BINAY KUMAR CHOUDHARY, SON OF LATE UDAY CHANDRA CHOUDHARY, PRESENT ADDRESS, SASTRINAGAR BLOCK NO.4, P.O. & P.S. Vs. SMT. PRITI CHOUDHARY, WIFE OF SRI BINAY KUMAR CHOUDHARY AND DAUGHTER OF LATE JAGDISH JHA, PRESENT ADDRESS KELA BARI POKHARIA, SHANTI NAGAR, P.O. & P.S.

JUDGEMENT

(1.) This First Appeal has been preferred by the original applicant who preferred Matrimonial Suit No.75 of 2005 for a decree of divorce against the respondent. This application preferred before the Principal Judge, Family Court, East Singhbhum, Jamshedpur has been dismissed and, therefore, the original applicant has preferred this First Appeal.

(2.) Counsel for the appellant submitted that the respondent is of unsound mind and, therefore, he is unable to live with her and after the marriage solemnized on 26th Jan., 2000, this appellant has started living separately from the respondent with effect from 02.06.2002. As per evidence given by this appellant Binay Kumar Choudhary as AW.1, arising out of the wedlock between this appellant and the respondent, birth of a female child has also taken place on 22nd Feb., 2003 and the respondent was taken to doctor frequently, but, as this appellant is a handicapped person, he has not preserved the papers of medical examination and other medical papers of the respondent. Unsoundness of the mind has also been proved before the learned Court below. This aspect of the matter has not been properly appreciated by the Principal Judge, Family Court, East Singhbum, Jamshedpur while dismissing the application preferred by this appellant being Matrimonial Suit No.75 of 2005 under Sec. 13(1) (ia)(ib) and III of the Hindu Marriage Act, 1955. Hence this First Appeal has been preferred against the dismissal by the trial Court's judgment. It is also submitted by the counsel for the appellant that the appellant is a handicapped person and he cannot live with the respondent who is a person of unsound mind. The trial Court has also not gone to find out drill of mind' or unsoundness of the mind of the respondent, but, the facts remain that she not in a mental position to live with the appellant. This aspect of the matter has not been properly appreciated by the trial Court.

(3.) Counsel for the respondent submitted that the respondent is not an unsoundness of mind. On the contrary, the marriage was solemnized on 26th Jan., 2000. The birth of a daughter has also taken place on 22nd Feb., 2003 out of the wedlock between the parties. As this appellant has himself given evidence that he has deserted the respondent on 2nd June, 2002 and unnecessary the allegation of unsoundness of mind for getting decree of divorce is levelled against the respondent. It is further submitted by the counsel for the respondent that neither there is any oral evidence nor there is any documentary evidence before the learned Court below led by this appellant to prove the factum of unsoundness of mind of the respondent. It is further submitted by the counsel for the respondent that on the contrary this appellant was demanding dowry from the parents of the respondent. This fact has also been highlighted by the learned trial Court while dismissing the application of divorce preferred by this appellant. Even this appellant has admitted the fact of receipt of amount from the mother-in-law of this appellant. As the burden was upon this appellant and he has not discharged his burden of proof, no error has been committed by the Principal Judge, Family court, East Singhbhum, Jamshedcpur in dismissing the application for getting a decree of divorce preferred by this appellant. Hence, this First Appeal may not be entertained by this Court.