Bankim Chandra Banerjee Vs. Chinmoyee Banerjee - Court Judgment

Joytosh Banerjee, J.

1. This appeal is directed against the Matrimonial Suit No. 65 of 1987, by which the aforesaid Matrimonial Suit was dismissed on 9.1.95 by the 2nd Additional District Judge, Howfah.

2. The husband as the petitioner filed the matrimonial suit before the Court below alleging, inter alia, that the respondent was his wife and their marriage had been solemnised according to Hindu Rites on 31st January, 1978 at the then residence of the respondent's father at 44/2/1, Khetra Banerji Lane, P. S. Shibpur, Howrah. After the solemnization of the marriage, the parties lived together as husband and wife at their matrimonial home at 4, Baishnabpara Lane, Howrah-1 till 26th of Mareh, 1984 and a female child was born of the lawful wedlock of the parties on or about 12th December, 1978. At the time of his marriage, the petitioner was posted at Jhargram in the district of Midnapore and he used to attend his place of work from his residence at Howrah. He was transferred to Tribeni in the district of Hooghly in or about the middle of the year, 1979. Shortly after his transfer to Tribeni the respondent proposed to the petitioner that they should live separately from the petitioner's mother on the ground that the petitioner's mother did not allow her to visit her parents' house frequently. The petitioner however, expressed his inability to agree to her said proposal and tried to persuade her to adjust herself with his mother. But instead of making any serious attempt for adjusting herself with the mother of the petitioner, the respondent started picking up quarrels with her on flimsy pretexts. She seldom lent her helping hand to her mother-in-law, in the household work of the family and she often used to go away to her parents' house and stayed there for months together without the consent and against the wishes of the petitioner. It is further alleged that the respondent/wife's behaviour towards the petitioner was cold, rude, cruel and offensive. She took pleasure in hurting the feelings of the petitioner by taunting him for the lowly position of a clerk. It is further alleged that towards the middle of January, 1984, the respondent went away from the matrimonial home to her parents' house without taking any prior consent of the petitioner. At that time, she also took the child with her. She returned alone to the matrimonial home in the evening on the 25th March, 1984. In the morning of the next day, i.e., the 26th of March, 1984, the petitioner's mother having become temporarily indisposed, the respondent was asked by the mother-in-law to take up the work of cooking for the day. But she flatly refused to do so, telling the mother-in-law that she was not a cook or maid-servant of the family- She also started abusing the mother-in-law. The petitioner took strong exception against such conduct of the respondent and asked her to behave properly. At this, the respondent flared up and clearly disclosed that she did not care to live in the family of the petitioner like a maid servant and thereafter left the house with all her ornaments and jewelleries in a huff. Since that day, the respondent has been residing at her parents' house, inspite of the repeated attempts from the side of the petitioner to persuade the respondent to return to him. In this background, the petitioner has prayed for dissolution of marriage by a decree of divorce on the ground of cruelty and desertion by the respondent.

3. The respondent-wife has contested the suit on a written statement. Besides denying material allegations made in the petition, it is contended by the respondent that the mother of the petitioner used to quarrel and misbehave with the respondent-wife, without any reason during her stay at the house of the petitioner. Even the sisters of the petitioner except Arati Bhattacharjee and their respective husbands used to ill-treat the respondent as she refused to drink and dance with them when they would come to the house of the petitioner. Such refusal by the respondent also made the petitioner's mother angry. The petitioner instead of honouring and protecting the prestige of the respondent used to persuade the respondent to drink and dance with his sisters and husbands of the sisters and the petitioner had to, in the circumstances bear such peculiar situation silently. It is further alleged that on 26.3.1984, the respondent was driven out from the house of the petitioner without any cause and the petitioner at that time threatened the respondent that she would be killed if she made any attempt to return from her father's house. Since then, the petitioner did not arrange for maintenance of the respondent. Even he did not pay any amount to the respondent for meeting expenses of the daughter. In this background, the respondent was compelled to file a case under Section 125 Cr.P.C. in the Court of C.J.M., Howrah for the purpose of getting maintenance. It is the contention of the respondent-wife that in the facts and circumstances, the petitioner is not entitled to get a decree of divorce as prayed for.

4. The only question for our decision here is whether in the facts and circumstances of the case as disclosed in the evidence on record, the learned Additional District Judge is justified in dismissing the matrimonial suit refusing a decree for divorce?

