Parbhat S/O Shekuba Pawar vs Swati @ Pushpa W/O Parbhat Pawar
2007 Latest Caselaw 926 Bom

JUDGMENT

M.G. Gaikwad, J.

1. Heard learned advocates for respective parties.

2. This appeal is preferred by appellant-husband feeling aggrieved with the judgment of Judge, Family Court, Aurangabad in Petition No. A-440/2003 whereby the petition preferred by this appellant under Section 13 of Hindu Marriage Act 1955 for dissolution of marriage is dismissed and by allowing counter claim preferred by respondent-wife a decree for restitution of conjugal rights is passed against the appellant.

The facts relevant for the purpose of this appeal are as under:

3. The marriage of this couple was performed on 2-5-1994 as per Hindu riles and customs. The couple is having one daughter by name Tejashree who was six years of age at the time of filing of the petition. The husband is serving in M.S.C. bank branch at Aurangabad since 1992. The respondent-wife is qualified and possessing educational qualification M.A. B.Ed. After the marriage when she was cohabiting with the husband, she was insisting that the husband should search some job for her. When the husband could not search the job for her, in the month of January, 2000, she had left the house of the husband saying that she will not turn up to his house till job is searched for her. She stayed at the house of her parents upto May 2000. Thereafter, she returned back to the husband's house when he gave assurance to search a job for her. She herself got job as a Junior Lecturer in Jaibhavani Junior College, Garkheda, Aurangabad. She informed her husband that for the said job she has incurred expenses of Rs. 75,000/- and asked husband to make provision for the same and the husband claims to have made provision of said amount by borrowing loan of Rs. one lakh. Thereafter, she had joined service as a Junior Lecturer with monthly salary of Rs. 12,000/-. When this couple was staying in the house of one Shri Y.N. Tambe in Sudarshannagar, CIDCO, Aurangabad. One day, the husband had gone out of Aurangabad for some work and in the evening when he returned back, he got information from Kailash Kolte that one Rangnath Jadhav the office bearer of educational institution where she was and is serving, had visited the house of appellant and he misbehaved with the respondent-wife. On that information, the husband asked the wife to leave the job as his status in the society is going to be disreputed. However, wife refused said proposal. After that incident there was change in her attitude. All the while she used to remain aloof and was not taking interest in the household matters. In spite of the advice from the husband that she should not get disturbed, there was no change in her behaviour and lastly she left his house on 3-10-2001 and started staying at the house of her parents. Thereafter, he made many attempts to fetch her back, but he did not succeed. On 13-8-2003, in daily news paper "Samana" there was a news about the incident of outraging the modesty of respondent-wife because of which she is staying at the house of her parents. When the husband got information of the said news, he concluded that the wife had no desire to stay with him and it being a desertion for a period of more than 2 years, he had filed petition under Section 13(l)(b) of Hindu Marriage Act, 1955 for dissolution of marriage.

4. Respondent-wife contested the petition before Family Court on the contentions raised in written statement Exh. 4. She admits her status as wife of appellant and performance of their marriage on 2-5-1994 as well as birth of daughter Tejashree. She admits that she had secured a job as Junior Lecturer and joined the post in the month of June, 2000. However, she denied that for the said job, husband was compelled to raise loan of Rs. One Lakh. She has admitted that along with her husband she was residing in the house of one Shri Y.N. Tambe in Sudarshannagar, CIDCO, Aurangabad but denied the alleged incident of misbehaviour by Rangnath Jadhav with her and that after the said incident, there was a change in her behaviour and finally she left his house on 3-10-2001. According to her, when she was staying with the husband, the husband all the while without any reason used to ill-treat her and on some occasion he had actually beaten her. It has been contended that four days before "Vijaya Dashmi" in the month of October, 2001, husband bet her mercilessly and compelled her to leave his house, so she is staying at the house of her parents. Thereafter, her father and other relatives approached the husband and made request to allow her to stay with him but he flatly refused for the same. By way of special pleading, she has raised contention that when she was staying at the house of her husband, one Rangnath Jadhav the office bearer of the institution where she was serving had come to her house when Kailash Kolte the relative of her husband was present. When her husband returned back, she narrated the incident to him and asked him to lodge complaint against Rangnath Jadhav but husband did not lodge complaint against Rangnath Jadhav nor allowed her to file a complaint and lastly he drove her away in the month of October, 2001. So she denied that she had deserted him without any cause.

