APARNA CHAKRABORTY Vs. NAYAN BHOWMICK

JUDGEMENT

(1.) This appeal is directed against the judgment and decree dated 9-3-2010 passed by the learned Additional Deputy Commissioner, East Khasi Hills District in Divorce Case No. 13(T) of 2007 dissolving the marriage between the appellant and the respondent on the ground of desertion.

(2.) The controversy arose on the following facts and circumstances pleaded by the appellant. The appellant, who is the wife, and the respondent were married according to Hindu rites and rituals, which was solemnised on 4-8-2000 at Shillong. Prior to their marriage also, they were known to each other as they worked together as Development Officers under the Life Insurance Corporation of India Ltd. since 1992. Thus, according to the appellant, their marriage was a love marriage. Though the respondent knew the nature of her duty and responsibility in their office even before their marriage, he and his family members, after their marriage, started demanding her to confine herself at home as a housewife and give up her job at the instigation of her father-in-law, who was then alive and had expressed his dislike for a working woman as a daughter-in-law. The respondent and his family members also ignored the fact that she had to look after and extend financial assistance to her old and ailing mother, her brother and other dependants for which he had promised not to interfere. They then slowly started to ill-treat her and ultimately created a situation, which, when it became unbearable, compelled her to leave her matrimonial home. The respondent taking advantage of this immediately instituted Divorce Suit No. 6(T) of 2003 before the learned Additional Deputy Commissioner (Judicial), Shillong for dissolution of their marriage under Section 13(1)(i-b) of the Hindu Marriage Act, 1955 ("the Act"). The suit was, however, dismissed by the learned Additional Deputy commissioner (J), Shillong as premature but he preferred RFA No. 9(SH) of 2006 before this Court, but the same was withdrawn by him with a liberty to file a fresh suit. This is how the instant suit was filed by him. The suit was contested by her, who filed her written statement. The following issues were framed by the learned trial court:

(3.) In the course of trial, as many as seven witnesses were examined on behalf of the respondent whereas three witnesses were examined on behalf of the appellant. At the conclusion of the trial, the suit was decreed as noted earlier. Though no specific issue was framed by the trial court on the question of desertion, the decree for dissolution of marriage was apparently allowed on the ground of desertion. The settled law is that even when no specific issue has been framed on the question of desertion in a matrimonial dispute, but the parties had led evidence clearly knowing the stance taken by each of them, this Court is not barred from examining such evidence. The trial court had proceeded to record the findings that the evidence of the respondent that after the death of his father, the appellant had left his residence and was not willing to return, was fully corroborated by the evidence of PW 1, PW 2, PW 3, PW 5, PW 6 and DW 2; that the appellant herself had admitted that she was not wearing Shangkha and did not also wear the same when she appeared before it; that there was nothing to substantiate the allegation of the appellant that she was asked by the respondent to leave his house as she refused to give up her job; that the appellant never responded to the letter sent by the respondent for settlement with him; and that the record categorically proved that the appellant had deserted the respondent for a period more than seven years. The trial court, therefore, concluded that the appellant has intentionally abandoned her husband, which established the case of the respondent of desertion under Section 13(1)(i-b) of the Act although he had failed to establish his case under Section 13(1)(i-a). The correctness of these findings is called into question in this appeal.