SINGH, J. - (1.) THIS appeal is directed against the judgment and decree dated 5. 4. 2002, passed by Judge, Family Court No. 2, Jaipur, whereby petition of the husband-respondent filed under Section 13 of the Hindu Marriage Act was allowed and the marriage solemnized between the parties on 25. 5. 1994 was dissolved. It was further ordered that the appellant shall be entitled to get a sum of Rs. 1000/- for her-self and Rs. 500/- for her minor daughter from the respondent-husband.
(2.) THE relevant facts for the purpose of disposal of this appeal are that the respondent-husband filed an application for dissolution of his marriage with the appellant solemnized as per Hindu Rites on 25. 5. 1994 on the ground of cruelty. It was further alleged that ever since the marriage the appellant wife treated the respondent-husband and his family members with cruelty and she failed to perform her matrimonial obligations. She used to quarrel on petty matters and abused them and even threatened the respondent-husband to kill him and used to keep knife under her pillow. She behaved cruelly with her elder daughter and several times she made her to drink hot milk and in fact caused injury in her mouth. She deserted her matrimonial house about one and half year before filing the petitioner and went to stay with her parents. It is also alleged that two daughters were born to them out of the lawful wedlock. Hence the application for dissolution of marriage. In reply to the said application, the appellant-wife controverted the allegations and stated that just after her marriage, members of her in-laws family harrased her to bring V. C. R. , Motor Cycle and rupees 50,000/- in dowry. She alleged that efforts were made to kill her by passing current in electric wire. It was stated that after the first daughter was born, the appellant was separated from her child. On 1. 4. 1995 she was beaten by the parents of her husband and was turned out of her matrimonial house. She was forced to live with the parents as she was not allowed entry in the house inspite of repeated efforts made by her. Therefore, it was prayed that the application for dissolution of marriage be rejected as the respondent wanted to marry again. On the basis of the pleadings of the parties, following issues were framed:- (i) Whether the non-applicant wife treated her husband with cruelty as averred in the petitioner filed by the respondent? (ii) Relief? On the above issues, both the parties led their evidence and after discussing the evidence in detail, the Judge, Family Court No. 2, Jaipur, decided the Issue No. 1 regarding cruelty in favour of the respondent-husband and consequently allowed the petitioner for divorce as stated here in above. We have heard counsel for the parties and gone through the material on record.
(3.) THE main contention of the counsel for the appellant is that the case under Section 498-A of the Indian Penal Code, was compromised between the parties and after the compromise the respondent took the appellant to his house in the month of February 1996 and thereafter she remained there with the respondent up to 1. 10. 1996 when she was alleged to have gone to her parent's house. THErefore, according to the learned counsel, the allegation of cruelty against the appellant in view of the compromise was condoned by the respondent and it was not proved that ever since the aforesaid condonation she was subjected to any further cruelty by the appellant after the respondent took her to his residence in February 1996. THErefore, decree for divorce could not have been passed in view of the provisions of Section 23 (1) (b) of the Hindu Marriage Act 1955. In support of his contention, counsel for the appellant placed reliance upon Dr. N. G. Gastane vs. Mrs. S. Dastane, AIR 1995 Supreme Court 1534, wherein it has been held as under:- condonation means forgiveness of the matrimonial offence and the restoration of offending spouse to the same position as he or she occupied before the offence was committed. To constitute condonation there must be, therefore two things: forgiveness and restoration. . . . . . . . . . . (Para 55) From the impugned judgment, it appears that neither any issue was framed nor any finding was given by the Judge, Family Court No. 2, Jaipur, on the point of condonation, though it was simply mentioned that the compromise entered into between the parties was not filed in the Court. On perusal of the record it is revealed that the respondent, husband has deposed in his statement that the case under Section 498-A of the Indian Penal Code, pending in the Court of Additional Chief Judicial Magistrate No. 3, Jaipur, was disposed of and the respondent and his family members were discharged vide order dated 10. 5. 1991. In this regard, it is revealed that the respondent Gouri Shankar, admitted in his examination-in-chief that the matter was compromised between the parties and in view of the compromise, the appellant-wife had given her statement in the court marked Ex. 3 in their favour. He further deposed that in February 1996, he took the appellant along with him to reside with him and thereafter the appellant went to her parent's house on 10. 1. 1996. Thus, it is clear that after the compromise having been taken place between the parties, the appellant was taken to the house of the respondent and she remained there for about eight months. Appellant Jyoti in her statement categorically deposed that after the compromise, she was taken to her in-law's house by her husband and at the time when she sent to her parent's house, she was having a child in her womb. P. W. 3 Bhawani Shankar, examined on behalf of the respondent-husband, has also supported the fact that after entering into the compromise, the appellant remained for seven-eight months with the respondent and left the house of the respondent in December 1996, leaving behind her elder daughter. From the above evidence on record, it is amply proved that after the compromise, the appellant was taken by the respondent to his house in February 1996 and she remained their at least up to 1. 10. 1996 untill she went to stay with her parents and then while she had a child in her womb. It shows that inspite of the fact that the appellant had lodged a case of dowry against the respondent, the respondent had condoned the cruelty alleged in the petitioner and took her to his house and thereafter she became pregnant and she gave birth to second child. Even if the condonation is not pleaded as a defence, it is the duty of the Court to find whether cruelty was condoned as held by the Apex Court in Dastane vs. Dastane (supra), as under:- Even though condonation was not pleaded as a defence by the respondent it is our duty, in view of the provisions of Sec. 23 (1) (b) to find whether the cruelty was condoned by the appellant. That section casts an obligation on the court to consider the question of condonation, an obligation which has to be discharged even in undefended cases. The relief prayed for can be decreed only if we are satisfied "but not otherwise" that the petitioner has not in any manner condoned the cruelty. It is, of course, necessary that should be evidence on the record of the case to show that the appellant had condoned the cruelty. ;