JUDGMENT : K.R. Surana, J. Heard Mr. S. Taye, learned counsel for the appellant and Mr. C. Modi, learned counsel for the respondent. 2. The judgment and decree dated 16.11.2020 passed by the learned District Judge, East Siang District, Pasighat in Divorce Petition No. 4/2016 has been assailed in this appeal filed under section 28 of the Hindu Marriage Act, 1955. By the said judgment and decree, the marriage between the parties was dissolved. 3. The respondent, as plaintiff, had instituted a divorce suit against the appellant under section 13(1)(i) and 13(i-a) of the Hindu Marriage Act, 1955 which was registered as Divorce Petition No. 4/2016. It was alleged in the plaint that the appellant, who was the wife of the respondent, was a habitual gambler, who played gambling-rummy with male members day and night without caring for the respondent and was also living in adultery with one Kaling Perme, thereby caused cruelty to the respondent. On receipt of summons, the respondent appeared and contested the case by filing written statement on 06.06.2016 and denied all the allegations against her. It was pleaded in defence, amongst others, that the respondent used to beat her after consuming liquor without any reason and that the suit was bad for non-joinder of the person with whom the appellant was allegedly committing adultery and that the respondent has deserted her. 4. The respondent-plaintiff had examined six PWs, viz., Subroto Baruah (Plaintiff-PW-1); Taging Taloh (PW-3); Talem Taloh (PW-4); Edison Taloh (PW-5); Obit Tamuk (PW-6); and Bani Perme (PW-7). It appears that no one was examined as PW-2. The respondent-plaintiff had proved the following documents, viz., Order dated 14.06.2013 in Case No. 7/2012 (P.Ext.A); Minutes dated 28.09.2014 of Dusum Kebang (P.Ext.B). The appellant examined only herself as DW-1 and that she had not exhibited any document. The learned trial Court had decreed the suit. The learned trial Court had held that there was a preponderance of probability that the appellant lived an adulterous life and further concluded that because of such conduct of the appellant, the respondent had left his marital home on 11.10.2012 and the parties were living separately for about 8 (eight) years without any consummation and concluded that the appellant did not make any attempt for the reconciliation or for restitution of conjugal life. Accordingly, it was held that there was a constructive desertion by the appellant and accordingly, on the ground that the relationship between the parties had broken down irretrievably without any hope in the immediate future for reconciliation. Thus, it was held that the respondent was entitled to a decree of divorce by dissolution of marriage. 5. The learned counsel for the appellant had urged all the grounds for this appeal. It was also submitted that under Rule 8 of the Gauhati High Court Rules, framed to regulate the procedure of cases under the Hindu Marriage Act, it was required that the person against whom allegation of adultery is made, was required to be impleaded as a party respondent in the suit. It was also submitted that in the draft issues filed by the appellant on 12.06.2016, the appellant had suggested an issue as to whether the suit is bad for non-joinder or mis-joinder of the necessary and proper party, which was, however, not framed. It was submitted that all the 6 (six) PWs examined by the respondent-plaintiff had given hearsay evidence on alleged adultery and therefore, the allegation could not be proved. It was also submitted that in the absence of impleading the alleged adulterous partner of the appellant, neither adultery nor cruelty against the respondent could be proved against the appellant. It was also submitted that in light of the evidence on record, it was not available to the learned trial Court to grant divorce on the ground of irretrievable break down of marriage as the same was not provided for as a ground of dissolution of marriage under the Hindu Marriage Act, 1955 as because adultery could not be proved. 6. Per contra, the learned counsel for the respondent had meticulously referred to the judgment impugned in this appeal and had made extensive argument in support of the impugned judgment. It was submitted that the adulterous conduct of the appellant was proved and therefore, the learned trial Court had rightly decreed the suit on the basis of preponderance of probability that the conduct of the appellant was adulterous. It was submitted that a panty of the appellant was recovered from the car of the adulterous partner of the appellant, which was identified by the respondent and that the other PWs examined by the respondent had proved that the appellant was living an adulterous life. It was submitted that a panty of the appellant was recovered from the car of the adulterous partner of the appellant, which was identified by the respondent and that the other PWs examined by the respondent had proved that the appellant was living an adulterous life. Thus, it was submitted that the decree of divorce was fully sustainable on facts and in law. The learned counsel for the respondent had also meticulously referred to the evidence of all the 7 (seven) PWs examined by the respondent and the evidence of the sole appellant, who had examined herself as DW-1. It was submitted that as adultery was proved, the issue of non-joinder of the adulterous partner would not be fatal to the case of the respondent. 