Judgment : RUDRENDRA NATH BANERJEE, J. (1). THIS appeal is directed against the judgment and decree of divorce passed in MAT Suit No. 47 of 2001 of the Family Court Calcutta on the ground of cruelty and desertion by the appellant/husband. (2). THE respondent/ wifes case in the Court below can be summed up as follows: The petitioner/wife, Chaitali Banerjee got married with the appellant, Dr. Tamal Kumar Banerjee, according to Hindu rites and customs on August 10, 1990, the marriage having taken place at a rental house at 41/4a Bagbazar street, Kolkata - 3 and after the marriage the said husband and wife began to live at 28/6, Pottery Road, Kolkata. (3). THE appellant/husband had been treating the wife with cruelty since the solemnization of marriage. He also demanded dowries and forced the wife to procure the items like revolving chair and table of godrej make and other wearing apparels from her fathers place. On May 7, 1992 the husband abused and beat the respondent/wife and confined her in a locked room without food and water and ultimately, on May 13, 1992 the wife was driven out of her matrimonial home at 28g Pottery Road, Kolkata. In the year 1992, the husband filed the MAT suit No. 126 of 1992 in the City Civil Court at Calcutta for divorce. Thereafter, on the husbands prayer before this High Court, the proceeding was transferred to this High Court under clause 13 of the Letters Patent 1865 and the suit was registered as Extraordinary Suit No. 21 of 1993 and ultimately, the parties entered into a settlement and the suit was dismissed for non-prosecution vide order dated July 11, 1994. One of the terms of settlement was that the parties would reside together at a place different from the place of the in-laws of the wife. Then, the parties began to live at 49, Shyamnagar Road, P. S. Dum Dum, Calcutta. (4). BUT the appellant/husband deliberately and wilfully abandoned the wife with the child in her womb and the wife began to stay at her matrimonial home at 49 Shyamnagar Road. On December 13, 1995 a male child was born in the wedlock, but the husband did not make any contact with her and the child. (4). BUT the appellant/husband deliberately and wilfully abandoned the wife with the child in her womb and the wife began to stay at her matrimonial home at 49 Shyamnagar Road. On December 13, 1995 a male child was born in the wedlock, but the husband did not make any contact with her and the child. Thus, the husband having deserted the wife for a continuous period for not less than two years and there being no possibility of reunion for all practical purposes, the wife, as petitioner, filed the instant Mat Suit No. 47 of 2001 in the Family Court at calcutta for a decree of dissolution of marriage by a decree of divorce on the ground of cruelty and desertion. (5). AS against such case of the petitioner/wife, the husband filed the written statement contending, inter alia, that although after the solemnization of marriage they used to live as husband and wife at Pottery Road, Kolkata, in the month of October, 1992, she left her matrimonial home permanently. Thereafter, they again began to reside as husband and wife at Shyamnagar Road, Kolkata since February, 1995. But, ultimately on 25th September, 1995, the wife left such place permanently. In the meantime, the wife had already taken back all her belongings including the marriage presentations from her matrimonial home without the consent of her husband. The husband has denied the story of cruelty or misbehavior by him upon the wife, and also denied the story of desertion. He has also stated that he was not in a position to pay Rs. 6,00,000/- as demanded by the wife. He does not want to dissolve the marriage tie between him and his wife due to the child. However, out of mental agony, the husband had been seeking for mental peace and is visiting from shelter to shelter in various religious organizations like ISKON, Belur Math, Ramkrishna Ashram, Yogada. According to him, it is the wife who has deserted him. It is also his case that he has been suffering from various ailments. (6). LEARNED Court below framed as many as five issues and also recorded the deposition of the parties as P. W. 1 and D. W. 1. During the pendency of the suit, the wife filed an application under Section 24 of the Hindu Marriage Act, 1955 and prayed for maintenance for herself and her child and the litigation cost. (6). LEARNED Court below framed as many as five issues and also recorded the deposition of the parties as P. W. 1 and D. W. 1. During the pendency of the suit, the wife filed an application under Section 24 of the Hindu Marriage Act, 1955 and prayed for maintenance