The court held that allegations of cruelty and desertion require clear evidence, which the wife/appellant failed to provide, leading to the dismissal of her application for divorce.

JUDGMENT :

(Harish Tandon, J.)

The application for dissolution of marriage under Section 13 of the Hindu Marriage Act alleging cruelty and/or desertion at the instance of the wife/appellant is rejected by the Court below on the finding that the wife/appellant has miserably failed to prove the act of cruelty perpetrated upon her by the husband/respondent nor could prove the act of desertion without any reasonable cause.

2. The wife/appellant has assailed the said judgment and decree and the learned advocate appearing for the wife/appellant has restricted the argument solely on the ground of cruelty and irretrievable breakdown of marriage.

3. At the very outset, we record that the pleading of the wife/appellant is scanty and does not vividly include the incidents of cruelty except by generalising the cruelty in physical and mental form. The parties to the proceeding are married according to Hindu rituals and rites on 04.06.2002. Since after the marriage they started residing together as husband and wife and the marriage was duly consummated which would be evident from the fact that the girl was born of the said wedlock. It is pleaded in the application by the wife that the husband/respondent is a business man but used to inflict torture both physical and mental upon her. She, however, remained silent and tolerated such torture and ultimately she was compelled to leave the matrimonial house on 10.06.2011 along with her daughter and took shelter in her father's house.

4. On the basis of the aforesaid pleading, the matrimonial suit No.308 of 2013 was filed before the District Judge, Murshidabad at Behrampore and upon service of summon the husband appeared and contested the said proceeding by filing the written statement. The husband has denied the allegation of any physical and mental torture upon the wife/appellant and stated that she is a quarrelsome lady raising demand to buy clothes in short intervals and to provide a hefty amount which was not possible for husband/respondent because the income is not in commensurate with such demand. It is further disclosed in the defence that subsequently the business could not yield profit and the husband/respondent was compelled to close down the said business. It is further stated that the only child was admitted in the school to pursue her studies and all the expenditure was borne by the husband/respondent. The husband/respondent denied the allegation that the wife was compelled to leave on 10.04.2011 from the matrimonial house but she remained in the matrimonial house till the early part of the month of May, 2013 and later on left the matrimonial house without any reason and rhyme. It is a specific stand of the husband/respondent that he tried to trace the whereabouts of the wife/appellant and the child in the nearby locality and ultimately found that she is living in her parental house. The pleading goes further that the husband/respondent tried to bring reconciliation as he went to parental house of the wife/appellant but she refused to come back.

5. On the basis of the aforesaid pleadings, the parties went in trial and the wife deposed as a first witness wherein she reiterated the statement made in the said application and denied the statement of the husband taken in defence. The wife/appellant also cited her mother as second witness to corroborate the cruelty as alleged. The daughter of the parties also deposed as a third witness of the plaintiff/appellant. On the other hand, the husband adduced evidence as first witness and also brought a neighbour as second witness in support of his contention that there was no occasion to perpetrate mental or physical cruelty upon the wife/appellant.

6. As indicated above, the Trial court rejected the said application as the wife/appellant failed to prove the allegation of cruelty and desertion.

7. At the very outset, we hasten to add that neither the pleading nor evidence of the wife discloses the incident or the series of incidents causing mental and