- (1.)THIS is plaintiffs appeal against dismissal of his petition Under Section 13 (1) (B) of the Hindu Marriage Act. Briefly narrated the facts giving rise to the appeal are that the parties were married on 18. 11. 1981, according to Hindu rites at Village Teton, Tehsil Gohad, District Bhind. After the marriage the respondent went to the appellant's house and lived there for about three days. She then went to her parental home according to the custom. After the traditional "vidai" in the month of May, 1982, she again went to her matrimonial house. She did not perform her duties of a wife. She used to throw utensils. She did not cook food for the plaintiff but used to pourcereals and chillies in Chulha. She made it impossible for the playj Aiff to sit and eat food. She did not take bath daily. She went to her parent's house without telling him. In the month of March, 1983 she went to her father for Holi. She was brought on 16. 6. 1983 by the plaintiff and this time she made his life miserable. Again on 22. 6. 1983 she left his house and on search it transpired that she had gone to her parent house. She did not return for about one year. A Panchayat took place on 17. 6. 1984. On the date of Panchayat she voluntarily came to her matrimonial house and stayed there for three days. During this period she acted with extreme cruelty. In the night of 20th June, 1984 she again left her matrimonial house and stayed at her father house tilll0. 1t. 1985. Her father thereafter visited plaintiff's house in 1985 and assured that she will not go again and will not behave with cruelty. On this assurance she was again brought back but she again committed cruelty with the plaintiff unnecessary and ultimately threatened him of committing suicide and self immolation. After three days she again went on 14. 11. 1985 and did not return thereafter. He alleged that the defendant did not discharge her duties of a wife and treated him with cruelty. Hence the decree for divorce was sought. All the allegations except the factum of marriage have been denied by the defendant. She alleged that the facts alleged by the plaintiff were concocted and false. She was a simple lady and lived at plaintiffs house as his wife. She used to do domestic work. As soon as he took admission in B. Sc. his parents started illtreating her. The facts were that she lived at the plaintiff's house and his parents illtreated her. In the night of 22. 6. 1983 she was turned out of the house and remained there till 9. 00 p. m. when the neighbours left her at her Bua's House. A report was lodged by her Phupha, Somdutt Shukia in this regard on me next date. When her parents got information they came to Gwalior. When complaint was made to the parents and relations of me petitioner they were given illtreatment and were abused. The allegations of the fact that Panchayat had taken place at the house of Suresh Sharma on 17. 6. 1984 has been admitted in para 5 of the written statement but the assertion is that the plaintiff and his relations had assured her father that they will keep their Bahu in their house and will not illtreate her. In the Panchayat her father was present and he left her on the assurance of the Panchayat plaintiff's house. Only relations of the plaintiff were present in the Panchayat. She never committed any cruelty. Rather she herself was beaten on 20. 6. 1988 by the plaintiff's parents and was turned out. She wanted to live with the plaintiff and was ready and willing to live with him and was entitled to decree for restitution of conjugal rights. She therefore prayed a relief of restitution of conjugal rights.
(2.)THE learned Court below formulated the issues that arose from the pleading of the parties, took the evidence adduced by them and after hearing and considering the entire material dismissed me suit. Hence this appeal.
(3.)THE contention of the learned Counsel for the appellant is that several allegations amounting to cruelty have been made by the petitioner in his petition, as well as in his statement which have been denied by the defendant in the written statement but there is a specific allegation in para 5 of the petition, to the effect that the defendant/respondent threatened that she will burn herself and commit suicide. It amounts to mental and physical cruelty. This allegation has neither been denied in the written statement nor in the statement of the defendant. Hence it has to be accepted. Once it is accepted that there was a threat from the defendant that she will burn herself and commit suicide it goes to show that it is covered within the meaning of cruelty and hence the appellant is entitled to a decree of divorce. On this ground I may mention here that besides arguing on this point, the learned Counsel for the appellant has not argued on any other averment made in the plaint relating to cruelty. The learned Counsel for the respondent urged that the averments made in the petition did not constitute cruelty as to enable the plaintiff to obtain a decree of divorce. The allegation that the defendant had given threat to bum herself and commit suicide has been denied inasmuch as all the averments made in para 5 of the plaint have been denied. Similarly in her statement as well the defendant denied the allegations made by the plaintiff. The plaintiff has miserably failed to prove cruelty alleged by him. The Court below has rightly dismissed me petition.