5. It emerges from the petition filed by the husband that he has prayed for dissolution of marriage on two fold grounds, namely, cruelty and desertion as provided under Section 13(1)(ia) and (ib) of the Hindu Marriage Act. So far the allegation of cruelty is concerned in the petition, the husband has alleged that soon after his transfer to Tribeni in the district of Hooghly in or about the middle of the year, 1979, the respondent-wife proposed to the petitioner-husband that they should live separately from the petitioner's mother on the ground that the petitioner's mother did not allow the wife to visit her parents' house frequently to which the petitioner expressed his inability to agree and advised her to adjust herself with his mother. It is also the allegation that instead of making any serious attempt for adjusting herself with the mother-in-law, the respondent-wife started picking up quarrels with her on flimsy grounds and she seldom lent her helping hand to her mother-in-law in the household work of the family. Not only that whenever she was asked to do any household work by her mother-in-law she used to grumble and tried to shirk such work on lame excuses. It is also alleged that the respondent-wife wilfully neglected the petitioner-husband. Her behaviour towards him was cold, rude, cruel, offensive etc. These allegations have been made through paras, 7, 8 and 9 of the petition. We have already noted that in the written statement, the wife has denied all these allegations. In the evidence, the petitioner as P.W. 1 has stated that the respondent-wife was careless to petitioner's convenience or inconvenience and she scarcely performed her matrimonial duties as a willing partner. Towards the petitioner, her behaviour was cold, rude and hateful. She used to look down upon him as he was posted as a mere clerk in the service as a result, the petitioner felt pain in his mind. In her evidence the wife has denied these allegations. It is evident from the oral testimony of P.W. 1 that the petitioner has raised certain allegations regarding cold, rude, hateful behaviour of the wife towards him. But he is not given any instance to establish such allegations.

The record goes to show that the petitioner has examined number of witnesses in connection with the suit, mostly his relatives who are no doubt competent witnesses to tell about relationship between the husband and the wife. But we do not get much help from the oral testimonies of those witnesses. In this way, P.W. 2 Sobha Banerjee, mother of the petitioner has stated in her evidence that during her stay in the house of the petitioner, the respondent-wife failed to help the witness in performing domestic duties. Apart from this specific allegations there is no further allegation made by the witness on the point of cruelty. The other witnesses like P.W. 3 Arati Bhattacharjee, P.W. 4 Manju Mitra, the sisters-in-law of the wife-respondent have not stated anything on the point of cruelty. P.W. 5 Shebendu Mukherjee a resident of 85-C-Jatindra Mohan Avenue, Calcutta-5, no doubt came to allege in his evidence that the wife-respondent used to neglect her husband and she had no eagerness for domestic work. The cross-examination goes to show that the witness is the sister's son of P.W. 2, the mother-in-law. Moreover like the petitioner, the witness who is normally not a competent witness to depose on the point has not disclosed any fact or circumstances from which he had drawn his conclusion that the wife-respondent was negligent towards her husband or she was not eager to perform domestic work. The two other witnesses who have been examined from the side of the petitioner are P.W. 6 Subrata Kr. Bhattacharjee and P.W. 7 Sovan Mitra both husbands of the sisters of the petitioner have not stated anything regarding cruelty.

6. From the total evidence led by the petitioner on this point we find that the effective allegation against the wife is that she was not a willing performer of the domestic work and she often tried to avoid the same on different pretexts. The question is whether these allegations constitute cruelty on the part of the wife From the nature of the allegations which the petitioner has wanted to establish here by adducing evidence, it is clear that the allegation relates to mental cruelty. It is well established that mental cruelty in Section 13(1)(ia) is that conduct which inflicts upon there other party such mental pain and suffering as would make not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. So the refusal on the part of the wife to participate in the domestic work of the house wholeheartedly or to help her mother-in-law in discharging such domestic work, cannot be mental cruelty. It may be an instance of deficiency on the part of the wife that she is not an expert in the household work or she is not a good cook. But it cannot be said that due to such deficiency, the husband cannot be reasonably asked to put up with such conduct and continue to live with the wife. We are fortified in this respect by the decision of the Supreme Court in the case of Chetan Das v. Kamala Devi, : [2001]3SCR20 .

7. Next comes the question of desertion. In Halsbery's Laws of England desertion has been defined as follows :--

'In its essence desertion means the intentional forsaking and abandonment of one spouse by the other without that other's consent and without reasonable cause. It is a total repudiation of the obligations of marriage .................Desertion is not the withdrawal from a place but from a state of things.'