for herself and her child and the litigation cost. The husband filed written objection against such prayer. (7). LEARNED Court below in the judgment observed that due to lack of cooperation of husband they could not live together and that the parties did not stay together to lead a normal matrimonial relation. It was further observed that the husband was an able-bodied man. Specially, in view that he can take the strain of being Sannyashi he can continue his medical practice. Learned Court below also observed that by such medical practice, the husband earns Rs. 10,000/-per month and accordingly, the learned Court below allowed the prayer for maintenance to the tune of Rs. 4500/- per month for the wife and the child and also granted litigation costs of Rs. 3000/ -. Along with such order of maintenance learned Court below dissolved the marriage by a decree of divorce under Section 13 (1) (ia) (ib) of the Hindu Marriage Act. (8). BEING aggrieved by and dissatisfied with such judgment of learned Court below the husband has preferred this instant appeal. Mr. Goutam Chakraborty, learned Advocate for the appellant/husband has contended that neither the judgment of the Court below holds nor the evidence recorded by learned Court below goes to establish the grounds for divorce like cruelty and desertion by the husband. Mr. Chakraborty has further contended that the decree of divorce and the order of maintenance and litigation costs are unjustifiable and should be set aside. (9). LET us now have a glance to the oral and documentary evidence on record adduced by both sides. The wife has examined herself as P. W. 1. According to her, she got married with the appellant on August 10, 1990 and in their wedlock a male child was born. In or around middle of 1991, the husband left her at her fathers residence and thereafter, she received a notice of matrimonial suit filed by her husband at City Civil Court, Calcutta. She was awarded maintenance of rs. 1000/-per month. The said suit was transferred as extra ordinary suit No. 21 of 1993. In or around middle of 1991, the husband left her at her fathers residence and thereafter, she received a notice of matrimonial suit filed by her husband at City Civil Court, Calcutta. She was awarded maintenance of rs. 1000/-per month. The said suit was transferred as extra ordinary suit No. 21 of 1993. The said suit was ultimately dismissed for non prosecution and in the said suit it was decided that they should live elsewhere than his house and accordingly, they began to live at 49 Shyamnagar Road since February, 1995 and thereafter, they lived there till October 1995. In the mean time, she gave birth of the child. Thereafter, she became ill and was forced to leave the house. The wife has further stated that the appellant/ husband was capable of paying her rs. 6,00000/- at a time and he has avoiding such payment to her. (10). DURING the cross-examination, she has admitted that all the maintenance was paid as per the order of Honble Justice Ruma Paul, (as Her Lordship then was ). During cross examination, the witness has also admitted the receipt of the letter of the husband dated 29th September, 1995 marked Exhibit a and the letter dated 22nd March, 2001 marked Exhibit b, but she did not reply to any such letter. On the other hand, she has written a letter Exhibit d dated May 16, 1994. She has also admitted the correctness of the receipt of the Nursing Home fees dated 18th December, 1995 Exhibit c, which shows that the husband paid the Nursing Home cost for her medical treatment. (11). THUS, from her deposition, it is gathered that she did not speak of any specific act on the part of the husband or her matrimonial relations to show misbehavior or cruelty upon her while residing in her husbands place. Rather the letters Exhibit a dated 29th September, 1995 and Exhibit B dated 22nd march, 2001 both written by her husband go to show his love and affection and responsibility to the said wife. The Exhibit c goes to show payment of Nursing home charges to the tune of Rs. 1297/-, by the said husband on 18th December, 1995. The said wife although admitted the receipt of such letters Exhibit a and b, but, did not care to give reply to such letters atleast to recognize the love and affection of her husband. The Exhibit c goes to show payment of Nursing home charges to the tune of Rs. 1297/-, by the said husband on 18th December, 1995. The said wife although admitted the receipt of such letters Exhibit a and b, but, did not care to give reply to such letters atleast to recognize the love and affection of her husband. The exhibit d is a small letter by the wife admitting that she