7. From the materials available on record including pleadings and evidence, the following points of determination arises for adjudication in this appeal: i. Whether the respondent has been able to prove the allegation against the appellant for adultery? ii. Whether the respondent has been able to prove allegation of desertion by the appellant? iii. Whether decree of divorce can be granted by the learned District Judge on the ground of irretrievable break down of marriage while deciding a suit filed under section 13(1)(i) and 13(i-a) Hindu Marriage Act, 1955? 8. From the LCR, it is seen that on 12.09.2016, the learned counsel for the appellant-defendant had filed draft issues on behalf of the learned trial Court. Thereafter, by an order dated 04.10.2016, the following 6 (six) issued were framed: i. Whether this suit is maintainable in law and facts? ii. Whether petitioner was married to the defendant as per the law? iii. Whether any cause of action arose for filling the instant suit? iv. Whether there is a desertion by the petitioner or constructive desertion by the defendant? v. Whether the defendant was living in adultery? vi. Whether there is any judicial order or arrangement made between the parties for living separately before institution of the suit? 9. Thereafter, while deciding the suit, as per paragraph 6 of the impugned judgment, the learned trial Court had re-casted the issues for the sake of convenience. The re-casted issues are as follows: i. Whether this suit is maintainable under the law and the facts? ii. Whether any cause of action arose for filling the instant suit? iii. Whether the respondent was living in an adultery life? iv. The re-casted issues are as follows: i. Whether this suit is maintainable under the law and the facts? ii. Whether any cause of action arose for filling the instant suit? iii. Whether the respondent was living in an adultery life? iv. Whether there is a desertion by the petitioner or a constructive desertion by the respondent? v. Whether there was a settlement of mutual separation by the parties before institution of this suit? vi. Whether the petitioner is entitled to a decree of Divorce as prayed for? 10. The issue no.(i) relating to whether the suit was maintainable was decided in the affirmative. The learned trial Court had taken up adjudication of issue nos. (ii), (iii), (iv) and (v) together. The learned trial Court took note of the pleadings. Reliance was placed on the deposition of PW-1 that the appellant lived an adulterous life and had indulged in illicit sexual relationship with one Kaling Perme, which was known to all his friends, relatives and well wishers including wife of Kaling Perme and that the wife of Kaling Perme had once recovered the panty of the appellant from the vehicle of Kaling Perme and that she had called the appellant to identify the said undergarment of the appellant, which she did. The learned trial Court had took note that the respondent had left his marital home on 11.10.2012 when the appellant did not mend her ways and that the respondent was residing separately for about 8 (eight) years. The learned trial Court also relied of the statement of PW-1 to the effect that at the instance of the appellant, relatives had gathered on 28.09.2014 to settle their matrimonial dispute and that both the parties had agreed for divorce and separation and that the settlement (Ext.B) was signed by all witnesses present there. However, the learned trial Court recorded that the original signed copy of the settlement was taken away by the appellant for copying but was never returned. The learned trial Court also took note of order dated 14.06.2013 (Ext.A) by which the learned trial Court had granted an interim maintenance of Rs.5000/-(Rupees five thousand only) each for 2 daughters, but the claim for maintenance of the appellant was kept in abeyance on the ground that the appellant was allegedly living an adulterous life. The learned trial Court had observed that all other PWs had supported the case of the respondent. The learned trial Court had observed that all other PWs had supported the case of the respondent. The learned trial Court also placed reliance on the oral submission made by the learned counsel for the respondent with regard to the non-impleading of Kaling Perme that after physical separation of the parties and subsequent settlement of divorce, the respondent did not hear that the appellant had continued her illicit