JUDGMENT Rudrendra Nath Banerjee, J. This appeal arises out of the judgment and decree passed in Matrimonial Suit No. 48 of 1998 of the Court of learned Additional District Judge, First Court, Alipore, South 24-Parganas, under section 27 of the Special Marriage Act, 1954, thereby dismissing the suit on contest with costs. 2. The case of the petitioner/appellant/husband, Atanu Das, is that he married Smt. Soma Das, the respondent under Special Marriage Act, on 4th February, 1988. After such marriage, they began to live as husband and wife peacefully in the rented house at Satindra Palli, PS Regent Park, Kolkata. It may be noted that the elder brother of the appellant married the respondent's sister prior to their marriage. The appellant was an employee under the Postal Department and was appointed on compassionate ground on the death of his father. In the year 1992, the appellant was detected to suffer from Pulmonary Tuberculosis and he remained admitted in the hospital at Kalyani; Nadia from 13th October, 1992 to 22nd July, 1993. After a few days of his admission in the hospital, a daughter was born in the wedlock on 28th October, 1992. After the birth of the child, the respondent/wife began to reside at her father's place at Haltu, PS Kasba. The appellant/husband after discharge from the hospital went to his father-in-law's place for bringing back his wife and daughter, but the respondent's mother refused to send her daughter. Ultimately, on 7th June 1994, the respondent came back to her matrimonial home, but began to insist on selling the appellant's land and purchasing another house nearer to her father's place, to which the husband disagreed. This gave rise to quarrel between them. Ultimately, on 16th June, 1994, the respondent left for her father's place again along with her daughter, and thereafter, despite further requests by the husband and his relatives and friends, and sending of lawyer's letter, she did not come back. The respondent treated her husband with cruelty and his family members and also deserted him, for which the appellant filed this suit for dissolution of the marriage under section 27(1) of the Special Marriage Act, 1954 on the ground of cruelty and desertion. 3. The respondent treated her husband with cruelty and his family members and also deserted him, for which the appellant filed this suit for dissolution of the marriage under section 27(1) of the Special Marriage Act, 1954 on the ground of cruelty and desertion. 3. On the other hand, the respondent/wife's case, as made out in the written statement, was that the respondent wanted to go to her matrimonial home with the child, but the petitioner and his family members never agreed to bring back his wife when she had to bring a case for maintenance for herself and her child under section 125 Cr. PC. In fact, the respondent wanted to live with her husband at her matrimonial home, but the appellant advised her to go to her father's place along with the child. The husband himself being the wrongdoer, the respondent cannot be said to have dealt the appellant with cruelty nor can she be said to have deserted her husband. 4. The parties have examined themselves as sole witness from his or her end, that is to say, the appellant examined himself as P.W.1 and the respondent examined herself as the D.W.1. 5. The learned Court below after considering the evidences came to the conclusion that the appellant has failed to prove that the respondent has been living separately for more than 2 years and the ground of cruelty was also not proved. It has been also observed by the learned Court below that the act of desertion, as pleaded by the petitioner does not come within the preview of section 27(1)(b) of the Special Marriage Act. 6. Being aggrieved by and dissatisfied with such judgment and decree passed by learned Court below, the appellant/husband has preferred this appeal. 7. Mr. Ashis Chandra Bagchi, learned Advocate for the appellant, has contended that the Court below erred in holding that the appellant failed to prove cruelty and desertion by the wife as a ground for dissolution of marriage. According to Mr. 7. Mr. Ashis Chandra Bagchi, learned Advocate for the appellant, has contended that the Court below erred in holding that the appellant failed to prove cruelty and desertion by the wife as a ground for dissolution of marriage. According to Mr. Bagchi, the conduct of the wife and her stay in her father's place after the husband was admitted in the hospital having suffered from T.B. and after the birth of the daughter, her stay at her matrimonial home for a short period from 7th June, 1994 to 16th June, 1994 itself is an act of cruelty and since then, her stay at her parents' place along with the child even after such return of the husband from the hospital constitutes desertion. 8. Mr. Anit Kumar Rakshit, learned Advocate appearing for the respondent/wife has pointed out that as per advice of the husband, the wife left for her parents' place and such living in that place cannot be termed as desertion or cruelty. According to him, the Court below was justified in refusing the appellant's prayer for divorce. 