8. Before we proceed to consider the specific arguments canvassed by the learned Counsel for the parties, the specific provision of the Hindu Marriage Act which is involved here should be noted for appreciating such arguments. It reads as follows :--

'Section 13. Divorce.--(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party--

(ia) .........

(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition.'

Explanation to this sub-section reads as follows :--

'Explanation--In this sub-section, the expression 'desertion' means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage and its grammatical variations and cognate expressions shall be construed accordingly.'

9. Thus from above, it is clear that in order to get a decree on the ground of desertion, the petitioner must establish that the other party has deserted him/ her for a continuous period of not less than two years immediately preceding the presentation of the petition without reasonable cause and without the consent or against the wish of the petitioner. The learned Counsel for the petitioner-appellant has drawn our attention to the fact that it is not disputed in this case that the parties have been living separately since 26th of March 1984. In this connection, our attention has been drawn to the specific portion of the evidence led from the side of the husband to establish the case of the petitioner on the ground of desertion. The relevant allegations have been made in paras 10 and 11 of the petition (Page-14 of the P.B.). It is alleged there that towards the middle of January, 1984, the respondent went away from the matrimonial home to her parents' house, without taking any prior consent of the petitioner. She also took the child with her. She returned alone to the matrimonial home in the evening on the 25th of March, 1984. In the morning of 26th of March, 1984 her mother-in-law asked the wife-respondent to cook the meal for that day due to temporary indisposition of the mother-in-law. But the wife-respondent flatly refused to do so and started abusing on her mother-in-law. The petitioner-husband took strong exception against such conduct of the respondent and asked her to behave properly. The respondent-wife then flared up and declared that she would not live any more in that house and left the house with all her ornaments, jewelleries in a huff. In this connection, our attention has been drawn to the evidence adduced from the side of the petitioner-husband. The petitioner-husband on being examined as P.W. 1 deposed in the manner in which the desertion by the wife has been described in the petition. He has added in the evidence that when the respondent-wife returned in the night on March 25, 1984 she was alone and she left the daughter at the house of her parents and passed that night in the house of the petitioner. The mother of the petitioner on being examined as P.W. 2 has corroborated the evidence of the petitioner on this important point. The witness has clearly stated that the respondent came to the house from the house of her father on the day previous to the date of the incident in the evening and she spent the night. On the following morning due to her illness, she asked the respondent-wife to cook the food, but the respondent flatly denied to do so. At this stage, the petitioner-husband intervened in the matter and asked his wife to do the cooking. But the respondent-wife was adamant in refusing to do so. She declared that she would not live in the house and thereafter she opened the aimirah took out all the articles from there and went to the house of her father by calling rickshaw,

10. The respondent-wife in the written statement filed in connection with the suit has denied the allegation that she deserted her husband and left the matrimonial home for good on 26th of March, 1984. It is her specific case that she had to leave the matrimonial home due to ill-treatment by the petitioner and on 26th of March, 1984 she was driven out of the house of the petitioner without any cause and the petitioner threatened the respondent that she would be killed if she made any attempt to return again from her father's house. It was in that circumstances, the respondent-wife had to take shelter in her father's house and started to live there since then. The respondent on being examined as R.W.1 has stated in her evidence that on 25th and 26th of March, 1984 she had been at her husband's house. On 25th of March, 1984 her husband assaulted her and when she tried to protect herself he bite her on her arms. She further stated that she showed her injury to the uncle of her husband and reported the incident to him. It is her further evidence that she requested her uncle-in-law to send information to her father's house. Her mother-in-law overheard the said conversation and she personally went to the house of her father to call her parents. Then her parents came to her husband's house along with her mother-in-law. Her parents wanted to know from her husband regarding the incident but her husband replied that the incident would be settled in the Court. It is also her evidence that in their presence he (the husband) caught hold her locks and asked her to get out and in that background she had to leave her matrimonial home in the same dress which she had on her person at the relevant point of time. The only witness who has been examined to corroborate the evidence of R.W.1, regarding the circumstances leading to the departure of the wife from her matrimonial home is her mother R.W.-3 Latika Chatterjee. Regarding the circumstances leading to the departure of her daughter from her matrimonial home, the witness has stated that about 9 years back the mother-in-law of her daughter came and reported to her that her daughter Chinmoyee did not take meal from three consecutive days and they were afraid that Chinmoyee might commit suicide. Then she along with her husband went to the house of the petitioner. Reaching there they saw the petitioner reading books on the varandha and they found the respondent confined in a room. It is also her evidence that Bankim in their presence caught hold of the locks of the hair of the respondent and at that time they noticed marks of echomosis on the person of Chinmoyee.