relationship with Kaling Perme and hence, the respondent preferred to avoid further enmity for the relationship which had already ended for him. Accordingly, it was held that under IPC, adultery was no longer a punishable offence and that it was only a civil wrong with one of the grounds for seeking divorce and accordingly, it was held that there was a preponderance of probability that the appellant lived in an adulterous life. Therefore, it was held that the conduct of the appellant had compelled the respondent to leave his matrimonial home on 11.10.2012 and the parties were staying separately since about 8 years, and accordingly it was held that as the appellant did not make any effort for reconciliation and did not file any case for institution of conjugal life, this was a case of constructive desertion by the appellant. Resultantly, taking note of the mutual agreement for divorce/separation, it was held that on 28.09.2014, the parties had mutually agreed for divorce and separation and accordingly, the issue nos.(ii), (iii), (iv) and (v) were decided in the affirmative. Moreover, in respect of issue no.(vi), the learned trial Court had found that the respondent was entitled to a decree of divorce by dissolution of marriage on the ground that the marriage/relationship between the parties had broken down irretrievably with no hope for reconstitution. Accordingly, the suit for divorce was decreed in favour of the respondent-plaintiff. 11. The decision of the learned trial Court is examined issue-wise as follows. Issue no.(i): 12. In view of the provisions of section 2(1)(c) of the Hindu Marriage Act, the learned trial Court had held that the solemnization of the marriage between the parties, for all intent and purposes, was done in accordance with the Hindu marriage system and the issue no.(i) was decided in the affirmative. Issue no.(i): 12. In view of the provisions of section 2(1)(c) of the Hindu Marriage Act, the learned trial Court had held that the solemnization of the marriage between the parties, for all intent and purposes, was done in accordance with the Hindu marriage system and the issue no.(i) was decided in the affirmative. The appellant has not been able to show any material from which it can be inferred that the suit could not have been instituted under Section 13(1)(i) and 13(i-a) of the Hindu Marriage Act, 1955. Thus, the decision of the learned trial Court on issue no.(i) is affirmed. Issue no. (ii) 13. The issue no.(ii) framed by the learned trial Court was “whether any cause of action arose for filing of the suit?” It may be mentioned that in the plaint, there is a specific statement that the cause of action arose in the year 2012 when the appellant herein started keeping illicit sexual relation with some other male member other than the plaintiff (respondent herein) and the same continued till date. Under such circumstances, there was cause of action for the suit and therefore, the finding of the learned trial Court on issue no.(ii) is affirmed. Issue no.(iii): 14. The issue no.(iii) framed by the learned trial Court was to the effect as to whether the appellant herein (i.e. respondent in the suit) was living in an “adultery life”. In this regard, none of the 6 (six) witnesses examined by the respondent had actually seen the commission of any actual or overt act of adultery by the appellant. None of the witnesses were eye witnesses of any adulterous relationship between the appellant and one Kaling Perme. The said adulterous act was presumed merely because the respondent claims that he was called by Oneh Siram Perme and informed that the appellant was having illicit affair with her husband. The said lady had allegedly shown the panty (undergarment) of the appellant to the respondent, alleging that it was found in the vehicle of her husband. The said lady, i.e. Oneh Siram Perme was not examined as witness by the respondent-plaintiff and moreover, the so called panty of the appellant, alleged to have been recovered by the said lady from the vehicle of the Kaling Perme was not exhibited. The said lady, i.e. Oneh Siram Perme was not examined as witness by the respondent-plaintiff and moreover, the so called panty of the appellant, alleged to have been recovered by the said lady from the vehicle of the Kaling Perme was not exhibited. In light of section 60 of the Evidence Act, 1872 it was required that the person who had directly seen and found the alleged undergarment of the appellant, must have been examined. Moreover, in light of the provisions of section 101 of the Evidence Act, 1872 it was the burden of the respondent to prove the existence of the fact that the alleged panty of the appellant was actually found by Oneh Siram Perme and that the same belonged to the appellant. 