- (1.) S. C. Mohapatra, J. Wife is appellant in this appeal under Section 19 of the Family Court Act against the order of the Family Court decreeing the suit for divorce under Section 13 of the Hindu Marriage Act.
(2.) PARTIES who are Hindus were married on 9-2-1985. Husband is an employee stationed at Moradabad in a touring job. After residing in the matrimonial home for some time, wife went back to her parental home as per custom and came back to her matrimonial home in April, 1985 to reside in the joint family of her husband as husband could not find a place to stay with his wife at Moradabad. Case of husband is that while wife was in the joint family of husband consisting of his parents, sisters, brother and his wife, she was misbehaving with them. Many times she was not taking food for which unhappy atmosphere was created in the family. She also stayed for sometime with brother of his father. There also she behaved in the same manner. When husband requested her to remain peacefully with the joint family, she threatened to commit suicide in case she is compelled to stay with members of joint family of husband. While so continuing, she left the matri monial home towards September, 1985 with all her belonging to her parental home with her brother. Sometimes after she regretted for her conduct and addressed a letter to her husband's father on 24-9-1984 and again on 20-1-1986. When wife was staying with her parents, there was conciliation and husband went and brought back his wife on 12-5-1987. After some lime, wife again started to misbehare as earlier and threatened to commit suicide. Lastly, she left her matrimonial home of her own on 16-8-1988. Further case of husband is that he had no sexual relationship with his wife as she was always avoiding the same on ground of her illness. On consultation with medical expert, he got the opinion that his wife has no child bearing capacity, On these allegation application was filed for declaring the marriage void on ground of impotency and for divorce on ground of cruelty by wife. Wife contested the application. She denied allegations against her and asserted that she had sexual relationship with her husband. She stated that although she was stating to stay with husband in place of his posting she did not deny to stay in the joint family. Her case is that she was kept in joint family for extracting excessive dowry. She had not left matrimonial home on 16-7-1988 but on her brother lodging First Information Report alleging demand of excessive dowry, she was recovered from matrimonial home on 21-7-1988 and was thereafter staying with her parents. Since First Information Report yielded no result, matter is pending in criminal court at Meerut. In support of his case, husband examined himself and another witness. He also proved letter of wife to him and to his father and written allegations made by wife against him to his superior authorities for action against him. Wife has examined herself and three others witnesses. Consi dering aforesaid materials, learned Family Judge disbelieved story of im potency or lack of child bearing capacity of wife. But the application for divorce was allowed coming to conclusion that wife is guilty of cruelty as she has made frivolous complaints against her husband to his employer, and initiated prosecution lodging First Information Report through brother alleging demand of dowry. Family Court also took ill-treatment by wife to be circumstance to prove her cruelty. It has been held that wife was cruel in her behaviour to her parents-in-law.
(3.) SRI V. K. Goel, learned counsel for the appellant contended that finding of cruelty by the learned Family Judge is not sustainable either on acts or under law. Mr. Jain, learned counsel for the respondent on the other hand submitted that taking into the consideration facts and circum stances as proved, irresistable conclusion would be that wife was cruel to the husband. To appreciate the contentions of both the parties, it is necessary to chronologically narrate the facts in the present case. It is not disputed that family of the wife and husband were known to each other earlier to their marriage. Father of the husband is an advocate at Meerut. Husband himself is an employee and at the time of filing of the application for divorce was Secretary of Krishi Utpadan Mandi Samiti, Moradabad. Husband's family belongs to Meerut and wife's family belongs to Muzaffarnagar which is said to be at a distance of about 60 Km. from Meerut. After marriage on 9-2-1985 wife resided in the family of her husband and from that day her husband's house become her matrimonial home. While she resided in her matrimonial house, as per custom, she went back to her parents house for short period and returned back to build her matrimonial home but in the month of September, 1985 she left her matrimonial home for her parents' house. While in her parents' house she had addressed various letters to her husband and also to her father-in-law. At that time she had also some treatment for gynaecological ailment. While she was in her parent's house from 1985, there was conciliation in which PW 2 a junior advocate took part and wife was brought back to the matrimonial home on 12-5-1987, where she stayed till 1988. In this back ground it is to be examined whether the allegation of cruelty by wife meted out to her husband has been proved in this case.;