5. By way of counter claim she claimed decree for restitution of conjugal rights under Section 9 of the Hindu Marriage Act. According to her, all the while, she was ready and willing to cohabit with the husband but the husband did not allow her to stay with him and has withdrawn himself from the company of the respondent-wife. In the cross objection for restitution of conjugal rights, while claiming a decree for restitution of conjugal rights she has pleaded the same facts as per her contentions for opposing a decree for dissolution of marriage and she came with a specific case that her husband had withdrawn himself from her company without any reasonable cause, so she is entitled 10 a decree for restitution of conjugal rights and husband's petition for dissolution of marriage is liable to be dismissed.

6. The learned Judge of the Family Court had framed issues at Exh. 26. On the contention of husband claiming a decree for dissolution of marriage, Issue came to be framed as to whether the respondent-wife deserted the husband continuously for a period of two years before presentation of the petition. On the contention of wife, claiming a decree for restitution of conjugal rights, Issue came to be framed as to whether husband has withdrawn himself from her company without any reasonable cause. As the wife had filed petition bearing No. E-634/04 claiming maintenance. Issue came to be framed whether husband neglected and refused to maintain her. All the three proceedings came to be decided by common judgment. Appellant-husband examined himself and also examined two more witnesses in support of his contentions. Respondent-wife examined herself and her father. After considering this evidence on record, learned Judge observed that the husband admitted that they stayed together upto October, 2001. Thereafter, there was no effort on his part to fetch her. The wife had filed a complaint against Rangnath Jadhav about the incident of alleged misbehaviour and the said act of the wife is held to be a circumstance to show that she had no relation with Rangnath Jadhav. The wife had shown readiness and willingness to stay with the husband. Because of these facts, the learned Judge came to the conclusion that the wife had no intention to desert permanently though the couple is staying separate for more than two years. According to learned Judge, the husband compelled her to live separate and there was no intention on the part of the wife to bring cohabitation permanently to an end. Finally husband's petition for dissolution of marriage came to be dismissed and a decree for restitution for conjugal rights is granted in favour of the wife. Petition for maintenance was also allowed to the extent of claim of minor daughter. Feeling aggrieved with a decree of dismissal of petition for dissolution of marriage and grant of decree for restitution in favour of wife, the husband preferred present appeal which came to be admitted by this Court by order dated 24-11-2006.

7. On behalf of the appellant-husband, learned Adv. Shri Choudhari pointed out that the wife is living separate since October, 2001. The petition came to be filed after expiry of statutory period of 2 years. The wife though alleged ill-treatment at the hands of husband as a cause for living separate, the evidence adduced by her does not prove the alleged cause. On the other hand, the evidence of husband proves the desertion for a statutory period and her subsequent conduct also proves animus deserendi to end permanently the relations, so this is a fit case wherein the family Court ought to have granted a decree for dissolution of marriage. He also contends that the parties are living separate since October, 2001 and there is irretrievable breakdown of the marriage, so the Court ought to have passed a decree for dissolution of marriage and divorce. In support of his contention he tried to place reliance on certain decisions which may be referred while appreciating the evidence.

