IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
JUDGMENT
D.B. Civil Miscellaneous Appeal No. 3990/2009
Rameshwar Prasad S/o Ladu Ram Age 43 years, by caste Khatik,
R/o Shiv Shakti Colony, Gurjar Basti, Khatiko Ka Mohalla, Plot No.
C-22, Shastri Nagar Jaipur.
—-Applicant/Appellant
Versus
Smt. Sugna Devi W/o Shri Rameshwar Prasad, Age 40 years, by
caste Khatik, R/o B-54 Shivaji Nagar, Shastri Nagar, Jaipur.
Presently residing Smt. Sugna Devi C/o Shoram Khatik, Tehsil
Sanganer Village Kalwara, Distt. Jaipur.
—-Non-Applicant/Respondent
DB Civil Miscellaneous Appeal under
Section 19 of the Family Courts Act,
1984 against the judgment and
decree dated 30/04/2009 passed by
Judge, Family Court No. 2, Jaipur in
Case No. 192/2003, whereby the
petition filed by the
applicant/appellant under Section
13 of the Hindu Marriage Act, 1955
has been dismissed.
__
For Appellant(s) : Mr. M. S. Beg, Adv.
For Respondent(s) : Mr. Vishram Prajapati, Adv.
HON’BLE MR. JUSTICE AJAY RASTOGI
HON’BLE MR. JUSTICE DINESH CHANDRA SOMANI
Date of Judgment 04th /07/2017
(Per Dinesh Chandra Somani,J.)
The applicant/appellant has preferred this appeal under
Section 19 of the Family Courts Act, 1984 against the judgment
and decree dated 30.04.2009 passed by Judge, Family Court No.
2, Jaipur in Case No. 192/2003, whereby, the petition filed by the
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applicant/appellant under Section 13 of the Hindu Marriage Act for
dissolution of marriage, has been dismissed.
The material facts necessary for disposal of this appeal are
that the appellant filed a petition under Section 13 of the Hindu
Marriage Act, 1955 on 31.05.2003 against the non-
applicant/respondent in Family Court No. 2, Jaipur on the ground
of cruelty and desertion, and prayed to grant a decree of divorce.
The applicant/appellant averred that the marriage between the
aforesaid parties was solemnized on 08.04.1968 in a Mass
Wedding Ceremony held in village Kalwada, District Jaipur. At the
time of marriage, both the parties were minor and no dowry
articles were taken by father of the applicant, rather he gave
Rs.2,000/- to father of the non-applicant. After 10 years of the
marriage, when the parties became major, father of applicant-
husband contacted Chhitar, who happens to be brother-in-law
(Jija) of the non-applicant/wife for Gona, who demanded money.
When father of the applicant/husband declined to pay money, then
Chhitar became furious and since then, he hates family of the
applicant. In presence of persons of the community, Chhitar gave
a threat that he will not let this couple settle down. However,
Gona ceremony took place in the year 1979 under these
controversies. Thereafter, non-applicant/wife gave birth to two
children out of this wedlock but unfortunately both could not
survive. Non-applicant/wife lived with the applicant up to year
1993, but no more issue born during this period.
It is also averred that appellant is the only male child of his
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parents. Brother-in-law of non-applicant, Chhitar resides in front
of the house of the applicant and he has cordial relations with
non-applicant. Under ill advice and on instigation of her brother-
in-law (Jija Chhitar), non-applicant/wife was always cruel with the
applicant and his parents, and misbehaved with them on trivial
matters with intent to harm reputation of the applicant in society,
and thereby caused mental agony. Not only this, the non-
applicant never cooked food for old parents of the applicant and
she used to get them out of the house in cold winter.
The applicant also averred that the non-applicant used to go
to her maternal house without information and whenever, the
applicant went to his in-laws house to bring her back then, the
non-applicant, her brother Kaluram and his wife and Gopal
insulted and gave him beatings in the market, after consuming
liquor.
The applicant/appellant also averred that under ill advice of
her Jija, the non-applicant/wife always neglected the applicant.
