Mat.App. 1/2009 BEFORE THE HON’BLE MR. JUSTICE AMITAVA ROY THE HON’BLE MR. JUSTICE CR SARMA JUDGMENT AND ORDER Amitava Roy, J The appellant having been declined the relief of dissolution of his marriage with the respondent by the impugned judgment and order dated 15.09. 2008, passed by the learned District Judge, Jorhat, in (Marriage) Title Suit No. 07/2006, is before this Court for redress. 02. We have heard Mr. TJ Mahanta, learned counsel for the appellant. As inspite of service of notice, the respondent has neither appeared nor arran ged for her representation, the appeal is being disposed of after hearing the le arned counsel for the appellant and on a scrutiny of the materials on record. 03. The abridged version of the appellant’s pleaded case, is that af ter the marriage between the parties on 28.04.2002 at Kamar Khatowal, Kakojan, J orhat, they set up their matrimonial home at Parijat Nagar, Bangal Pukhuri, Jorh at. According to the appellant, the respondent’s behaviour soon after the marri age towards him was not conducive for a happy marital life and the incompatibili ty of conduct of the parties surfaced as a consequence thereof. He alleged that since 21.07.2002, the parties are living separately. Whereas, the appellant re sided at Golaghat since September, 2002, the respondent is now at Jorhat. Accor ding to the appellant in a bid to effect reconciliation, he, on 22.07.2002 and 2 3.07.2002 approached the respondent, following which the latter misbehaved him a nd also attempted to assault him with a sharp cutting weapon. Thereafter, the ap pellant made several unsuccessful endeavours to effect an amicable settlement, b ut in view of the adamant attitude of the respondent his efforts did not materia lize. In continuance of his persuasion to restore his matrimonial home, the appe llant, on 26.09.2002 addressed a letter to the respondent asking her to return, but to no avail. In the meantime, however, the respondent gave birth to a child . According to the appellant, having regard to the time lag of their separation , the paternity thereof through him was also doubtful. While, the matter rested at that, on 12.08.2003, the respondent called the appellant to her rented house at Kenduguri for deliberations, but having visited her place, she along with th ree others, including her nephews threatened him with dire consequences and warn ed him not to make any attempt to meet her in future. In the above premise, the appellant sought for a decree for divorce under section 13 (i) of the Hindu Mar riage Act, 1955 (hereafter for short referred to as the Act) on the ground of de sertion and cruelty. 04. The respondent in her written statement denied the allegations l evelled against her and claimed that the parties were living together till Septe mber, 2003 and out of their wedlock a child was born on 22.03.2003. While admitt ing that they were living separately from September, 2003, she averred that this was at the instance of the appellant, who got himself estranged without any jus tifiable reason. She in categorical terms expressed her mind to return to the a ppellant. She also referred to an earlier petition filed by the appellant seeki ng divorce being TS (M) No. 77/2004, in the Court of the learned District Judge, Jorhat, alleging adultery against her, which subsequently was withdrawn. She d enied to have received any letter from the appellant requesting her to return to him. 05. On the basis of the pleadings, issues were framed. Though, the appellant examined himself and his brother, Sri Ramesh Bhuyan as his witness, th e respondent did not adduce any evidence oral or documentary. However, the appe llant was cross-examined. The respondent, as a matter of fact, abandoned the pro ceedings thereafter. The learned trial Court on a consideration of the pleading s of the parties and the evidence on record, rejected the petition principally o n the ground that though in his evidence he had endeavoured to prove the charge of adultery against the respondent, as the same was not his pleaded case, dissol ution of marriage on the basis thereof was not allowable. It further held, on a n assessment of the pleadings of the defence that it was the appellant, who had deserted the respondent. It, however, observed that in view of the imputation o f adultery against the respondent, she was justified to live separately having r egard to the malicious allegations being brought against her. 06. Mr. Mahanta has argued that even leaving aside the evidence of t he appellant and his witness on the allegation of adultery as the same otherwise established the factum of desertion by the respondent, the learned Court below erred in law and on facts in refusing a decree for divorce. To reinforce his pl ea the learned counsel has drawn our attention to the averments made in the peti tion as well as the evidence of the appellant to this effect. 