Point of law: Family Court erred in not considering the matter on its merits as appellant has specifically pleaded grounds of cruelty and the same are proved in evidence

JUDGMENT :

This appeal is filed under Section 28(1) of Hindu Marriage Act, 1955 (for short, 'the Act') against the judgment dated 07.07.2022 passed by the Addl. Senior Civil Judge, Karwar in MC.No.16/2020 by which the petition filed by the appellant-wife seeking dissolution of marriage on the ground of cruelty was dismissed.

2. Brief facts giving raise to filing of this appeal are that the marriage between the appellant and respondent was solemnized on 25.07.2017 at Karwar as per the customs of their community. It is averred that after the marriage, the appellant went to matrimonial home and stayed with the respondent 3-4 months. After the said period, the respondent started quarreling with the appellant for demand of dowry; the respondent used to come to the house at night hours by consuming alcohol, used to start quarrelling with the appellant everyday. It is further averred that the respondent used to put cloth in the mouth of the appellant, assaulted her, pulled her hair and forced the appellant for sexual intercourse. When the appellant informed the respondent about her pregnancy, he was not happy with the said news and he was more worried as to whether the appellant would give birth to a male or female child. It is also averred that during the pregnancy, the appellant used to do all the household work without the help of anybody and after the delivery, the respondent did not take any responsibility nor taken care of the appellant and new born child. It is pleaded that the respondent used to quarrel with the appellant everyday and caused mental harassment to her. On 07.08.2018 the appellant gave birth to a female child at District General Hospital, Karwar and the respondent did not take any responsibility towards the appellant and the child. The respondent has stopped showing love and affection towards the appellant & child and asked the appellant to stay with her parents and it was informed that if the appellant wants to join the respondent, she has to leave the female child with her parents and then she can join the matrimonial home.

3. It is pleaded that the cradle ceremony was conducted in her parents house and the baby is named as Anvi. After the ceremony, the parents of the appellant dropped the appellant and the child to the matrimonial home. The respondent could not change his attitude, he continued to harass the appellant. It is further pleaded that the appellant continued to live in the house of in-laws, without there being any help for household work she continued to do all the work, even then the respondent-husband used to harass the appellant by scolding her, abusing her on silly things, he has not shown any love or affection towards new born daughter. He used to harass the appellant in front of the others. The respondent husband never interacted with the appellant, has caused mental cruelty to her and he did not bring any household articles, medicine to the child. It is also pleaded that the respondent used to leave the house without informing the appellant, he used to spend most of the time outside the house and he used to come very late in the night in a drunken state and if the appellant questioned his conduct, the respondent used to abuse and scold the appellant in filthy language.

4. It is averred that whenever the parents of the appellant visited the matrimonial home, the respondent shown disrespect and behaved badly. On 23.05.2019, on the date when the vaccination was required to be given to baby and when the appellant insisted for providing vaccination, the respondent has started quarreling with the appellant and refused to give vaccination to the baby. It is further averred that due to the behaviour of the respondent, the appellant has decided to go and stay with her parents at Karwar as she could not tolerate his behaviour. In the first week of August 2019, the elders and well-wishers tried to settle the dispute between the appellant and respondent, however the respondent refused to live with the appel