- (1.) The present appeal arises from judgment and decree for divorce dated 5.10.2015 passed by the Family Judge, Bikaner in Civil Misc. Application No.347/2012 filed by the Respondent under Section 13 of the Hindu Marriage Act, 1955. Divorce has been granted on the twin grounds of desertion and cruelty. Learned counsel for the Appellant made twofold submissions. It was contended that no issue was framed with regard to desertion and therefore grant of divorce on that ground was unjustified as the Appellant has been seriously prejudiced in her defence. The second contention was that the grounds of cruelty urged by the Respondent have not been believed except for the prosecution instituted under Section 498A, 406, 323 IPC. The criminal complaint was filed only after the Respondent filed a suit for divorce before the court at Delhi.
(2.) Learned counsel for the Respondent submitted that the parties were not at issue on the question that they were not living together since whether it be the year 1994 or 1999. Even if desertion had not been framed as a specific issue, the Appellant has not been prejudiced in any manner as she has offered no explanation for having left the matrimonial home without just and reasonable cause. On the contrary the institution of a criminal case against the Respondent and his mother and then failing to establish the charge itself constitutes cruelty as held by the learned Family Judge, a finding which requires no interference. We have considered the submissions on behalf of the parties.
(3.) The Appellant and the Respondent were married on 26.11.1992. The Respondent claims that the Appellant deserted the matrimonial home in 1994 while the Appellant contends that she was forced to leave the matrimonial home in 1999. The learned Family Judge with reference to the application of the Appellant under section 125 Cr.P.C. has found her claim for having left the matrimonial home in 1999 as unjustified and we see no reason to interfere with the same. In either event, the time period mandatory under Section 13(1)(ib) stands fulfilled before presentation of the application for divorce. It is apparent from the order of the Family Judge that both the Appellant and the Respondent were not at issue at all with regard to the case they had to meet. While the Respondent alleged that the Appellant left the matrimonial home in 1994 and all his efforts to bring her back proved futile, the Appellant alleged that the Respondent had left her at maternal home and refused to take her back. Therefore the parties were well aware of the fact that they were not living together and the Appellant had only to establish the reasonable cause why she was compelled to leave the matrimonial home, a fact which she failed to establish. No prejudice has therefore been caused to the Appellant by failure to frame specific issue with regard to the desertion as observed in Swamy Atmananda v. Ramakrishna Tapovanam, 2005 10 SCC 51 holding as follows: "30..... As the said plea had adequately been raised in the plaint, in relation whereto the appellants therein had adequate opportunity to traverse and furthermore both the parties having brought on record all the relevant documents, the appellants herein cannot be said to have been prejudiced in any manner by reason of non-framing of the issue as regards res judicata." Cruelty has no definite meaning and it will depend upon the facts of each case. The fact that allegation of cruelty based on the behaviour of the Respondent may not have been established to the satisfaction of the Family Judge does not take out side its ambit the institution of a complaint case under the IPC by the Appellant in retaliation to the earlier suit for divorce filed by the Respondent at Delhi earlier held to be not maintainable on ground of lack of territorial jurisdiction, and then failing to establish the charge.;