Prashant Kumar Mishra, J.

1. This is an Appeal by the husband under Section 19(1) of the Family Court Act, 1984 (for short ‘the Act, 1984’) challenging the judgment and decree passed by the First Additional Principal Judge, Family Court, Raipur, dismissing his application for grant of divorce on the ground of cruelty and desertion enumerated under Section 13 (1)(i-a)(i-b) of the Hindu Marriage Act, 1955 (for short ‘the Act’).

2. The undisputed facts of the case are that the first marriage of the appellant was performed on 21.11.1990, out of which daughter Ku. Shreyakanchha was born some times in the year 1992. After the death of his first wife in the year 1997, the appellant married the respondent according to Hindu rites and rituals on 21.11.99. They have a son namely, (Master) Vivek from the second marriage who was born on 6.6.2001.

3. The present suit for divorce was filed on 9.3.2006 on averment that for the initial 2 years the relations between the parties were cordial, however, after the birth of son Vivek, the respondent started treating her stepdaughter Ku. Shreyakanchha with cruelty by harassing and exploiting her, which was opposed by the appellant. The respondent used to raise dispute with an object to separate daughter from the family and for this dispute, she eventually went to her parental house on 20.6.2002 without any lawful justification. It is further alleged that during her stay with the appellant, she used to physically assault the husband in the presence of his father and brother. Even after leaving the matrimonial house by her, she threatened the appellant over telephone that if he does not separate daughter Shreyakanchha and get himself transferred to Jashpur, she shall eliminate Shreyakanchha. The husband further averred that she is staying at Jashpur Nagar for lodging false cases of demand of dowry and maintenance against the appellant whereas it is not possible for the appellant to leave his daughter Shreyakanchha alone. In para-9 of the plaint, it is averred that the suit is filed because the respondent/wife lodged criminal case against the appellant on 20.6.2002.

4. In her written statement filed on 4.1.2011, the respondent/wife would state that daughter Shreyakanchha is presently aged about 19 years and is residing with her grandparents whereas the appellant resides at a different place. She denied to have treated Shreyakanchha with cruelty or misbehaviour at any point of time, with further averment that Shreyakanchha is, in-fact, attached to her. According to the wife, the appellant always treated her with cruelty both mentally and physically, therefore, she had to lodge a police complaint against the appellant for commission of offence under Section 498-A of the IPC and at the same time, she also moved an application under Section 125 CrPC for grant of maintenance. The appellant committed fraud with the respondent in order to get the proceeding withdrawn. She further averred that after the cases were compromised, she again went to reside with the appellant at his Baijnathpara, Raipur, residence, however, she was not allowed to enter the house and was manhandled and ousted by the appellant. She states to have chosen to reside at Jashpur on account of cruel behaviour of the appellant and not at her own volition. In her additional statement, she would state that the appellant wants to marry for the third time, therefore, the present petition has been preferred. In this petition, the appellant had obtained ex-parte decree by committing fraud and misrepresentation without disclosing at the time of compromising the criminal case and the maintenance proceeding that ex-parte divorce decree has already been obtained by him.

5. It is important to notice that ex-parte decree was passed in favour of the appellant on 27.11.2006, which was set aside by the Family Court vide order dated 3.9.2010 in MJC No.23/2010.

6. In his affidavit under Order 18 Rule 4 CPC, the appellant has stated that the respondent us