SMT. SUMAN @ RAGINI W/O ROHIT KUMAR D/O NAND RAM GUDESAR, AGED 31 YEARS, BY CASTE MEGHWAL, RESIDENT OF WARD NO.14, NEAR AMBEDKAR BHAWAN, RATAN NAGAR (THAILASAR) Vs. ROHIT KUMAR ALARIYA S/O KISHAN LAL ALARIYA, AGED 37 YEARS, BY CASTE MEGHWAL, RESIDENT OF C

JUDGEMENT

(1.) The appeal was admitted for hearing on 01.12.2015 and is listed today for orders on the stay application. The lower court records are available. With consent of the Counsel for the parties the matter has been finally heard at this stage itself.

(2.) The appeal arises from decree of divorce granted to the Respondent by the Family Judge No.2, Jodhpur dated 08.10.2015 in Civil Case No.152/2015 on grounds of cruelty.

(3.) Learned Counsel for the Appellant submits that she is alleged to have deserted the matrimonial home on 22.10.2011. Sec. 13(1)(i-b) of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act') mandates that the desertion must have continued for a period of not less than two years immediately preceding the presentation of the petition. The divorce application filed on 17.07.2012 before expiry of the statutory period was not maintainable. The allegation of cruelty whether mental or by denial of sexual relations had not been established or proved in accordance with law. Both sides were represented by their respective Counsel. The appellant's lawyer did not appear and neither did he inform her the dates leading to an ex-parte decree against her. She cannot be allowed to suffer because of the laches of her Counsel. Her reply denying the allegations expressing her intentions to continue the matrimonial relationship has not been considered at all. The fact that she had conceived immediately after the marriage but suffered abortion of a five months old foetus because it was a girl child revealed in sonography alone demolishes the entire allegations of her inability for sexual relations due to any gynaecological issues. She was denied proper treatment after abortion. The ex-parte decree may be set aside and the matter remanded to the Family Judge for fresh decision after taking her evidence also.