8. Learned Adv. Shri Sagar Killarikar appearing on behalf of respondent-wife supports the decree of dismissal of the petition for divorce passed by Family Court and grant of decree of restitution of conjugal rights in favour of wife. According to Shri Sagar Killarikar, the allegations made in the pleadings as well as at the trial by the husband are the allegations against the character of the wife. The evidence on record shows that wife was compelled by the husband to leave his house and there is no animus to desert permanently and the husband cannot take benefit of his own wrong, as such the evidence on record justified the dismissal of petition for divorce and the grant of decree for restitution of conjugal rights against the husband. He has also pointed out that since beginning, that is in the pleadings as well as at the time of reconciliation before the Courts and also in the evidence the wife had shown her readiness and willingness to cohabit with the husband. Hence the decree for restitution of conjugal rights passed by family Court is justified.

9. In view of the rival contentions raised on behalf of the parties, it is for us to find out as to whether the husband who claims a decree for dissolution of marriage on the ground of desertion had proved desertion as required under the statute. Section 13 of Hindu Marriage Act 1955 provides several grounds for obtaining a divorce by either party to the marriage. Section 13(l)(i)(b) provides desertion as a ground for claiming divorce. At this stage, it may be proper to refer Section 13(1):

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 (i-b) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition;

The explanation of the section widened the scope of expression 'desertion', The explanation runs thus:

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 patty, 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.

10. In view of the provisions of Sub-section (i-b) read with its explanation, one who claims a decree for dissolution of marriage on the ground of desertion, it is for him to prove that the desertion alleged is for a continuous period of not less than 2 years and same is without any reasonable cause and without the consent or against the wish of such a party. The wilful neglect of the petitioner by other party is also included in the Explanation of the section for the expression 'desertion'. So it has to be seen as to whether in the present case, the husband who claims a decree for dissolution of marriage has established the desertion as required.

11. The appellant husband needs to prove the animus deserendi and mere separate residence by itself may not amount a desertion. It has also to be proved by appellant-husband that desertion is without any reasonable cause and without his consent and against his wish. In case the wife proves that there was any reasonable cause or justifiable reason to leave the company of the husband, then it cannot be said that she has deserted the husband. With the background of this legal position, the pleadings and evidence of the parties need to be considered to find out as to whether the appellant-husband proved the alleged desertion on which he claimed a decree for divorce.

12. It is not disputed that the marriage of this couple was performed on 2-5-1994. The desertion alleged is from October, 2001. During the span of seven years of marital life, the couple was blessed with a daughter Tejashri. It is not disputed that the respondent-wife was qualified and she was insisting that husband should secure a job and finally she joined as a Junior Lecturer in Jaibhavani Junior College, Garkheda, Aurangabad. The husband alleged that the wife had left his house in January, 2000 saying that she will not return unless a job is secured and finally he fetched her back giving assurance to search a job. By these allegations, attempt is made to show that even prior to October, 2001, the wife had no desire to stay with him. On the other hand, the wife though admits that she was desirous to join a service, she denied that on that count she had left the house of the husband. According to her, since beginning the husband used to ill-treat her but there appears no substance in the allegations raised by both of them that prior to October, 2001, there was any serious dispute between them and their marital relations were strained. But according to both of them the wife left the house on 3rd October, 2001 and since then they are living separate. The petition for dissolution of marriage on the ground of desertion is filed on 4-11-2003 that is immediately after expiry of the statutory period of 2 years. So question remains whether this separate residence of wife for a period of 2 years is with an intention/animus to give an end to marital relations. It may also be mentioned here that before filing of this petition, the wife had already filed petition bearing E-634/03 under Section 125 of Criminal Procedure Code on 12-9-2003 and thereafter, the petition for dissolution of marriage has been filed. There is no dispute about these factual aspects. As regards the animus on the part of the wife the husband in the petition alleged that on 13-8-2003, there was a news item published in local news paper "Samana" wherein it was disclosed by the respondent that her modesty has been outraged by Rangnath Jadhav and since that incident, she is residing separate. Said news item is alleged to be a cause for the husband to presume that respondent-wife is not willing to continue the marital relations because in that news item, her name is shown as Swati Chavan. These allegations are denied by the wife and according to her, after the alleged incident in October, 2001, she was insisting that husband should lodge a complaint against Rangnath Jadhav about the said incident, but he did not take any steps on the ground that he will be defamed and lastly he bet her and drove 'her away. In view of these rival contentions, it appears that so called incident which did occur in the month of October, 2001, is the cause of separation of this couple. So it has to be seen as to whether any such incident did occur and what had happened after the so-called incident and to find out from the evidence of the parties whether after that incident, wife left house without any cause or whether husband drove her away because of that incident as alleged by the wife.

