Decided on July 26,1978



N.K.Das, J. - (1.) Appellant is the husband of the respondent. He filed the suit for dissolution of his marriage with the defendant and for custody of the child born out of their wedlock, under Section 27 of the Special Marriage Act.
(2.) The case of the plaintiff is that his marriage with the respondent took place on 21-2-69 according to the prevailing custom in their community. The consummation of marriage took place at Puri where the residence of the appellant is situated. On the 8th day of their marriage, the respondent and the appellant went to Chandannagar (father's place of the respondent) but the respondent did not return with the appellant on the plea that she would continue her studies. She remained there till July, 1969 but did not resume her studies. After a lot of persuasions the respondent returned and stayed with the appellant till 22-5-70 at Bhobaneswar. During her stay at Bhubaneswar the respondent conceiv-ed and on the third month of pregnancy she loft for Chandannagar where she gave birth to a daughter on 3-12-70. She did not, however, return to the appellant thereafter though the appellant wrote several letters to her. The appellant also went several times to Chandannagar to persuade the respondent to resume normal life, but he was not allowed any interview. After 22-5-70 the parties have never any cohabitation. The appellant suffered from asthma in 1972, but the respondent did not care to come and see him. In 1974, when the father of the appellant was seriously ill and wanted to see his granddaughter, the appellant wrote to the respondent to come with the daughter, but there was no response. In Jan., 1976 the respondent came with some of her friends and relations to Puri and stayed in the house of the appellant without the knowledge of appellant who was then at Bhubaneswar, and on the day the appellant reached Puri, the respondent left that place before his arrival. The daughter is reported to have been suffering from asthma and is not being looked after well. Accordingly, the appellant prays for dissolution of the marriage and to be in custody of the child. The respondent did not contest the suit and has not appeared in this Court.
(3.) The appellant has examined himself and has testified the allegations made by him. He has also proved one letter (Ext. 1) sent by the respondent to him. The learned District Judge has held that it is not a case of desertion without any cause and that the appellant has not proved that there was desertion without any cause for a period of at least three years before filing of the suit.;

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