07. The averments made by the appellant in his petition for dissolut ion of marriage in clear terms demonstrate that the parties are, according to hi m, leaving separately from each other on and from 21.07.2002. In elaborating th is plea, the respondent testified that on the said date he had to go to Guwahati for some urgent official works and as the same signified that the respondent wo uld be left alone in the house, he requested her to inform her mother to give he r company during his absence. He deposed that he thereafter inquired from the r espondent and could come to learn that, her mother had not visited her house and that she was in association with one Debu in the premises. The appellant furthe r stated that on 22.07.2002 and 23.07.2002, thereafter, on his return, when he c onfronted the appellant with the above, she misbehaved with him and also attempt ed to assault him with a knife. He thereafter addressed a letter on 26.09.2002, which he proved as Ext. 2, requiring her to return to home. She however, did n ot respond thereto. Instead, to make a show of reconciliation she invited him t o her rented house at Jorhat on 12.08.2003. When he went to her place he was th reatened and assaulted by her nephews Jitu Barua & Babu Barua along with others. They warned him not to make any attempt to see her in future. Situated thus, he addressed another letter, Ext. 4 through his Advocate detailing the above fac ts and reiterating his request to her to return or to face the consequence in la w. The stalemate continued. In his evidence he also denied that the child was begotten through him. 08. The appellant’s witness, PW 2, his brother Shri Ramesh Bhuyan en dorsed his testimony to the effect that the parties are living separately on and from 21.07.2002. He also affirmed the appellant’s statements on oath that inspi te of several attempts made by him to bring the respondent back, she not only re fused to come but also misbehaved with him on flimsy grounds. 09. As against the above pleaded assertions of the appellant and the evidence adduced by him both oral and documentary in corroboration thereof, a m ere denial by the respondent in her pleadings exist on record. The averments ma de by her in her written statement in law, per se, cannot be construed to be evi dence in refutation of the facts stated in the petition as well as the evidence adduced by the appellant. Having regard to the fact that the proceedings in han d is civil in nature and a decision on the issue has to be recorded by applying the measure of preponderance of probability, we are constrained to hold that, ha ving regard to the state of pleadings and the evidence on record, the appellant, by the above measure, has been able to prove the issue of desertion against the respondent. The learned trial Court, as the impugned judgment and order would reveal extende d undue emphasis on the aspect of adultery and shifted its focus from the factum of desertion pleaded and proved by the appellant. In that view of the matter a nd on an evaluation of the rival pleadings as well as the evidence on record, we find ourselves in disagreement with the conclusion recorded by it on the issue of desertion. In our view, on a cumulative assessment of the pleadings of the parties and the evidence adduced, the appellant has been able to prove that the parties are livi ng separately on and from 21.07.2002 in view of willful desertion of the matrimo nial home by the respondent without any justification. We find merit in the app eal, which thus succeeds. The impugned judgment and order dated 15.09.2008, pas sed by the learned District Judge, Jorhat, in (Marriage) Title Suit No. 07/2006 is hereby interfered with. The marriage between the parties is dissolved by gran ting a decree of dissolution under section 13 of the Act. 10. Before we part, we consider it expedient to attend to the aspect of permanent alimony as comprehended under section 25 of the Act. It is on rec ord that, whereas, the appellant is presently serving as an Assistant Teacher in a H.S. School, Jorhat, the respondent is holding the post of Senior Field Assis tant in the department of Central Silk Board, Rawriah, Jorhat and has handsome i ncome of her own. Having regard to the preconditions embodied in section 25 of the Act and in view of the respective incomes, means and resources of the partie s, we are of the view that it is not a fit case where the appellant should be sa ddled with any liability towards permanent alimony. This aspect, in view of the above determination stands decided as well in the instant appeal. The appeal is allowed in the above terms. No costs.