N.P. RAJESH Vs. HEMALATHA

JUDGEMENT

(1.) Mr.R.B.Sadasivappa, learned counsel for the appellant.

(2.) Facts giving rise to filing of this appeal briefly stated are that the marriage between the parties of this appeal was solemnized on 22/11/2000 in Bengaluru. The respondent stayed in the matrimonial home only for a period of 4 months and thereafter, left the matrimonial home and started residing with her parents. The appellant thereupon filed a petition seeking dissolution of marriage on the ground of desertion on 3/11/2001 which was dismissed by the Family Court vide judgment and decree dtd. 7/4/2006. Thereafter, the appellant filed a petition seeking dissolution of marriage enumerated under Sec. 13(1)(ib) of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act') on the ground of desertion. The respondent filed statement of objections. The Family Court recorded the evidence of the parties. The Family Court, by judgment dtd. 13/1/2014, inter alia held that the parties were residing separately for a period of 5 years yet the appellant has failed to prove animus deserendi and therefore, dismissed the petition filed by the appellant under Sec. 13(1)(ib) of the Act. In the aforesaid factual background, this appeal has been filed.

(3.) Learned counsel for the appellant submitted that the respondent, in her cross-examination, has admitted that she was residing in the matrimonial home only for a period of 4 months from the date of marriage. It is further submitted that even though the Family Court itself found that the parties have been living separately for a period of 5 years, yet the Family Court erred in not granting a decree for dissolution of marriage. It is further submitted that the Family Court ought to have appreciated that even though the respondent left the matrimonial home, she did not make any attempt to join the matrimonial home inasmuch as neither any notice was sent on behalf of the respondent for joining the matrimonial home nor any petition under Sec. 9 of the Act was filed. It is further submitted that if this Court grants the decree of divorce, the respondent is entitled to permanent alimony.