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2018 DIGILAW 1385 (GAU)

Usha Das v. Alok Kumar Das

2018-09-17

A.K.GOSWAMI, AJIT BORTHAKUR

body2018
JUDGMENT : Arup Kumar Goswami, J. 1. Heard Ms. P. Barman, learned counsel appearing for the appellant. None appears for the respondent. 2. This is an appeal under Section 19 of the Family Court Act, 1984, against the judgment and order dated 10.07.2015, passed by the learned Principal Judge, Family Court, Guwahati, in F.C. (Civil) Case No. 471/2010, whereby the application filed by the respondent/husband under Section 13(1)(i)(a) and (i)(b) of the Hindu Marriage Act, 1955 (for short, "the Act"), for passing a decree of divorce was allowed. 3. The marriage between the parties was solemnized on 01.05.1988 as per the Hindu rites and, out of the said wedlock, a male child, namely, Panchajanya Das, was born on 06.01.1989. The respondent/husband, at the relevant point of time, was an Upper Division Clerk (UDC) in the Central Silk Board. 4. Plea of cruelty was taken on the ground that the appellant/wife was carrying on extramarital relationships for the last 7/8 years. The plea of desertion was founded on the allegation that on 17.06.2008, the appellant/wife left the house of the brother-in-law of the respondent, at Maligaon, Guwahati, where she had been staying, to live with her own brother. 5. The appellant, in her written statement, had raised counter-allegations against the husband stating that it was he who had many illicit relations with many girls/women and, at the time of filing of the written statement, he was living in adultery with a girl, whose name was also mentioned in the written statement. It was pleaded that on 17.06.2008, she, along with her son, were driven out from the rented house because of non-payment of rent and, left with no other alternative, she had taken shelter in the house of her own brother. It is on that basis that the appellant prayed for dismissal of the petition filed by the husband. 6. During trial, both the respondent/husband and the appellant/wife had adduced evidence of three witnesses each. The learned Family Court, on consideration of the evidence on record, held that there was no cogent evidence regarding any extra-marital relationship by either of the parties. Though not pleaded in the written statement, the evidence adduced by the appellant that the respondent/husband had assaulted her leading to injury on her head, for which she had to be admitted in the Downtown Hospital, at Guwahati, was not believed by the learned Family Court. 7. Ms. Though not pleaded in the written statement, the evidence adduced by the appellant that the respondent/husband had assaulted her leading to injury on her head, for which she had to be admitted in the Downtown Hospital, at Guwahati, was not believed by the learned Family Court. 7. Ms. Barman has submitted that, in the interregnum, the respondent has remarried. She has also submitted that the respondent failed to prove the allegations made in his petition for dissolution of marriage and the learned Family Court, on the basis of surmises and conjectures, had passed the impugned judgment granting divorce. Ms. Barman has further submitted that the son is now working and the appellant is living with him. 8. That the appellant had left the matrimonial house on 17.06.2008 is not in dispute. What is in dispute is the circumstance. While the husband attributes the same to be an act of desertion by the appellant/wife, the plea taken by the appellant/wife is that perforce of circumstance she had to leave the house for non-payment of rent by the respondent/husband. There was no cross-examination of P.W. 1/husband with regard to his evidence given in court that his wife and the son were residing at the residence of his brother-in-law. The appellant/wife did not even mention in whose house she was a tenant where from she had left to reside with her own brother. In the cross-examination, the appellant, as DW1, had stated that she and her husband were living separately for the last six years. She had also deposed that the son was living with the respondent/husband in the Government quarter of the husband at Kalingpong. There is no evidence that she wanted to reside with them in Kalingpong. She had also admitted that in paragraph 5 of the application for grant of maintenance, she had made an averment that "No special purpose will be served by continuing the marriage". 9. For the purpose of the Act, desertion means intentional permanent forsaking and abandonment of one spouse by the other without the other's consent and without reasonable cause. In other words, it is a kind of repudiation of the obligations of marital ties. 10. The statement of the appellant in her application for maintenance that no useful purpose will be served by continuing the marriage lends credence to the fact that the appellant had deserted the respondent/husband. In other words, it is a kind of repudiation of the obligations of marital ties. 10. The statement of the appellant in her application for maintenance that no useful purpose will be served by continuing the marriage lends credence to the fact that the appellant had deserted the respondent/husband. That they had lived separately for more than two years is beyond dispute. 11. In the facts and circumstance of the case, we are of the opinion that the learned Family Court was justified in holding that the appellant had deserted the respondent and, therefore, we find no good ground to interfere with the judgment under appeal. 12. Resultantly, the appeal stands dismissed. 13. Registry will send down the records.