MONIKA Vs. CHANDRA PRAKASH

JUDGEMENT

(1.) Instant appeal has been filed by the plaintiff-appellant (wife) aggrieved by judgment & decree dt.29.05.2013 passed by the ld.Judge, Family Court, Kota whereby the suit for divorce filed at the instance of the plaintiff-appellant on the ground of cruelty by the defendant-respondent (husband) came to be dismissed.

(2.) The appeal has been preferred by the plaintiff-appellant (wife) and the respondent herein is husband. The petition, filed by the wife claiming divorce u/Sec.13 of the Hindu Marriage Act, came to be dismissed by the ld.Family Court vide judgment & decree dt.29.05.2013 despite two salient facts came on record that (1) in the FIR No.219 dt.12.09.2007 registered against the defendant-respondent (husband) at Police Station Mahila Thana, Kota for offence u/Sec.498-A, 406 & 120-B IPC after regular trial, the defendant-respondent (husband) was convicted u/Sec.498-A IPC and sentenced to undergo two years imprisonment vide judgment dt.12.10.2012, however, on appeal being preferred, the sentence was suspended by the ld.Court of Appeal; and (2) the facts noticed by the ld.Family Court in the impugned judgment that it is a case where it is not possible to restore back their matrimonial relations and it is a case of irretrievable break down of marriage but observed that such cannot be a ground on which divorce can be claimed by the plaintiff-appellant (wife) u/S.13 of the Hindu Marriage Act and dismissed her application seeking divorce vide judgment & decree dt.29.05.2013.

(3.) We shall initially refer to the facts. Parties are referred to as wife & husband. The spouses were married on 16.05.2005, as per the Hindu rites & customs at Chauth-ka-Barwada, District Sawai Madhopur and immediately after marriage, the respondent-husband started demanding dowry and torturing the wife and a situation was created before the appellant-wife that she was deserted by the respondent-husband since 23.02.2006 and according to the wife, there was no cohabitation between them and because of continuous matrimonial cruelty, one after the other & physical assault for demand of dowry on 23.02.2006, she was thrown out of her matrimonial home and since then they are living separately and when nothing positive came forward and the respondent-husband never came forward for restitution of conjugal rights and almost two years after being thrown out of her matrimonial home, the appellant-wife filed petition seeking divorce u/Sec.13 of the Hindu Marriage Act on the ground of cruelty & desertion before the ld.Family Court, Kota on 11.01.2008. The respondent-husband filed reply/written statement on 18.06.2008 and denied the allegations.