IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.729 of 2009 DHIRENDRA KUMAR, SON OF LATE SHYAM PADO GHOSH, R/O VILLAGE + P.O. – BARARI (RARIH TOLA), P.S. – BARARI, DISTT. – BHAGALPUR, PIN CODE – 812003 ………………………………… PETITIONER - APPELLANT Versus LEENA KUMARI, DAUGHTER OF SHYAM CHANDRA SINHA AND WIFE OF DHIRENDRA KUMAR, R/O (1) CARE OF MR. RAKESH KUMAR SINHA, YARD MASTER, RAILWAY QUARTER, SAHARSA, DISTT. SAHARSA, AND (2) VILLAGE + P.O. – BARARI (RARIH TOLA), P.S. – BARARI, DISTT. – BHAGALPUR, PIN CODE – 812 003 …… ………………………………RESPNDENT – RESPONDENT. ----------- For the Appellant:- Mr. Ashok Kumar and Mr. Satish Kumar, Advocates. For the Respondent:- Mr. Ashok Kumar Jha, Mr. D.N. Jha and Mr. A.K. Jha, Advocates. ------------ 11. 13.01.2010. The appellant-husband preferred an application under Section 13 (1)(i)(ia)(ib) of the Hindu Marriage Act, 1955 for dissolution of marriage forming the subject matter of Marriage Case No. 77 of 2003 in the Family Court, Bhagalpur. 2. It was pleaded before the Family Court that the marriage between the parties was solemnized on 11.07.2001 and, after the wife came to the matrimonial home, she refused to live with the husband and the marriage was not consummated. She 2 treated him with cruelty and deserted him and, therefore, he was entitled to a decree for divorce. 3. The various allegations put forth in the application were combated by the wife- respondent by filing a written statement stating that after marriage she lived with her husband but he was not in talking terms with the respondent and had never made an endeavour to have a sexual relationship with her. It was alleged that as her daily needs were not met with she was compelled to take help from the neighbours and the family members. It was put forth that the husband compelled her to leave the matrimonial home and, therefore, she had no other option but to leave the matrimonial home. 4. On the basis of the pleadings, the learned Family Judge framed as many as six issues and, on the basis of the evidence brought on record, came to hold that her husband was responsible for desertion as he had refused to cohabit with his wife and there was no ground for grant of divorce. The learned Family Judge while dismissing the suit imposed costs of Rs. 5,00,000/- (Five lacs), which he 3 nomenclatured as compensatory costs. 5. We have heard Mr. Ashok Kumar and Mr. Satish Kumar, learned counsel for the appellant and Mr. Ashok Kumar Jha, Mr. D.N. Jha and Mr. A.K. Jha, learned counsel for the respondent. 6. It is submitted by Mr. Ashok Kumar that the respondent-wife had hardly stayed for few days with the appellant and had not cooperated for consummation of marriage. It is urged by him that the respondent-wife has clearly deposed before the Family Court that she had no physical relationship with her husband despite her best efforts. Learned counsel has submitted that the husband had sent messages to her admitting his impotency to consummate the marriage. It is also submitted that the appellant-husband has been paying maintenance to the respondent-wife as per the interim order passed by this Court. It is further canvassed by Mr. Ashok Kumar, learned counsel for the appellant that the marriage has become irretrievable and, hence, the order should be dislodged. It is his further submission that under these circumstances, the 4 learned Family Judge should have been well advised to pass an order for divorce and, hence, the order passed by him should be set at naught. 7. Learned counsel for the respondent submitted that the order passed by the learned Family Judge is based on proper analysis of material on record and in the absence of any kind of perversity in the order, the same should be affirmed. Alternatively, it is argued that the husband, as per the interim order passed by this Court, has been paying maintenance but there has to be a lump sum award of permanent alimony to sustain herself. 8. Having heard the learned counsel for the parties it is absolutely clear that there are allegations and counter allegations by the husband and the wife; that the husband had alleged that the wife had deserted him and the marriage was not consummated; that the wife has deposed there could be no sexual relationship because of incapability of the husband; and that there has been separation for a long period. 9. Regard being had to the aforesaid 5 fact situation we have no hesitation in holding that the marriage has reached the stage of complete failure and, from the allegations, it is perceptible there has been no consummation of marital relationship and the emotions have been frozen with the efflux of time and, therefore, an order for divorce should be granted. However, the wife has to be granted permanent alimony which we fix at Rs. 5,00, 000 (Five lacs). The aforesaid amount shall be paid in three installments, the first installment of Rs. 2.5 lacs by end of May, 2010, Rs. 1.5 lacs by 30th November, 2010 and Rs. 1.0 lac by February, 2011. The said amount shall be paid by Banker’s Cheques / Bank Drafts drawn in a nationalized Bank in the name of the wife-respondent. Till the entire amount is paid, the interim maintenance, as directed by this Court, shall continue to be paid. 10. Resultantly, the appeal is allowed and the order dated 01.11.2006, passed in Marriage Case No. 77/2003 by the learned Principal Judge, Family Court, Bhagalpur, Sri Ajay Kumar Srivastava is set aside and it is directed that the marital status 6 between the appellant and the respondent stands dissolved. There shall be no order as to costs. Dilip ( Dipak Misra, C.J. ) ( Shiva Kirti Singh, J. )