IN THE HIGH COURT OF JUDICATURE AT PATNA [CASE NUMBER] Smt.[ENTITY], W/o [ENTITY], daughter of [ENTITY], resident of At+P.O. Jainagar (Bramhan Tola) P.S. Jainagar, Dist. Madhubani. Appellant/s Versus [ENTITY], S/o [ENTITY], R/o Village- Ghanghaur, P.S. Babu Barhi, Dist. Madhubani, at present residing in Ward No. 5, Gaushala Road, P.S. Madhubani, Dist- Madhubani. Respondent/s Appearance : For the Appellant/s : Mr. [ENTITY], Adv. Dr. [ENTITY], Adv. For the Respondent/s : None CORAM: HONOURABLE MR. JUSTICE [ENTITY] and HONOURABLE MR. JUSTICE [ENTITY] (Per: HONOURABLE MR. JUSTICE [ENTITY]) Date: 10-01-2014 [ENTITY], J. The present Appeal arises from order dated Date : 10.01.2014 03.11.2006
passed by the Principal Judge, Family Court, Madhubani in [CASE NUMBER]. The application for divorce filed by the respondent under [SECTION] of the [ACT] was allowed on the ground that there had been irretrievable breakdown of marriage coupled with desertion.
Notice was issued and validly served upon the respondent who had also entered appearance but no one appears on his behalf today.
Learned counsel for the Appellant submits that the plea of adultery raised by the respondent was disbelieved by the Trial Court. Cruelty was also held not to be established. In the Patna High Court [CASE NUMBER] dt.10-01-2014 2 circumstances, there was no occasion for the Trial Court to hold that there had been irretrievable breakdown of the marriage which is not a ground for divorce under the [ACT] held in more than one judicial pronouncement. There is no finding with regard to desertion. A conclusion arrived at abruptly without any discussion.
The respondent in his divorce petition alleged that the Appellant was short tempered and ill-behaved. She was hysterical at times. Her behaviour was indifferent. She did not adequately involve herself in domestic affairs of the kitchen. She visited Cinema Halls with her boyfriends and that he was denied physical relations. She would move around in Hotels and Cinema Halls leading an adulterous life having become a "Call Girl".
The parties were married on 22.04.1993. The Appellant went to the matrimonial home on 25.11.1993 and stayed there for about five months. Despite the nature of the serious allegations made of adulterous behaviour on part of the Appellant, not a single name has been mentioned with whom she continued relationship even after marriage much less have such persons been impleaded as party respondent. In our opinion, there can be no worse accusation against a lady, more so one who is newly married tarnishing her reputation by blasphemous unsubstantiated allegations. It compels us to hold that the making of such wild, reckless and unsubstantiated allegations themselves amount to cruelty. Patna High Court [CASE NUMBER] dt.10-01-2014 3 The Trial Court arrived at the conclusive findings on basis of evidence that the charge of an adulterous behaviour was not proved against the Appellant.
The Trial Court on basis of the evidence led before us rightly arrived at the conclusion that the minor daily skirmishes of a newly married life would not lead to allegations of cruelty which was also held not to be proved.
The Family Judge only arrived at the conclusion that there was no cohabitation between the parties since long to arrive at a finding of desertion. No evidence appears to have led against the Appellant for denial of physical relations to the respondent.
In the facts and circumstances of the case, the findings arrived at by the Family Judge against the respondent both with regard to his inability to prove cruelty and adulterous behaviour amounted to cruelty against the Appellant. The finding of desertion against the Appellant arrived at abruptly in the concluding paragraph of the judgment is unsupported by any discussion and perverse.
We are satisfied in the facts of the case, that to affirm the decree under Appeal shall tantamount to giving an advantage to the respondent for his own irresponsible conduct as held in [PRECEDENT].
That leaves only the ground of irretrievable breakdown of marriage for the divorce granted which has been held Patna High Court [CASE NUMBER] dt.10-01-2014 4 not to be a ground for divorce under the [ACT] for which reference may be made to [PRECEDENT] (Ms [PRECEDENT] ([PRECEDENT]. The power to grant divorce in such circumstances under [SECTION] of the [ACT] to do complete justice is not available to us.
The last submission on behalf of the Appellant for maintenance and her application before the Family Court has remained pending, in absence of materials before us both with regard to the nature of income that the Appellant may be having as a Teacher now, documentary evidence with regard to the nature of income that the respondent may be having, it makes it difficult for us to make any inquiry into that question of fact and pass any orders. It shall be open for the Appellant to move the Family Court for that relief in accordance with law. Any such application is expected to be considered and dispose it expeditiously.
The judgment and order dated 03.11.2006 in [CASE NUMBER] is set aside.
The Appeal is allowed.
([ENTITY], J) ([ENTITY], J) Patna High Court Dated: The 10th Day of January, 2014 N.A.F.R./Md. Ibrarul