IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.93 of 2009 RAJESH SHARMA, SON OF SURAJDEO SHARMA, RESIDENT OF VILLAGE-LAKHICHAK, P.O.DHARMPUR, P.S. NOORSARIA, DISTRICT-NALANDA. VERSUS MAMTA DEVI, DAUGHTER OF RAJKUMAR SHARMA, WIFE OF REJESH SHARMA, RESIDENT OF VILLAGE-KHODAI, P.S. & P.O. DEEPNAGAR, DISTRICT- NALANDA AT PRESENT C/O KAMESHWAR THAKURHOMEPIPE, KALYAN NAGAR A-V BLOCK, HOUSE NO. 109, P.S. SITARAM DERA, JAMSHEPUR, DISTRICT - EAST SINGHBHUM. ----------- 12. 16.03.2010 Heard leaned counsel for the parties. This appeal is directed against order dated 7.01.2009 passed in Matrimonial (Divorce Case No. 34 of 2007) by which the Principal Judge Family Court, Nalanda at Biharsharif has dismissed the petition filed under Section 13 of the Hindu Marriage Act by the appellant seeking divorce on the ground of adultery as well as cruelty. The case of the appellant (applicant) is that after marriage in the year 2003 his wife stayed in his house only for one week and again in the year 2004 when she came back from her Maika, she started quarreling with him as well as his family members, including his parents. Allegedly she showed no respect for his parents and after some time she left the matrimonial house in the night hours without information. She came back on the pressure of her parents to force the appellant to take a separate room in the village and live separately from his parents. But this did not change the behaviour of his wife and in the Panchayati held on 5.10.2004 she refused to live with the appellant and made a demand of Rs. one lakh. Allegedly there has been no physical relationship between the parties since 5.10.2004.She - 2 - deserted the appellant for more than two years and threatened to implicate him in a criminal case then he preferred this Matrimonial Case in the year 2007. In her written statement the respondent (Opposite Party) refuted the aforesaid allegations and made a counter allegation that she was assaulted and ousted from the matrimonial house and hence she filed a complaint case against the appellant and his family members under Section 498A and other Sections of the Indian Penal Code and Section 3/4 of the Dowry Prohibition Act at Jamshedpur which is pending for trial. She also filed a Maintenance Case under Section 125 of the Code of Criminal Procedure which is also pending in the Family Court at Jamshedpur. She denied that she had any illicit relationship with any boy and made a counter allegation that the appellant was living with another girl at Jamshedpur. The Family Court considered the issue of desertion and entitlement for decree for divorce together and held that so far cruelty is concerned the appellant had adduced no evidence in support of the same. It disbelieved the factum of Panchayati on the ground that no documentary evidence was adduced and oral evidence could not be conclusive. The allegation of abuse and cruelty in action was disbelieved on the ground that no Sanha (information to the police) or any paper in support of such allegation had been produced. On the other hand the Court Below noticed papers relating to complaint case filed by the respondent and that she refused to live with the appellant on the ground that he had re-married another lady. - 3 - On the issue of adultery, the Court Below noticed that the applicant and his witnesses had deposed that respondent was having illicit relation with one person of her village whose name was furnished but the Court Below held that this allegation was also not established by any piece of paper and only witnesses had deposed about such illicit relationship with Pappu Sharma and for these reasons it was held that the appellant had failed to establish cruelty or adultery and accordingly the suit was dismissed. Learned counsel for the appellant has submitted that issues like cruelty and adultery should be decided on the basis of oral evidence and it was not possible to have documentary evidence to support the allegation of cruelty or adultery. According to him oral evidence should have been considered in detail for deciding the aforesaid issues in favour of the appellant. On the other hand learned counsel for the respondent has submitted that respondent has levelled counter allegation that the appellant had re-married and was living with one Rubi Devi whose parentage and village was also disclosed. We had given opportunity to the parties to think about amicable settlement but we have been informed by the counsels that the parties are not living together and by all standards the marriage has broken down irrevocably. Thereafter we gave opportunities to the parties to come to an understanding as to what should be the permanent alimony to the satisfaction of each other. But this also could not be resolved and on this issue we are shown the order of a - 4 - Court at Jamshedpur which has allowed Rs. 800/- per month as maintenance in favour of the respondent-wife on account of agreement between the parties over such amount. According to the learned counsel for the respondent-wife the said amount is not satisfactory and in any case it may need to be revised in future because of increase in the cost of living. He has indicated that on this apprehension the respondent is not prepared to opt for permanent alimony by way of one time lump sum payment. The learned counsel for the appellant, on the other hand has submitted that the appellant is no longer working at Jamshedpur but is engaged in the profession of barber in his village home and with great difficulty he has agreed to provide Rs. 800/- per month as alimony. According to the learned counsel for the appellant, it is beyond the capacity of the appellant to pay higher alimony either on monthly basis or by way of lump sum payment. Having considered the entire facts, circumstances and the evidence on record, we find that the marriage between the parties has admittedly broken down irrevocably. They have leveled allegations and counter allegations of adultery and are separate from each other since October, 2004. There is no child born from the said marriage. In view of the facts and the stand of the parties, we find no difficulty in reversing the order under appeal so as to allow the prayer for divorce in favour of the appellant. However, this order is based on the submissions advanced by both the parties that the parties cannot live together any more and desertion stands proved by circumstances also. This order will not mean by any inference that the issue of adultery - 5 - has been decided against the respondent. The desertion in this case must be treated to be by both the parties leading to irrevocable break down of the marriage. So far as the issue of alimony is concerned, in view of the earlier consent order passed by the Court at Jamshedpur, we allow for the present a permanent alimony of Rs. 800/- per month but we make it clear that this issue has not been finally decided by us and it can again be raised before the concerned Family Court, Nalanda at Biharsarif through an application by the respondent-wife. In case such application is filed then the Court below will go into the issue of permanent alimony afresh and decide it in accordance with law on the basis of evidence that may be adduced by the parties. This appeal is allowed to the aforesaid extent. The parties shall bear their own costs throughout. (Shiva Kirti Singh, J.) (C.M. Prasad, J.) Ravi/-