PRADEEP RAWAT Vs. SMT. ASHA

JUDGEMENT

(1.) This appeal under Sec. 96 of the Code of Civil Procedure is directed against judgment and decree dated 7.1.2012, passed by Additional District Judge, Court No. 19, Bulandshahar, in Original Suit No. 515 of 2010. The court below by the judgment has dismissed the suit filed by plaintiff appellant under Sec. 13 of the Hindu Marriage Act, 1955 for divorce on account of cruelty and desertion.

(2.) Facts in brief, which are not in issue, are that the parties are both Hindu, and got their marriage solemnized as per the rituals at Bulandshahar on 7th Feb., 2005. It is claimed that in March, 2005, the defendant wife left her matrimonial house, and returned with husband again in May, 2005. A daughter out of such marriage was born on 8th Oct., 2005. It is claimed by husband that wife again left her matrimonial house in the end of year 2005, and again returned to live with husband in Dec., 2007. It is then claimed that wife left the husband on 6.6.2009. Husband, consequently, initiated proceedings for restitution of conjugal rights under Sec. 9 of the Hindu Marriage Act at Bulandshahar on 9.11.2009. It is on record that a second daughter with the wedlock was born on 27th Dec., 2009. Treating such conduct of wife as amounting to desertion, suit for divorce was filed and was numbered as Original Suit No. 515 of 2010 on 29th March, 2010. On 15th July, 2010, an application was filed for withdrawal of suit filed under Sec. 9 for restitution of conjugal rights. Ultimately, the suit under Sec. 9 was dismissed as withdrawn on 25th Feb., 2011. Proceedings for seeking custody of minor daughters was also initiated in Nov., 2010, but the same was also ultimately withdrawn. A subsequent suit No. 393 of 2012 has also been instituted by the appellant for divorce, proceedings whereof were stayed on 29th July, 2013. An application for withdrawal of suit No. 393 of 2012 has also been moved on 30th Sept., 2013, which is pending. Subsequent proceedings for custody of children were instituted in the year 2014 at the instance of the husband, which is stated to be pending. Learned counsel for wife, however, points out that subsequent proceedings initiated for custody of children have also been withdrawn.

(3.) Before the trial court, pleadings were exchanged between the parties. According to husband, the wife ever since her marriage would leave her matrimonial house on flimsy grounds, and such conduct of her has inflicted mental cruelty upon him. It is also stated that the wife for no good reason has refused to perform her matrimonial obligations, and deserted him. The wife, on the other hand, has denied the plaint averments, and it is stated that she was regularly harassed by her in-laws, but considering the fact that there are two daughters born out of the wedlock, she is willing to live at her matrimonial place. Various other grounds have been stated in order to demonstrate that huge amount was spent in the marriage, and that she was being harassed for arranging dowry. According to wife, she was virtually thrown out of the house, while she was in advance stage of pregnancy, and the plea of desertion was, therefore, termed to be false. Wife, consequently, has strongly opposed the plea of divorce sought by the husband. On the basis of respective plea of the parties, trial court framed issue as to whether husband is entitled to a decree of divorce on account of cruelty on part of wife? and other issue was with regard to the relief to be granted. The husband has appeared in support of his case as PW-1, and has also filed various documents relating to family health plan, life insurance policy, salary certificate etc. The defendant wife has also appeared in the witness box and her statements was recorded as DW-1. Father of wife has also appeared as DW-2, and various documentary evidence were also adduced.