BALIA, J. - (1.) THIS appeal is directed against the order of learned Judge, Family Court, Jodhpur dated 15. 10. 1999 by which application filed by the appellant under Section 13 for dissolution of his marriage with respondent has been rejected.
(2.) THE parties to this appeal were married in April 1957 at Jodhpur. Two sons were born out of this wedlock. At the time of filing of application under Section 13 on 19. 7. 1994, the elder son was aged about 28 years and younger son was aged about 25 years. Second son was born at Jaipur where appellant had shifted after he got the job in Jaipur. THE application for dissolution of marriage preferred after 37 years of marriage was founded on two fold grounds. Firstly, that the respondent wife treated the appellant-applicant with cruelty, which has caused the appellant mental and physical harassment and physical harassment and he does not feel safe to live with his wife anymore, secondly, willful desertion by wife since 25. 12. 1991, after the marriage of their elder son. Thus, according to the averments made in the application, as on the date of filing of application on 19. 7. 1994, the respondent had deserted the applicant for more than two years. The instances of cruelty pleaded in the application were:- (i) Wife often mixed pieces of glass in the food which has endangered his life; (ii) She turned out the visitors at home by insulting them which has caused great embarrassment to husband. (iii) She often indulges in beating him and insulting him. (iv) She used to fight withe the members of family as well as wives of other tenants, as a result of which time and again the applicant has to vacate the premises and go to other house. (v) While applicant was living in Shastri Nagar, Jaipur, wife alleged that he had illicit relation with neighbour Shanker Lal's wife and defamed him. (vi) On 7. 12. 1991, at the occasion of marriage of his son Ravindra, wife ill treated the guests and insulted him in front of the guests by abusing the applicant. (vii) On 2. 5. 1994 wife visited his the then residence with anti social elements at about 11 p. m. armed with iron pipes fixed with union and assailed him with said pipe resulting in fracture of his left leg. (viii) Lastly, on 17. 6. 1994, respondent wife accompanied with their two sons came to Jodhpur and created a fuss and attempted to assault him and also threatened to kill him. At this stage, it may also be noticed that admitted position as has emerged from the record is that while husband has claimed that wife was deserted him since 25. 12. 1991, he is actually residing in a separate house since March, 1994 and earlier thereto, both were living in the same house at Jaipur. The respondent in her reply denied all the acts of cruelty attributed to her but has counter alleged the act of cruelty on the part of husband. It was stated by wife in her replication that parties to marriage have discharged their marital obligation until March, 1994. She also referred to a notice dated 2. 12. 1994 sent by her husband through advocate demanding certain articles lying in house No. B-456, Malviya Nagar, Jaipur, where parties were residing together. It was further stated by respondent in her replication that on the basis of said notice, which was filed along with reply, husband had left the matrimonial home only in May, 1994 and has taken a house on rent in Pratap Nagar Housing Board Scheme. Sanganer-House No. 64/642, in support of her claim that parties were living together until March/may, 1994 and, thereafter, husband has left the matrimonial home and not the wife. It was countered by the wife that in fact husband has deserted voluntarily the matrimonial home since March, 1994 and treated the wife with cruelty and, therefore, he is not entitled to decree for divorce. In her additional pleas, she stated that she is not detailing acts of cruelty towards her by her husband because she is still prepared to live and discharge her marital relation with her husband. She also pleaded that had she treated her husband with cruelty, husband would not have started Video Audio Palace and Padamshree Enterprises in her name. Learned Judge, Family Court held against the husband that he has failed to prove any of the acts of cruelty attributed to wife in his application and also relied on the fact that admitted position is that husband and wife were living together until April, 1994 in the same house and keeping in view the fact that acts of cruelty attributed to wife have not been proved and considering the admitted position that wife has tried to bring her husband back to matrimonial home from the house of Meena Sahai, where the husband was staying at Jaipur suggest that wife has not deserted the husband and husband has failed to prove that wife has deserted him for the requisite period without any cause.
(3.) THE appeal was preferred against the order dated 15. 10. 1999 on 12. 11. 1999. After about three years of preferring the appeal, an application under Order 41 Rule 27 was filed by the appellant to permit him to lead additional evidence by producing written statement dated 31. 5. 2000 filed by the wife in Civil Original Suit No. 20/99, Sohan Lal vs. Vimla Devi pending in the Court of Additional District Judge No. 6, Jaipur and reply dated 6. 9. 2002 submitted by wife in response to objection petition filed by one Meena Sahai in Execution case pending in the Court of Additional District Judge No. 2. Jaipur at the instance of Vimla Devi to recover the amount of maintenance allowed to her. THE objection petition filed by Meena Sahai was registered as Objection Petition No. 47/2002, Meena Sahai vs. Vimla Devi. THEse documents were sought to be produced on record in order to bring out that wife has accused husband of infidelity time and again in her pleadings and relying on decisions of Supreme Court, a ground was sought to be raised at appellate stage that such act of accusing infidelity against husband amounts to an act of cruelty which makes it impossible for husband to live with wife and on that premise, entitles him to claim a decree for dissolution of marriage. During the course of hearing on 7. 12. 2005. an application was moved captioned under Order 7 Rule 7 read with Section 151, CPC for taking on record the facts which have come into existence subsequent to the decision of Family Court. In response to the application under Order 7 Rule 7, the respondent filed an application under Order 23 Rule 3 read with Section 151, CPC on 9. 1. 2006 to place on record a copy of compromise arrived at between the parties to this appeal and their two sons to settle all disputes in terms of the compromise dated 11. 2. 2003 and in pursuance of which the respondent has acted by withdrawing her criminal complaint against her husband also withdrawing execution application. The orders passed by the concerned Courts in the two proceedings were also placed alongwith the application on record of this appeal. This application dated 9. 1. 2006 was replied to by the appellant in which the execution of compromise deed dated 11. 2. 2003 was admitted and also agreed that in terms of said compromise appellant Sohan Lal was acquitted from the criminal case and also Ravindra Vyas was acquitted from another criminal Case No. 543/2000. He also admitted that Rs. 15,000/- has been paid to the respondent and he also started paying monthly maintenance of Rs. 500/- to wife through cheque, which according to him he continued to pay until March, 2005. However, it was alleged in the said reply that even after the aforesaid compromise, respondent wife had filed another application under Section 125, Cr. P. C. for increasing maintenance amount to Rs. 3500/- p. m. , which is still pending in the Family Court No. 2, Jaipur. He also admitted that in Suit No. 20/99, Sohan Lal vs. Vimla, at his instance, pending in the Court of Additional District Judge No. 6, Jaipur, on 14. 2. 2003 parties have asked for time for compromise, but the respondent had not filed compromise in that case until the next date of hearing and she led evidence and on 7. 10. 2003 the suit was dismissed against which the appellant has preferred an appeal. With these allegations, it was stated that respondent is not desirous of acting on the said compromise and, therefore, the compromise dated 11. 2. 2003 has been frustrated. ;