ASHOK KUMAR RATH Vs. ANNAPURNA RATH

JUDGEMENT

(1.) This matrimonial appeal is directed against the judgment dated 26.08.2011 passed by the learned Judge, Family court, Rourkela in Civil Proceeding No.42 of 2007 rejecting the application of the present appellant, who sought for a decree of divorce against the opposite party-respondentwife. The petitioner-appellant initiated a proceeding under Section 13 of the Hindu Marriage Act, 1955 with the contentions that he married the respondent-wife on 10.06.1995 at Rourkela according to Hindu Rites and Customs and stayed jointly along with his parents. A son was born out of their wedlock on 11.08.1996. He alleged that after the birth of the son, the respondent-wife started behaving differently and suggested the appellanthusband to stay separately from his parents. He further alleged that with further visit of the brother and parents of the respondent-wife frequently to their house on the pretext of seeing the new born baby and on their instigation, the suggestion of the wife-respondent for separate house turned to be a demand resulting in matrimonial disturbance between the parties. The respondent-wife started behaving differently towards the parents-in-law and the appellant-husband submitted a report at Mahila Police Station, Rourkela with regard to the same. On the intervention of the police, both the parties agreed to stay separately from their parents with the new born baby and accordingly, shifted to a quarters at a different place in Rourkela leaving the parents at their old house. They led a happy life for some time and one daughter was born to them on 20.10.2001. The husband-appellant further alleged that the wife-respondent asked the petitioner-appellant to help her brothers with financial aid of Rs.50,000/- to each of them to carry on their business. The husband-appellant expressed his incapability while the respondent-wife insisted to get the money from his parents as they had received a substantial amount as retiral benefits. Since the appellant-husband did not concede to her demand, the respondent-wife created further disturbances and even adopted methods to assault the appellant-husband with the help of club members and her brother. The mother of the appellanthusband came to their quarters on 19.04.2003 to pacify the matter but on the next day morning, i.e., 20.04.2003, the respondent-wife left the matrimonial house along with the children withdrawing herself from the society of the appellant-husband without any rhyme or reason. Repeated efforts made by the appellant-husband yielded no result to bring her back and when the appellant-husband went to the school where his son was reading, he learnt that the respondent-wife had already taken transfer certificate of their son on 10.07.2003. The appellant-husband again lodged a report at Mahila Police Station on 24.07.2003 and informed about the incidents, pursuant to which a Station Diary was made and the respondent-wife was called to the Police Station but she refused. Thereafter, the respondent-wife filed a proceeding claiming maintenance for herself and her children in the year 2005 and the appellant-husband also filed a proceeding under Section 9 of the Hindu Marriage Act in the same year praying for restitution of conjugal rights. The proceeding filed by the appellant-husband was dismissed since the respondent-wife did not agree to join the company of the husband. Thereafter, the appellant-husband filed the present proceeding praying for divorce with the submission that the respondent-wife deserted him voluntarily and was residing separately for a long period.

(2.) The respondent-wife entering appearance assailed the maintainability of the application for divorce with the pleadings that the application for restitution of conjugal rights filed by the appellant-husband on the ground of desertion having been rejected, the subsequent application for divorce on the self-same ground within a period of one year was not maintainable. She counter alleged that she was mentally and physically tortured on further demand of dowry by her husband and in-laws and she was also assaulted by the appellant-husband under influence of liquor. She also alleged that her husband had also assaulted their son for which he sustained some injuries and was taken to hospital for treatment. She submitted that since the appellanthusband was not taking care of the family and the children, she had to pass sleepless nights and subsequently, she along with her children was driven out of the house by the appellant-husband on 20.04.2003 since when she had no other alternative than to stay with her parents.

(3.) On the aforesaid pleadings, learned Judge, Family court, Rourkela framed three issues, as follows:-