SUNITA Vs. PRIYA KUMAR

JUDGEMENT

(1.) APPELLANT -wife has preferred this appeal under section 28 of the Hindu Marriage Act, 1955 challenging the part of the judgment and decree dated 16.10.1999 rendered by IXth Additional District Judge, Indore, in Hindu Marriage Case No. 62 of 1998, whereby she was granted a decree of judicial separation instead of a decree for divorce.

(2.) BRIEF facts of the case, as per the appellant -petitioner -wife, are that she was married with the respondent -husband on 17.7.1994 at Indore. Thereafter, they lived together upto 1.1.1997 in pieces but they are not having any relation w.e.f 1.1.1997. On 15.11.1996 and 2.1.1997 she served notices and then filed a petition for divorce on 16.12.1997, on the ground of cruelty. The petitioner submitted in the petition that she was having old widow mother and one unmarried elder brother in the family. The respondent -husband was making accusation against the appellant -wife that she is having illicit relations with her own elder brother and the respondent is having illicit relations with other woman. The respondent was also demanding dowry and was also threatening to break the relation from her mother and elder brother. On 1.1.1997, respondent got her Mangalsutra removed from her neck and ended the relations for ever. She further pleaded in the petition that in reply dated 13.1.1997 of notice, the respondent made allegations that no legal marriage was performed on 17.7.1994 and they were not having relations like husband and wife and the appellant -wife lived only for a day with the respondent -husband and on the first night she did not allow the respondent to cohabit and consumate the marriage and also made serious allegations against the doubtful character of the appellant -wife and also made allegations of cruelty against the appellant. Before the trial Court appellant Sunita examined herself as PW 1 and also examined one Tulsiram, who is her neighbour as PW 2 and respondent Priya Kumar only examined himself as DW 1. Reply of the notice dated 13.1.1997 has been produced as Ex. D -1. After appreciating the evidence of the parties, the trial Court has recorded a positive finding on Issue No.1 in favour of the appellant -wife that the respondent -husband was responsible for practising cruelty, but refused to grant a decree for divorce and instead granted a decree for judicial separation, against which the appellant -wife has preferred this appeal.

(3.) PW 1 Sunita has stated in her examination -in -chief that after marriage they resided together upto 1.1.1997 and during this period the respondent -husband was making very serious allegations against her character and suspecting her illicit relation with her own elder brother, who is like her father and is respected to her. She also stated various other incidents about the cruelty practised by the respondent -husband. It is not in dispute that during the pendency of the proceedings, mother of the appellant has expired and she is residing with her own elder brother who is unmarried. Though the petitioner has also stated about the illicit relation of the Respondent with various other women. In this regard she has also examined PW 2 Tulsiram who has stated in his examination -in -chief that on one day he saw that the respondent -husband was sleeping with one woman and no other evidence have been produced.