BALBIR KUMAR Vs. SANTOSH @ BINDU

JUDGEMENT

(1.) Delay of 10 days in refiling the appeal is condoned.

(2.) In this appeal, the appellant-husband has challenged the judgment and decree dated 12.2.2008, whereby the petition under Section 13 of the Hindu Marriage Act, 1955 (In short, "the Act") for dissolution of marriage by a decree of divorce on the ground of cruelty and desertion filed by him was dismissed by the District Judge, Rupnagar.

(3.) A few facts necessary necessary for adjudication of the instant appeal as narrated therein may be noticed. The marriage between the parties was solemnized 24.10.1999 at Yamuna Nagar according to Hindu rites and ceremonies. After the marriage, the parties lived together as husband and wife at Mohali but the respondent-wife never allowed the appellant to have sexual relations or to consummate the marriage. Out of the said wedlock, no child was born. The behaviour of the respondent from the very beginning was not adjustable and she started saying that her marriage with the appellant was solemnized against her wishes. Further, on the instigation of the respondent, the appellant had taken her to her parent's house on 9.11.1999. On 'Dori Paranda' ceremony, the parents of the appellant had gone to the house of the parents of the respondent on 17.11.1999 along with customary gifts and taken the respondent back on 17.11.1999 after giving the gifts. On the asking of the respondent, the appellant separated themselves from the other family members in the same house on the pretext that she will adjust herself in the family but her behaviour did not change. The respondent left the matrimonial home on 30.4.2000 against the wishes of the appellant and took away golden ornaments, valuable articles and customary gifts. A panchayat was convened to the house of the parents of the respondent in the month of June, 2000 but the respondent and her parents were adamant to send her only if the appellant had taken the independent accommodation outside the house of his parents. However, the respondent did not turn up inspite the fact that the appellant had taken accommodation on rent. The respondent also filed a criminal complaint under Sections 498-A/406 of the Indian Penal Code against the appellant and his family members in which they were arrested and all the dowry articles were taken away by the police as case property. Thereafter, the respondent filed a petition under Section 125 of the Code of Criminal Procedure for maintenance and the appellant had been paying interim maintenance to the respondent. The father of the respondent also filed a complaint before the Superintendent of Police, Mohali on 27.11.2000 against the appellant and his parents. Since the appellant did not turn up, the report was sent to the Superintendent of Police, Yamuna Nagar and the complaint was filed. On 14.7.2003, a panchayat was convened at the house to the parents of the respondent and the appellant along with his parents and some respectables had gone there and in the presence of the panchayat, the parents of the respondent refused to send her to the matrimonial home. The appellant also filed a petition under Section 12(1)(a)(c) of the Act for annulment of marriage which was later on withdrawn as the respondent had failed to put in appearance. Feeling aggrieved, the appellant filed a petition under Section 13 of the Act for dissolution of marriage by passing a decree of divorce. The said petition was contested by the respondent by filing a written statement. Besides raising various preliminary objections, it was pleaded that the parties cohabited as husband and wife after the marriage. It was further pleaded that the appellant and his family members were not satisfied with the dowry given in the marriage. The other averments made in the divorce petition were controverted and a prayer for dismissal of the same was made. The appellant filed replication controverting the averments made in the written statement. The trial court on appreciation of oral as well as documentary evidence led by the parties dismissed the petition filed under Section 13 of the Act for a decree of divorce on the ground of desertion and cruelty vide judgment and decree dated 12.2.2008. Hence, the present appeal.