APPEAL FROM ORIGINAL DECREE NO. 3 OF 1998 Against the judgment and decree, dated 30.9.1997 passed by Shri H.B.P. Singh, 4th Additional District Judge, Madhubani in Divorce Case (Suit) No. 6 of 1993. … DEO KUMAR SAH-----------------------Appellant Versus ANJALI KUMARI SAH----------------- -Respondent --- For the appellant : Mr. B.P.Verma,Sr. Advocate, Mr.Yogendra Kumar, Mr.M.K.Gautam, Mr. R.N. Roy and Mr.Manish Kumar, Advocates. For the respondent: Mr. Satish Chandra Jha, Mr. Kumar Ravi Shnankr and Mrs. Pushpa Rani, Advocates. … P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN S,A,Khan,J. This appeal arises from a judgment and decree passed in a matrimonial case filed by the husband Deo Kumar Sah for divorce from his wife Anjali Kumari Sah by 4th Addl. Dist. Judge, Madhubani in Divorce Case No.6/1993 by which the matrimonial suit for divorce has been dismissed ex parte. 2. Before proceeding with the judgment, I may state that the Family Court was constituted in the district of Madhubani by memo no. 1889, dated 8.7.2006 and as such this appeal has been filed under section 28 of the Hindu Marriage Act. 3. The plaintiff filed an application under section 13 of the Hindu Marriage Act claiming that his wife Anjali Kumari had deserted him and also claimed divorce on the ground of adultery and 2 the mental imbalance of his wife. 4. The specific case of the plaintiff is that he was earlier married to one Leela Devi who died on 16.2.1980. Later, after negotiations he was married to the present defendant at Forbisganj which was earlier in the district of Purnea and at present is in the district of Araria. The plaintiff and the defendant lived together from 29.6.1982 to 2.7.1982. Thereafter, the defendant went back to her father’s house and did not return to her matrimonial home till 3.12.1982. Again the defendant lived with the plaintiff from 3.12.1982 to 13.12.1982, after which she left her husband’s house never to return again. The defendant gave birth to a son at her parent’s home on 1.9.1983. 5. From the pleadings it appears that the defendant was working as an Assistant teacher in the district of Purnea and the plaintiff’s father-in-law advised him to make efforts to get his wife transferred from the district of Purnea to Madhubani. It is specifically stated at para 9 of the plaint that the plaintiff made efforts in that direction and was successful in getting a transfer order from Purnea to Madhubani vide letter no. 433, dated 21.2.1983 which was forwarded to the Block Education Officer, Kursakata vide memo no. 2662-64, dated 15.3.1983. The said letter was also forwarded to the Superintendent of Education, Madhubani who posted the defendant at Primary School, Piprahi, block Laukahi and then the Superintendent of Education, Madhubani also forwarded the letter of transfer on 10.3.1983 to the Block Education Officer, Madhubani. It is further 3 pleaded at para 10 that the defendant took two months leave from the concerned authority from Madhubani district and went to Purnea (Forbisganj) to persuade his wife to join Primary School, Majhuya, Forbisganj, district Araria. However, the defendant did not join on the said posting in the district of Madhubani and managed to get the order cancelled. 6. The further case of the plaintiff is that he made all attempts to persuade his wife to come and live at Madhubani and for this purpose visited her home on 17.6.1985, 16.3.1986, 27.12.1987, 17.4.1988 and 3.3.1991 but the defendant refused to meet him and in fact the father of the defendant did not permit the plaintiff to stay with them. 7. A written statement was filed on behalf of the defendant on 21.1.1994 and after filing of the written statement the defendant did not care to appear in the case. The defendant has denied the allegations made in the plaint. This court will discuss the pleadings while considering the case of the parties for the purpose of deciding the issues in question. 8. The divorce case has been filed on three grounds, namely, desertion, adultery and mental instability. As far as the question of adultery and mental instability is concerned, this court finds that the plaintiff had not seriously raised these issues and had virtually led no evidence on these questions; as such the only issue before this court for consideration is to decide whether the defendant had deserted the plaintiff, her husband. 4 9. The plaintiff has examined only himself as a witness in this case and since no body appeared on behalf of the defendant, cross examination did not take place. 