Divorce cannot be granted solely on claims of cruelty and desertion by the husband when evidence suggests the wife's actions were justified due to the husband's conduct including second marriage.

JUDGMENT :

T.M.NADAF, J.

This appeal is by the wife calling in question the judgment and decree dated 17.12.2022 in Matrimonial Case No.43 of 2019, passed by the Principal Judge Family Court at Kalaburagi (for short, ‘the Family Court’), whereby the application filed under Sections 13(1)(i-a) and (i-b) of Hindu Marriage Act, 1956 (for short, ‘the H.M. Act’) by the Husband for divorce on the ground of cruelty as well as desertion, allowed and the marriage of appellant and respondent solemnized on 24.06.2003 at Mallikarjun Devalaya at Kesaratgi, Taluka and District Kalaburagi, stands allowed.

2. The parties are referred to as per their ranking before the Family Court for easy reference.

3. A brief outline of facts leading to filing of this appeal are as under:

The petitioner and respondent are husband and wife. Their marriage was solemnized on 24.06.2003 at Mallikarjun Devalaya, Kesaratagi, Tq. & Dist. Kalaburagi as per the customs prevailing in their community. The parties are Hindus and governed by Hindu law of mitakshara. The marriage was an arranged marriage. The respondent/appellant herein contended that her parents performed marriage incurring huge marriage expenses which, includes 5 tolas of gold, household articles and cash of Rs.50,000/- given to the petitioner-husband(respondent herein) at the time of marriage. The parents of respondent sold their land in Sy.No.413, measuring 5 acres to bear the marriage expenses. Subsequent to marriage, when respondent had been to her matrimonial home to lead marital life, they led a happy marital life for a period of six months. Thereafter, the petitioner as well as his parents started showing their true colours by ill-treating her. The petitioner under intoxicated condition treating her with cruelty at the instigation of his family members and subsequently thrown her from the matrimonial house. In this regard, the respondent has lodged a complaint before the University Police. The petitioner - husband during the subsistence of first marriage in the year 2006 contracted second marriage with one Gangubai daughter of Shyamaraya. The respondent - wife immediately after gaining knowledge of the said marriage, filed a private complaint before the JMFC, Aland in Private Complaint No.8 of 2007 and also sought for maintenance by filing a separate petition.

4. During the pendency of trial in the private complaint, at the advice of well wishers and family elders, the matter was compromised between petitioner as well as respondent and they have filed a compromise petition before the Lok-Adalath and as per the direction of the Lok- Adalath, wife resided along with the husband for a period of three months and subsequently on the submissions of both husband and wife, the case filed by the wife ended in compromise as settled out of Court and the matter was closed. Subsequent to closure of case, petitioner - husband again started assaulting respondent- wife and even tried to kill her and thrown her out of the matrimonial home. This is the reason for the wife to live separately being a reasonable cause. As the petitioner neglected the wife and failed to maintain her and as the respondent - wife is not in a position to maintain herself, she filed a petition under Section 125 of Cr.P.C. seeking maintenance.

5. The trial Court at the first instance awarded Rs.2,500/- as maintenance initially and subsequently on petition the same was enhanced to Rs.4,000/-. Immediately after marriage and due to second marriage, she has been neglected totally and even the maintenance amount.

6. The petitioner - husband in the year 2019 filed the present application seeking for divorce on the ground of cruelty as well as desertion in MC No.43 of 2019, contending that from the date of marriage, wife is not living with the petitioner – husband. She never adjusted to the marital life and used to hate and dislike him by saying that he is not handsome and he is black in complexion and the marriage was a forced one. Though the husband i