Dinesh Kumar Singh, J. – The present Miscellaneous Appeal is directed against the judgment and decree dated 27.7.2013 and 12.8.2013 respectively, passed by the learned Additional Principal Judge, Family Court, Patna in Matrimonial Case No. 763 of 2012, whereby the marriage between the appellant and the respondent has been dissolved and a decree of divorce has been passed on the ground of cruelty.

2. The factual matrix of the case is that the marriage between the appellant wife and the respondent husband was admittedly performed on 13.2.2000 but the appellant wife always treated the respondent husband with cruelty. As a result, the respondent preferred Matrimonial Case No. 763 of 2012 seeking dissolution of marriage on the ground of cruelty and desertion, though it is also alleged that the appellant was in love affair with some person. The respondent pleaded in the plaint of the matrimonial case alleging that the appellant used to abuse him and his parents. The appellant used to take William-10 or Mandex and other drugs. On protest being made by the respondent husband, the appellant wife threatened him that she will commit suicide. The appellant did not allow the respondent to have physical relationship. The appellant admitted that she has relationship with some boy but on the pressure of the family members, she has been married with the respondent. The appellant left the matrimonial house on 7.3.2000 and since then she is residing with her parents. The appellant has filed a criminal case being Complaint Case No. 2231C of 2002 with accusation under Section 498A of the IPC and Sections 3 and 4 of the Dowry Prohibition Act on 23.10.2002 and in the said case the respondent husband had to remain in custody for about three weeks. The respondent husband initially filed a Judicial Separation Case No. 20 of 2001 under Section 10 of the Hindu Marriage Act (hereinafter referred to as the Act) before the learned District Judge, Bhojpur for grant of judicial separation. Later on the same was converted into Matrimonial Case No. 763 of 2012.

3. The appellant wife appeared in the matrimonial case, filed her written statement claiming that the matrimonial case is not maintainable and the same has been filed in retaliation to the complaint lodged by the appellant. The appellant was tortured for non-fulfillment of further dowry demand of a Hero Honda motorcycle and Rupees Fifty Thousand for starting business by the respondent. The appellant claimed neither to have misbehaved or committed cruelty nor to have taken any drug and there is no proof with regard to that. The appellant is still ready to resume the conjugal life and she claims to have left the matrimonial house on 1.10.2002. No effort was made to reconcile the issue and the appellant never had any relationship with any boy and has not made any admission to that effect before the respondent and neither the name of the boy has been disclosed nor he has been made party to the proceeding.

The learned Family Court framed the following issues: –

“1. Is the suit as framed maintainable?

2. Has the petitioner got valid cause of action for he suit?

3. Whether the respondent has committed cruelty with the petitioner and his family members?

4. Whether the respondent has deserted the petitioner?

5. Whether the petitioner is entitled for dissolution of his marriage by a decree of divorce?

6. To what relief or reliefs, if any is the petitioner entitled?”

4. The respondent husband examined four witnesses. P. W. 1 Mahakant Prasad, neighbour of the respondent, P.W. 2 Hare Krishan Singh, another neighbour of the respondent, P.W. 3 Satish Kumar, the respondent husband himself and P.W. 4 Anil Kumar, brother of the respondent husband. To prove the case of cruelty, the respondent husband has got the certified copy of Complaint Case No. 2232C of 2002 exhibited as Ext. 1 and the copy of the order dated 19.8.2008 passed by the Patna High Court in Cr. Revision No.551 of 2007 and other certified copies of the petitions and