Arindam Sinha, J
1. The appeal has been filed by the husband against judgment dated 29th November, 2017 of the Family Court, dismissing his civil proceeding carrying prayer for dissolution of the marriage.
2. Mr. Mohapatra, learned advocate appears on behalf of appellant-husband and submits, two grounds were taken, adultery and desertion. He will urge desertion before us for interference in appeal.
3. On query from Court he submits, in paragraph-6 of the petition there was assertion of the fact. We reproduce the paragraph.
“6. That due to such strained relationship and inspite of the protest made by the petitioner not to go to her parents’ house and keep extra marital relationship with said Krushna Mohanta by indulging adultery, the respondent left the matrimonial house since more than 5 years and never returned to the house of the petitioner to continue the marital relationship with the petitioner and there was disruption of marital relationship between them due to desertion and adultery of the respondent and there was no co-habitation between the petitioner and the respondent since then.”
The petition was filed in the Family Court long after statutory period of two years had elapsed from respondent-wife having had deserted his client. The desertion was without his consent. It was clear repudiation by respondent-wife of her obligations in the marriage. The Family Court erred and failed to appreciate the facts. The marriage ought to have been and should be dissolved.
4. Mrs. Nayak learned advocate appears on behalf of respondent-wife. She submits, her client had never lodged complaint against appellant-husband. There was a daughter from the marriage. She ran away with an employee of appellant-husband and married him. It was without consent of her parents.
5. Her client, at instance of appellant-husband, proceeded to Mount Abu, to the headquarter of a society calling themselves ‘Brahma Kumaris’. On return she could not enter her matrimonial home because in her absence, appellant-husband had changed the lock. In that situation she was compelled to take shelter in her parental home. She did not desert her husband. The appeal be dismissed.
6. Mr. Mohapatra in reply relies on paragraph-5 in examination-in-chief by way of affidavit filed by R.W.2 read with second sentence in paragraph-7 of deposition dated 12th December, 2012 of said witness in cross-examination. We reproduce below paragraphs-4 and 5 of the affidavit and second sentence in paragraph-7 from said deposition dated 12th December, 2012.
4. That in the month of December, 2010, our organisation (Prajapita Brahmakumari) arranged a trip to Mount Abu and accordingly I also gave my consent and paid the expenses for the railway ticket. During that period the petitioner contacted me and told me that he would send the respondent to Mount Abu along with the group. Thereafter the petitioner sent the respondent to Mount Abu along with our group. The respondent came to my house at Baripada on 24.12.2010 and the same day we started for Mount Abu along with the members.
5. That, we lived in Mount Abu Ashram for about eight to nine days and thereafter we returned back to Baripada on 5.1.2011. I along with Damayanti Mohanta came to my house. When I entered in to my house Srihari Mohanta called me on my cell phone and asked me to instruct Damayanti Mohanta to go to her parents house. But Damayanti Mohanta went to her matrimonial house at Birsinga but as she found the locked were changed by Srihari Mohanta so she could not entered in her house and came back to Baripada and informed me about the above incident.”
(emphasis supplied)
Second sentence in paragraph-7 of deposition dated 12th December, 2012 of R.W.2. in cross examination.
“I had not accompanied the respondent to the house of the petitioner after return from the Mount Abu and accordingly, I cannot say whether the house of the petitioner was locked on the relevant date as disclosed in para-5 of my affidavit statement.”
7. Respondent-wife in her objection filed before the Family Court stated her side of the story in, inter alia, paragraphs-11 to 13. The paragraphs are reproduced below.
“11. That, the true state of affairs is as follows:-
(i) That, after the solemnisation of marriage the respondent lived with the petitioner peacefully for few years only and during this period the couple were blessed with a daughter in the year 1990. When the daughter was only about 11/2 years old, the petitioner started ill-treating the respondent by assaulting her mercilessly. The respondent on many occasions had to take shelter at her father’s house. But all the times just to save her marital life, she was again sent to the house of the petitioner with a hope that the petitioner may change his behaviour by passing of time.
12. That, the petitioner did not change his habit of ill-treating the respondent without any rhyme and reason he used to kick the plate of the respondent while she was taking her food. Once the petitioner threw the respondent on the ground causing severe injury to her head, face and teeth.
13. That, the petitioner was also very much cruel towards his daughter and he never showered any fatherly affection towards her and throughout neglected and refused to maintain her and with much difficulty the respondent brought up her daughter. The petitioner’s daughter studied up to intermediate and thereafter she got married to one Birakishore Das who was an employee of the petitioner in his private business. The petitioner refused to spend a single pie in his daughter’s marriage and finding no way out the petitioner’s daughter married with Birakishore Das without the consent of her parents.”
She reiterated her case in her evidence-in-chief.
8. We looked at her deposition dated 1st December, 2012 in cross-examination. She denied deserting her husband. She stuck to her statement that the daughter fled and got married. She asserted she does not want divorce, inter alia, by taking permanent alimony. After service of divorce notice appellant-husband stopped talking to her. She, after returning from Mount Abu, found her matrimonial house locked. She also said she had not lodged any criminal case in any police station against appellant-husband.
9. We have not found from the cross-examination of respondent-wife, her case of being denied entry in the matrimonial home was shaken. Mr. Mohapatra has not been able to show us from evidence adduced by his client, there was assertion in his evidence-in-chief that he had not changed the lock. There was no witness to say he or she accompanied respondent-wife to her matrimonial home on return from Mount Abu but that in itself is insufficient for us to disbelieve her. It will appear from relied upon paragraphs in evidence in chief and cross-examination of R.W.2 that said witness too could not be shaken regarding having accompanied respondent-wife to Mount Abu, also saying the latter had been sent at instance of appellant-husband. She said further, on return respondent-wife went to her matrimonial home, came back and reported the incident. There was no suggestion given to dispute the assertion of this contemporaneous fact.
10. It is case of appellant-husband that the wife deserted him. It is not respondent-wife’s case that the husband was cruel to her, for her to seek any remedy against him. She is in defence, against the husband wanting dissolution of the marriage. As such, her not taking any otherwise step against her husband is consistent with her contention of wanting the marriage to survive.
11. On going through the pleadings and evidence before the Family Court, we are satisfied that impugned judgment needs no interference. It is confirmed.
12. The appeal is dismissed.
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