KAMLESH KUMAR AGRWAL Vs. MAMTA DEVI

JUDGEMENT

(1.) The husband, the plaintiff in a suit for divorce under Section 13(1) (i-a) of the Hindu Marriage Act, is the appellant before us. On the death of his elder brother, the appellant married his brother's widow, the respondent herein.

(2.) The marriage took place on 27-4-1996. The parties were living in the matrimonial home and the respondent-wife gave birth to a male child on 3-9-1997. According to the husband, about six months after the marriage, differences started cropping up and the respondent started behaving cruelly towards him and denied him her company and thus failed to perform her duties as a wife. She left him and went to the house of her parents, though after a short while she returned. She again left, this time taking the child with her. She has not come back and thus she had inflicted cruelty on him and, therefore, he was entitled to a decree for divorce. While denying these allegations, the wife submitted that she was willing to live with her husband and her in-laws and she denied that she was acting cruelly towards her husband or that she had denied him company or physical relationship.

(3.) In support of his case, the husband examined five witnesses including himself. The wife also examined herself and three other witnesses. The trial Court, on an appreciation of the evidence, found the evidence of PW-2, the land lady of the building in which the couple were residing and the evidence of RW-4, a friend of the elder brother of the petitioner (the previous husband of the lady) reliable and their evidence did not disclose any cruelty on the part of the wife towards the husband. The Court below found no evidence of the wife ill-treating her husband amounting to cruelty within the meaning of Section 13(l)(i-a) of the Act. The evidence was found totally insufficient to support such a plea. Thus, the trial Court dismissed the suit. There was also a claim by the husband for the custody of the minor child by invoking Section 26 of the Hindu Marriage Act. The Court found that the boy being of tender age, it was not proper to separate him from his mother, since the mother's care would be required and in that view, denied the husband the custody of the minor child. Being aggrieved by the rejection of such prayers, this appeal has been filed.