KAILASH GAMBHIR, J.

1. By this appeal filed under Section 28 of the Hindu Marriage Act, 1955 the appellant seeks to challenge the judgment and decree dated 02.05.2009 whereby the petition filed by the respondent for divorce under Sections 13(1) (ia) and (ib) of the Hindu Marriage Act was allowed by the learned trial court in favour of the respondent and against the appellant.

2. Brief facts of the case relevant for deciding the present appeal are that the parties got married on 16.4.94 in Delhi according to Hindu rites and ceremonies. It is the case of the respondent husband that the appellant wife started harassing him on one pretext or the other like demand for a separate residence, getting her pregnancy aborted without the consent of the respondent, alleging that her life has been ruined by marrying a simple clerk and other such imputations. It was also the case of the respondent that the appellant used to leave the matrimonial home time and again and hassled by the conduct of the appellant, the respondent filed a petition for divorce on the ground of cruelty and desertion which vide judgment and decree dated 2.5.09 was granted in favour of the respondent. Feeling aggrieved with the same, the appellant has preferred the present appeal.

3. Assailing the finding of the learned trial court in para-15 of the impugned judgment, Mr.Bhalla, learned counsel for the appellant submitted that the civil suit referred to in the said para i.e. Ex.PW-1/A filed by the respondent for mandatory injunction was wrongly taken into consideration by the learned trial court as it was filed by the respondent just to create an evidence in his favour, as in the said suit the appellant was never served with the notice/summon and no evidence was produced by the respondent before the trial court to prove the fact that the appellant was served with the notice or had appeared in the matter. Assailing the finding of the learned trial court in para-16 of the impugned judgment, Mr.Bhalla stated that the order dated 11.06.2003 Ex.PW-1/C passed by the learned Magistrate in the criminal complaint filed by the appellant under Section 323/324/34 IPC is still under challenge before this Court in the petition under Section 482 Cr.P.C. filed by the appellant being Crl.M.C.No.696/2010 challenging the order of the learned trial court dismissing the application moved by the appellant under Section 319 Cr.P.C. to seek re-trial of the respondent. Counsel, however, admitted the fact that the petition under Section 482 Cr.P.C. was filed by the appellant after the passing of the impugned judgment. Counsel also admitted that even the order of the learned Magistrate came to be passed after the passing of the impugned judgment. The contention of counsel for the appellant was that this order dated 11.06.2003 has not attained finality yet.

4. So far the institution of Kalandra Ex.PW-1/D dated 17.06.1999 by the appellant is concerned, as referred to in para-16 of the impugned judgment, counsel submitted that the appellant was well within her right to lodge/institute the Kalandara as the respondent, his father and brother came to the parental house of the appellant and committed the act of breach of peace and created a scene at that place, against which the police had taken action. Counsel thus submitted that the appellant-wife committed no wrong in lodging the said complaint against the respondent and the said accomplices. Counsel also submitted that the said kalandara proceedings were dropped by the Magistrate on 12.7.2000 on the technical ground that the Magistrate had failed to take a decision within the mandatory period of six months from the date of registration of the kalandara and therefore for the said dropping of the kalandara proceedings no fault can be attributed to the appellant. Counsel further submitted that the proceedings against the respondent and his family members are still pending trial under Section 498-A IPC in the court of Smt. Twinkle Wadhwan, M.M.