- (1.) AMITAVA Lala, J. It has been repeatedly contended before this Court that the opposite party/plaintiff is not attending the Court inspite of service. In earlier occasion a Division Bench of this Court was pleased to direct issuance of bailable warrant. This Bench also followed the same order on 26th February, 2007. But from the report of the C. J. M. it appears that he is absconding. Therefore, it is open for the C. J. M. to take appropriate steps inclusive of attachment of property under Sections 82 and 83 of the Cr. P. C. but the proceedings before this Court cannot be stalled since we are satisfied with the service on the basis of report of the C. J. M. that the opposite party is absconding.
(2.) WE have called upon the learned Counsel appearing for the appellant to proceed on the merit of the appeal. He contended that three distinct points were available from the plain reading of the judgment which has been delivered without framing the issues with regard to the alleged charges. Firstly, the question of desertion arose although the suit was filed immediately after one year from the marriage. Statutory period for bringing such action of desertion is two years. Fact remains, according to the appellant, that the marriage took place on 18th February, 2003 when admittedly the appellant/wife was ousted on 10th July, 2003. Secondly, so far as the cruelty is concerned, alleged solitary ground has been accepted by the Court below without examining the mother-in-law, who is allegedly victim of cruelty. So far as the State amendment of the Hindu Marriage Act, 1955 is concerned, as per Section 13 (1) (1-a) the cruelty means persistent and repetition of such action. Thirdly, there is no iota of evidence in connection of apprehension of movement with other person. Therefore, there is no basis of delivering the judgment and order for divorce on the aforesaid grounds. Thus, taking into totality of facts and circumstances, the impugned judgment and order dated 5th December, 2005 cannot be sustained. Hence, the same is set aside so far as it relates to the decree of divorce. The appeal is, accordingly, allowed. However, no order is passed as to costs. Pankaj Mithal, J.- I agree. Appeal allowed. .;