- (1.) Heard learned counsel for the appellant Mr. A.K.Sahani and Mr. Anil Kumar for the respondent No.1.
(2.) The appellant has preferred this appeal against the judgment dated 29.06.2013 and decree dated 17.07.2013 passed in Mat. Case No. 24/2008 by the learned Principal Judge, Family Court, Palamau at Daltonganj whereby the matrimonial suit filed by the husband/plaintiff/appellant under section 13(1)(i) of the Hindu Marriage Act, 1955 has been dismissed by the learned Court below.
(3.) Learned counsel for the appellant Mr. A.K.Sahani has submitted that the learned Family Court has dismissed the suit without taking note of the pleadings and materials available on record. Mr. Sahani, learned counsel for the appellant has submitted that the Family Court has framed 5 issues which are as under: "I- Is the suit, as framed, maintainable? II- Has the plaintiff/petitioner got valid cause of action for the suit? III- Are the plaintiff and the defendant no.1 are legally married husband and wife? IV- Is the defendant no.1 living in adultery with defendant no.2? V- Is the plaintiff entitled for relief claimed?" Learned counsel for the appellant has further submitted that Family Court has not decided the issues in proper prospective rather has taken all the issues together simultaneously except issue no.4 regarding wife living in adultery with defendant no.2, her own brother-in-law? This issue was separately discussed as Issue no.IV in para-10 of the impugned judgment and discussion relating to that are from para-11 to 15 wherein it has held in para-16 as under: "I find and hold that the plaintiff/petitioner has failed to prove the fact of adultery alleged against his wife (respondent/Opp. Party no.1) by circumstances. Accordingly, issue no. IV is answered." Learned counsel for the appellant has submitted that though the issue has not been framed with regard to desertion but from the evidence brought on record, it appears that the wife has deserted the appellant, as such, his application filed under section 13(1)(i) of the Hindu Marriage Act has been wrongly dismissed by the learned Family Court. Learned counsel for the appellant has further submitted that the parties are living separately since 1998. As such, the appeal may be allowed since there are no chances of reunion of the parties as the process of mediation undertaken by this Court vide order dated 01.02.2018 has also not brought any fruitful result. The parties could not arrive at an amicable settlement despite best efforts as reported by learned Mediator, JHALSA contained in letter no. 679 dated 19.03.2018. As such, the marriage may be dissolved by passing a decree of divorce.;