When the parents of the respondent asked the petitioner reason for causing the marks of injury in the person of the wife, the petitioner replied that lawyer would answer the question in the Court. It is also her evidence that the mother-in-law asked her to take Chinmoyee with them and she further disclosed and mother-in-law further stated that they would not be responsible if Chinmoyee committed suicide on their failure to take her back to their house. The witness further stated that Chinmoyee was driven out of the house along with her baby. It is to be noted here that in paragraph 10 of the petition, the petitioner clearly alleged that towards the middle of January, 1984 the respondent went away from the matrimonial home to her parents' house without taking any prior consent of the petitioner. She also took the child with her. She returned alone to the matrimonial home in the evening of 25th of March, 1984. Thereafter in paragraph 11, the petitioner has clearly disclosed the circumstances under which the respondent left the matrimonial home alleging specifically that at that time she left the house with all her ornaments and jewelleries and since then the respondent has been residing in the house of her parents. Through paragraph 9 of the written statement, the respondent merely denied the allegation that towards the middle of January, 1984 the respondent went away from the matrimonial home to her parents' house without taking any prior consent of the petitioner with their child and she returned alone to the matrimonial home in the evening of 25th of March, 1984. Her specific case which has been made in the paragraph 9 on this point is that she was off and on ill-treated by the petitioner and on 26th of March, 1984 she was driven out from the house of the petitioner without any cause and the petitioner also threatened the respondent that she would be killed if she made any attempt to return again from her father's house. In this way, we find that the respondent has tried to introduce the story of launching assault by her husband on 25th of March, 1984, in her evidence although the written statement is completely silent about such assault. Then again in her evidence the respondent has tried to further assert that she showed the injury to the uncle of her husband and reported the incident to him with a request to send information to her father's house. Her mother-in-law overheard the said conversation and she personally went to the house of her father to call her parents and then her parents came to the house of the petitioner with her mother-in-law. This specific allegation regarding an important incident which culminated in the ultimate departure of the wife from the matrimonial home, does not find any place in the written statement.

11. In this way, it can be said that the petitioner wanted to improve the case regarding the circumstance under which she had to leave the matrimonial home at the witness box and the evidence to that effect is not even corroborated by the other witness examined from her side. Thus we find the mother of the petitioner (R.W.3) has stated in her evidence that she came to the matrimonial home of the respondent on being informed by the mother-in-law of the respondent that the respondent was not taking any food for last three days. While the respondent herself took the stand that on 25th of March, 1984 she was assaulted by husband for which she requested one of the relatives of the petitioner to inform her parents. It is significant to note that there is no attempt made from the side of the respondent to show that before 25th of March, 1984 she was staying in the matrimonial home with the child. There is also no assertion that on 25th of March, 1984 she returned to the matrimonial home with the child. The stance taken by the petitioner that the respondent returned to house all alone on 25th of March, 1984 and she left the house on 26th of March, 1984 gets support from the evidence of the O.P.W. 2 Laxmi Kanta Das. The mother of the respondent in her evidence has stated that the respondent Chinmoyee was driven out from the house along with her baby and they took her with them. If the respondent was driven out from her matrimonial home along with her baby then it is expected that the parents of the respondent would bring back both the respondent and her child to their house. But the mother in her evidence has specifically stated that they took her that is to say the respondent with them and on their way they met Laxmi Kanta Das R.W. 2, R.W. 2 in his evidence has stated that on that day he found parents of Chinmoyee was proceeding in a rickshaw. So from the total evidence adduced from the side of the respondent, it is clear that on that very day, the respondent came back to her parents' house all alone and not with the child.