Several times, the applicant brought back the non-applicant from
her maternal house, with intervention of respectable persons of
the society, but after some time, she used to quarrel with parents
of the applicant and went back to her maternal house. When the
applicant objected to the conduct of the non-applicant and
threatened her brother-in-law Chhitar, then she lodged a false
report on 08/03/1993 in Police Station, Shastri Nagar for offence
under Section 498-A and after investigation, police filed a charge-
sheet against them in the Court. The learned trial Court convicted
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the applicant and his parents in year 1997. News of the court’s
judgment was got published in the newspapers, which tarnished
and damaged their respect in the society and caused mental
agony. Thereafter, appeal was filed against the judgment, which
was allowed by Additional Sessions Judge on 01.04.1998 and they
were acquitted of the charge.
Applicant-appellant further averred that the applicant made a
complaint to his caste Panchayat. The panchas called both he
parties through notice but non-applicant did not turn up as she
was not willing to live with the applicant. To harass the applicant,
non-applicant filed a complaint under Section 125 of Cr.P.C. The
Court made several efforts for restitution but the non-applicant
refused outrightly. The non-applicant has willingly deserted the
applicant for last 10 years, without any reasonable cause. The
applicant went to his in-laws house on 30/05/2002 to bring back
the non-applicant, but she insulted him. After consuming liquor,
brother-in-law Kalu quarreled with the applicant and insulted him,
and in last he prayed to grant a decree of divorce in his favour.
The non-applicant/respondent filed her written statement
admitting the fact that her marriage took place with the applicant
before about 25 years in village Kalwada, Gona ceremony took
place after 10 years of marriage but indisputably, non-applicant
lived with the applicant upto year 1993. Non-applicant also
admitted that she approached the Court for her maintenance and
she also lodged an FIR against applicant and his relations, in
Police Station, Shastri Nagar for offence under Section 498A, and
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she denied all other material averments made by the applicant in
the divorce petition. She further averred that the applicant and his
father demanded dowry at the time of Gona. It was wrong to say
that her Jija (Brother-in-law) Chhitar ever demanded money from
the applicant. The relations did not remain cordial because
demand of dowry made by applicant and his father, could not be
satisfied and the ceremony of Gona took place with intervention of
the persons of caste community.
It is also averred that Jija (Brother-in-law) of the non-
applicant, Chhitar is an old person having wife and young aged
children. The applicant and his family members used to deny food
and gave beatings to the non-applicant and thereby, caused
mental agony to the non-applicant.
The non-applicant further averred that when she went to her
maternal house on the occasion of birth of nephew, the applicant
brought a lady, named Dhanni to his house and, since then he is
living with her till today, and who gave birth to 3-4 children. The
non-applicant denied the allegation of mal-treatment and averred
that she never mal-treated the applicant and his parents, rather
she always served them. She also averred that nata marriage of
the applicant with Dhanni, caused mental cruelty, and which
caused her to leave the matrimonial home. It is also averred that
in compelling circumstances, she filed an application in the Court
for granting maintenance. She also averred that applicant and his
family members tortured her for dowry, gave beatings to her and
brought other woman, and thereby deserted the non-applicant.
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The applicant also attempted to burn non-applicant, therefore, the
complaint was made to the police, and in last she prayed to
dismiss the divorce petition filed against her, with cost.
On basis of the pleadings of the parties, learned trial Court
framed following issues:-
1. Whether the non-applicant/wife committed cruelty with
the applicant/husband ?
2. Whether the non-applicant/wife deserted the applicant/
husband without any reason for last 10 years ?
3. Relief ?
In support of his case, the applicant/appellant examined
Rameshwar (PW-1), Chhoturam (PW-2), Laduram (PW-3) and
Mahesh Kumar (PW-4) in oral evidence and exhibited three
documents. Non-applicant/respondent examined herself as Sugna
Devi (DW-1). After hearing the parties, learned Family Court
dismissed the divorce petition filed by the applicant/appellant,
hence this appeal.
Learned counsel for the appellant contended that learned
Family Court has failed to appreciate that the respondent/wife
treated the appellant with cruelty by her disrespectful behavior
and attitude, whenever he went to his in-laws house, to bring her
back to her matrimonial home. She misbehaved and rather
abused the appellant before respected members of the society and
as such insulted him, which amounts to cruelty.