13. At the trial before family Court, on behalf of appellant-husband three witnesses were examined including husband himself. Out of the three witnesses, P.W.3 Baburao Gadekar is examined on the point of income by way of salary which respondent-wife was getting. That evidence needs no consideration in the present case as the order of grant of maintenance for which this evidence was led is not the subject-matter of the present appeal. Admittedly as per appellant's own contention, appellant-husband is not a witness of the incident which was alleged to have taken place in the house about the misbehaviour of Rangnath Jadhav with the respondent-wife. But as per his own pleading, he got knowledge of the said incident from his relative P.W.2 Kailash Kolte who was present in the house. P.W.2 Kailash Kolte is son of maternal uncle of the appellant. It is not disputed that he was staying with this couple for a short period and on the alleged day, he was present in the house. According to P.W.2 Kailash Kolte when he was at the house, one Jadhav came to the house, respondent offered tea and asked Kolte to leave the house. Then Kolte left the house along with minor daughter of respondent and returned back after 15 minutes. After he returned, he noticed the door of the house closed and he opened the same. Thereafter, he saw respondent and Jadhav were in embracing position and they were kissing each other. When he entered the house and witnessed this incident, Jadhav left the house and in the evening he narrated the incident to the appellant. In the cross-examination, he admits that before this incident, Jadhav was not known to him.

The cross-examination is in the nature of suggestions that he had not seen the incident. It has come on record in the cross-examination that after the alleged incident, there were quarrels between appellant and respondent. Appellant as regards this incident has stated that from Kailash Kolte he came to know that he had seen respondent and Rangnath Jadhav kissing each other. As regards this incident and the exact information supplied to him by Kailash, he was cross-examined and it was suggested to him that Kailash did not inform him the fact of kissing. In his petition, though he made reference of this incident in paragraph No. 7, the fact of actual incident of kissing is not referred; on the contrary it is mentioned that from Kailash he came to know that one unknown person had been to the house and was found misbehaving with respondent. In the petition, contentions are raised that after that information he asked his wife to leave the job but she refused and thereafter all the while there was change in her behaviour and she used to remain aloof and was not taking part in daily pursuits and ultimately she left the house on 3-10-2001. So it is clear that the incident has been exaggerated. Respondent-wife in the examination-in-chief did not make reference of the incident but according to her at the time of Vijaya Dashmi of 2001, she was beaten and asked to leave matrimonial house as she is not smart and did not know cooking. However, in the examination-in-chief she states that Rangnath is treasurer of the institute where she was serving and she has lodged one complaint against him. She also states that on that complaint, some enquiry is being conducted by the Women's Cell at Mumbai and one case is pending against Rangnath Jadhav. She also states that she made request to the appellant to lodge a complaint but he did not co-operate her on the ground that he will be defamed in the society. In the cross-examination, she admits that the said complaint lodged by her against Rangnath Jadhav is about the incident which did happen at the appellant's house. She also admits that Kailash Kolte is eye witness of that incident and appellant was not present. She admits that Kailash gave information of the said incident to appellant and appellant told her that they will be defamed in the society and lastly she was required to leave the house. Though she admits that some incident did occur, she is not admitting that because of that incident she left the house. The appellant-husband claims that from Kailash, he got knowledge of that incident who informed him that respondent and Rangnath Jadhav were seen by Kailash when they were kissing each other but as stated above, this statement is found to be exaggerated statement because it is not pleaded in the petition. He admits that statement of Kailash was recorded in investigation of complaint lodged by respondent with the police. He also admits that from respondent he came to know that Rangnath had been to her house and she allowed him as he is office bearer. He pleads ignorance about the litigation filed by respondent about that incident. From this oral evidence one thing is clear that Jadhav had been to the house of the appellant, he met respondent and appears to have misbehaved with her and that incident was witnessed by Kailash. According to appellant-husband, after that incident, he told her to leave the job and she was not ready for the same; on the contrary her behaviour was changed and all the while she used to remain aloof and not taking interest in the daily pursuits. By this statement, he intends to bring on record that in spite of that incident, he was not annoyed but the respondent used to behave in a indifferent manner but this attempt is falsified by his own relative Kailash who was staying with them as he has admitted in cross-examination that because of said incident continuously there were quarrels between the couple, so he had left their house. In all probabilities, it appears that because of that incident of misbehaviour of Rangnath Jadhav with the respondent-wife there were continuous quarrels and the wife was compelled to leave the house of the appellant-husband.