15. It is seen that the PW-6, who was an alleged witness, had stated in his evidence-on-affidavit that Oneh Siram Perme had asked him to come to her residence and accordingly, he went and it was found that a panty was there in the car of her husband and he called the respondent, who identified the same to belong to the appellant. However, in his cross-examination, he had admitted that the allegation of illicit relationship in between the appellant and Kaling Perme was heard by him from others. He also stated that the respondent told that it was the panty of the appellant, otherwise he cannot say that the said panty to be underwear of the appellant. He had further stated that he did not know if the respondent himself had kept the said panty in the vehicle of Kaling Perme. Moreover, he had also admitted that he did not know the contents of his affidavit-in-chief. PW-3, namely, Taging Taloh, had stated in his cross-examination that he had heard from other people about the illicit relationship of the appellant with Kaling Perme in the meeting, which was a family meeting. Similarly, PW-4 had stated in his evidence-on-affidavit that in the year 2011, Oneh Siram Perme had come to his residence and informed him about illicit/extra marital affairs of the appellant with her husband. The PW-5, namely, Edison Taloh, had stated in his evidence-on-affidavit that on 02.07.2011 at around 4.00 pm to 5.00 pm, he saw the appellant and Kaling Perme sitting together in an odd place near Siang River at Ranaghat and he had informed the respondent over telephone. The PW-5, namely, Edison Taloh, had stated in his evidence-on-affidavit that on 02.07.2011 at around 4.00 pm to 5.00 pm, he saw the appellant and Kaling Perme sitting together in an odd place near Siang River at Ranaghat and he had informed the respondent over telephone. However, the said allegation of PW-5 is not the pleaded case of the respondent in the plaint and that the date of 02.07.2011 is not pleaded as a cause of action. However, in his cross-examination, PW-5 had admitted that he had stated that around 5.30 pm he had found that the appellant was sitting with Kaling Perme and many others. He had admitted that while taking bath, he had taken out his prescription spectacles and it was almost dark when he was taking bath and without spectacles, his eye sight was weak and could not tell the names of persons who were sitting with Kaling Perme in the said evening and that the distance between him and Kaling’s friends was about 100 metres and that they were simply sitting and talking to each other. He could not say when the appellant had married the respondent and he had specifically stated to the effect that he had not stated in his affidavit (para 3) that they might have illicit relationship. He also admitted that it is a fact and he was not sure about their illicit relationship. The said PW-5 was the paternal uncle of the appellant by clan. Moreover, PW.7, namely, Bani Perme had also stated that Oneh Siram Perme had come to his residence and informed him that her husband was keeping illicit/extra marital affair with the appellant and in his cross-examination, he had admitted having no personal knowledge about their illicit relationship. Therefore, from the evidence of the 6 (six) witnesses examined by the respondent-plaintiff, no one could prove that the appellant was living an adulterous life with any person. Therefore, preponderance of probability tilts in favour of the appellant and not in favour of the respondent. Therefore, in light of discussions above, the Court is unable to concur with the finding of the learned trial Court that the preponderance of probability was that the appellant was living an adulterous life. Therefore, preponderance of probability tilts in favour of the appellant and not in favour of the respondent. Therefore, in light of discussions above, the Court is unable to concur with the finding of the learned trial Court that the preponderance of probability was that the appellant was living an adulterous life. Accordingly, the Court is constrained to hold that the learned trial Court had relied heavily on hearsay evidence of PWs to accept that an alleged panty of the appellant was recovered from the car of Kaling Perme to hold that the allegation of adultery was proved on the basis of preponderance of probability. Thus, it is held that the learned trial Court had relied on inadmissible evidence to decide the issue no. (iii). 16. Moreover, in the aforesaid regard, it may be mentioned that it was the pleaded case of the appellant that the suit was bad for non-joinder of necessary party. In this regard, it would be appropriate to quote Rule 8(a) of Appendix 13 of the Gauhati High Court Rules, relating to the Hindu Marriage (Gauhati High Court) Rules, 1988, which was framed for regulating the proceedings under the said Act. The said provision is quoted below: “8. Necessary Parties. – (a) In every petition for divorce or Judicial separation on the ground that the other spouse/respondent is living in adultery or has committed adultery with any person, after the solemnization of the marriage the petitioner shall make such adulteror or adulteress a co-respondent. The petitioner may however, apply to the court by an application supported by affidavit for leave to dispense with the joinder of such person as a co-respondent on any of the following grounds:- (i) that the name of such person is unknown to the Petitioner although he has made all efforts for discovery: (ii) that such person is death; (iii) that the Respondent being the wife is leading a lie of a prostitute and that the petitioner knows of no person with whom adultery has been committed; (iv) for any other sufficient reason that the court may deem fit to consider.” 