IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.121 of 2009 SANJAY KUMAR YADAV, SON OF LATE RAJESH YADAV, RESIDENT OF VILLAGE- DASPURA, P.O. BHADEYA, P.S. BARACHATTI,DISTT. GAYA……………. APPELLANT Versus LAKHIYA DEVI, WIFE OF SANJAY KUMAR YADAV, DAUGHTER OF KALESHWAR YADAV, RESIDENT OF VILLAGE- MAHUIN, P.O. AND P.S. BARACHATTI, DISTRICT- GAYA…………………………………………….RESPONDENT ----------- 8 17-09-2010 Heard learned counsel for the appellant in respect of limitation petition ( I.A. No. 6080 of 2008) as well as on the merits of this appeal. In spite of valid notice and appearance through vakalatnama nobody has appeared on behalf of the sole respondent to oppose the limitation petition or the appeal. In fact yesterday also when the matter was called out nobody appeared for the respondent. Considering that she is a lady, we passed over the matter and requested learned counsel for the appellant to inform the counsels. He submits that he has informed them that the court wants to hear them but still they chose not to appear in the court. For the reasons mentioned in the limitation petition, the delay of ten days in preferring this appeal is condoned. The I.A. stands allowed. On merits it has been submitted by learned counsel for the appellant that the appellant had filed Matrimonial 2 Suit bearing no. 27 of 2007 in the court of Principal Judge, Gaya seeking divorce against his wife, the sole respondent on the ground of desertion. It was highlighted by learned counsel for the appellant that in spite of notice in the matrimonial suit, the respondent, who was defendant in the suit chose not to appear and the suit was heard ex parte but it was dismissed without considering the issue of desertion or the evidence related to that issue. A perusal of the judgment and order under appeal shows that the learned Principal Judge, Family Court, Gaya has examined the evidence led on behalf of appellant only with a view to find out whether prayer for divorce could be allowed on the ground of respondent being insane or not. The analysis of evidence is on those lines only without application of mind to the issue of desertion. According to the appellant’s case, he was married to the respondent in 1991 as per Hindu rites and after marriage the defendant- respondent lived in the house of the appellant only for eight days whereafter she went to her parental house. The appellant wanted the wife to come to his 3 house but the proposal for Rokshadi was deferred on one pretext or the other and finally the wife came back to live with him in the year 1997. But after one month, allegedly in absence of the appellant she left the house and thereafter she again came to live with him for about one month in the year 2002 and again deserted him without any valid reason and never came back. The appellant also asserted that the wife is lunatic . The suit was filed after about five years of alleged desertion and neither any written statement was filed to contest this suit nor the plaintiffs witnesses were cross- examined to controvert the plea of desertion. In the aforesaid facts and circumstances the learned Principal Judge, Family Court clearly erred in dismissing the suit only after considering the matter relating to lunacy of the defendant wife. In our considered view the suit should have been decreed and the prayer for divorce ought to have been allowed on the plea of desertion which was never controverted. 4 In that view of the matter the impugned judgment and order is set aside. The decree for divorce sought by the appellant/plaintiff on the ground of desertion is allowed. The appeal accordingly stands allowed but without costs. Naresh ( Shiva Kirti Singh, J.) ( Hemant Kumar Srivastava,J)