^. ^y ..t ^i HIGH COURT OF CHHATTISGARH. BILASPUR APPELLANT/: (Appncant) RESPONDENT/: (Non-applicant) FirstADDeal(MyNo.118of2008 Raj Kumar Pandey, S/o Ramlakhan Pandey, aged about 38 years, R/o Shivdhari Colony, Ambikapur, Police Station/Tahsil Ambikapur Distt. Surguja (C.G.) Versus - Smt. Anita Devi, W/o Rajkumar Pandey, aged about 34 years, R/o C/o Lalrriuhi Dubey, in front of j Khadi Bhandar, Sitapurr Pblice Station and Tahsil Sitapur, Distt. Surguja (C.G.) {First appeal (Misc.)und6r Section 19 (1) ofthe Family Courts Act} ^ Present: Mr. K.A. Ansari, Senior Advocate with Mr. R.L. Bajpayee, Advocate '^ forthe appetlant. Mr. V.K. Pandey,counsel forthe respondent. T Division Bench: - Moh'ble Mr. T.P. Sharma& Hon'ble Mr.R.N. Chandrakar, JJ ORAL ORDER (17-2-2010) 1-Challenge in this appeal is tp the judgment &decreedated 27-9-2008 passed by the Judge, Family Court, Ambikapur in Civil Suit No.12A/2007, whereby learned Judge, Family Court das clismissed the suit filed by the appellant herein for dissolution of marriage by a decree of divorce. 2. Decree is challenged on the ground that the Family Court has hot considered the proved case ofdesertion and thereby committed illegality. x 3. Brieffacts necessary for the disposal of this appeal are that parties are Hjndus and legally wedded spouses, their marrjage took place on 10-3- 1992. According to the pleadings of the appellant, the respondent is residing separately from the appellant since 20-1-94. The appellant has 'y ^- '^•^,, ^< made regular efforts for living together, but the respondent is not ready & willing to live with the appellant and discharge her marital obligations, even she has filed criminal case against the appellant under Section 498A of the I.P.C. in which the appellant has been acquitted on the ground of desertion. The suit for dissolution of marrjage by a decree of divorce has been filed by the appellant. 4. The respondent has denied the allegation and pleaded that earlier also the appellant has filed suit for dissotution of marriage by a decree of divorce which has been dismissed and the present suit is barred by the principle of/"esyi/c//cate,she has never deserted the appellant. 5. On the basis of pleadings,issues were framed and after prOvidihg opportunity of hearing to the parties, the Judge, Family Court has dismissed the suit fordissolution ofmarriage by a decree of divorce. 6. We have heard learnedcounsel for the parties, perused the judgment & decree and record of the Family Court. 7. Learned counsel for the appellant vehemently argued that the first suit for dissolution of marriage was dJsmissed'vide judgment & decree dated 14-9-2000 which has been affirmed in appeal vide judgment dated 17-2- 2006passed by this Court in First Appeal No.11/2000. Afterdismissalof first suit the appellaht has again made efforts for reconciliafion, butthe respondent is not ready & willing tolive with the appellant and discharge her marital obligations. 8. On the other hand, learned counsel for the respondent opposecl the appeal and submitted that in absence of proof of desertion the Famjly Court has rightlydismissed thesuit. 9. We have perused pleadings of the parties and evidence ofthe parties. They clearly reveal that both theparties are residing separately since '.^ -i^. 1994, The respondent herself has admitted in para 5 of her cross- examination that some community meeting was held on 26-1-94and dispute between the parties was resolved, then they agreed to tive together, despite that she was living separatety from the appettant. Crimjnal complaint has also been filed against the appellant which resulted in acquittal. lO.The appellant has filed suit for dissolutjon of marriageby a decree of divorce, but has not specifically pleaded the grounds available to him. After dismissal of first suit, the Ramily Court has also not framed issue relating to cruelty based on the pleadings ofthe parties and has decided the suitin a cryptic manner. On perusal ofthe judgment & decree impugned, we are of the considered view that the judgment & decree dismissing the suit fbr dissolution of marriage by a decreeof divorce are notsustainable underthelaw. 11.Consequently, theappeal is allowed. Judgment & decree impugned are hereby set aside and thecase is remitted back to the Family Court, Ambikapur, for providing opportunity 'of elaborate pleading and after framing issue, providing opportunity of hearing and adducing evidence, decide the case afresh within six months from today. Parties are directed to appear before the Judge, Family Court, Ambikapur oh 30-3- 2010 Soma Sd/- T.P. Sharma Judge Sd/- R.N. Chandrakar Judge