/ APPEAL UNDER SECTION 96 C.P.C. R/W. SECTION 55 OF THE INDIAN DIVORCE ACT, 1869. F.A. No. p? g O 5/ /2oo3 APPELLANT Nirmal Tappo s/o $1ri Jwakim PLAINTIFF Toppo, age 37 years, Caste-Uraon, f, permanent r/o village Bahora. Tehsil Bagicha, District Jashpur, C.G., present Address—Bhilai, Sector-4, District Durg, C.G. V E R S U S RESPONDENT f: mt. Smita Tappo w/o shri Nirmal [DEFENDANT £7 Toppo & D/o Wi Romanus Bada, age 3O years. Caste-Uraon. permanent r/o village Semardih. %\ Tehsil Bagicha, Distt. Jashpur. .§‘7;;;\..6}¢§,.'.M M present address-Madhuvan Nagar, Borsi. Street no. 6, Sector-B y District Durg, C.G. XLHC—22 2g 41104 Shri Sunil Sinha with Shri A.K.'Prasad for the appellant. Shri Man-indra ShrivastAva with Shri Ashish Shrivastava for the respondent. ’ Heard. 2. The appellant/husband has tiled the present fu‘st appeal \ against the judgmentdated d4.10.2003 passed by the Second Additional District Judge (Feb), Jashpurv in Civil! Suit No.10— A/2003. 3. Briefly stated the facts are that the appellant and respondent are Christians by taste. The marriage between the parties had taken place according to Christian law on 19.05.1997. It is saidrthat‘for some time they lived together. Thereafter, it is alleged that thie wife deserted the husband. The , appellant/husband filed a petition for divorce under $ection 10 of the Divorce Act, 1869 on the ground of desertion by the \ respondent/Wife for a contin‘uous period of more than '3 V2 i years. Notices were issued aip‘d the respondent/wife appeared [new XI-HC—ZZ tnrougn 1161‘ COUIIS€l §nrIAIlll Hara, WHO I116Cl 1118 VaKalamama on 07.03.2003 and there ter did not appear. The Court proceeded ex parte. 4. Learned counsel for th appellant submit that the petition for divorce was flled before e trial Court on 02.0 1.2003 under Section 10(1)(ix) of the Div ce Act, which has been added by Act No.51 of 2001 and ame into force with effect from 03. 10.200 1. They further s bmit that the marriage solemnized, Whether before or after the c mmencement of the Indian Divorce (Amendment) Act, 2001, m y be dissolved on the ground that since the solemnization of he marriage, the respondent had deserted the petitioner fo atleast two years immediately preceding the presentation f the petition. Itris submitted that the court below failed 'to onsider the provisions of Section 10(1)(ix) of the Divorce Act. '5. Section 10(1)(ix) of th Divorce Act is pertinent and is quoted below: [Vita éfe’a W m a mg..uuunuu.; m m W 31w amWW mmiifwm % afar: 311%?! Xi~C-22 H mmmw . Grounds for dissc marriage solemnized, z commencement of the‘ Act, 2001, may, on a District Court either by' dissolved on the u(‘ solemnization of the ma ground years presentation of th . clear that the amendment considered by the Court b low. available to the petitioner/ pellant, but the Court below in para 10 of the nnpuled ju gment has held that this ground g was not available and for his reason alone dismissed the petition. The judgment ther ore is not sustainable. \ ugned judgment, it is apparently 6 On perusal of the imp de in the law has not at all been Though this ‘g‘ound was ’iution ofmaniage-(l) Any whether before or after the idian Divorce (Amendment) petition presented to the the husband or the wife, be that since the rriage, the respondent- immediately preceding the e petition.” \ x \ \ [tifa éfa’a \ (i) xxx (ii) xxx (iii) xxx (iv) xxx (v) xxx . (vi) xxx (vii) vcxx (viii) xxx (ix has deserted the petitioner for at least two ‘ XI-HC-22 ‘ t justified in dismissing the ition. No finding as such has been recorded whether there desertion‘ or not. Accordingly, i judgment passed by the tri Court is set aside and the matter is remitted back to the tri Court for deciding it afresh after framing the necessary issu s. 8.. At this stage, learned counsel for the respondent submit that though the responden remained ex parte before the Court below, therefore, she may e given opportunityvto file written statement as the matter being remanded. They state that i /fixed date may be given. 9. Having thus consider d, in the opinion of this Court, it is directed that the parties to appear before the trial Court personally or through the counsel on 05.05.2004. On the prayer made and in the en s of justice, opportunity is given to the respondent to file writ en statement, if so desire, on that date itself or within seven ays thereafter. The trial Court shall decide the matter as early as possible preferabiywithjn three [%%fa& .@ 7 m m 200 m Mmw WW 13‘Q? $WW‘ months from the date of ap any party does 'not‘ appea statement as directed is not in accoi‘dance with law. 9.. With the aforesaid ( allowed. Costs as incurred by Record of the court bel w be sent forthwith. Certified copy as per I'u es pearancé. It is made clear that if m on the date fixed or Written filed, the Court below shall proceed )bservations, the appeal stands e parties, ,’————‘ Fakhruddin ;