Judgment:
ORDER
1. On 7-3-1987, Sunil Kumar Gupta, appellant herein was married with Kunti Gupta, respondent therein according to Hindu Religious rites and thereafter they lived together as husband and wife and oh 27-7-1989 a daughter was born out of their wed-lock.
2. On 9-12-1993 husband filed Title (Matrimonial) Suit No. 97 of 1993 against his wife before the District Judge, Dhanbad for divorce under Section 15 of the Hindu Marriage Act, 1955.
3. According to husband after few days of her stay his wife started mis-behaving with his parents instead of proper respect to them. She was in the habit of not preforming any household duty whenever she was requested to do by her mother-in-law. She refused to wash clothes and utensils and to sweep the floor and prepare food.
4. After six months of stay in matrimonial home, she started insisting to go to her father's place at Gaya. She was suffering from skin disease from before her marriage and Gaya Doctor had advised her to continue treatment. For that purpose she was taken to Gaya in September, 1987 she remained there continuously to one and half years and in spite of repeated request she always refused to come to Dhanbad.
5. Any how on 4-2-1989 she was brought to Dhanbad where she stayed only for one and half months and again returned back to Gaya on the pretext that she was pregnant.
6. On 27-7-1989 she gave birth to twin female children at Gaya, one of them died soon after birth.
7. In April, 1990, husband was appointed as Steno in Civil Court, Jamui. Wife refused even to go to Jamui and live with husband there, she did not came to Dhanbad also.
8. In April 1991, on great efforts of her father-in-law, she came to Dhanbad, but within few days of her stay, she again started misbehaving with her husband's parents.
9. According to husband, wife used to cause mental agony and distress to him and treated him with cruelty. She called her father at Dhanbad, who took her to Gaya on 25-10-1991 and since then she was staying at her father's place.
10. Wife appeared and filed written statement in the suit, inter-alia, stating therein that at the time of marriage her husband was unemployed. Her parents had given sufficient ornaments and various kinds of gifts, including furnitures and a Scooter. She was doing all domestic and household works of the family and virtually she was made a maid servant and was being treated as such by her in-laws. She never did any such act, whichever caused any mental agony or distress to her husband. She was never suffering from any kind of skin disease before her marriage. She never insisted her husband to take her to Gaya and never told him that she does not want to stay either at Dhanbad or with him where he was posted. She was and still is ready and willing to live anywhere at the wishes of her husband with this much security that she would not be mal-treated or killed.
11. On 25-10-1991 when her father had gone to Dhanbad to bring her to Gaya, her husband along with his brother and some other persons assaulted him. Her husband levelled false and heinous charges of leading immoral life against her and never showed his willingness to keep her nor ever made any attempt to bring her from Gaya and has made false allegation that she refused to come to Dhanbad with him. It, was, therefore, prayed that matrimonial case was fit to be dismissed.
12. On creation of Court of Principal Judge, Family Court, Dhanbad, the suit was transferred to the said Court and was dismissed by impugned judgment dated 6-9-1997. Husband has, therefore, filed the present appeal under Section 19 of the Family Courts Act.
13. Mr. P. K. Mukhopadhaya, counsel for appellant submitted that respondent has deserted him from 25-10-1991 and was not willing to stay with him in spite of his assurance of providing with happy and peaceful conjugal life. Husband could not prove that his wife was suffering from any kind of skin disease. On the other hand, it was established that wife was compelled to leave her matrimonial house due to torture perpetrated on her and in spite of that she was willing to live with her husband.
14. Husband got himself examined as A.W. 1 and his full brother was examined as A.W. 2 but husband failed to prove that actually wife had deserted him and was not ready to live with him at the place of his posting. No doubt wife is living separately from the husband since 25-10-1991 out of distrust in the circumstances specifically averred in her written statement without any intention to end cohabitation permanently as her life was in danger in her matrimonial home. Desertion means the desertion of spouse by other spouse to the marriage without reasonable cause and without consent or against wish of such party and includes wilful neglect. The essential ingredients of desertion are the factum of separation, animus deserendi i.e., intention to bring cohabitation permanently to an end and element (sic). Both essential ingredients should continue during the entire statutory period. If the spouse abandons other spouse in state of temporary passion, e.g. anger or disgust without intending cohabitation permanently to an end it will not amount to desertion.
15. In the present case there has been no doubt a separation but the essential question always is whether that act would be attributable to an animus deserendi. Desertion commences when fact of separation and animus deserendi co-exist. Here the deserted spouse is not only affirming marriage is also ready and willing to continue married life on such condition as may be reasonable.
16. It is well settled that in a proceeding for divorce the plaintiff must prove the offence of desertion like any other matrimonial offence beyond all reasonable doubt. If one spouse by his word and conduct compels other spouse to leave the marital home, the former would be guilty for desertion though it Is the latter, who has physically separated from the other and has been made to leave the marital home. Here wife did not file any cross petition for divorce or for any other relief. So far we do not find any convincing evidence in proof of the alleged desertion by the wife and naturally therefore the presumption of continued desertion cannot arise. We do not find that the essential ingredients of desertion have been proved by the husband, Husband, has, therefore, failed to prove his case of desertion by the wife.
17. Husband also sought for dissolution of marriage by a decree of divorce on the ground that wife has treated him with cruelty. No doubt wife was taken to Gaya by her father on 25-10-1991 but thereafter the husband or his family members never made any attempt to bring her back to his house. Husband failed to substantiate his case that wife refused to live with him either at Jamui or at Giridih. No legal and reliable evidence was brought on record to substantiate alleged cruelty on the part of his wife. The conduct of wife, in the facts and circumstances of the case, is not such that the husband cannot lead his conjugal life with her. The alleged cruelty by wife is nothing but the wear and tear of the married life. Wife never treated husband with cruelty causing him any mental or physical agony.
18. In the aforesaid circumstances, we find no reason to interfere with the impugned judgment and decree, whereby husband's application for divorce against his wife has been rejected.
19. There is no merit in this appeal. It is dismissed, but without costs.