In the High Court of Judicature at Patna --- M.A.No.739 of 2009 --- Sanjay Kumar s/o Ram Prasad Mandal, r/o village Jumaria, P.S. Gopalpur, District – Bhagalpur, aged 31 years, at present posted as L.D.C. Clerk, Home Minister Office, Delhi …….. Appellant Versus Smt. Pratima Devi w/o Sanjay Kumar , aged about, 25 years, resident of village – Dumaria, P.S. Gopalpur, P.O. Dumaria, District – Bhagalpur, at present residing at C/O Madhusudan Pd. Mandal, r/o village Pannuchak, P.S. Kolganj (Ghogha) P.O. Ghogha, District – Bhagalpur ……. Respondent --- For the appellant: Mr. Bimlendu Mishra Smt. Poonam Mishra, Advocates For the respondent: Mr. Shiwesh Chandra Mishra, Advocate --- PRESENT : Hon’ble the Chief Justice Hon’ble Mr. Justice Shiva Kirti Singh O R D E R (18/01/2010) As per Dipak Misra, CJ. The present appeal is preferred under section 19 of the Family Courts Act, 1984 calling in question the legal substantiality of the order dated 23.5.2007 passed in Matrimonial (Divorce) Case no.101 of 2005 (erroneously written as 101 of 2006 in the order) by the learned Principal Judge, Family Court, Bhagalpur. 2. The appellant – husband preferred an application under section 13(1) (ib) of the Hindu Marriage Act, 1955 (for brevity, “the Act”) for dissolution of marriage and to pass a decree 2 for divorce. It was put forth in the application that the marriage between the appellant and the respondent was solemnised on 20th of April, 2004. After entering into the wedlock the respondent remained in the matrimonial home for five days and thereafter proceeded to her parental home without any consultation with the appellant. After the wife- respondent left for the parental home, the appellant had to leave for Delhi where he holds job and he came to his native village Dumaria in Durgapuja holidays. He took the railways tickets and approached the wife to come to Delhi with him but she declined to accompany. In such a situation, the appellant was constrained to come to Delhi alone. Thereafter, the father-in-law of the appellant asked him on telephone to come to Pannuchak. On 23.3.2005 the respondent-wife telephoned him threatening that if you come to Pannuchak he would be killed either by the respondent herself or by the family members as she has no relation with him. Again on 3.6.2005 she telephoned that he should not try to create any kind of obstruction in her happiness. Despite the aforesaid telephone calls, the appellant came to village Dumaria on 4.6.2005 and after narrating all these facts to her parents and other respectful members of the society proceeded with his father Ram Prasad Mandal and one Radhy Shyam Mandal to village Pannuchak on 12.6.2005 with intention to bring back the respondent but she declined to accede the 3 request and stated in a categorical manner that she did not like to live with him as he was suffering from tuberculosis. In this situation, the appellant had no option but to leave for Delhi on 20th April, 2004 alone. In this factual backdrop, the application under section 13(1)(ib) of the Act was filed. 3. After notices were issued by the learned Family Judge the respondent-wife appeared before him and apprised about her illness and treatment availed but she did not file any written statement. In the aforesaid factual matrix, the learned Family Court proceeded exparte as the respondent chose not to contest the proceeding after receipt of the notice. 4. The husband examined five witnesses to substantiate the allegation made by him. The learned Family Judge expressed the opinion that the appellant – husband was suffering from tuberculosis as no documentary evidence has been produced before the court to show that he was free from any disease. The learned Family Court, as evident from the order, opined that the respondent – wife had a reasonable cause to stay away from the appellant – husband and the appellant has not been able to prove anything as regards cruelty. Being of this view, he directed for judicial separation. 5. Criticizing the aforesaid order, it was submitted by Mr. Bimlendu Mishra, learned counsel for the appellant that the 4 finding of the learned Family Judge that the husband was suffering from tuberculosis is based on no material on record and, in fact, he misconstrued the oral evidence. It is also urged by learned counsel for the appellant that the wife had no justification to stay away from the husband. It is further urged by him that when there was ample evidence and the respondent wife had chosen to allow the application to proceed exparte , there was no rhyme or reason to discard the evidence brought on record by the husband. It is also submitted that when a case for desertion has been proved the decree for divorce should have been passed and not for judicial separation. 6. Resisting the aforesaid submissions Mr. Shiwesh Chandra Mishra, learned counsel for the respondent, submitted that the order passed by the learned Family Judge cannot be found fault with as a correct finding has been recorded as regards non- proving of factum of desertion 7. To appreciate the rival submissions raised at the Bar, we have carefully perused the order and appreciated the same with studied scrutiny. Bestowing our anxious consideration, it is found that the learned Family Judge has drawn adverse inference that when the husband was suffering from tuberculosis, wife was justified in deserting him. The witnesses have deposed that the husband was healthy and not suffering from any disease 5 and, therefore, there was no justification to hold that he was suffering from tuberculosis. It is also worth noting that the learned Family Judge has opined that the respondent was keeping herself away from court after putting her appearance and hence it could be construed that she was not willing to live with the husband because he was suffering from tuberculosis. 8. In our considered opinion, the factum of the husband suffering from tuberculosis has not been proven but the wife – respondent did not stay with the husband. There is categorical pleading and evidence that she left the matrimonial home only five days after marriage i.e., 20th of April, 2004 and the application was preferred on 22.6.2005. Thus, though the wife has stayed away from the husband, the desertion does not come within 13(1) (ib) of the Act inasmuch as it cannot be held that she has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition. Hence, the order not granting divorce cannot be found fault with. 9. At this juncture, we may note with profit the submission of Mr. Bimlendu Mishra, learned counsel for the appellant, as is urged by him, that liberty be granted to file a fresh application for dissolution of marriage under section 13 (ia) and desertion as contemplated under section 13(1) (ib) of the Act. 6 10. Regard being had to the aforesaid limited prayer, liberty is granted to move an application under the aforesaid provisions as advised in law. On filing of such an application the learned Family Judge shall dispose of the same in quite promptitude. 11. The appeal is accordingly disposed of. There shall be no order as to costs. Sd/- Sd/- (Dipak Misra, CJ.) (Shiva Kirti Singh, J.) Patna High Court, Patna Dated, the 18th January, 2010 NAFR/(Neyaz)