SANTOSH SHARMA Vs. ASHOK KUMAR

JUDGEMENT

(1.) This appeal under Clause 10 of the Letters Patent. is directed against the Judgment dated 21st/March 1986 of a Single Judge of this Court in FAO No.118/1982 whereby allowing the appeal of the respondent-husband, the Judgment and decree of the Additional, District Judge, Delhi, dated 23rd January, 1982 dismissing the respondent-husband's suit for, divorce under Section 13(1)(i-a) of the Hindu Marriage Act, 1955 (hereinatter called 'the Act' ) was set aside and the respondent-husband was granted a decree for divorce.

(2.) The appellant and the respondent were married in 1977 according to Hindu Law. Soon after the marriage. their relations became bitter and ultimately the respondent filed HMA No.470/79 under Section 13(1)(i-a) of the Act charging his wife with cruelty. The petition was dismissed by the trial court vide judgment dated 23rd January, 1982. He thereafter filed second petition (HMA No.129/82) for the same relief on the ground that imputations made by the appellant-wife against him in para 4(b) of the written statement filed by her in HMA No.470/1979 ware themselves acts of cruelty entitling him to claim dissolution of marriage. Along with the said petition, the respondent also challenged validity of the Judgment of the trial court in HMA No. 470/1979 by filing an appeal (FAO No.118/1982). The suit bearing No.HMA 129/82 was also dismissed by the trial court vide order dated 20th February, 1985. Although, the respondent-husband had catalogued in his petition several instances of the appellant's alleged cruel conduct, but the learned Single Judge, on appreciation of evidence on record took up two issues, viz. (i) that the appellant had pulled the male organs of her husband and (ii) that the appellant had made false and scandalous averments in para 4(b) of her written statement to the effect that the respondent had coerced her to drink and give company to his drunkard friends. It was on these two issues, the learned Single Judge proceeded to hold that pulling of the male organs of the respondent by the appellant must have caused an Injury to him amounting to cruelty and the aforesaid false and scandalous accusations made by the appellant against the respondent also constituted mental cruelty entitling him to claim divorce under Section 13(1)(i-a) of the Act He, therefore, allowed the appeal and granted decree of divorce in favour of the respondent. Hence this appeal

(3.) The crucial issue arises in this case is whether the respondent-husband has successafully laid premises for dissolution of marriage on the ground of cruelty. Assailing validity of the impugned judgment, learned counsel for the appellant contended that it was not even pleaded by the respondent-husband that the appellant had pulled his male organs causing any pain or injury to him or the imputations made by her against him amounted to mental cruelty, but the learned Single Judge on his own made out a case for granting divorce in favour of the respondent-husband.