the respondent. 13. About the existence of first marriage of the respondent, there is pritna-facie proof from the side of the appellant by producing voter list, admission register of Anamika Bhattacharjee and the oral evidence of the appellant and her father. There is denial from the side of the respondent. It is true that prima-facie burden of proving the allegation is on the person who alleges the same but when prima-facie the allegation is found to be proved then the burden shifts to the adversary regarding denial. In the present case, it appears that the respondent had produced an affidavit alleged to be sworn by Mrs. Manjri Bhattacharjee. In that affidavit, it could be found that the other biodata of the respondent tallies with the description of the husband of the deponent except the name of the father of Barun Kumar Bhattacharjee with alight difference. The real name of his father is B.G. Bhattacharjee while in the affidavit it was mentioned as B.J. Bhattacharjee. That might be a typographical error and that could have been clarified only if Manjari Bhattacharjee was examined in the case. This affidavit has got no value unless and until the deponent is subjected to cross-examination. She was summoned but she did not appear. The presumption goes against and in favour of the appellant. It appears that the leaned court below by a long order rejected the prayer of cross-examination of Manjari Bhattacharjee and her production from the side of the respondent on the ground that as earlier marriage was alleged by the appellant, she is to prove such allegation and she cannot take advantage of cross-examining the deponent. But it appears that the learned court below approached the matter in wrong angle. It is true the prima-facie. She is to prove the allegation not doubt but when the affidavit is coming from the side of the respondent, then the appellant has got the right to cross-examine the deponent before such affidavit can be relied on or taken into consideration. When an affidavit was filed from the side of the respondent, then it becomes clear that he wanted to rely on it by citing the deponent as his witness and as such rightly there arose the. right to cross-examine from the side of the adverse party. When an affidavit was filed from the side of the respondent, then it becomes clear that he wanted to rely on it by citing the deponent as his witness and as such rightly there arose the. right to cross-examine from the side of the adverse party. Finding difficulty in the matter, the learned Advocate for the respondent had given up the affidavit for consideration during the course of argument as has been asserted from the side of the appellants counsel, Mr. P.S. Dayal. 14. Regarding torture, there is evidence of the appellant and her father as O.W. 2, the medical report regarding the injury caused on the person of the appellant was disbelieved as the doctor was not a General Physician but a Heart Specialist. Specialization in a medical profession is an extra qualification of the doctor but basically he remains a general Physician having M.B.B.S. degree and it was stated in the evidence that the doctor was a family Physician of the appellant. He might be a Heart Specialist but he is also having a qualification of General Physician and he is definitely entitled to give a certificate after examining the injuries on the person of the appellant could not be proved. 15. The mother of the respondent brought allegation of there of ornament against the appellant is clear from the letter/notice given by the addressed to the father of the appellant. Unless that allegation has got any basis, the same is sufficient for an educed lady to detach herself from the matrimonial home and to live separately on the ground of humiliation and cruelty. Such sort of false allegation forms a part of mental cruelty. The appellant could not prove prima-facie the grounds for her living apart from the husband and the materials brought on record could show that the matrimonial home had already been broken and it has been admitted by the respondent in his evidence that afterwards matrimonial home became totally unhappy." There is also criminal case wherein there is allegation of dowry etc., filed by the appellant against the respondent and his mother and the same is now pending before the criminal court. In view of such circumstances as discussed above and the evidence adduced by the appellant, it can be found that there was no scope of mental advisement between the spouses and as such they were living apart. In view of such circumstances as discussed above and the evidence adduced by the appellant, it can be found that there was no scope of mental advisement between the spouses and as such they were living apart. Even at the stage of reconciliation by the learned court below, all the attempts proved futile. 16. Divorce amongst the Hindu spouses has now become liberalised inspite of its connect of sacrament. There is also inclusion of Sec. 13(B) of the Act by which liberty was given to the spouses to have mutual divorce without even having proof of the grounds shown under Sec. 13 of the Act. In the present case, it could be found that the relationship between the spouses have become strained to such an extent that there is no scope to get them united and a decree of restitution of conjugal rights would only prove a futile attempt to get the marriage knot intact. In such sort of cases, it is desirable that the court should go deep into the matter and to the whether the lives of the spouses are going to be benefited by such a decree being passed. A decree of restitution of conjugal rights when the spouses have no intention to keep the conjugal life alive or continue is nothing but a futile attempt. In the circumstances of the case when the matrimonial home has totally been broken and when the allegations brought by the appellant have been generally proved may not be to the hilt, then a decree of divorce is desirable to disrupt the marriage not between the two ant to allow the spouses to lead their independent lives according to their own sweet will and choice. 17. In the present case, there is no issue between the two and in that case, there is difficulty to get them separated if the decree of divorce is passed. Mr. Dayal has given up the prayer for maintenance as according to him, his client has already establishment herself in her life. There was also a previous divorce bringing allegation of adultery against the appellant by her previous husband can have no bearing in the case because there is not an iota of allegation from the side of the respondent that he was not aware of the said fact that the appellant was a divorce. There was also a previous divorce bringing allegation of adultery against the appellant by her previous husband can have no bearing in the case because there is not an iota of allegation from the side of the respondent that he was not aware of the said fact that the appellant was a divorce. Moreover knowing all the affairs, he is still ready to keep her as his wife and to maintain conjugal life which shows that the respondent must have condoned the appellants fault even if that was true. The impugned judgment shows that the learned court below was much influenced by such ex-parte divorce. If the adultery of the appellant as alleged by her previous husband was not contested by the appellant, that need not go to establish her adulterous life unless there are such imputations against her in this proceeding and even if that was true also, then the same had been condoned from the side of the respondent when he contested marriage with her knowing everything about her. 18. In the result, both the appeals are allowed. The degree of restitution of conjugal rights filed under Sec. 9 of the Act is hereby set aside and a decree under Sec. 13 of the Hindu Marriage Act is granted in favour of the appellant by breaking the marriage the between the spouses by decree of divorce. In the nature and circumstances of the case, no order as to costs. 19. Before parting with the records, I must observe that the parties are now free to choose their mode of life of their own choice.