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2017 DIGILAW 894 (GAU)

JAYANTA PAUL v. RUMI DEY

2017-07-11

AJIT SINGH, MANOJIT BHUYAN

body2017
JUDGMENT : Ajit Singh, J. This appeal under section 39 of the Special Marriage Act, 1954 has been filed by the husband Jayanta Paul-challenging the legality and validity of the impugned judgement and decree dated 15.10.2015 passed by the District Judge, Kokrajhar in Title Suit (D) 32/2015 dismissing the petition filed by him for divorce under section 27 of the Special Marriage Act, 1954. 2. The brief facts are these. The appellant married the respondent Rumi Dey on 20.7.2006 under section 13 of the Special Marriage Act, 1954, which was followed by a marriage as per Hindu rites and customers. Thereafter wife started living together with the husband in his house till 21.12.2007 on which date she deserted him and started living with her parents. The husband visited the house of her parents in the month of July, 2008 and persuaded her to live with him. Later, as desired by wife to live separately from the parents of husband, they started living in a rented house. After 2 months, i.e. on 8.1.2009, the wife again left the company of husband without his consent and since then she has been living with her parents till date. The husband visited the house of her parents on 15.1.2009 and tried to persuade her to return but in vain. All the efforts made by him became futile and as such finding no alternative he filed the suit for divorce. 3. When the notice of the case was sent to wife she refused to accept the same on 18.8.2015 and as such the suit proceeded ex-parte. Husband adduced his evidence as PW1and the evidence of his father-Sambhu Nath Paul-as PW2. The process server Rajiv Narzary was also examined and he deposed that wife refused to accept the notice. However, the District Judge dismissed the suit by way of the impugned judgement and decree as aforesaid, holding inter-alia that the desertion by wife has not been proved and the husband made no bona fide attempt to bring her back home. Being aggrieved, the husband has filed this appeal. 4. After hearing the learned counsel for the parties and perusing the records, we find sufficient merit in the appeal and as such it deserves to be allowed. Being aggrieved, the husband has filed this appeal. 4. After hearing the learned counsel for the parties and perusing the records, we find sufficient merit in the appeal and as such it deserves to be allowed. Husband has categorically deposed that wife had deserted him on 21.12.2007 and thereafter he went to the house of her parents in July, 2008 and persuaded her to live with him. Later, when she desired and demanded to live separately in a rented house, he also accepted that proposal and even took a house on rent. They stayed there upto 8.1.2009 on which date wife again deserted him and started living with her parents. It is his categorical statement that appellant visited the house of her parents on 15.1.2009 and requested her to come back home but in vain and since then, she has been staying there. His evidence is also supported by the evidence of his father Sambhu Nath Paul and as such it is clear that the he made repeated attempts to bring the wife but she did not return. The evidence of the process server would also go to show that respondent refused to accept the notice when he went to serve the same. Therefore, it is apparent that respondent deserted the appellant without any justifiable cause and also evaded service of notice of the Court. It is also proved that the appellant made several attempts to bring her back but she did not return. The contention of the husband that the wife deserted him without any justifiable reason and she did not return home in spite of repeated attempts made by him also remained un-rebutted by the wife and therefore it can safely be inferred that she deserted him and did not return in spite of several attempts made by him. 5. Only because of the fact that but for the husband's father no elderly person went to bring her back cannot be a ground for refusing a decree of divorce on the ground of desertion when there is ample material on record to show that wife deserted the husband without any justifiable cause and she refused to come back home in spite of repeated attempts made by him. 6. 6. Although, it has been prayed on behalf of the wife that matter may be remanded to the trial Court for adjudicating afresh, we do not find any reason to do so, since she refused to accept the notice and thus, avoided the proceedings intentionally and remanding the matter to the trial Court would further delay the process and linger the litigation. 7. Accordingly, the impugned judgement and decree is set aside. The suit is allowed and the decree of divorce is passed dissolving the marriage between the parties. We also direct the husband to pay permanent alimony of Rs. 5 lacs to the wife which he has readily agreed to deposit with the Registry of this court within 2(two) months from today. 8. The appeal is allowed and decree be prepared accordingly.