took some articles from her husbands place in his absence on 16th march, 1992. The Exhibit e is a letter dated 4th August, 1995 by the mother-inlaw of the wife. Such letter speaks of the illness of the said husband. The letter also appears to be with advice to the daughter-in-law by the mother-in-law for keeping peace and good relation with the husband in all respect. There is no evidence on record that the wife ever replied to such letter. (12). THE petitioner/wife has not examined any other witness to speak of torture upon her or by the husband or his relations or to speak of desertion by the husband. (13). THE O.P.W. 1, the husband himself has stated in his evidence that the wife was not intending to spend her life with him at his house and she wanted that he should live at her fathers house as gharjamai. He has also claimed that he has paid the maintenance @ Rs. 1000/- per month to the wife. He has also claimed that it is his wife who has deserted him and has left for her parents house along with her belongings. On many occasions, he wanted to see his son but they did not allow him to do so. It was suggested in his cross-examination that he was practicing as medical practitioner and earning Rs. 15000/- to Rs. 20000/- per month, which the husband denied. (14). THUS, from the evidence led by both sides it appears that the wife who prayed for divorce on the ground of desertion and cruelty, did not say anything in her deposition about such behavior or acts of cruelty of the husband or by her matrimonial relations or that the husband deserted him. Rather it is on record that the husband and his mother wrote letters to her which show their love and affection to her in every corner of the letters. Rather it is on record that the husband and his mother wrote letters to her which show their love and affection to her in every corner of the letters. In the judgment, the learned judge of the Family Court also did not observe any act of cruelty or desertion by the husband based upon the material evidence on record. Practically, in stead of any specific finding about such proof of cruelty and desertion by the husband, learned Court below has simply relied upon some conjectures that, as the earlier suit by the husband for divorce was dismissed for non prosecution and as the said husband had been directed to pay maintenance to the wife, therefore, the wife has got cause of action against the husband and such cause of action has been proved. But the learned Court below overlooked the very admission in para 6 of the plaint that the suit was dismissed for non-prosecution following a settlement between them and that as per terms of such settlement they began to live in the place other than her matrimonial home. Learned Court below, on the basis of such evidence of the wife as P.W. 1, held that the real reason for their not leading the normal matrimonial life was due to lack of cooperation of the husband and as such, the wife was deserted by the husband which compelled her to live at her fathers place. (15). SUCH observation of learned Court below are obviously not based on material evidence on record as mentioned above. Learned Court below made such observations even without framing any issue in this regard. Thus, such decree of dissolution of marriage, appears to be baseless and without any material evidence. The wife, while praying for a decree of divorce, did not lead any convincing evidence to prove the alleged cruelty and desertion by the husband. Rather the evidence on record goes to indicate some ill treatment by the wife which may compel the husband to stay in the shelters of various religious organizations. It will not be irrelevant to say that admittedly, the husband has paid the maintenance to the wife as ordered by this High Court in the earlier suit. (16). THE wife has demanded permanent alimony of Rs. 6,00000/- to which the husband has pleaded his inability to pay. It will not be irrelevant to say that admittedly, the husband has paid the maintenance to the wife as ordered by this High Court in the earlier suit. (16). THE wife has demanded permanent alimony of Rs. 6,00000/- to which the husband has pleaded his inability to pay. Learned Court below held that he is an able-bodied man and can take the strains of being Sannyashi and hence earns Rs. 10,000/-per month. Such income of the husband has been ascertained by the Court without any piece of documentary or convincing oral evidence. However, the decree of divorce being refused the order of maintenance does not stand. The impugned judgment and decree are set aside and accordingly the appeal is allowed. There shall be no order as to costs.