DAYAWATI Vs. VIVEK

JUDGEMENT

(1.) Being aggrieved against the impugned judgment dated 09.09.2016, whereby the husband's petition under Section 13 of the Hindu Marriage Act, seeking dissolution of marriage which was held between the parties on 07.02.2010, on the ground of cruelty has been decreed. The said judgment has been put to challenge by the wife in the present appeal. The case of the appellant is that the learned trial Court while interpreting the ingredients of the cruelty have not applied its judicious mind and the findings recorded pertaining to the establishment of cruelty based on the criminal proceedings is not logical and without any basis.

(2.) Another ground which the wife has agitated while questioning the impugned judgment is that whether the Court below has failed to interpret as to whether the husband has been able to prove the factors of cruelty as laid down under the law for the grant of decree of divorce, because the cruelty is a variable factor which varies with the attitude and temperament of a partner to the marriage and for its securitization and judicious scrutiny, the Court has to consider the surrounding circumstances and facts which has laid for the foundation for commissioning of cruelty. There cannot be a strict stringent principle to arrive for coming at a conclusion as to whether a particular act would constitutes to be a cruelty, until and unless the party to the marriage proves the same by establishing it by evidence, which according to the wife in the instant case is lacking, in the pleadings and evidence raised by the husband.

(3.) The appellant-wife's contention is further that the reliance which has been placed by the learned Court below pertaining to the incident which has chanced on 14.11.2011 is absolutely untenable for the reason that the first information report, which was lodged with regards to the incident in which on preliminary investigation the charges have been found to be true after investigating the incidents and hence the learned Court below has wrongly shifted the burden to prove the charge on the appellant-wife. Though these charges are still to be scrutinized by the Criminal Court in an independent criminal proceeding and the learned family Court ought not to have been swayed by the charge sheet in the proceedings pertaining to the incident of 14.11.2011.