Admittedly the appellant-husband is not claiming that he took any action against Rangnath Jadhav about the alleged misbehaviour with the respondent. On the contrary, facts are admitted that the wife had lodged complaint subsequently and some matters were pending for investigation with the police and enquiry is being conducted by Women's Cell, Mumbai. The respondent-wife pleaded and deposed that in October, 2001 she was beaten and she was required to leave the house on the ground that she is not smart and she is not able to cook. That does not appear to be a genuine cause for leaving the house. The husband made attempt to show that on her own accord, she left the house but that also does not appear to be a genuine ground. This couple stayed together for a period of about 7 years without there being any incident of serious nature, so in all probabilities, it appears that because of alleged misbehaviour by office bearer of Jaibhavani Jr. College, the relations of this couple became strained and only conclusion that can be drawn is that after that incident, there were continuous quarrels between them and wife was compelled to leave the house. So it is not a case that wife left the house of the husband without there being any reasonable cause.

14. The appellant-husband came with a case that after that incident also, he made efforts on 2-3 occasions to take her back but she did not join his company and lastly he came across the news item in daily "Samana" dated 13-8-2003 and thereafter he filed this petition. In what way that news item gave cause of action for him to file petition for dissolution of marriage is not explained by him. According to him, he prayed for dissolution of marriage because he was defamed in the society due to the behaviour of his wife. When cross-examined, he denied the allegations of previous ill-treatment. As regards the alleged news item, when cross-examined, he disclosed that he read that paper and came to know that she has lodged complaint against Jadhav. For further enquiries and investigation, he claims ignorance. He has flatly refused to allow the wife to cohabit with him. Respondent-wife has stated that in October, 2001, she was beaten by the husband and removed her out of the house. Her father tried to convince but husband refused to allow her to live with him. In spite of all these facts, she has stated that she is ready to cohabit with the husband and join his company. It was suggested to her that her husband told her that because of that incident they are going to be defamed. So this statement supports the wife's contention that she insisted that husband should take some action and on the apprehension that he will be defamed he did not lodge complaint. This is only the evidence adduced by the parties. The statement of husband that after that incident also he made attempts to bring the wife back is not reliable. On the other hand, wife had shown her willingness to stay with him. Her father has stated that his son-in-law gave information about the incident of outraging modesty of the respondent by one of the Directors of the institute and on that count, he brought and left respondent at his house. He also made attempts to show that there was ill-treatment even prior and after this incident. In the cross-examination, it was asked to him whether he filed any complaint. It was suggested to him that wife without any reason left the house of the husband. There is no substance in this suggestion.

