BHAGABAN SAHU Vs. MAYA SAHU

JUDGEMENT

(1.) This second appeal is directed against judgment and decree dated 5.9.1998 passed by the learned District Judge, Ganjam-Gajapati,Berhampur dismissing Title Appeal No.45 of 1997 and confirming ex parte judgment and decree passed by the learned Civil Judge(Senior Division), Berhampur in O.S.No.45 of 1997 by which appellant-plaintiff's application under section 13 of the Hindu Marriage Act,1955 ( for short, 'the Act') for a decree of divorce was dismissed.

(2.) Appellant-plaintiff is respondent-defendant's husband. Marriage between them wassolemnized in the year 1979. A son was born to them in the year 1981.

(3.) Plaintiff's case is that defendant went to her parents' house for delivery but did not return after birth of their son. Instead, she expressed that she was not able to live with the plaintiff's family members and asked him to be separated from his parents. Plaintiff's attempt to get defendant back to his company having failed, plaintiff filed T.S.No.88 of 1983 for restitution of conjugal rights under section 9 of the Hindu Marriage Act. As there was compromise between the parties during pendency of T.S.No.88 of 1983 plaintiff allowed the suit to get dismissed. However, soon after dismissal of the suit, defendant again deserted the plaintiff for which plaintiff had to file O.S.No.42 of 1984 for restitution of conjugal rights. Defendant contested the suit and pleaded that plaintiff's family members ill-treated her for which it was not possible on her part to live along with the plaintiff's family members in his house. Defendant's plea was accepted and O.S.No.42 of 1984 was dismissed by the court with an observation that plaintiff may seek restitution of conjugal rights only after he has separate residence. Alleging that as per direction of the court he has separated himself from his family members and set up a separate residence but the defendant refused to join his company thoughAdvocate's notice was sent and also defendant approached through bhadraloks, plaintiff filed a suit for decree of divorce.