17. Therefore, in view of above, as the respondent had not impleaded the alleged adulteror as a co-respondent in the suit, not only the suit was bad for non-joinder of necessary party, but the learned trial Court, in the absence of necessary parties, ought not to have returned any finding that the appellant was living an adulterous life with someone who was not impleaded to defend such an allegation. It may also be mentioned that there is no material available on record that the respondent herein had applied for and taken leave of the Court to dispense with the joinder of the alleged adulteror as a co-respondent in the suit. 18. Therefore, the finding of the learned trial Court, expressing opinion that there was a preponderance of probability that the appellant herein live in an “adultery life” is vitiated by perversity, occasioned by absence of admissible evidence on record, which is not sustainable and the said issue no. (iii) is answered in the negative and against the respondent-plaintiff by holding that the respondent-plaintiff had failed to prove that the appellant was leading an adulterous life. Issue no.(iv): 19. On the point of whether the appellant had deserted the respondent, it is the pleaded and specifically admitted case of the respondent that on alleged adulterous relationship maintained by the appellant, he had left the matrimonial home on 11.10.2012. It is also his admitted case that as the instance of the appellant, a Dusum Kebang was held on 28.09.2014. In the minutes of Kebang dated 28.09.2014 (Ext.B), it has been recorded that the parties as well as the family relatives had accepted the mutual divorce agreed by both the parties. The respondent has not been able to prove that the appellant had accepted the Kebang decision dated 28.09.2014 (Ext.B). Therefore, the only logical conclusion would be that on 11.10.2012, when the respondent had left the common household with appellant, he had done so without there being any judicial order, either by a Court or by the Kebang and as such, the respondent has not been able to make out a case that the appellant had deserted the respondent. Therefore, the only logical conclusion would be that on 11.10.2012, when the respondent had left the common household with appellant, he had done so without there being any judicial order, either by a Court or by the Kebang and as such, the respondent has not been able to make out a case that the appellant had deserted the respondent. The learned trial Court has not cited any law or case law on the point that if one party to a marriage does not make any effort for reconciliation or does not apply before the Court for restitution of conjugal life, a case of constructive desertion is made out by the other party to the marriage. It is the admitted case of the respondent that by Kebang minutes dated 28.09.2014 (Ext.B), he had got divorced and separated from the appellant. Thus, when the case of the respondent is that the Kebang had granted divorce, it was impermissible for the learned trial Court to take adverse view of the fact that there was 8 (eight) year separation between the parties. After divorce, it is impossible to conceive that the divorced spouse would be cohabiting with the divorced spouse. Therefore, the finding of the learned trial Court that there was a constructive desertion by the appellant is not found to be sustainable on facts and in law. The learned counsel for the respondent has not been able to cite any provision of law or any judicial pronouncement on the point that even after the Dusum Kebang minutes dated 28.09.2014 (Ext.B), it was possible for the appellant herein to apply for restitution of conjugal life. Moreover, as it is the pleaded case of the respondent that he had walked out of the matrimonial home on 11.10.2012, there appears to be no material on record by which the decision of the learned trial Court on issue no.(iv) to the effect that there was a constructive desertion by the appellant, could be sustainable on facts and in law. 20. 20. Therefore, notwithstanding that the Ext.B is otherwise held to be inadmissible in evidence, the learned trial Court appears to have misread and/or misconstrued the contents of Ext.B, while recording its finding at para-37 of the impugned judgment that on 28.09.2014, parties had mutually agreed for divorce and separation, when the appellant had not signed Ext.B, which is one of the requirement under Assam Frontier (Administration of Justice) Regulation, 1945. By no stretch of imagination, a decision of the Kebang (Ext.B) can be construed as if parties had agreed for divorce and separation. 