12. The question is whether the respondent-wife was compelled to leave the matrimonial home or she left her husband's house in her own accord We have already discussed that the petitioner and his mother have stated very clearly under what circumstances the respondent-wife left the house in a huff. On the other hand, the evidence adduced from the side of the respondent is not consistent with the case made out in the written statement. Apart from the petitioner and her mother, the petitioner has examined some of his relatives in connection with this case. We find from the evidence of P.W. 3 Arati Bhattacharjee the eldest step sister of the petitioner that since after the marriage, on most occasions Chinmoyee used to stay at her father's place and not at the house of her father (father of the witness). The witness has further added that whenever she had been to her father's place she did not find her, P.W. 4 Manju Mitra youngest sister of the petitioner also has corroborated the testimony of her sister that the respondent used to stay in the house of the petitioner occasionally.

13. We have already noted that besides the respondent there is the only evidence of her mother to establish the case of the respondent on the point of the circumstances leading to her final departure from the house of the petitioner. No doubt, the respondent has also examined another witness R.W. 2 Laxmi Kanta Das who has stated that in March or April, 1984 while he was going to his office at 9 or 9.30 a.m. he found the parents of Chinmoyee who were proceeding with Chinmoyee in a rickshaw. It is the further evidence that rickshaw was stopped seeing him and thereafter he heard from them that the petitioner had driven away Chinmoyee from the house in the early morning. They also reported that they were called and asked to take Chinmoyee and their requests to keep her in the house proved futile. We must pause for a moment to point out that the evidence thus adduced by the witness seems to us improbable. If really the respondent had been driven out by the petitioner, after calling her parents to the house, it is not expected that the parents while going back home with their daughter would stop to a passer by in order to relate the incident under which their daughter was driven out. It is not the case of the R.W. 2 that he rushed to the spot hearing hue and cry and came to learn all about the incident from the parents of the respondent outside the house of the petitioner. Then again, the trend of the evidence adduced from the side of the respondent as well as the evidence adduced by R.W. 2 Laxmi Kanta Das himself indicates that the wife Chinmoyee was driven out of the matrimonial home in the early morning and the parents thereafter took her back to their house. Then how was it possible for R.W. 2 to meet them at about 9 or 9.30 a.m. on his way to office The learned Counsel for the respondent has placed much reliance on a letter marked Ext-C written by the eldest sister of the petitioner P.W. 3 Arati Bhattacharjee in order to show that the respondent had to leave the matrimonial home on being tortured by the petitioner.

14. Before we proceed to consider the total effect of Ext-C in establishing the case made by the respondent, we must point out that so far the allegation of desertion is concerned, such letter does not clearly indicate that the petitioner was behaving very badly with his wife. So it cannot be said for a moment relying on the letter written by P.W. 3 that the respondent used to be tortured and ultimately she was compelled to leave her matrimonial home for that reason. It is significant to note that although the respondent has alleged in her evidence that she used to be tortured by her husband off and on and on 25th of March, 1984 her husband launched assault on her and on 26th of March he compelled her to leave the matrimonial home, there is nothing to show that the respondent lodged any diary or information to the local P.S. regarding the alleged torture. On the other hand, it has been clearly established from the discussion above that the respondent returned to her matrimonial home on 25th of March, 1984 alone and she finally left the house for good on 26th March, 1984. We are quite in agreement with the submission made by the learned Counsel for the petitioner that the very fact that the respondent came alone to her matrimonial home without bringing her child daughter with her, would establish the real intention of the respondent that she was not willing to reside in the house of her husband any more.

15. Coupled with this we further find from the evidence of some of the P.Ws. specially, P.W. 3 Arati Bhattacharjee, that the respondent-wife was not happy with her husband because her husband used to work as a clerk at the State Electricity Board at the time of their marriage. The aforesaid statement fully corroborates the evidence of the petitioner that his wife was unhappy as he was lowly placed in life. The witness has further disclosed in her evidence that in March, 1984 after the respondent had gone back to her father's house, she along with her husband went to the house of the father of the respondent to settle the dispute between the parties. But the witness failed to bring back the respondent, although the petitioner and his mother was eager to get back the respondent. The respondent as R.W. 1 has stated in her evidence (at page 86 of P.B.) that her sister-in-law Arati never misbehaved with her and she used to write letters to her. She has further disclosed that she reported the misbehaviour of her other sisters-in-law and their husbands and also the torture done to her by her husband and mother-in-law, to P.W. 3 Arati. She has further disclosed that she reported about these matters verbally to Arati. From this admission on the part of the witness it is clear that amongst the in-laws, the respondent had good relations with Arati and she had nothing to complain against her. Inspite of that from the evidence of Arati, P.W. 3, we find that when she along with her husband went to the house of the father of the respondent in order to settle the matter between the parties, they could not enter into the house and had to return from outside. From the aforesaid evidence, it is clear that the petitioner who came back to her matrimonial home in the night of 25th of March, 1984 and left the same on the following day morning, had no intention to return to her matrimonial home. She even refused to come back to her matrimonial home when one of her sisters-in-law with whom the respondent had good relation went to approach her for that purpose. We should add that P.W. 3 in her evidence explained that she wrote some letters to the respondent without making any enquiry about the same. This seems to us quite probable in view of the fact that according to the evidence on record including the evidence of the respondent the witness did not visit the house of the petitioner frequently.

