IN THE HIGH COURT OF JUDICATURE AT PATNA M.A. No. 323 of 2009 BIPLAB DAS son of Late Kartik Chandra Das, R/O Mohalla New Railway Colony Quarter No.213/A.B.C, P.O. Khagaul, P.S Khagaul, Dist- Patna………Petitioner/Appellant. Versus SMT.SHIPRA RANI W/O Sri Biplab Das, D/O late Phani Bhusan Gon, R/O, P.S, Dumka, Distt, Dumka. Respondent. ----------- 5. 11. 01.2010 In spite of notice the respondent who is wife of the appellant has chosen not to appear and contest this appeal. Mr. Sanjay Kumar, learned counsel for the appellant has been heard in detail so that this appeal filed against judgment dated 18.4.2009 passed by Additional Principal Judge, Family Court, Patna in Matrimonial Case No.293 of 2004 may be finally disposed of. The appellant, as a petitioner in Matrimonial Case No. 293 of 2004 originally filed an application under Section 9 of the Hindu Marriage Act. The Respondent/Defendant filed written statement contesting the claim for restitution of the conjugal rights. Thereafter, the plaint was amended so as to convert the application to one under Section 13 of the Hindu Marriage Act and prayer under Section 9 was deleted through a further amendment. Learned counsel for the appellant pointed out from - 2 - paragraph-6 of the judgment under appeal that the respondent left pairvi and the case was heard ex-parte. In the same paragraph the learned Family Court noticed averments in the plaint to the effect that O.P. No.1 (respondent herein) had filed a divorce case in the year 2003 at Family Court, Dumka claiming telephonic consent of the petitioner for divorce but the petitioner/appellant appeared and opposed the prayer for divorce leading to dismissal of that suit. Thereafter, another suit for divorce under Section 13 of the Hindu Marriage Act was filed by O.P. No.1 in the year 2005 in Dumka Family Court which was also dismissed. Thereafter, in the present Matrimonial Case the appellant himself sought divorce through amendment of plaint. Learned counsel for the appellant submitted that the learned Family Court has erred in law in refusing the prayer for divorce only because in the earlier suit filed by the respondent for divorce, this appellant had contested and opposed the prayer for divorce and further on the ground that the appellant had examined only himself as a witness in support of his case. It was further submitted that the conduct of the respondent in not contesting the Matrimonial Case filed by the appellant coupled - 3 - with cases filed by her, seeking divorce clearly go to show that the marriage had broken down completely and irrevocably as the husband and wife were living separately and in the written statement the respondent contested the initial prayer of the appellant for restitution of conjugal rights. According to learned counsel for the appellant the learned Family Court has adopted a hyper technical stance and has failed to appreciate the case of the appellant in totality which clearly makes out a case for divorce on that ground of desertion and unjustified refusal by the respondent to the prayer of the appellant for restitution of conjugal rights. Lastly, it was submitted that since the respondent did not contest the appellant’s claim for divorce and the facts stated in the plaint which show that she herself wanted a decree of divorce, the court below should have allowed the prayer for divorce by treating that the respondent had consented for the same by her conduct in not opposing the case of the appellant for divorce and that such consent is explicit even now because even after notice the respondent has chosen not to appear and contest this appeal. On a careful consideration of relevant facts mentioned in the impugned judgement dated 18th April, 2009 passed by - 4 - Additional Principal Judge, Family Court, Patna and the aforesaid submissions advanced by learned counsel for the appellant, we are inclined to accept the submissions to the effect that prayer for grant of a decree for divorce ought to have been allowed by the learned Family Court on the ground of desertion because the respondent did not lead any evidence to justify her stand not to live with the appellant as desired by him initially through an application under Section 9 of the Hindu Marriage Act seeking restitution of conjugal rights. Further, from the conduct of the respondent in not contesting the Matrimonial Case and in not appearing to oppose this appeal even after notice, it is evident that she is not at all interested in keeping the marriage alive. For the aforesaid reasons, the judgment under appeal is set aside and the appeal is allowed. It is found and held that the appellant is entitled to a decree for divorce on the ground of desertion by his wife, the respondent. In the facts of the case no order need be passed for alimony or costs. perwez (Dipak Misra, CJ.) ( Shiva Kirti Singh, J )