SHIVANAND Vs. VIJAYALAXMI AND ORS.

JUDGEMENT

(1.) THIS appeal is directed against the judgment and order dated 26.11.2008 passed by the Civil Judge, (Sr.Dn.) Bailhongal in M.C. No. 17/2005.

(2.) THE facts in brief are that, the respondent No. 1 is the wife and respondent No. 2 is the son of the appellant. The appellant is serving in Army. It transpires that the marriage between appellant and respondent No. 1 was solemnized on 08.06.1995 at Neginahal village in Bailhongal Taluk as per Hindu rituals and customs. It appears that, after the marriage, appellant and respondent No. 1 lived happily for 2 -3 years, a male child, respondent No. 2 was born during this period. It is alleged by the appellant that respondent No. 1 insisted for separate residence, for which, appellant expressed his unwillingness to leave his parents, but requested respondent No. 1 to stay along with the family members, for which, respondent No. 1 picked up quarrel with the appellant as well as the family members of the appellant, started abusing them in foul language causing mental agony to the appellant, thereafter she left the company of the appellant voluntarily and started living in her parental house with the son in the year 2000. It is contended that the appellant personally went to Neginahal village in the year 2000 to look after the welfare of the child and his education and requested respondent No. 1 to join him, but the said request was flatly refused by respondent No. 1. Despite the advise given by the elders of the family, the respondent No. 1 did not heed to any of the requests made by the appellant to join the company of the appellant. It is also contended that respondent No. 1 also lodged a complaint against the appellant and his parents, when he was on duty at Kochi, more so when the appellant was very much interested to restitute his conjugal rights with respondent No. 1. Based on these facts, appellant filed petition under Section 13(1)(ib) of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act' for short) seeking decree of divorce on the ground of desertion, since respondent No. 1 had deliberately withdrawn from his society. It transpires that, pursuant to the summons, respondent No. 1 appeared before the trial Court through her counsel, filed objections and denied the allegations made in the petition. It was contended by the respondent that the appellant had contracted a second marriage and with the instigation of his second wife, he had driven out the respondents from his matrimonial home. Respondent No. 1 had also filed a petition before the JMFC, Bailhongal seeking maintenance and the trial Court has passed an order directing the appellant to pay maintenance of Rs. 500/ - p.m. to respondent No. 1 and Rs. 400/ - to respondent No. 2.

(3.) THE learned counsel appearing for the appellant re -iterating these grounds vehemently argued that the trial Court without examining the material evidence of establishing desertion by respondent No. 1, dismissed the case. It is an admitted fact that, since 2000, respondent No. 1 has deserted the appellant and is staying in her parental village in a separate residence which clearly shows her intention, to put an end to the marital life, consortium and cohabitation permanently.