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2004 DIGILAW 302 (JHR)

Somen Kumar Choudhury v. Pranati Choudhury

2004-03-22

P.K.BALASUBRAMANYAN, TAPEN SEN

body2004
ORDER 1. Heard both sides. 2. This appeal is filed by the husband who had applied for divorce under Section 13(1)(i-a) and (i-b) of the Hindu Marriage Act, 1955 (the Act). Admittedly the marriage was solemnized between the appellant and the respondent and it was consummated. The wife became pregnant. She was taken to the house of her parents for delivery as per the custom, according to the husband, on 18.12.1996. According to the wife, she was driven away from the matrimonial home by the husband and the cruelty of his father, examined as PW 2 and she was being tortured for dowry. The wife gave birth to baby girl on 23.2.1997. According to the husband she had not come back after delivery in spite of his repeated requests to her. She had taken a decision not to come back to her matrimonial home. He had gone several times to persuade her to come and live with him, but the wife had refused to live with him. Since she had no intention to return to the matrimonial home and they had been living separately for more than two years, he was entitled to a decree on the ground of desertion. 3. The wife, while contesting the claim admitted that she had not gone back to the matrimonial home after the baby girl was born on 23.2.1997. According to her because of the cruel behaviour of her husband and father-in-law, she had not gone back to her matrimonial home. She stated in her evidence definitely that she did not want to live with her husband. 4. The Trial Court found that it was not possible to accept either of the interested versions fully. The husband and the wife got examined and they were supported in evidence by their respective fathers. The evidence was found by the Trial Court to be inadequate to definitely find either a case of cruelty or a case of desertion. The Court below took note of the fact that the wife was not interested in going back to the matrimonial home and resuming cohabitation with the husband. It dismissed the suit. 5. We have gone through the pleadings and the evidence in the case. On going through the relevant materials in the light of the submissions made, we are not satisfied that the Trial Court was in error in its conclusion that no cruelty was established. It dismissed the suit. 5. We have gone through the pleadings and the evidence in the case. On going through the relevant materials in the light of the submissions made, we are not satisfied that the Trial Court was in error in its conclusion that no cruelty was established. But at the same time it is clear that the husband and wife had started living apart from each other for a period exceeding two yeas. It is clear from the evidence that the husband had tried to persuade the wife to come back to the matrimonial home, but she, in her evidence, very clearly stated that she does not have the intention to return to her matrimonial home. In other words, there is no animus revertendi. They had lived apart from more than two years, coupled with the intention on the part of the wife not to return to the matrimonial home and resume cohabitation. In this situation, we think that we would be justified in granting a decree for divorce on the ground of desertion on the facts and in the circumstances of the case. Even now the spouses are not interested in living with each other and the fact has also to be taken note of. In that situation we are inclined to reverse the finding of the Trial Court and hold that the husband had made out a case of divorce under Section 13(1)(i-b) of the Hindu Marriage Act. 6. Admittedly there is a girl child born in the wed lock. There is a clear obligation in the husband, her father, to look after the child. In that situation, it appears to us to be necessary to pass an order imbibing the spirit of Sections 25 and 26 of the Hindu Marriage Act which provides for maintenance to the child. Therefore, we are inclined to order the payment of monthly maintenance to the child by the father the appellant before us. Taking note of the circumstances as a whole and based on whatever little material that is available on the record and the needs for a growing female child in the modern world and need to meet her educational needs, we think that an order to pay Rs. 2,000/- (Rupees two thousand) per month towards the maintenance of a girl child until she gets married would be proper. 2,000/- (Rupees two thousand) per month towards the maintenance of a girl child until she gets married would be proper. While, therefore, we allow the appeal and grant a decree of divorce to the husband on the ground of desertion, we direct the husband to pay a sum of Rs. 2,000/- per month towards the maintenance of the child and to pay the amount regularly every month before the fifteenth day of the following month. The liability to pay will continue until the child gets married. We direct the mother, the wife to open a Savings Bank Account in the name of the minor girl in any nationalized bank and issue a notice to the appellant regarding that fact. The appellant will thereupon deposit the monthly maintenance payable before the fifteenth of the succeeding month. The maintenance will be paid from 1.1.2004. The arrears for the months of January, February and March, 2004 will be paid by the husband on or before 31.5.2004 and the maintenance from April, 2004 will be paid by the fifteenth of the succeeding month. 7. The appeal is allowed and a decree as above for divorce and for payment of maintenance is passed.