15. So from the evidence on record, it is clear that after that incident, there were no serious attempts from both the sides for reconciliation. Wife filed petition for maintenance and thereafter husband filed petition for dissolution of marriage. He contends that because of publication of news item in the local news paper, he took decision to file petition for divorce and from that news item he gathered that wife had no intention to join his company. However, in the witness box, except the statement that some news item was published, he did not disclose anything for taking such a decision to form an opinion that wife had no intention to join his company. During the reconciliation, he denied to allow her to join his company though wife has all the while shown her readiness and willingness. There is no evidence about the earlier ill-treatment to the wife or any act of wife which shows her intention to bring to an end the matrimonial relations. So it is clear from the facts and the evidence on record that because of the incident of misbehaviour of Jadhav with the respondent in absence of appellant-husband, there were quarrels between this couple and it can be inferred that she was compelled to leave his house and thereafter there were no attempts from the husband to take her back, so it cannot be said to be a case that wife deserted the husband without any cause. As such the Judge, Family Court is found justified in recording a finding that the ground of desertion for claiming a decree for divorce is not proved and no interference in that finding is necessary. From the pleadings, as well as evidence led on behalf of the husband, it appears that because of incident of misbehaviour, the husband had a suspicion about the character of his wife and because of it, there were quarrels and wife was required to leave his house. He is not claiming dissolution of marriage on the ground of mental cruelty to him on account of wife's behaviour nor he alleges that his wife is leading an unchaste life. He preferred petition for dissolution of marriage on the ground of desertion but the facts and circumstances referred in detail above show that it was his mere suspicion which is the cause for the wife to leave his house. There was no intention of the wife to bring to an end permanently the matrimonial relations. So the husband is not entitled to a decree for dissolution of marriage on the ground of desertion.

16. Learned Adv. Shri Choudhari contends that separate residence for a statutory period of 2 years by itself amounts a desertion and whether any attempts made for reconciliation after lapse of statutory period of 2 years are irrelevant. In support of this contention, Shri Choudhari, Adv. relied upon certain decisions. The first decision relied upon is the decision of Delhi High Court in the case of Krishan Lal v. Smt. Nitu reported in AIR 1986 Del. 460 wherein it has been held that after lapse of 2 years, the husband acquires a right to obtain a divorce provided that desertion is continuous and it is of not less than two years duration. In the case of Narendrakumar v. Smt. Suresh reported in AIR 1988 Del. 222. The parties were found living separate for 8 years. The wife had filed criminal complaint against the father and mother of the husband and the said act on the part of wife it was held; amounts to a desertion. The ratio in these 2 cases in our opinion no way helps the present appellant. In both the cases, alleged desertion was held proved though it is observed that efforts made to resume matrimonial life after filing of a petition cannot be said to be a bona fide offer. On the facts in the said cases the desertion is held proved. In the case of Bharat Lal v. Smt, Ram Kali Devi , the desertion was found established and the Allahabad High Court held that once the desertion is proved, the act of husband not taking steps to effect reconciliation cannot be said to be a constructive desertion on his part. As discussed at length by us, in the present case, the desertion as required in law is not established by husband. On the fact of mere separate residence for a period of 2 years, the husband is not entitled to a decree for divorce, as wife's intention to permanently bring to an end the marital relations is not established.

17. On behalf of the appellant-husband, learned Adv. Shri Choudhari advanced submission that reconciliation of this couple is not at all possible. The marriage is irretrievably broken down, so on that count, a decree for dissolution of marriage may be granted in favour of the husband. On the other hand, learned Adv. Shri Sagar Killarikar appearing on behalf of respondent-wife has submitted that it is not a case of irretrievable broke down of marriage. The husband himself compelled the wife to leave and stay separate suspecting her character, so he cannot take benefit of his own wrong. In view of these rival contentions it has to be seen whether it can be said that the marriage of this couple is irretrievably broken down and decree of divorce can be granted on that ground.