Learned counsel for the appellant also contended that
learned Family Court has committed material error in having failed
to appreciate that the respondent/wife filed a false criminal case
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under Section 498-A of IPC against the appellant and his parents,
and the learned trial Court wrongly punished them, and the
learned Appellate Court acquitted the appellant and his parents.
Filing of false criminal case by the respondent against the
appellant and his parents, caused mental cruelty. Learned counsel
also submitted that the news of conviction of the appellant and his
parents by the learned trial Court, was published in newspaper
which caused mental agony and harassment to the appellant, but
the learned Family Court dismissed the divorce petition ignoring
the material facts as mentioned above, and passed the impugned
judgment on surmises and conjectures, without application of
mind.
Learned counsel for the appellant also contended that
Sugna (DW-1), respondent herself stated on oath that she has
been living separately since 08/03/1993 i.e. for last 16 years and
during this period, no co-habitation took place between the
parties. Therefore, the factum of desertion by the respondent for
last 16 years, is well proved, even then the learned Family Court
wrongly decided the issue no. 2. Thus, the impugned judgment
and decree deserves to be quashed and set aside. In last, learned
counsel for the appellant prayed to allow the appeal and to quash
and set aside the impugned judgment and order, and to pass the
decree of divorce in favour of the applicant/appellant. In support
of his contentions, learned counsel for the appellant placed
reliance on:-
In 2001 (3) WLC (Raj.) 689
Smt. Rukmani Devi Vs. Badri Narayan
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[CMA-3990/2009]In 2007 (3) WLC (Raj.) 133
Smt. Alka Dadhich Vs. Ajay DadhichIn 2002 (1) WLC (Raj.) 717
Rakesh Sharma Vs. Surbhi SharmaPer contra, learned counsel for the respondent strongly
refuted the arguments of the learned counsel for the appellant and
contended that the appellant/husband has utterly failed to prove
the allegations of cruelty and desertion levelled by him against the
respondent/wife. Moreover, it is proved that the appellant has
performed nata ceremony with another woman named Dhanni and
he is living with her, who gave birth to 3-4 children out of this
wedlock, which forced the respondent/wife to leave the
matrimonial home in the year 1993, and since then she is living in
her maternal house due to compelling circumstances.
Learned counsel for the respondent also contended that the
appellant cannot be permitted to take advantage of his own
wrong. Learned counsel further contended that the alleged cruelty
with the appellant and his parents, was committed about 10 years
ago, prior to the institution of the divorce petition. The incidents
alleged by the appellant are not of recurring nature and there is
no proximity with filing of the petition. Therefore, the alleged
incidents of long past, have been condoned by the appellant and
thus, does not constitute an act of cruelty. Learned counsel
supported the impugned judgment and decree passed by the
learned Family Court, and prayed to dismiss the appeal being
devoid of any substance. In support of his contentions, learned
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counsel for the respondent placed reliance on:-
In AIR 2017 Supreme Court 1316
Suman Singh Vs. Sanjay SinghWe gave anxious consideration to rival contentions of learned
counsel for the parties and carefully scanned the material and
record of the case.
It is admitted fact that the marriage between the parties was
solemnized on 08/04/1968 in village Kalavada, at the time of
marriage, both the parties were minor and Gona ceremony took
place after 10 years of the marriage, after interference of the
persons of caste community and from this wedlock, the
respondent/wife gave birth to two children and both could not
survive. It is also admitted fact that the respondent/wife
approached the Court for maintenance under Section 125 of
Cr.P.C. and also lodged an FIR implicating the appellant and his
parents, in Police Station Shastri Nagar for offence under Section
498-A of IPC. It is not disputed that they lived together up to the
year 1993 and the learned trial Court convicted the appellant and
his parents under Section 498-A of IPC, but the appeal preferred
by the appellant and his parents, was allowed by Additional
Sessions Judge No. 1, Jaipur City, Jaipur on 01/04/1998, and the
Appellate Court acquitted all of them.
Petitioner Rameshwar Prasad (PW-1) deposed that his
marriage was solemnized in the year 1968 according to Hindu
rites. In marriage, his father gave Rs.2,000/- to father of Sugna
(respondent/wife). No dowry articles were given in the marriage.