10. The plaintiff has supported the pleadings made in the plaint and specifically stated that his wife lived with him at Forbisganj from 29.6.1982 to 2.7.1983 and again from 3.12.1982 to 13.12.1982 and thereafter she did not return to live with the plaintiff. He has also stated specifically that he went to visit his wife on several dates supporting the case made out in the plaint but he was not allowed to meet his wife nor did his father-in-law welcome him in his house. It has also been stated in paragraph 4 of his evidence that the plaintiff made an attempt to get the defendant transferred from Forbisganj, Purnea district to Madhubani. The court below while considering the question whether the plaintiff is entitled for a divorce on the ground of desertion has not at all considered this fact and rejected the plaintiff’s evidence with respect to his attempts to get the defendant transferred on the ground that copies of the orders were not exhibited and has also rejected the plaintiff’s case that he had visited his wife because according to the court below there is no material to show that the defendant was present in her father’s home when the plaintiff went to visit her and as such it cannot be said that the defendant did not want to meet her husband. 11. It would be relevant to state here that the findings of the court are not based on facts which are revealed from the written statements and the pleadings and evidence of the parties. There 5 appears to be no dispute regarding the fact that Anjali Kumari remained with her husband only for the period between 29.6.1982 to 2.7.1982 and again from 3.12.1982 to 13.12.1982. This part of the case although has been denied but no specific statement has been made which would indicate that Anjali kumari had any connection with her husband from 13.12.1982 onwards and as such it is abundantly clear that Anjali Kumari did not live with her husband after 13.12.1982. 12. That being the position this court can only come to the conclusion that the defendant Anjali Kumari did not want to live with her husband. This view is further fortified by the averments made by the defendant at para 6 of the written statement wherein she says that the allegations made in paragraph 3 of the plaint that the plaintiff and defendant remained as husband and wife upto 3.12.1982 are wrong, the defendant is still wife of the plaintiff and was always ready and prepared to live with the plaintiff as wife, but due to posting at different places the defendant had to perform her duty as Assistant teacher. Only because of the service of the defendant, the defendant had to work at the place of her posting. The defendant never separated or deserted the plaintiff at any point of time nor the defendant intends to live separately. 13. The pleadings of the defendant, in fact, reveal that although she considers herself as the wife of the plaintiff, she did not choose to live with him or to visit him at any point of time after December 1982. The claim of the defendant that since she was an 6 Assistant teacher in a school and had to perform her duties as a teacher do not justify the fact that she did not make any attempt to visit or live with her husband in the intervening period, such as, holidays declared by the Government and the vacations granted during the school calendar year. The intentions of the defendant are clear from her own pleadings. 14. In contrast the pleadings of the plaintiff reveal that in fact he had made all attempt to move his wife to Forbisganj were thwarted by his wife. The statement in the plaint that the defendant was transferred from Forbisganj to Madhubani as an Assistant teacher at paragraphs 9 and 10 of the plaint has been denied by the defendant but she did not care to controvert the specific plea with respect to the letter issued from the Director of Education, Bihar. Merely making statement that the defendant intends and wants to live with her husband and has not deserted him is not sufficient. The statement that the defendant wants to live with her husband should be consistent with and be manifest in the conduct of the party concerned. On the other hand, the defendant has admitted that she has not lived with her husband since December 1982 and has not stated even in a single paragraph that she made any attempt to keep in touch or contact the plaintiff during the said period; in contrast to which the statement and evidence of the plaintiff are specific with respect to attempts on his part to meet his wife and as such when all attempts on his side failed, he filed the suit for divorce on the ground of desertion. 15. All said and done, it is a fact that between 13 7 December 1982 till the present date, no attempt has been made on behalf of the defendant Anjali Kumari to forge a relationship with the plaintiff and after living apart for twenty six years, at this stage the defendant cannot claim that she is willing to live with her husband. 16. In the facts of this case, the pleadings of the parties and the evidence of the plaintiff, I hold that Anjali Kumari has deserted her husband and the plaintiff Deo Kumar Sah is entitled to a decree of divorce on the ground of desertion. 15. In the result, this appeal is allowed. (Sheema Ali Khan, J.) Patna High Court, August 5, 2008, N.A.F.R. / Haque.