9. The P.W.1, the husband himself, has stated that out of love affairs he married the respondent and after such marriage, on the premature death of his father, he got the service in the Postal Department on compassionate ground. The mother of the respondent was pressing upon him to reside at her house, to which the appellant did not agree. Thereafter, he was admitted in the T.B. Hospital at Kalyani in September, 1992 and the daughter was born immediately after he was admitted there. The respondent along with the newly born daughter went to her father place. Even after his return from hospital in July, 1993, despite his request, the respondent did not come back to his place. Rather, she moved the Criminal Court for maintenance. He suffered mental shock due to such behaviour of the respondent. He has also stated that since June 1994, they were not in contact with each other. He has been paying Rs. 1,800/- per month for maintenance of his wife and daughter, as per order under section 125 of the Cr. PC. 10. The respondent, as D.W.1 has stated in her cross-examination that after the birth of her daughter about 15 days after the admission of the husband in the hospital in the month of September, 1992, she left for her matrimonial home. PC. 10. The respondent, as D.W.1 has stated in her cross-examination that after the birth of her daughter about 15 days after the admission of the husband in the hospital in the month of September, 1992, she left for her matrimonial home. Undisputedly, the respondent returned to her husband's place along with her daughter on 7th June, 1994 that is long after the return of the husband from hospital. The respondent, as D.W.1, has also admitted that she is in her father's house since 16th June, 1994 along with her daughter. She has of course alleged that her husband used to inflict physical torture upon her and he did not even like her visit to her father's house. She has further alleged that whenever there was any quarrel, her husband used to stop cooking and also used to remain without food and compelled them to remain without food and that her husband was addicted to wine, and in case of her return to her matrimonial home he would have killed her. Such statements do not find place in the written statement of the wife and specially in absence of any corroborative evidence, such statements cannot be said to have been proved. Even her mother or any neighbour has not been examined by the respondent/wife. 11. According to the wife, after the marriage her husband suffered from T.B. and for such ailment, he was admitted in the Kalyani Hospital. But she did not visit her husband at the hospital and she went to her father's place for giving birth of the child on the advice of the husband himself. It is also admitted in her cross-examination that even after 22nd July, 1993, while her husband returned from the hospital and began to stay at a rented house she did not visit his place. She even did not keep any relation with him. It is also admitted that her husband came to him, but she did not accompany him to her matrimonial home. It is further admitted by her as D.W.1 that on 24th January, 1996, she received a lawyer's letter from the husband. She has admitted that at the time of reconciliation proceedings in the Court below, she refused to go to her husband, as there was question of losing her life. It is further admitted by her as D.W.1 that on 24th January, 1996, she received a lawyer's letter from the husband. She has admitted that at the time of reconciliation proceedings in the Court below, she refused to go to her husband, as there was question of losing her life. She even did not make any complaint to anybody that her husband was addicted to drink or that he made any torture upon her. 12. There is no other evidence from any side to corroborate their respective statements. The respondent/wife did not examine her mother to deny the husband's allegation that she refused to send her back to the matrimonial home. In absence of any corroborative piece of evidence, allegation of the respondent/wife to the effect that the husband inflicted any sort of torture upon her during her stay at her matrimonial home, cannot be believed. Even if we accept that on the advice of the husband she went to her father's place, while he was admitted in hospital at Kalyani, there is no dispute that the husband requested her to come back to her matrimonial home or the rented house which the husband took after their marriage. There is also no dispute that the wife even did not visit her husband in the hospital during his stay in the hospital for about 10 months. She even after his return from the hospital did not care to come back to her husband. Although, she came back to her husband's place in 1994, she stayed with him for 10 days only. Such act of the wife to an ailing husband definitely constitute cruelty under the law. 13. Admittedly, the wife left her husband from 16th June, 1994 and thereafter, she did not come back despite request and even upon receipt of lawyer's letter. Ultimately, the petitioner/husband had to file the instant suit for divorce on 7th August, 1998. In the meantime, the wife without going to her matrimonial home obtained an order of maintenance for herself and her minor daughter, at present, by arithmetical calculation, aged about 15 years. 