IN THE HIGH COURT OF JUDICATURE AT PATNA --------- Miscellaneous Appeal No.663 of 2011 ------- Appeal against the Judgment and order dated 28-6-2005 Passed by Additional Judge, Family Court, Patna in Matrimonial Case No. 131 of 2002. ------- Kumar Ajay , son of Harinandan Prasad Singh, R/o Village- Simari, P.S. Dhanarua, P.O. Kosut, District- Patna, employed as C.R.P.F. Constable..... Appellant Versus Smt. Sangita Kumari , Wife of Kumar Ajay and daughter of Keshav Kumar Singh, R/o Village- Larava, P.S. and P.O. Makhdumpur, District- Jehanabad..................................................Respondent ---------------------------------- 11 30-11-2011 Heard learned counsel for the appellant and learned counsel for the respondent. This appeal is directed against the judgment and order dated 28th June, 2005 whereby the Additional Principal Judge, Family Court, Patna has dismissed Matrimonial Case No. 131 of 2002 filed by the appellant- husband seeking divorce from the respondent-wife under section 13 of the Hindu Marriage Act. The grounds for divorce are mainly on allegations of cruelty and desertion. The marriage was solemnized as per Hindu rites on 24-5-1994 at the parental house of the 2 wife in the district of Jehanabad. For sometime the parties lived as husband and wife and as a result a son was born on 15-2-1995. It is the case of the appellant that he is a sepoy in the Central Reserve Police Force whereas the respondent is Diploma-holder in Electronics Instrument Control. Allegedly the respondent showed cruel and harsh behaviour towards the husband and his mother and father. From the averments it appears that father of the respondent is a retired Government Servant who has built his own house at Jehanabad and the respondent is not prepared to live with the appellant as she does not want to remain as wife of a sepoy. It is further case of the appellant that all his attempt to persuade the respondent to come back and live in his house failed and he was tortured and insulted. Once in May,1999 the appellant succeeded in bringing respondent to his village Simri where she stayed for a fort-night but fled away to her parents house without information and permission of the appellant. Thereafter she never agreed to come back and live with the appellant as wife. The appellant also alleged that she was in company of some young persons and he predicted that she has become 3 vagabond. Conjugal relationship could never be resumed after May, 1999 but allegedly she conceived and gave birth to a male child in March,2002. The matrimonial suit was filed in the year 2002 and in the same year on 15th March, 2002 the respondent filed a case under section 498-A and other sections of the I.P.C. The police submitted final form but the case is pending on account of protest-cum-complaint petition. The appellant has apprehension of assault to himself, and his father at the hands of the respondent and her friends. The appellant has examined four witnesses in support of his case. He himself is A.W.1. His case has been supported by his father, Hari Nandan Singh who is A.W.2, also by A.W.3, Raghvendra Kumar Sinha and A.W.4, Nagendra Kumar Singh who are his co-villagers. According to the last two witnesses the respondent went with her husband to his village Simri in May, 1999 but after staying there for 14-15 days, one morning she left the house without the knowledge or permission of the appellant. 4 The defence of the respondent-wife is denial of all the allegations and that she is ready to live with her husband along with her son, but she was not permitted by her husband or his parents to do so. She has made counter allegation of torture leading to criminal case. She has alleged that she lived with him in the house of his father at Jehanabad till March, 2001. But thereafter she had to leave the house and filed criminal case. She has denied allegations in respect of her character as well as the incident of abortion. On her behalf altogether six witnesses were examined. She herself has been examined as O.P.W.1. O.P.W.2, Shambhu Singh, O.P.W.3, Vinod Kumar and O.P.W.6, Sushil Kumar have adduced evidence to contradict the appellant/s case that respondent lived with the appellant at Simri for few days in May, 1999. O.P.W.4, Keshav Kumar Sinha is father of the respondent and O.P.W.5, is the son of the respondent aged about 10 years. Some letters have also been exhibited on behalf of respondent-wife. This Court wanted to explore the possibility of 5 reconciliation and amicable settlement between the parties. However, learned counsel for the parties were unanimous that it was not possible for the parties to live together. There is no chance of reconciliation and compromise between the parties. In fact, learned counsel for the respondent indicated that now the respondent is living and working in Delhi and the husband and wife are incompatiable to each other. It may be in the interest of both the parties to separate and lead their life separately. Although the court below has disbelieved the evidence adduced on behalf of appellant-husband but considering the entire facts and circumstances, the approach of the court below appears to be erroneous. There is consistent evidence on the point of desertion to show that the respondent left the house of the appellant without informing him in May 1999 and thereafter all efforts failed and conjugal life could not be resumed. Considering such evidence and the stand of the parties, it appears just and proper to allow the prayer for divorce on the ground of desertion. 6 Accordingly, the appeal is allowed. The judgment and order under appeal dated 28-6-2005 is set aside. The parties shall bear their own costs through out. Naresh ( Shiva Kirti Singh, J.) ( Shivaji Pandey,J)