SUJOY GHOSH DASTIDAR Vs. DAYITA GHOSH DASTIDAR

JUDGEMENT

(1.) By Court Heard learned counsel for the appellant.

(2.) The respondent has not appeared despite service of notice on three occasions. It is pertinent to mention here that the Matrimonial Suit No.406 of 2010 instituted by the husband/appellant herein was decided ex-parte as despite service of notice including through paper publication, the respondent did not appear to contest the suit as per the order dated 18th July, 2011 passed by the court of learned Principal Judge, Family Court, Jamshedpur.

(3.) The appellant herein is aggrieved by the dismissal of the Matrimonial Suit vide impugned judgment dated 19th September, 2011 and decree dated 23rd September, 2011 passed by the Principal Judge, Family Court, Jamshedpur in Matrimonial Suit No.406 of 2010. The appellant had approached the learned Family Court for dissolution of marriage under Section 13 (1) (a) of the Hindu Marriage Act while also taking a ground of desertion as per the averments made in the plaint. The case of the appellant in nut-shell is inter alia as follows:- The marriage between the parties was solemnized on 5th December, 2000 as per Hindu Rites and Custom whereafter both of them were living together as husband and wife at Jamshedpur. No child was born out of the wedlock. It was detected sometime in May, 2003 that the respondent-wife was suffering from a disease when she was advised to undergo treatment at Tata Memorial Hospital at Mumbai for suspected case of Cancer. The husband undertook the expenses for the treatment but there were no signs of improvement. The respondent's family took her back from her matrimonial home on 18th May, 2005 and thereafter she has been residing there. On 29th October, 2008 she alongwith her mother Smt. Rama Guha took all her articles and belongings to her parental house. The family of the respondent knew that she was suffering from Tumor in her ovary which is a incurable disease with no chance of recovery. The respondent deserted the petitioner-husband without any fault on his side for which he has been suffering since 2005. Neither he has condoned the act of desertion or cruelty nor has he connived with the respondent. The cause of action for institution of the suit arose lastly on 18th May, 2005 when both the parties had resided together at their conjugal home in Jamshedpur. The husband prayed for a decree of divorce on the ground of desertion (inadvertently typed as dissolution), cruelty and incurable disease together with cost. During the course of the trial which proceeded ex-parte, the petitioner/husband adduced three witnesses. P.W.1-petitioner himself, P.W.2-Rajesh Narayan, a close friend of the petitioner and P.W.3-Ajay Kumar. No one turned up on behalf of the respondent to cross-examine these witnesses. The following list of documents were filed on behalf of the petitioner namely (i) photocopy of letter dated 13th August 2003 of Dr. M. Roy, A.G.M. Medical Services to the Director, Tata Memorial Hospital, Mumbai (ii) photocopy of advance payment voucher dated 13th August, 2003 (iii) photocopy of credit card number 5455 dated 19th August, 2003 issued by Tata Memorial Hospital (iv) photocopy of letter dated 26th November, 2004 issued by Dr. M. Roy, A.G.M., Medical Services, Tata Motors. The appellant examined himself and supported the case set up through his plaint. He further stated that since 18th May, 2003 respondent was suffering from different diseases and when the local doctors suspected her suffering from Cancer she was referred to Tata Memorial Hospital, Mumbai and treated there. He further deposed that the respondent's family took her back to her matrimonial home and from that period she was residing there and till now she is living at her parental home. Other witnesses have also reportedly deposed in favour of the petitioner's case. The learned trial court disbelieved the case of the petitioner for dissolution of the marriage on the ground that she was suffering from incurable disease as there is no such ground permissible under Section 13 of the Hindu Marriage Act, 1955. From the evidence adduced on behalf of the petitioner, it did not appear to the learned Family Court that the respondent-wife ever treated him with cruelty rather she was suffering from different diseases. The learned trial court also discussed the plea of the petitioner on the point of desertion and came to a finding that there is no evidence on record to show that the respondent-wife ever withdrew from the matrimonial obligations. Therefore, it held that the petitioner had failed to establish the aforesaid grounds for dissolution of marriage.