- (1.) Validity of judgment and decree dated 18.2.2014 passed by learned Judge, Family Court, Bhilwara in Civil Misc. Case No.335/2012 whereby the divorce petition preferred by respondent-plaintiff has been accepted and application under Section 9 of Hindu Marriage Act preferred by the appellant defendant has been disallowed, questioned by way of two separate appeals, Appeal No.345/2014 has been preferred challenging the validity of divorce and Appeal No.346/2014 against dismissal of application seeking restitution of conjugal rights.
(2.) Heard both the sides, it has been contended by learned counsel for the appellant that the trial court has committed material illegality in rejecting the application of the appellant moved under Section 9 of the Hindu Marriage Act and accepting petition under Section 13 of Hindu Marriage Act by decreeing divorce petition. Appellant-plaintiff failed to establish allegations of cruelty and no positive evidence was adduced to prove cruelty, the appellant has not committed any cruelty. Appellant is very much prepared to live with the respondent, but learned lower court committed error in not appreciating the evidence in proper perception. Hence, the appeals be allowed and the impugned judgment and decree be set aside and application of the appellant preferred under Section 9 of Hindu Marriage Act be allowed. On the contrary, learned counsel appearing for respondent has submitted that plaintiff has succeeded in establishing evidence pertaining to cruelty, so mutually a settlement was also reduced into writing for effectuating mutual divorce at family level. Plaintiff-respondent was subjected to cruelty, so there was no occasion for the respondent to reside and live in the company of appellant-defendant. Hence, the decree passed in favour of the plaintiff-respondent does not need interference and application under Section 9 preferred by the appellant-defendant has rightly been rejected and decree for divorce has correctly been passed.
(3.) Plaint relating to divorce petition, filed by respondent Smt. Abhilasha under Section 13 of the Hindu Marriage Act discloses that the couple had married on 2.9.2009 and no issue begotten out of wedlock, defendant Sunil allured her under pretext of putting Mehandi upon his family members and then forcibly compelled her to marry and in order to protect dignity of the family, plaintiff's parents agreed to ceremonies marriage, further contentions of physical and mental cruelty and demand of dowry with threats have also been pleaded, which has been countered by the pleadings as raised in the written statements by the defendant.;