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Jija (brother-in-law) of Sugna, Shri Chhitar was mediator in the
marriage. In 1978, when father of Sugna was approached for
Gona, he said to call Chhitar. When met with Chhitar, he
demanded Rs.5,000/-, and gave a threat that he will not let this
couple to settle down. For some time, they lived together, but
thereafter, non-applicant used to go to her maternal house on the
ill advice of Chhitar and his wife. Whenever the witness went to
his in-laws house to bring back the non-applicant, then her
brother Gopal, Kalu and Bhabhi (Sister-in-law) insulted and
abused him. The witness used to understood her and brought her
back then, after some time Sugna used to speak loudly and give
abuses. She didn’t cook food in time for old parents of the witness
and used to abuse them. During this period, out of this wedlock,
Sugna gave birth to two children, who could not survive. Sugna
had cordial relations with her Jija and sister and used to go to
them. One day, he saw Sugna and Chhitar in objectionable
condition. He seriously objected to it, then, in counter and on ill-
advice of Chittar, she lodged an FIR on 08/03/1993, against the
witness and his parents in Police Station Shastri Nagar. The
witness was acquitted in the case and he made a complaint to the
caste Panchayat, who issued notice to Chhitar, Sugna and her
brother, but they did not turn up. He made several efforts to live
together with Sugna. The non-applicant is not residing with him
since 08.03.1993 and the fact is that she is living in Shivaji Nagar
with someone else.
The witness proved copy of decision of caste Panchayat and
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copy of judgment of acquittal passed by the Appellate Court.
In cross-examination, the witness Rameshwar (PW-1) stated
that the non-applicant is residing with a boy named Amar Chand
and denied the suggestion that Amar Chand is son of non-
applicant’s sister. The witness also denied the suggestion that he
performed marriage with Dhanni Devi and got 6 children from her.
Chhoturam (PW-2) is relative of the applicant/appellant, who
deposed that about 13-14 years ago, caste Panchayat took place
regarding dispute of Gona. We made several efforts for restitution
of Sugna and Rameshwar, but she denied to go to the house of
Rameshwar.
Laduram (PW-3) is father of the applicant/appellant. The
witness deposed that the marriage of Rameshwar and Sugna was
solemnized 35-36 years ago, and Gona ceremony took place after
8-9 years of the marriage. After Gona, Sugna lived in matrimonial
home with the appellant for 8-9 years, and gave birth to two
children, who could not survive. He does not know, as to why
Sugna is not living in his home. Caste Panchayat gave a verdict
that Sugna will live in the house of Rameshwar but she did not
obey. Presently, Sugna is living with son of her sister, in Shivaji
Nagar. The witness also stated that in a case instituted by Sugna,
they were convicted and sentenced to one year imprisonment, but
later on they were acquitted by the Appellate Court. In cross-
examination, the witness admitted that Sugna was not present in
caste Panchayat. The witness denied the suggestion that
Rameshwar has solemnized second marriage with Dhanni.
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Mahesh Kumar (PW-4) is first cousin of the appellant. The
witness deposed that 13-14 years ago, Sugna was living in house
of Rameshwar, situated in Shastri Nagar and Rameshwar was
living in Jodhpur. Sugna used to speak disrespectfully with her
parents-in-law. Under ill advice of her Jija, Sugna lodged a case
against Rameshwar, in which they were convicted, and later on
they were acquitted in appeal. In cross-examination, the witness
stated that he has no knowledge, if the applicant would have
solemnized second marriage with a woman, named Dhanni, and is
having 6 children from her.
In rebuttal of above evidence, Sugna Devi (DW-1), the
respondent herein, has deposed that 30 years ago, she was
married in childhood with Rameshwar. They lived together for 10-
12 years after marriage, and out of this wedlock, she gave birth to
two sons (twins), who died after two hours of their birth. The
witness also deposed that almost everyday, the applicant and his
family members used to beat her for trivial matters. She gave due
respect to her parents-in-law and all family members. Her father
made no demand at the time of Gona, rather he gave some
ornaments to her. She used to do all domestic work in her
matrimonial home. She doesn’t have any illicit relations with her
Jija, he is like her father. She instituted dowry case on her own.
The witness also deposed that the applicant does not want to keep
her with him, and he brought second wife named Dhanni, and is
having 2-3 children from her. The applicant gave her beatings and
poured oil, over her person. Police came on spot on information of
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someone, report was lodged in police station and since then, she
is living in her maternal house for last 15 years, and during this
period, the applicant never came to bring her back. She is still
ready and willing to live with the applicant, as his wife.
