- (1.) This is an appeal filed on behalf of the wife whose petition for dissolution of marriage under section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act') has been dismissed. The marriage between the parties was solemnised on 21st May, 1966. Out of this wedlock, five children were horn, out of which three are still alive, i. e. two sons and one daughter, and are living with their mother.
(2.) The appellant Nirmala Devi sought the divorce from her husband who is a soldier in the Army on the ground that he has treated her with cruelty and has also deserted her for a continuous period of not less than one year immediately before the presentation of the petition which was filed on 2nd September, 1978. She pleaded that the respondent had been subjecting her to torture under the influence of liquor and had been falsely accusing her of adultery which allegation has severely affected her health and her peace of mind. In her petition, she also stated that earlier the husband moved a petition under section 13 of the Act on 5th December, 1977 alleging that the appellant was leading an adulterous life and when that petition was contested on behalf of the wife, the husband feeling that he could not substantiate false, frivolous and scandalous allegations alleged therein, he got the same dismissed in default on 8th March, 1978. The respondent in his written statement denied that he had treated the appellant with cruelty or deserted her as alleged. He admitted having filed a petition under section 13 of the Act against the appellant on the ground of adultery but at the same time, he has categorically stated that the said allegation was based on a wrong information received by him. Subsequently on learning that the information on which the petition was made was not correct, he did not pursue the same and got it dismissed. He has further stated that he never accused the appellant, on her face, of any act of adultery.
(3.) On the pleadings of the parties, the trial Court framed the following issues : l. Whether the respondent has deserted the petitioner ? 2. Whether the respondent has treated the petitioner with cruelty as to cause reasonable apprehension in her mind that it will not be safe for her to live with him ? 3. Relief. Issue No. 1 was struck down subsequently at the time of final arguments because under section 11(i) (lb) of the Act, the desertion should be for a continuous period of not less than two years preceding the application, which was not alleged in the petition. Under issue No. 2, the trial Court found that the respondent has not treated the petitioner with cruelty as to cause reasonable apprehension in her mind and as a result of that finding, the petition was dismissed Dissatisfied with the same, the wife has cone up in appeal in this Court.;