21. Therefore, in light of the discussion above, the Court is unable to concur with the finding of the learned trial Court on issue no.(iv). Therefore, the Court is of the considered opinion that the respondent-plaintiff has miserably failed to prove that the appellant had constructively deserted the respondent. The issue no. (iv) is decided accordingly. Issue No.(v): 22. On perusal of the examination-in-chief of the respondent (PW-1), it is observed that it has not been specifically deposed to the effect that the appellant had signed the purported agreement of settlement of matrimonial dispute dated 28.09.2014 (Ext.B). Although the minutes dated 28.09.2014 (Ext.B) contains the signature of (i) Taging Taloh, (ii) Kadum Taloh (Advocate) and (iii) Dr. Tening Dupak. However, the said minutes was not proved in original and as per the said para 6, Ext.B was merely a copy as the original was allegedly taken away by the appellant. 23. From the LCR, it is seen that the minutes of meeting dated 28.09.2014 (Ext.B), is a photocopy. It contains three signatures as mentioned herein before. The signature of Taging Taloh is dated 19.02.2016, signature of Kadum Taloh is dated 20.02.2016 and signature of Dr. Tening Dupak is dated 20.02.2016 and that all the signatures were put long after the said Ext.B was made, which does not contain the signature of either the respondent or the appellant. As per affidavit-in-opposition of the DW-1, the meeting was called as the respondent had beaten up the appellant and her daughter, and that she had left the meeting when the meeting took a different turn. Thus, it is seen that the respondent had neither proved the original of Ext.B, nor any attempt was made to exhibit any signature appearing in Ext.B. None of the signatures appearing therein have been exhibited. Thus, it is seen that the respondent had neither proved the original of Ext.B, nor any attempt was made to exhibit any signature appearing in Ext.B. None of the signatures appearing therein have been exhibited. In the impugned judgment, the learned trial Court had not recorded that any leave was granted to the respondent to prove the copy of Dusum Kebang minutes dated 28.09.2014 (Ext.B) in the absence of the original. In the impugned judgment, there is also no mention that the respondent had taken any steps to call for the original of Ext.B. Thus, the learned trial Court had not assigned any reason to accept the said minutes dated 28.09.2014 to decide issue no.(v) in the affirmative. Thus, in the opinion of the Court, the document proved as Ext.B, not being proved in original, and containing signatures of 3 (three) witnesses, who had signed on 19.02.2016 and 20.02.2016 respectively, could not have been accepted as a copy of the minutes of meeting dated 28.09.2014. Thus, an otherwise inadmissible document was accepted in evidence. Therefore, the Court is constrained to hold that the affirmative finding of the learned trial Court on issue no.(v) is not sustainable as the minutes dated 28.09.2014 (Ext.B) was not proved in accordance with law and moreover, the document proved as Ext.B, cannot be held to be the copy of the minutes prepared on 28.09.2014. 24. It is the admitted case of the respondent that on 28.09.2014, a Dusum Kebang was held at the residence of Dr. Tening Dupok. Therefore, a corollary point also arises on introduction of Ext.B in evidence by the respondent as PW-1. A Kebang proceeding are held in accordance with the provisions of Assam Frontier (Administration of Justice) Regulation, 1945. The said decision is otherwise valid in law. Thus, as per minutes dated 28.09.2014 of the Dusum Kebang, there already exists a decree of divorce. However, the learned trial Court did not frame any issue as to whether the decision of the Dusum Kebang (Ext.B) would operate as a res judicata in the proceeding of Divorce Suit no.4/2016. Be that as it may, as the issue has not been raised by the appellant in this appeal, the non-framing of such an issue has to be ignored. 25. Be that as it may, as the issue has not been raised by the appellant in this appeal, the non-framing of such an issue has to be ignored. 25. Therefore, the finding of the learned trial Court on issue no.(v) is hereby set aside and reversed by deciding issue no.(v) in the negative and against the respondent by holding that the respondent-plaintiff had failed to prove the existence of minutes of settlement dated 28.09.2014 (Ext.B). Issue no.(vi): 26. In view of the discussions above, having regard to the finding in respect of issues nos.