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2013 DIGILAW 687 (MP)

Arun Mishra v. Priyanka Shukla

2013-06-20

ANIL SHARMA, RAJENDRA MENON

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JUDGMENT : Record indicates that even in Court below where the proceedings were held under Section 13 of the Hindu Marriage Act, respondent-wife remained ex-parte. 2. This appeal has been filed under Section 19 of the Family Court Act and challenge in this appeal is made to a judgment and decree dated 24.12.2009 passed by the First Additional Principal Judge, Family Court, Jabalpur in Civil Suit No. 14-A/2009 by which an application filed by the appellant for dissolution of the marriage under Section 13 of the Hindu Marriage Act has been dismissed. 3. Facts that have come on record goes to show that marriage between the parties in question was solemnized on 27.5.2005 as per Hindu Customary rites in Rewa. Thereafter it is the case of the appellant that the respondent-wife stayed for sometime in Rewa but after a period of 10 months it is alleged that the respondent-wife left Rewa and came to Jabalpur and started living separately. It was indicated that she is a BAMS passed Doctor and after coming to Jabalpur she started working in a hospital in Jabalpur and was not interested in staying with the appellant. That apart, contending that inspite of reports made on11.1.2008 and request made on 16.1.2008, respondent-wife was not coming forward to live with her husband, therefore, on the ground of desertion so also on certain other ground the application was filed for dissolution of the marriage. On notice being issued by the Family Court, respondent- wife did not appear and remained ex-parte. However, appellant examined himself and one more witness in support of his contention. The learned Court found that merely because respondent-wife is ex-parte it cannot be a ground for grant of divorce. The learned Court while answering issue No.2found that the period of two years of desertion is not over and therefore, on such ground the marriage cannot be dissolved. Accordingly, holding that the period statutory required for separation i.e. two years is not over and grounds alleged in the application are not established, the application was rejected. 4. Now the appellant points out that the period is already over. Inspite of notice issued by this Court, neither the respondent-wife appeared for participating in the process of reconciliation nor has she shown any interest in living with the appellant. 4. Now the appellant points out that the period is already over. Inspite of notice issued by this Court, neither the respondent-wife appeared for participating in the process of reconciliation nor has she shown any interest in living with the appellant. It is pointed out that respondent-wife herself had filed a separate application for dissolution of marriage before the Family Court at Jabalpur being Suit No.36-A/2008- Smt. Priyanka Shukla Vs. Arun Mishra and due to for want of prosecution, the same was dismissed on 17.4.2008 as is evident from documents available from page No.14 of the paper book. Accordingly, Shri G.P. Singh submits that no was for a period of more than two years respondent-wife has deserted the appellant and is living separately and her conduct goes to show that she herself is interested in living with the appellant and therefore, marriage be dissolved. 5. Having heard learned counsel for the appellant and on going through the record, it is clear that the respondent-wife left the appellant on or around 11.1.2008and since then she has not cared to come back and live with him. When the impugned judgment was pronounced by the learned Court below on 24.12.2009 and when the proceedings were pending before learned Court below the period of two years required for dissolution of marriage on the ground of desertion was not made out and therefore, learned Court below has dismissed the application but now the period of two years have passed and in fact after passing of the order on 24.12.2009 more than three years have passed and conduct of respondent-wife in these proceedings shows that she is not at all interested in living with the appellant nor is she coming forward to represent in the matter. She has neither participated in the process of conciliation nor is she interested in contesting the appeal. On the contrary record indicates that she herself has initiated a proceeding for divorce by instituting a separate suit bearing Suit No.36-A/2008 in the Family Court at Jabalpur and on 17.4.2008 the same was dismissed for want of prosecution. 6. Taking note of the totality of the circumstances and the fact that the respondent-wife has failed to stay with her husband since 11.1.2008, a case of desertion by her for a period of more than four years is made out and accordingly is a good ground for dissolution of marriage. 7. 6. Taking note of the totality of the circumstances and the fact that the respondent-wife has failed to stay with her husband since 11.1.2008, a case of desertion by her for a period of more than four years is made out and accordingly is a good ground for dissolution of marriage. 7. Accordingly, this appeal is allowed. Marriage between the parties stands dissolved in view of desertion as has been established. Decree be prepared accordingly. 8. Appeal stands allowed and disposed of.