KOTHARI, J. - (1.) THE appeal No. 1613/1999 has been filed by the wife Smt. Beena Sharma being aggrieved by the judgment of Family Court No. 1, Jaipur dated 7. 10. 1999 allowing the application under Sec. 13 of the Hindu Marriage Act, 1955 for divorce filed by respondent-husband. THE second appeal No. 1616/99 has been filed by appellant-wife under Sec. 18 of the Hindu Adoption & Maintenance Act, 1956 claiming maintenance from the husband which was rejected. THE facts in brief leading to these present appeals are as under:
(2.) THE parties Om Prakash and Beena Sharma got married according to Hindu rites on 23. 5. 87 at Jaipur. According to the appellant husband, soon after the marriage, respondent-wife, appellant herein, started pressing upon him that he should leave his parents and live separately and she indulged into fights with the applicant-husband and his family members. After three months of the marriage, the respondent-wife left the house of applicant- husband and went with her brother Ram Dayal. On 10. 10. 87, she again came with her uncle Surajmal and on the excuse of engagement ceremony of her brother Ram Dayal, she sent along with her "stridhan" in the form of Sarees and jeweleries and since then she has not returned back to the matrimonial home and, therefore, the divorce application was filed on the ground of cruelty and desertion. It is further the case of the applicant-husband that on 15. 2. 90, the respondent wife lodged a false criminal complaint against him and his family members in Mahilla Thana, Manak Chowk, Jaipur which was found to be false upon investigation by the police and on 20. 4. 90, upon a mutual settlement between the parties in the presence of reputed members of the society, an agreement in writing was recorded between the parties to live separately and her "stridhan" was returned back to her. THE applicant-husband has further stated in the application that his wife came in his office and making allegation of illicit relationship of applicant-husband with one Smt. Usha Wadhwa who was his office colleague and she fought with the said lady Usha Wadhwa and also alleged that applicant-husband had illicit relations with her and he had two issues, one son and one daughter from the said lady. The said application for divorce was contested by the appellant-wife before the Family Court and the allegations of cruelty and desertion were denied. She also denied having visited the office of applicant-husband on 10. 9. 98 and fighting over the issue of his alleged illicit relations with Usha Wadhwa. The learned Family Court framed the issues relating to cruelty and desertion and after taking the evidence of both the sides and written arguments, decided both the issues in favour of the applicant-husband and granted divorce decree. While granting the decree for divorce, the learned Family Court granted maintenance to the respondent-wife under Sec. 25 of the Act @ Rs. 2,000/- per month but her claim of maintenance under Sec. 18 of the Act of 1956 was rejected. Being aggrieved by the said Judgment & decree of divorce, the wife Smt. Beena Sharma has filed the present appeals. Mr. M. M. Ranjan, learned counsel appearing for the appellant wife, taking us through the statements of various witnesses who appeared in the Family Court on behalf of appellant-wife submitted that the allegations of cruelty and desertion leveled by the applicant-husband were absolutely false and were not at all proved and the appellant-wife has always been ready and willing to go to the matrimonial home and live with the husband, and the appellant-wife never insisted upon the husband to live separately from his parents and though the husband had relations with Usha Wadhwa and used to beat her despite but that behaviour she always tried to go back to the matrimonial home. The appellant-wife in her cross-examination by the husband also revealed that it is only the respondent-husband who had disclosed to her that he had relations with Usha Wadhwa. DW. 4 Surajmal, uncle of the appellant-wife has stated in his statement that elder brothers of respondent-husband Om Prakash i. e. Ramavtar and Om Prakash abused him when they went on the occasion of "karwa- choth" with sweets and clothes to the house of respondent- husband and demanded dowry. On 2-3 occasions, the said witnesses had seen Om Prakash with other lady on his motor cycle and it is only the respondent-husband who had left appellant-wife at her parents house and she did not voluntarily went out of the matrimonial home.
(3.) AS against this, the applicant-husband PW-1 Om Prakash in his statement while reiterating the insistence of appellant-wife to live separately also said that since her uncle Surajmal was Dy. Home Secretary, she got lodged a false report against husband on 15. 2. 1990. He also stated that Smt. Usha Wadhwa was only working in his office and he had no illicit relations with her. The other witnesses who appeared in support of husband, have stated that appellant-wife had left the house of husband on her own. Having considered the rival submissions and upon perusal of the statement of various witnesses, this Court is of the opinion that the learned trial Court has erred in granting the decree of divorce in the present case. The instances of cruelty while deciding issue No. 1 namely that the appellant-wife insisted upon living separately and lodging of a false complaint against the respondent-husband on 15. 2. 90 merely because the uncle of the appellant-wife Surajmal was Dy. Home Secretary at that time, and that the allegations of illicit relations with Usha Wadhwa are not sufficient to grant the decree of divorce in favour of the applicant-husband. It is not denied by the applicant-husband, respondent herein that Smt. Usha Wadhwa was working in the same office in which he worked. The independent witnesses appearing in support of the appellant-wife have also stated that they had seen the said lady with respondent-husband on his motor cycle on different occasions. DW-2 Sushila had stated that when they had gone for Darshan at Moti Doongri Temple, they had seen that lady with respondent Om Prakash. Not only the appellant-wife in her statement said that respondent-husband had two children from the said lady Usha Wadhwa but her willingness to live with respondent-husband even in the face of such a grave doubt of illicit relations with another lady clearly shows that the appellant-wife had all the desire to maintain and protect her matrimonial home even in the face of such pressing circumstances. In view of this, it cannot be believed that she would level any false allegation to break her matrimonial home nor in these circumstances it can be said that the appellant-wife had deserted the respondent-husband. The allegations regarding filing of false case is also not sustainable. It appears that in order to avoid arrest and harassment under a complaint filed under Sec. 498-A Cr. P. C. , the respondent-husband temporarily persuaded the appellant-wife and got entered into a mutual agreement, Ex. A-1 on 20. 4. 90, as clause (6) of the said agreement clearly stipulates that first the appellant-wife Smt. Beena Sharma would withdraw the complaint from the Mahilla Thana filed against the respondent-husband under the said agreement. Clause (5) of the said agreement itself envisaged both the parties to file joint petition for divorce, however no such joint petition is said to have been filed. This further shows that the appellant-wife was misled into the said so-called mutual agreement for the temporary relief of avoiding action by the police under the said criminal complaint. ;