- (1.) THE petition filed by the appellant husband on the grounds of desertion and cruelty under section 13 of the Hindu Marriage Act,1955 was dismissed by learned Family Court Ajmer vide judgment and decree dated October 21, 2002. Against this finding that the present action for filing the appeal has been resorted to by the appellant husband.
(2.) AS per the facts stated in the petition, marriage between the appellant husband and respondent wife took place on February 15, 1994. Immediately after the marriage the respondent wife treated the appellant husband and his family members cruelly, she never did household work and quarreled with the parents of husband. The respondent wife frequently used to visit her parental house without seeking permission of appellant husband. She used to spend money lavishly and force the appellant husband to reside separately from his old parents. The appellant husband had to take loans to fulfill unlimited desires of respondent wife. The respondent wife had also levelled false allegation of illicit relations of appellant husband with his aunt. The respondent wife also lodged false case under sections 498a and 406 IPC against the appellant husband. The respondent wife submitted reply denying the allegations. It was stated by her that from their wedlock one daughter born. She further stated that appellant husband took sum of Rs. 71]000/- from her parents for the purchase of Trola but did not return the money. While she was living in joint family she was given beating by the aunt of appellant husband with burning wood. She affirmed that appellant husband had illicit relations with his aunt and because of performing second marriage the appellant husband had filed the petition. On the basis of pleadings of parties following issues were framed:- (i) Whether in the background of the facts mentioned in the application the wife had behaved the husband and his family members with cruelty? (ii) Whether the wife was living separately from August,1998 without any justified reasons and had deprived the husband of his conjugal rights? (iii) Whether husband himself for the demand of dowry harassed the wife and in presence of the wife he made obscene acts with his aunt and husband himself was cruel with the wife for demand of dowry? (iv) Relief? The appellant husband examined three witnesses in support of his pleadings. On the contrary the respondent wife examined herself as Naw. 1 and her brother Suresh Kumar as Naw-2- Thereafter on hearing final submissions learned Family Court dismissed the petition as indicated above. Learned counsel for the appellant in assailing the impugned finding urged that the appellant husband started to live with the respondent wife separately leaving his old parents alone but the respondent wife did not adjust with him. The respondent wife levelled false allegation against appellant husband of having illicit relations with his aunt and lodged a case under sections 498a and 406 IPC. For the last nine years they have residing separately and their matrimonial relations have irretrievable broken and there is no likelihood that the parties may live together happily. Per contra learned counsel for the respondent wife supported the impugned finding.
(3.) HAVING carefully gone through the findings arrived at by the learned Family Court we notice that appellant Om Prakash (Aw. 1) categorically deposed that the respondent wife caused mental cruelty to him. According to appellant the respondent did not like to reside in the village atmosphere with appellant. She used to decline to go to the well and the old father of appellant was forced to go to the well to carry water. Learned Family Court did not properly appreciate the evidence of the appellant and observed as under:- *** Evidently learned Family Court did not consider the issue regarding mental cruelty in right perspective. Learned Family Court proceeded to decide the petition mainly on the ground of conviction of the appellant under section 498a IPC. Whereas the said conviction was under challenge in the higher forum. It is no doubt true that the husband cannot take advantage of his own wrongs but the learned Family Court ought to have struck balance between the evidence adduced by the rival parties. Cruelty as a ground of divorce under section 13 (1) (ia) is a conduct of such type that the husband could not reasonably be expected to live with the wife. `desertion' means intentional permanent abandonment of one spouse by other without the other's consent and without reasonable cause. Since the issues regarding cruelty and desertion have not been decided properly, we are of the opinion that fresh decision on the basis of evidence already adduced by the parties appears necessary. For these reasons, we allow the appeal and set aside the impugned judgment and decree. We remit the matter to learned Family Court Ajmer to decide all the issues afresh on the basis of evidence already adduced by the parties. The parties are directed to appear before the Family Court Ajmer on April 16, 2007. No costs.. ;