- (1.) BY the Court.- This is an appeal under Section 19 of Family Courts Act, 1984 by husband against an order of dissoluion of marriage in a proceed ing initiated by wife.
(2.) PARTIES are Muslim. Husband appears to be aged about 30 years and wife appears to be aged about 22 years at the time of filing application for dissolution of marriage under Dissolution of Muslim Marriage Act, 1939. Case of wife is that after her marriage when she came to matrimonial home, she was humiliated and assaulted for not bringing enough dowry. While this humiliation and torture continued, her husband eloped with her sister aged about 15 years. Her husband was arrested 15-16 days after and her sister was recovered. Thereafter she was driven out of the matrimonial home with the wearing cloth only. Apart from it, husband was also interfering with the performance of her religious obligations. Husband denied allegations made against him. His case is that during his absence, his wife went away to her parents' house with her belonging and despite approach by him several time, she refused to come back with him to the matrimonial home. Wife has examined herself. In her deposition, she has clearly described that in the house of her husband, she was humiliated and also beaten for not bringing enough dowry with her. She has also described how there was interference with performance of her religious obligations. Trial Court has considered the evidence and has accepted the same. Finding that there was cruelty as alleged was meted out by husband; that it is impossible for the wife to reside with her husband. Besides there was interference with performance her religious obligation. Trial Court has further held that hus band had eloped with her sister aged about 15 years and had forcible sexual intercourse with her which is also ground in support of cruelty. This is grievance of the appellant. Sri Pankaj Mittal, learned counsel for appellant submitted that the reading of the judgment, it will be seen that learned Family Judge was influen ced by the allegation of elopment of minor sister for which prosecution is pending against husband and has surmised sexual intercouse, although there is no material in support of the same. For proving elopment and sexual intercourse girl was the best witness and she has not been examined in this case. No explanation is also available why she could not be examined in this case. No accordingly, judgment having suffered from infirmity, is liable to be set aside when the appellant is yet facing the prosecution on the allegation of elopment and rape of minor girl.
(3.) AFTER perusal of the impugned order and considering evidence on record, it is seen that wife has categorically stated that she was assaulted and humiliated for not taking enough dowry with her. Learned Family Judge who had occasion to see the witness and record her statement, accepted the same to be correct. No infirmity in her evidence has been brought to our notice and no better evidence to disbelieve her is available. In such circumstances, there is no reason to disturb the finding of fact of cruelty recorded by learned Family Judge. Besides, if the relationship would have been really good, no wife would make allegation of cruelty against her husband. Therefore, husband should have adduced acceptable evidence that her wife was comfortable in his house and there was no circumstances which would make it imposible to reside with him. It is to be kept in mind that wife was in matrimonial home and except her statement, it is not expected to get other witness from that place. Husband can, on the other hand, get witnesses to prove the circumstances and the manner in which wife was living in his house. In result, there is no merit in this appeal which is, accordingly, dismissed. There shall be no order as to costs. Appeal dismissed. .;