Per Smt. V.K. Tahilramani, J. :

1. Heard learned Counsel for the appellant and learned Counsel for the respondent. For the sake of convenience, the appellant is referred to as wife and respondent is referred to as husband.

2. The appellant-wife, original respondent, has preferred this appeal against the judgment and decree dated 26th December 2012 passed by the Family Court, Bandra, Mumbai in Petition No.A-2724 of 2010. The husband had filed Petition No.A-2724 of 2010 for a decree of divorce on the ground of cruelty under Section 13(1)(ia) of the Hindu Marriage Act and for permanent custody of daughter Apurva. Petition No.A-2724 of 2010 filed by the husband came to be allowed, hence, this appeal.

3. The brief facts of the case are as under:

(i) The marriage of the appellant and the respondent took place on 4.5.1996 at Deswale Mala, Taluka-Ambegaon, District-Pune as per Hindu vedic rites and customs. On 27.11.1999 they were blessed with a daughter Apurva. Thereafter, husband filed a divorce petition bearing No.A-2470/2006 on the ground of cruelty. Thereafter, the matter was settled between the parties and the husband has withdrawn the divorce petition on 19.11.2009. Thereafter, the husband and wife started residing together along with their daughter. The case of the husband is that, his wife used to pick up quarrel with him and used to abuse him in filthy language. She made allegations that the husband was suffering from AIDS and she refused to keep physical relationship with him. On 13.7.2010 the wife assaulted the husband with a rolling pin on the head due to which he suffered some injuries and four stitches were put on his head. In June 2010, the husband's cousin sister met with an accident and therefore the husband went to see his sister in hospital in June 2010, but on that count the wife picked up a quarrel with him and created a big scene and did not allow him to sleep. The wife abused him and his parents. The wife has stated that the husband is having extramarital relationship with one lady. The conduct of the wife as stated above, caused cruelty to the husband and therefore he preferred the petition for divorce.

4. We have heard Mr. G.S. Bhat, the learned Counsel for the appellant-wife and Mrs. Manjula Rao, the learned Counsel for the respondent-husband. We have perused the petition filed by the husband, written statement as well as the evidence led by the parties. Both parties have examined themselves and no other witness has been examined by them.

5. The husband has specifically pleaded and stated in his evidence that on 13.7.2010 his wife asked their daughter to bring her mobile, but the daughter refused to give it to her and on that count his wife picked up a quarrel and started to beat their daughter. At that time, the husband tried to intervene. But the wife assaulted husband on his head with rolling pin due to which he sustained head injury and four stitches were put on his head. The husband's Advocate had put a question to the wife in the cross-examination that the husband has sustained injuries and four stitches were put on his injury when she assaulted him by rolling pin. Thereupon she answered that she had not seen the injury. The medical papers were shown to the wife during the cross-examination, when she admitted that O.P.D. Registration number is mentioned on the back side of the Exhibit 47. On perusal of the medical paper Exhibit 47, it clearly shows that the husband had taken medical treatment in the hospital of the Municipal Corporation of Gr. Mumbai on 13.7.2010. The husband had given history before the Medical Officer that there is injury on his head due to assault by a rolling pin and it was bleeding injury. Hence, the Exhibit 47 clearly supports the case of the husband that on 13.7.2010 he had sustained injury on his head due to assault by rolling pin.

6. The evidence of the husband further shows that he had filed a complaint before the police on the same day when he was assaulted i.e. 13.7.2