K.KANNAN, J. - (1.) THE case is against dismissal of the petition for divorce sought at the instance of the wife on the ground of cruelty. Cruelty attributed to the husband was that he had physically assaulted the wife and there had been persistent demand for dowry and in the present situation it was not possible for her to continue living with the husband. Further facts relevant to the case were that her cousin sister had been married to the husband's elder brother and their marriage failed and their disharmony cast a shadow on their own matrimonial happiness. During the course of proceedings the husband was directed to pay maintenance but he had not complied with the direction. Consequently the defence was struck off on the application moved by the wife. In the course of trial the respondent husband filed merely an affidavit but did not subject himself to cross examination and he absented himself from appearance. Consequently, the contention as regards the cruelty attributed to the husband went unchallenged. The trial Curt however dismissed the petition on the ground that if there had been a demand for dowry she ought to have given a complaint under the Dowry Prohibition Act and the same having not been done, the allegations could not be said as established. In my view, the reasoning is wholly wrong and unacceptable. It is not essential that in every case where demand for dowry is made, a criminal complaint should also be given. It is merely an additional right which a person aggrieved could enforce and no adverse inference could be drawn by the failure of the spouse to take criminal action against the other spouse.
(2.) I have no reason to suspect that there is any collusion or particular circumstance as enumerated under Section 23 to defeat the wife's claim for divorce on this ground. The wife is entitled to decree of dissolution of marriage and the order dismissing the petition was not justified. The appeal is allowed and there shall be a decree of divorce for dissolution of marriage between the petitioner and respondent. There shall be no order as to costs.;