In cross-examination, the witness admitted that she is living
separately from the applicant for last 15-16 years, and the house
of her sister and Jija is situated in front of the house of her
husband. Witness admitted that her husband was annoyed with
her Jija Chhitar but she does not know the reason thereof. The
witness admitted that her husband arranged for her operation,
when she was living with him. The witness also admitted that
during last 15-16 years, they never lived together and she denied
the suggestion that she would have started litigation at the
instance of her Jija.
From perusal of pleadings of the parties and oral as well as
documentary evidence produced by them, this is an admitted fact
that the respondent/wife lodged an FIR with Police Station Shastri
Nagar, against the appellant and his parents for offence under
Section 498-A of IPC. After investigation, the police filed charge-
sheet against them and they were prosecuted. After conclusion of
trial, the appellant and his parents were convicted and sentenced
to one year’s imprisonment by the learned trial Court. The
appellant and his parents preferred appeal against the judgment
of conviction and order of sentence passed by learned trial Court,
which was allowed by Additional Sessions Judge No. 1, Jaipur City,
Jaipur on 01/04/1998, and the Appellate Court acquitted the
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accused/appellant and his parents.
In Smt. Rukmani Devi Vs. Badri Narayan (supra), the
learned Family Court granted the decree of divorce in favour of the
husband-respondent on the ground of cruelty, which was assailed
by the appellant/wife before the High Court. A criminal case under
Section 498-A and 406 of IPC was registered against the husband
and his relations on the basis of report of the wife. After
investigation, charge-sheet was filed but the learned Metropolitan
Magistrate, New Delhi discharged the accused persons on the
ground that Court’s at Delhi has no jurisdiction. The wife did not
pursue criminal actions further. Coordinate Bench of this Court
observed that the wife-appellant does not want to live with the
husband and an attempt was made by the learned Family Court to
pursuade the parties to live together, but the wife-appellant did
not agree to reside with the husband respondent. In such
circumstances, the Coordinate Bench did not see any illegality in
the findings arrived at by the learned Family Court and dismissed
the appeal filed by the wife.
In Smt. Alka Dadhich Vs. Ajay Dadhich (supra), the
husband alleged that the wife misbehaved with the parents of the
husband. She used to wander bare-headed in front of the parents
and sit in open verandah, only in petticoat-blouse. She used to
talk to her in-laws in filthy language and used to defy directions of
husband, and gave threatening to implicate the husband and
entire family in false cases, and to commit suicide after jumping
from roof of the house. The wife also lodged a criminal case
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against the husband and his family members on the allegation of
demand of dowry. Coordinate Bench of this Court was satisfied on
the material on record that the relationship between the parties
had deteriorated to such an extent, due to conduct of the wife that
it would be impossible for them to live together without mental
agony, torture or distress and dismissed the appeal filed by the
wife.
In Rakesh Sharma Vs. Surbhi Sharma (supra), the
husband was seeking divorce on ground of desertion and cruelty
of wife. Wife filed the petition for judicial separation. Learned trial
Court allowed the husband’s petition and passed a decree of
judicial separation instead of decree of divorce. The fact of wife
residing with parents was not disputed. No reason for desertion
was established in evidence adduced by the wife, and there was
no reliable evidence of cruelty or adultery or demand of dowry on
part of the husband. Wife made no attempt to return to
matrimonial home and the learned trial Court itself held that there
was no chance of re-union. Coordinate Bench of this Court
substituted the decree of judicial separation, by decree of divorce.
In Suman Singh Vs. Sanjay Singh (supra), respondent-
husband filed a petition seeking divorce on some isolated incidents
alleged to have occurred 8-10 years prior to filing of date of
petition. Hon’ble the Apex Court held that incidents alleged to
have occurred 8-10 years prior to the petition cannot furnish a
subsisting cause of action to seek divorce after 10 years or so of
occurrence of such incidents. The incidents alleged should be of
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recurring nature or continuing one and they should be in near
proximity with filing of petition. It is also held that few isolated
incidents of long past and that too found to have been condoned
due to compromising behavior of parties, cannot constitute an act
of cruelty within meaning of Section 13 (1) (ia) of Act.