18. On behalf of the appellant, claiming a decree for divorce on the ground that it is a case of irretrievable break down of marriage, Adv. Shri Choudhari placed reliance on the decision of Apex Court in the case of Samar Ghosh v. Jaya Ghosh reported on . In the said case, the trial Court had considered various instances in the matrimonial life and concluded that those instances led to grave mental cruelty to the appellant-husband and a decree for divorce came to be passed in favour of the husband. However, it was reversed by the High Court by recording finding that the allegations of mental cruelty have not been proved and the husband approached the Apex Court. The Apex Court reversed the findings of the High Court and restored that of trial Court. It may be mentioned here that in that case decree for dissolution of marriage was claimed on the ground of mental cruelty. The couple was found staying separate for more than 16 and 1/2 years and the Apex Court in paragraph No. 100 of the judgement specifically observed that the concept of mental cruelty cannot remain static and it is bound to change with passage of time, impact of modern culture through print and electronic media and value system etc. what may be mental cruelty now may not remain a mental cruelty after a passage of time or vice versa. There can never be any strait-jacket formula or fixed parameters for determining mental cruelty in matrimonial matters. The prudent and appropriate way to adjudicate the case would be to evaluate it on its peculiar facts and circumstances while taking aforementioned factors in consideration. As in our case, the dissolution is not claimed on the ground of mental cruelty, so the circumstances which are laid down by the Apex Court as the instances of mental cruelty need not be recorded in detail. However, the observations of the Apex Court in paragraph No. 95 on the point of irretrievable breakdown of marriages are relevant. Paragraph No. 95 of the said judgment of the Apex Court runs thus:

95. Once the parties have separated and the separation has continued for a sufficient length of time and one of them has presented a petition for divorce, it can well be presumed that the marriage has broken down. The Court, no doubt, should seriously make an endeavour to reconcile the parties; yet, if it is found that the breakdown is irreparable, then divorce should not be withheld. The consequences of preservation in law of the unworkable marriage which has long ceased to be effective are bound to be a source of greater misery for the parties.

The separation in the present case is not for a sufficient length of time as this petition is filed immediately after expiry of 2 years. As observed earlier, there are no serious instances in their marital life except the suspicion of the husband about the character of wife on account of incident alleged to have taken place in October, 2001. The nature of the said incident could not be proved and immediately after expiry of 2 years, the petition came to be filed. The husband is not claiming a decree for the divorce on the ground of mental cruelty but he is claiming decree for dissolution of marriage on the ground of desertion which he could not prove by satisfactory evidence. So on factual aspects, this case cannot be said to be a case of irretrievable breakdown of the marriage tie. Apart from these facts, irretrievable breakdown of marriage is not a ground under Section 13 of Hindu Marriage Act, 1955 to claim or to grant decree for dissolution of marriage. While deciding the present appeal in our considered opinion this Court being an Appellate Court, cannot grant decree of divorce on the ground of irretrievable breakdown of the marriage which ground is not available in section 13 of the Hindu Marriage Act, 1955. Hence, in our considered opinion, as the husband failed to establish the ground of desertion, he cannot claim a decree for dissolution of marriage because of irretrievable breakdown of the marriage. His act itself was found a compelling circumstance for the wife to live separate and her separate residence was not found to be an act of wife to reside separate with an intention to desert the husband permanently. Under these circumstances, husband cannot take benefit of his own wrong and claim a decree for divorce alleging irretrievable breakdown of the marriage.

19. In view of the evidence on record and the legal position referred hereinabove, the findings recorded by the Judge, Family Court that desertion as alleged by the appellant-husband is not proved is justified. Hence decree of dismissal of the petition for dissolution of marriage and grant of decree for restitution of conjugal rights in favour of wife needs no interference but the appeal preferred by the appellant-husband is liable to be dismissed by confirming decree of Family Court.

20. In the result, appeal preferred by appellant-husband is dismissed by confirming decree of dismissal of petition for dissolution of marriage.