JUDGMENT : R. Mukhopadhyay, J. Heard Mr. Samir Kumar Lall, learned counsel appearing for the appellant and Mr. Parambir Singh Bajaj, learned counsel appearing for the respondent. 2. This appeal is directed against the judgment and decree dated 26.11.2018 (decree signed on 07.12.2018) passed by Sri Brajesh Kumar Gautam, learned Principal Judge, Family Court, Ranchi in Original Suit No. 706 of 2017 whereby and whereunder the suit preferred by the respondent herein for dissolution of his marriage with the appellant has been allowed and the marriage between them has been dissolved with a direction to the respondent herein to pay one time permanent alimony of Rs. 5,00,000/- within a period of three months. 3. For the sake of convenience, both the parties are referred to in this judgment as per their status before the learned trial court. 4. A suit was preferred by the petitioner (respondent herein) under Section 13 (1) (i-b) of the Hindu Marriage Act, 1955 seeking dissolution of marriage with the respondent (appellant herein) in which it has inter-alia been stated that the marriage of the petitioner was solemnized with the respondent on 11.07.2008 as per Hindu rites and customs and after the marriage both started residing together at Shivpuri, Lower Chutia, Ranchi. It has been stated that the first wife of the petitioner has died a natural death in April 2007 and a child was earlier born to the couple on 06.09.2006. The petitioner had narrated the story about his earlier marriage and nothing was suppressed and thereafter the respondent had agreed to marry the petitioner. Out of the said wedlock of the petitioner and the respondent, a female child namely Vaishnavi was born on 06.07.2015. It has been stated that the marital life was running smoothly, but after some years, the behaviour of the respondent towards the petitioner changed and he was subjected to physical and mental torture. In spite of the best efforts made by the petitioner to pacify the situation the behaviour of the respondent continued to be rude. It has been stated that the parents and brother of the respondent always used to provoke the respondent to bring money and other household articles from the petitioner. The respondent is a short-tempered lady and always behaved cruelly with the petitioner. In fact the respondent had shown her reluctance to do household chores on the pretext that she belongs to a high-class modern society. The respondent is a short-tempered lady and always behaved cruelly with the petitioner. In fact the respondent had shown her reluctance to do household chores on the pretext that she belongs to a high-class modern society. The behaviour of the respondent towards her mother-in-law and the son of the petitioner born from his first marriage was also cruel. The respondent always used to insist upon the petitioner to have a separate kitchen, get the house registered in his name and send her mother-in-law to an old age home and the son born out of his first marriage to a hostel. It has been stated that the petitioner has got the compassionate appointment and is living in a house registered in the name of his father. The respondent had repeatedly threatened the petitioner and his family members of implicating them in false criminal cases on account of the refusal on the part of the petitioner to sell off the gold jewelleries of his mother and give the proceeds to the parents of the respondent. On 03.09.2015, the respondent had quarrelled with the petitioner and had assaulted him which resulted in fracture of the wrist of the petitioner and after calling her father as well as the husband of her sister took her stree-dhan and other household articles including the gold ornaments of her mother-in-law as well as documents relating to the house and went back to her parents' place at Jamshedpur. It has been stated that the petitioner is living separately from the respondent since 04.09.2015 and in spite of the repeated efforts made by the petitioner to bring back the respondent and resume a normal conjugal life is frustrated on account of the demands put forward by the respondent. A meeting was also convened in which the parents and the husband of the sister of the husband were present, but the respondent had flatly refused to resume her marital ties with the petitioner and had once again made illegal demand to the petitioner. 5. The respondent did not appear to contest the suit in spite of notice having been served upon her and a paper publication was also made in daily newspaper “Prabhat Khabar” on 10.07.2018 and consequently the suit proceeded ex-parte. 6. 5. The respondent did not appear to contest the suit in spite of notice having been served upon her and a paper publication was also made in daily newspaper “Prabhat Khabar” on 10.07.2018 and consequently the suit proceeded ex-parte. 6. The points for determination as formulated by the learned trial court for deciding the suit were: (i) Whether the respondent Smt. Soni Devi has treated the petitioner with cruelty and deserted him after solemnization of marriage? (ii) Whether the plaintiff is entitled to get a decree of divorce as prayed? 