It was husband who withdrew from company of wife without
reasonable cause and the husband is not entitled to decree of
dissolution of marriage. Whereas, in present case, the
appellant/husband filed a petition on 31/05/2003 seeking divorce
on the ground that the respondent/wife was always cruel to him
and his parents, and misbehaved with them on trivial matters with
intend to harm reputation of the appellant in society. It is also
alleged that the respondent/wife never cook food for his old
parents and she used to get them out of the house in cold winter.
It is also alleged that the respondent/wife used to go to her
maternal house without information, and whenever the appellant
went to his in-laws house to bring her back then, after consuming
liquor, the respondent/wife, her brother Kalu and his wife, and
Gopal insulted and gave him beatings in the market.
It was also alleged that when he objected to the conduct of
the non-applicant, and threatened her brother-in-law Chittar, in
counter she lodged a false report in Police Station, Shastri Nagar
for offence under Section 498-A of IPC and after investigation,
police filed a charge-sheet against the applicant and his parents in
the Court. The learned trial Court convicted them and news of the
court’s judgment was got published in the newspapers, which
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tarnished their image in the society and caused mental agony. But
as there was no material to book them, an appeal filed against the
judgment of conviction and order of sentence, was allowed by the
Appellate Court and they were acquitted of the charge. Due to
change in facts and circumstances of the case, the law laid down
by the Apex Court in this case, is not of much help to the
respondent.
In K. Srinivas Vs. K. Sunita reported in (2014) 16 SCC 34,
the question before the Apex Court was whether filing of criminal
complaint for offences under Indian Panel Code and Dowry
Prohibition Act, 1961 by wife, whereby the husband and his family
members were acquitted, would amount to cruelty for the purpose
of dissolution of marriage. The Apex Court held that filing of false
complaint by wife to embarrass the husband and family members,
in the given facts and circumstances constituted cruelty as
postulated in Section 13(1) (ia) of Act. In present case, it is
admitted fact that the respondent-wife lodged an FIR against the
appellant and his parents in Police Station, Shastri Nagar for
offence under Section 498-A of IPC. This is also not in dispute that
the Additional Sessions Judge No. 1, Jaipur City, Jaipur, the
Appellate Court acquitted them for the charge.
Taking support from the law laid down by the Apex Court in
K. Srinivas Vs. K. Sunita (supra), we are of the opinion that
filing of criminal complaint for offence under Section 498-A of IPC
by the respondent wife, whereby the appellant-husband and his
parents were acquitted, amounts to cruelty for the purpose of
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dissolution of marriage. Filing of false complaint by the wife is
sufficient to constitute matrimonial cruelty.
From holistic analysis of the evidence produced by the
parties, and also the indisputed fact that respondent-wife lived
with the appellant-husband upto year 1993, it is proved that in the
year 1993, the respondent-wife lodged an FIR against the
husband and his parents in Police Station, Shastri Nagar for
offence under Section 498-A of IPC, in which the appellant-
husband and his parents were acquitted by the Appellate Court in
the year 1998. It is also not in dispute that even after culmination
of criminal proceedings, the respondent-wife did not make any
attempt to return to her matrimonial home, and thereby deserted
the appellant/husband without any reason since the year 1993.
In view of above, we are satisfied from the material on
record that the relationship between the parties has deteriorated
to such an extent that it would not be possible for them to live
together with such mental agony and distress, due to conduct of
the respondent-wife. The respondent-wife dragged the
appellant /husband and his old aged parents in a criminal
prosecution for offence under Section 498-A of IPC, she cannot
expect to reconcile the marital ties. It is also proved that the
respondent-wife has knowingly deserted the appellant-husband
without any reasonable excuse, for more than 10 years.
In view of above, the applicant/husband has made out a
case to claim decree of divorce. The appeal is well founded and
deserves to be allowed. Accordingly, we allow the appeal filed by
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the applicant-husband, and set aside the impugned judgment and
decree passed by learned trial Court, and dissolve the marriage of
the parties solemnized on 08/04/1968. The parties shall bear their
own costs.
(DINESH CHANDRA SOMANI)J. (Ajay Rastogi),J.
Ashish/