16. Summing up the case of desertion, we may observe that on the point of desertion, the Court has to fit the principle of animus dessidendi in the facts and circumstances revealed on record. As already discussed, the petitioner (P.W.1) supported by his mother (P.W.2) had corroborated the allegation of desertion pleaded in the plaint. This allegation, if not disproved or countered would definitely bring home the principle of animus dessidendi as against the respondent. The respondent in her written statement never asserted assault but pleaded that she had been driven out of the house (page 23 of the P.B.). Whereas in her evidence (page 72 of the P.B.) the respondent (R.W.1) pleaded that the petitioner had assaulted her and in the process had bitten her arms. R.W. 3 the mother of the respondent (page 101 of the P.B.) made out a complete different story of apprehension of suicide by the mother of the petitioner. She also did not speak of assault but disclosed the conduct of the petitioner, who drove out the respondent. At the same time, she brought the story of the baby while she said 'we took her with us'. Whereas R.W. 2 (page 96 of the P.B.) stated that the respondent showed him marks of burning caused by her husband. The other point that emerges is that the respondent never pointed out that she was driven out on 26th March, 1984 along with the baby or that she returned to the matrimonial home on 25th of March, 1984 with her child. R.W. 2 also did not mention that the child was with the respondent when he happened to meet her (pages 22-23 of the P.B.). The respondent had pointed out that she had shown the injury to the uncle-in-law but never mentioned that she had shown the injury to R.W. 2. The respondent (R.W. 1) and her mother (R.W.3) introduced a new case of the presence of the respondent's parents not pleaded in the written statement and sought to get the same corroborated through R.W. 2. The evidence of these three witnesses on behaif of the respondent materially differs from each other and deviate from the case pleaded in the written statement. Those statements cannot be accepted to be a corroboration of the case made out by the respondent in her written statement so as to contradict the case made out in the plaint supported by evidence by the petitioner. The very fact that the respondent returned without the child in the evening and left the house in the morning following, itself goes to show that the respondent had no intention to stay back in her husband's house otherwise she would have returned with the child. That apart, we must repeat that P.W. 3, who was esteemed as a good friend of the respondent, pointed out that she had gone to the place of the respondent's father to bring the respondent back but the respondent did not meet her. There is nothing on record to counter this assertion of P.W. 3 corroborated by other witnesses on behalf of the petitioner. In her cross-examination, the respondent stated that she was ready and willing to live with the petitioner if the petitioner agreed to maintain her befitting with her status, (page 75 of the P.B.). The intention seems to be qualified. This cumulatively strengthens the presumption of animus dessidendi on the part of the respondent leading the Court to believe the case made out by the petitioner-husband. It is here where the learned Court below, committed a mistake in appreciating the situation.

17. Admittedly, there was no resumption of the matrimony in between the parties since 1984 till today. It establishes the fact of irretrievable break down of the marriage between the parties. It would serve no purpose in maintaining a deed shell when the parties have reached a point of no return and for almost 20 years are living apart.

18. In the result, we hold that the learned Court below has improperly dismissed the suit by specifically holding that the petitioner in the facts and circumstances of the case was not entitled to get a decree for divorce on the ground of desertion as he did not file any undertaking before the Court for maintaining the respondent-wife (improperly mentioned as the petitioner) as per her status. From the facts and circumstances of the case which emerge from the evidence on record, it is evident that the petitioner is entitled to get the decree on the ground of desertion. Accordingly, the appeal is allowed. The matrimonial suit, namely, Mat. Suit No. 65/87 before the Additional District Judge, Howrah is decreed and the marriage between the parties be dissolved with immediate effect. Having regard to the circumstances we make no order as to costs.

Dilip Kumar Seth, J.

19. I agree.