JUDGMENT

V.B.Gupta, J.

This appeal has been filed by the appellant (Husband) under Section 28 of Hindu Marriage Act, 1955 (for short as 'Act') against the judgment and decree dated 20th August, 2008 passed by Sh. Man Mohan Sharma, Addl. District Judge, Delhi whereby the petition of the appellant for divorce has been dismissed.

2. The brief facts of the case are that marriage between the appellant and respondent was solemnized according to Hindu rite and ceremonies on 11th December, 1990 at Delhi. From this wedlock, one female child was born to the parties on 27th October, 1994. In the matrimonial home the relatives, the appellant and his parents gave congenial environment to the respondent for establishing the happy and prosperous life but all invain because from the beginning, the behavior of the respondent was very cruel, unsocial and rude. The appellant was compelled to live apart from his parents and vacated the matrimonial home on 6th June, 1991 i.e. within 6 months of the marriage. Both the appellant and the respondent started to live separate from the parents of the appellant but the behavior of the respondent did not change. Rather the respondent became more aggressive, violent, rude and uncooperative, etc. Even after the birth of the female child the behavior of the respondent continued to be rude. Infact she used to beat the minor child and throw away the minor child so as to give mental torture to the appellant.

3. One day the respondent threw away the minor child and abused both the child and the appellant and left the matrimonial home and went to her parents house without permission of appellant. Regarding this a police report was made on 1st January, 1995.

4. Due to extreme mental torture and fear of danger to life by the respondent and her brothers, the appellant had to leave the last matrimonial home where they last resided together on 15.08.1998. In this regard complaint was also filed vide no. DD No. 7-A dated 15.08.1998.

5. The appellant started to live separate from the respondent and in the meantime, a complaint was lodged by the respondent in the Crime against Women Cell. In September, 1998 the appellant was called by the Enquiry officer and after some hearing the complaints were withdrawn by the respondent.

6. On 11.01.1999 a mutual agreement was entered into by the appellant and the respondent before the Enquiry officer Shri Vijay Rawat, as the respondent was not interested in leading the matrimonial life with the appellant.

7. The appellant complied with all the terms and conditions of the agreement, but respondent inspite of getting all type of assets, did not come forward to file the mutual divorce under section 13-B (1) of the HMAct but instead threatened the appellant.

8. The appellant saw the respondent roaming around riding on a scooter with a person named Sh. Sujeet Kumar with whom the respondent got herself remarried in February, 2001 without getting legal divorce from her present husband i.e. appellant. Several legal notices dated 27.02.2002, 26.12.2002 and 30.12.2002 were served upon the respondent but neither the respondent nor any family member, had bothered to reply to the said notices.

9. A public notice was also given in Rashtriya Sahara, Hindi Edition on 22.04.2006 but neither the respondent nor any family member cared to reply for the same.

10. That there is no collusion between the parties and they are not cohabiting with each other since 15.08.1998.

11. Despite service by publication, respondent did not appear before the Trial Court and she was proceeded ex parte on 2nd June 2008.

12. It has been contended by the Ld. Counsel for the appellant that he had suffered a severe torture and harassment from the Respondent side and in the compelling circumstances was left with no option but to live separately from his family. The case of the Appellant is squarely covered under the mental cruelty as defined under section 13 (i)(a) of the Act. The Trial Court ought to have