14. Ultimately, the petitioner/husband had to file the instant suit for divorce on 7th August, 1998. In the meantime, the wife without going to her matrimonial home obtained an order of maintenance for herself and her minor daughter, at present, by arithmetical calculation, aged about 15 years. 14. The Court below has observed upon such evidence that the respondent did not wilfully desert the petitioner; rather her deposition goes to show that prior to receipt of lawyer's letter from the end of the husband she went to her husband with her daughter and that the petitioner has not been able to establish by any positive evidence about such desertion. 15. We have already discussed evidence on record and found that the onus upon the wife to establish that the husband inflicted mental and physical torture upon her at her matrimonial home, has not been discharged by any other evidence and accordingly, could not be proved. Rather, it is her admission that she left her husband's place in the month of June, 1994, after staying with him for 10 days only. The circumstances go to indicate that the allegations of the husband regarding cruelty of the wife and desertion by her have been quite established. Learned Court below obviously erred in holding that there was no such desertion or cruelty and overlooked the specific admission by the wife herself as D.W.1. It is also not correct to say that the desertion is not a ground for divorce under section 27(1)(b) of the Special Marriage Act. 16. Considering all such circumstances, we are of the view that the Court below ought to have passed a decree of dissolution of marriage between the parties on such grounds. 17. Upon such evidence on record, as discussed above, it cannot be said that the husband was wrongdoer and was taking advantage of his own wrong and praying for decree of divorce. Learned Court below, upon such evidence on record erred in holding that the wife had no intention to abandon her matrimonial home and rather, the petitioner/ husband compelled her to take shelter at her father's home. Such finding is obviously a perverse one being based on no evidence. 18. It is true that the appellant/husband has got a daughter presently at the age of 15 years. She is a school going child and the respondent/wife has got no independent income of her own. Such finding is obviously a perverse one being based on no evidence. 18. It is true that the appellant/husband has got a daughter presently at the age of 15 years. She is a school going child and the respondent/wife has got no independent income of her own. As she is all along staying with her mother, it will be for the benefit and well being of the child not to disturb the custody at this stage. Considering the circumstance she should be kept with the mother. Of course, the father shall have the right to visit her from time to time. 19. As we are going to pass a decree of dissolution of marriage we are not unmindful to the fact that the respondent/wife has got no income of her own and she and the child require a permanent arrangement for their maintenance. On our direction, the appellant produced his pay slip for the month of October, 2008 from which it is found that he draws a gross salary of Rs. 23,055/- a month, out of which, he contributes Rs. 10,000/- a month towards GPF. In such circumstances, his monthly income should be treated to be Rs. 20,000/- a month. It is the settled principle of law that in such a case, the alimony may vary from 1/5th to 1/3rd of the income of the husband for each of the wife and daughter. Considering the necessity of the wife and the daughter for their maintenance, it will be safe to grant a permanent alimony of Rs. 4,000/- a month for the respondent and a further sum of Rs. 4,000/- towards the maintenance and educational expenses for the daughter i.e. total Rs. 8,000/- a month until further order. 20. We, accordingly, grant such permanent alimony in favour of the respondent/wife and the expenses for the maintenance and education for her daughter Raya Das. The appellant /husband is directed to pay such alimony at such rate with effect from the month of November, 2008 and he shall go on paying the same by cheque in the name of the wife by the 10th of every month, the first payment being payable by the month of November, 2008. So long such payments are made the appellant need not comply with the order passed under section 125 Cr. PC any further. 21. So long such payments are made the appellant need not comply with the order passed under section 125 Cr. PC any further. 21. Accordingly, the marriage between the petitioner/husband and the respondent/wife is dissolved by way of a decree of divorce. 22. The judgment and decree passed by learned Court below are hereby set aside. 23. Accordingly, the appeal is being allowed. There shall be no order as to costs. Urgent xerox certified copy be given to the parties expeditiously, if applied for. Bhaskar Bhattacharya, J.: I agree. Appeal allowed.