The main legal point established is that evidence of cruelty and adultery by one party can justify divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955.

JUDGMENT (Oral)

1. The present appeal under Section 19 of the Hindu Marriage Act, 1955 read with Section 151 of the Code of Civil Procedure, 1908 has been filed on behalf of the appellant to set aside the impugned Order dated 24.12.2018 passed by the learned Principal Judge, South-West District, Family Court, Dwarka, New Delhi, wherein the Petition under Section 13(1)(ia) of the Hindu Marriage Act, 1955 seeking decree of divorce, was dismissed. Vide the same impugned Order dated 24.12.2018, HMA No. 1496/2017 titled Smt. Rekha vs. Sh. Sanjeet Kharb under Section 9 of the Hindu Marriage Act, 1955 preferred by the respondent/wife seeking restitution of conjugal rights, was allowed.

2. The facts in brief are that the parties got married on 28.04.2009 according to Hindu rites and customs at Village Malikpur, New Delhi, however, no child was born from the said wedlock.

3. The appellant is working with Sashastra Seema Bal (SSB) as Head Constable and he used to remain at his place of postings. It is claimed by the appellant that he requested the respondent to accompany him to his place of posting, but the respondent refused to accompany him.

4. It is submitted that when the appellant came to his house from his posting on holidays, the respondent used to pick quarrel with the appellant and misbehaved with him. In addition, the respondent also threatened the appellant to implicate him and his family members in a false case. Consequently, the parties got separated on 08.01.2011.

5. The respondent lodged an FIR bearing No. 04/2012 under Sections 498A, 406 and 34 of the Indian Penal Code, 1973 at Police Station Jafarpur Kalan against the appellant and his family members. The respondent also filed a false case bearing CC No. 4998946/2016 of Domestic Violence under Section 12 of the Protection of Women from Domestic Violence Act, 2005. However, the said case was dismissed by the vide Judgment dated 20.12.2018 by the Metropolitan Magistrate, Mahila Court, Dwarka, New Delhi.

6. It is asserted that the respondent used to misbehave with the appellant and his family members and she herself deserted the matrimonial home on 08.11.2011. On 24.09.2018, while the two petitions were pending, an endeavour was made to reconcile the differences, the respondent accompanied the appellant from the Court to live together, but apparently while on their way back to home, they got separated. Thereafter, all future efforts made to reconcile the differences did not materialise, and they have been living separately since 2011.

7. The said divorce petition was dismissed vide Judgment dated 24.12.2018. The learned Judge, Family Court, on appreciation of the evidence, concluded that there was no evidence of respondent having left the matrimonial home on 08.01.2011. Reliance was placed on the proceedings under the Domestic Violence Act and the FIR bearing No. 04/2012 under Sections 498A, 406 and 34 of the Indian Penal Code, 1973 at Police Station Jafarpur Kalan to observe that the respondent was subjected to cruelty.

8. It was further held that there was no evidence to show that the respondent had refused to join the appellant at his place of posting. Thus, it was concluded that no ground of cruelty was proved and accordingly, the divorce petition was dismissed, while HMA No. 1496/2017 titled Smt. Rekha vs. Sh. Sanjeet Kharb under Section 9 of the Hindu Marriage Act, 1955 preferred by the respondent/wife seeking restitution of conjugal rights was allowed by observing that there was no reasonable excuse for the appellant/husband to have withdrawn from the company of the respondent/wife.

9. Being aggrieved, the appellant has filed the present appeal.

10. During the course of appeal, the appellant has submitted that no child was born from the wedlock. However, the appellant claimed that the respondent has got married with one, Mr. Rakesh Singh, and has a daughter from the said wedlock. The Station House Officer (SHO) Police Station Sadar Thana, District Rohtak,