7. In order to support his case, the petitioner has examined as many as 3 witnesses including himself. 8. P.W. 1 – Subodh Kumar is the petitioner who has stated that his marriage was solemnized with the respondent as per Hindu rites and customs on 11.07.2008 and out of the said wedlock, a daughter was born on 06.07.2015. He has stated that from his earlier marriage, a son was born on 06.09.2006. His mother stays with him and he has to bear the entire expenses of his mother as well as of his son born from the first marriage. He has stated that after the birth of the daughter, the behaviour of the respondent changed and she started hating his mother and his son and was insisting that the mother be shifted to an old age home while the son be enrolled in a hostel. In spite of the best efforts made by the petitioner to desist the respondent from making such demands, the respondent continued with her tirade and apart from abuses used to assault him and issue threats that he and his mother will be implicated in a false criminal case. He has stated that the respondent always used to make demand of exorbitant sum of money and some time he used to refuse to meet such demand. On 03.09.2015, the respondent after committing assault upon him as well as his mother had left his house after taking with her, her stree-dhan as well as some important documents relating to the house. On 03.09.2015, the respondent after committing assault upon him as well as his mother had left his house after taking with her, her stree-dhan as well as some important documents relating to the house. From 04.09.2015, both the parties are residing separately and in spite of the best efforts made by the petitioner to convince the respondent to return back to her matrimonial house and resume a healthy marital life, the same did not yield any result and for the last three years, there has been no relationship of husband and wife between them. 9. P.W. 2 – Nirmala Devi is acquainted with both the sides who has stated about the marriage between the petitioner and the respondent and the birth of a child as well as the fact that the mother of the petitioner namely Malti Devi stays with him. She has also stated that after the birth of their daughter, there were frequent quarrels between the petitioner and the respondent and in the year 2015 the respondent had left her matrimonial house. She has also stated that on several occasions, the petitioner had made efforts along with other persons of the locality to make the respondent understand and bring her back to her matrimonial house, but the same failed. In cross-examination on commission, she has stated that there used to be frequent quarrels between both the parties and in spite of the best efforts, respondent has not returned back to her matrimonial house. 10. P.W. 3 – Malti Devi is the mother of the petitioner who has reiterated the averments made by the petitioner in his sworn statement. In cross-examination on commission, she has stated that even though a panchayati was held and efforts were made, but the respondent refused to come back to her matrimonial house. 11. It has been submitted by Mr. Samir Kumar Lall, learned counsel appearing for the appellant (respondent) that the learned trial court has committed an error in dissolving the marriage between the petitioner and the respondent by overtly relying upon the evidence of witnesses of the petitioner, though such evidence does not indicate that there was a willful abandonment on the part of the respondent in withdrawing herself from the society of the petitioner. It has been stated that the petitioner and the respondent had stayed together for about 8 years and the instances which have been projected by the petitioner in the plaint as well as in the evidence of the witnesses do not reveal that the cruelty meted out to the petitioner was to such an extent that it would be an impossibility for the petitioner to resume the conjugal life with the respondent. Mr. Samir Kumar Lall, learned counsel for the appellant herein has further submitted that though the suit was preferred for dissolution of marriage on the ground of "desertion", but at the same time, the points for determination formulated by the learned trial court has also enshrined "cruelty" as one of the grounds in which the divorce has been sought for. 12. Mr. Parambir Singh Bajaj, learned counsel appearing for the petitioner (respondent herein) has submitted that specific instances have been given by the petitioner with respect to the manner of physical and mental torture, the petitioner was subjected to and the fact that the mother of the petitioner as well as his son born from his first marriage were also tortured and the adamant attitude of the respondent would be evident by the fact that in spite of the best efforts made by the petitioner and his family members as well as the persons of the locality, the respondent refused to return back to her matrimonial house to resume conjugal life with the petitioner and she had stuck with her demands of getting rid of the mother and the son of the petitioner by putting the mother in old age home while getting the son enrolled in a hostel. Mr. Bajaj has submitted that without any reasonable cause, the respondent had abandoned the petitioner and it has been more than 9 years since the petitioner and the respondent have stayed together and the marriage for all purposes has become dead and therefore, in such circumstances the impugned judgment dated 26.11.2018 does not necessitate any interference. 