NASIKA Vs. LAXMI NARAYAN

JUDGEMENT

(1.) THE appellant/wife has preferred this appeal under Section 28 of the Hindu Marriage Act (for short the Act), being aggrieved by the judgment and decree dated 4. 1. 2003 passed by Ist Addl. District judge, Betul in Civil Original Suit No. 1-A/02 allowing the application of the respondent/husband filed under Section 13 (1) (ib)of the Act for divorce on the ground of desertion.

(2.) THE facts giving rise to this appeal in short are that the respondent filed an application under Section 13 of the Hindu marriage Act contending that he got married with the appellant on dated 20. 6. 1987 at village Danora. Out of this wedlock, they are blessed with a son Virendra who is aged 11-12 years, residing with the appellant. The respondent being in police service was posted at police Station Bordehi where in the lack of proper arrangement for residence; he kept the appellant at his parental home, Betul and was visiting frequently. As per further averments appellant was habitual to go the parental home frequently. However, she was kept at Betul in 1989 in her pregnancy period but soon after the delivery she left the matrimonial home for Gadarwara and since then she is residing there with parental family. During this period respondent made various efforts to bring her back but could not get success, on which he filed an application under Section 9 of the Act for restitution of conjugal rights, as Civil Original Suit No. 17-A/89. The same was compromised by bringing the appellant with him but later she again went to her parental home and filed the proceedings under Section 125 of the Cr. P. C. in which he is paying the maintenance. The appellant left his company without any reasonable and sufficient excuse and residing separately since last 11 years. With these pleadings the prayer for dissolution of the marriage is made.

(3.) IN the written statement of the appellant, by admitting the facts of the aforesaid marriage and the birth of the child, all other averments of the petition are denied. In addition it is stated that from the very beginning of the marriage, she was insisted by the respondent to get the divorce with intention to perform second marriage. On one occasion, kerosene oil was also poured on her. She was subjected to cruelty and harassment in matrimonial home on account of bringing the less dowry. In such circumstances, she was brought to her parental home through search warrant. Respondent used to threaten her saying that he is working in the police department; hence, nobody could do anything against him. She was kept in confinement in matrimonial home and was not permitted to meet the persons visiting the house. In this regard a written report was also given to Police Betul in 1989. The respondent did not take any step to bring her back. The proceedings of Section 9 of the Act got dismissed with compromise by the respondent just to avoid the liability to pay the alimony and expenses under Section 24 of the Act. After disposing of such proceedings respondent declined to bring her with him. On which, she filed the application under Section 125 of the Cr. P. C claiming the maintenance for livelihood. It is also stated that in her life time without getting any lawful decree of divorce, the respondent got remarried with some other woman in 1991 with whom he is residing and also got some issues. With these averments the prayer for dismissal of the petition is made.