(iii), (iv) and (v), the Court is constrained to hold that the respondent is not entitled to a decree of divorce. Moreover, “irretrievable break down of marriage” is not a ground for divorce under the Hindu Marriage Act, 1955. However, in only certain circumstances, when marriage is beyond repair on account of bitterness created by the acts of the husband or the wife or both, the Courts have accepted irretrievable break down of marriage as a very weighty circumstance, amongst others, necessitating severance of the marital tie. In the present case in hand, as the respondent had miserably failed to prove that by any act, the appellant had treated the respondent with cruelty within the meaning of section 13(i-a) of the Hindu Marriage Act, 1955. 27. It may be mentioned that “irretrievable breakdown of marriage” is not the law for granting divorce. In the case of Manju Kumari Singh Vs. Avinash Kumar Singh, (2018) 17 SCC 383 , the Supreme Court of India had set aside the order of the High Court granting decree of divorce on such ground and the matter was remanded for a fresh decision. However, in order to give quietus to all litigation between the parties, the Supreme Court of India had granted decree of divorce and ordered alimony in the said case. It may be mentioned that on an earlier occasion, in the case of Naveen Kohli Vs. However, in order to give quietus to all litigation between the parties, the Supreme Court of India had granted decree of divorce and ordered alimony in the said case. It may be mentioned that on an earlier occasion, in the case of Naveen Kohli Vs. Neelu Kohli, (2006) 4 SCC 558 , the Supreme Court of India had recommended to the Union of India to seriously consider bringing an amendment in the Hindu Marriage Act, 1955 to incorporate “irretrievable breakdown of marriage” as a ground for the grant of divorce, and a copy of the said judgment was ordered to be sent to the Secretary, Ministry of Law & Justice, Department of Legal Affairs, Government of India for taking appropriate steps. 28. In view of the discussion and finding on the various issues framed by the learned trial Court, the points of determination as framed hereinabove are answered as under:- a. The respondent has not been able to successfully prove even by preponderance of probability, the allegation against the appellant for adultery. The first point of determination is answered accordingly. b. The respondent has not been able to prove allegation of desertion by the appellant because it is the admitted case of the respondent that he had left the matrimonial home on 11.10.2012. The second point of determination is answered accordingly. c. The respondent having not been able to prove that the appellant was leading an adulterous life, has not been able to prove that any bitterness was created by any act of the appellant and therefore, there exist no proved circumstance necessitating severance of marital tie. Therefore, the third point of determination is answered by holding that in this case, no decree of divorce could have been granted by the learned trial Court on the ground of irretrievable break down of marriage while deciding the present suit filed under section 13(1)(i) and 13(i-a) Hindu Marriage Act, 1955. 29. It may be mentioned that while discussing the case, the Court had made observations regarding non- joinder of necessary party and decision of the Kebang operating as res judicata in the present proceeding. Normally, on such issues coming to light, a case can be remanded for retrial by framing additional issues. However, even without deciding those issues, in the present case in hand, the decree of divorce is found to be not sustainable. Normally, on such issues coming to light, a case can be remanded for retrial by framing additional issues. However, even without deciding those issues, in the present case in hand, the decree of divorce is found to be not sustainable. In this regard, it may be mentioned that in the case of Lisamma Antony & Anr. Vs. Karthiyayani & Anr., (2015) 22 SCC 782, the Supreme Court of India had considered the appellate court’s power of remand and held that once trial court’s record is complete, the appellate courts should not remand the matter, but should decide the case themselves. It was further held that remand should be ordered only if the suit is decided on a preliminary issue or if additional evidence is to be led before the trial court. Both the said circumstances do not exist in this case. Therefore, in light of the discussions above, the Court finds no good reason to remand the matter back to the learned trial Court for a fresh decision. 30. Thus, this appeal stands allowed. Resultantly, the impugned judgment and decree dated 16.11.2020 passed by the learned District Judge, East Siang District, Pasighat in Divorce Petition No. 4/2016, thereby granting decree of divorce to the respondent-plaintiff is hereby set aside. The suit stands dismissed. 31. The Registry shall draw up a decree. 32. The parties are left to bear their own cost all throughout. 33. The LCR be returned back.