13. What would transpire from the impugned judgment dated 26.11.2018 as well as the petition filed by the petitioner with a prayer for dissolving his marriage with the respondent is that the solitary ground which forms the basis for such prayer is the act of desertion on the part of the respondent as alleged by the petitioner. 13. What would transpire from the impugned judgment dated 26.11.2018 as well as the petition filed by the petitioner with a prayer for dissolving his marriage with the respondent is that the solitary ground which forms the basis for such prayer is the act of desertion on the part of the respondent as alleged by the petitioner. It is apparent that prior to the marriage of the petitioner with the respondent, the petitioner was earlier married, but on account of the death of his first wife, the present marriage was solemnized and out of the wedlock with his first wife, a son was born. The petitioner seems to have painted his canvas of allegations with the act of the respondent in being averse to the presence of the mother and the son of the petitioner and according to the petitioner, there were repeated instances on the part of the respondent to get rid of the mother and the son of the petitioner by shifting the mother to an old age home while getting the son admitted in a boarding school. The learned trial court has considered the allegations and assertions made by the petitioner against the respondent as gospel truth since the same remained unrebutted on account of the absence of the respondent in contesting the suit in spite of being served with a notice. The learned trial court should have adopted a different measure in considering the case in its totality primarily to ascertain as to whether the case of the petitioner has sufficient materials to cement his prayer for dissolution of the marriage. There is complete dearth of any evidence brought forward by the petitioner which would indicate that there was a willful abandonment from the side of the respondent of leaving the society of the petitioner. It would be profitable at this juncture to mention herein that though the petitioner has stated about a single instance wherein the petitioner was assaulted by the respondent which led to fracture of his wrist, but no documentary evidence has been produced in support of such assertion. It would be profitable at this juncture to mention herein that though the petitioner has stated about a single instance wherein the petitioner was assaulted by the respondent which led to fracture of his wrist, but no documentary evidence has been produced in support of such assertion. Though it has been stated at the time of argument by the learned counsel appearing for the petitioner (respondent herein) that a case under Section 498A of I.P.C. was filed by the respondent (appellant herein), but since no such mention has been made in the complaint or in the evidence of the witnesses, we are refraining ourselves from making any observations with respect to the same. 14. “Desertion” has been defined in the Hindu Marriage Act, 1955 which reads as follows: “13. Divorce.—(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party— …………….. (i-b) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or] [Explanation.—In this sub-section, the expression “desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly].” 15. As we have noticed above, the petitioner and the respondent had continued to reside for about 7 years and the act of desertion on the part of the respondent does not seem to have raised its head during all these period as nothing to that effect has been stated by the petitioner. The learned trial court on the basis of an assumption that the allegations levelled by the petitioner remained unrebutted has dissolved the marriage between the petitioner and the respondent. The averments made in the plaint and the evidence of the witnesses do not suggest that it was an intentional abandonment of the petitioner on the part of the respondent, but this fact has not been properly appreciated by the learned trial court. 16. The averments made in the plaint and the evidence of the witnesses do not suggest that it was an intentional abandonment of the petitioner on the part of the respondent, but this fact has not been properly appreciated by the learned trial court. 16. We therefore, on the basis of the discussions made hereinabove set aside the judgment and decree dated 26.11.2018 (decree signed on 07.12.2018) passed by Sri Brajesh Kumar Gautam, learned Principal Judge, Family Court, Ranchi in Original Suit No. 706 of 2017. 17. This appeal is allowed.