A.S. Supehia, J.

1. The applicant-husband has filed Civil Application No. 4518 of 2017 in the main first appeal seeking a relief to grant decree of divorce to the applicant-husband under Section 13(1)(i), (i-a) and (i-b) of the Hindu Marriage Act, 1955 ('the Act' for short). The first appeal is filed by the appellant-wife challenging the judgement and order dated 30.01.2012, passed by Family Court, Ahmedabad, wherein and whereby the petition filed by the petitioner, the appellant herein, for dissolution of marriage was dismissed, which is under challenge in the present first appeal.

2. By order dated 20.03.2012 this Court admitted the aforesaid first appeal.

3. The brief facts culled out from the record of the appeal are that:

3.1 The marriage between the parties was solemnized on 03.12.1995 at Vadodara according to Hindu rites and rituals and after marriage, they lived together for some time at Ahmedabad and from the wedlock, two children, namely, Chinmay and Viha were born. The allegations are that the appellant-wife was mentally tortured by the respondent-husband for some or other reasons from 1996 to 2009. The appellant was also physically attacked and main reason for it was dowry and, therefore, on 03.01.2009, the appellant left the house of the respondent at Ahmedabad and started residing at Vadodara along with the children.

3.2 The appellant also lodged an F.I.R. for the offences punishable under Sections 498A, 323, 506(2) of the Indian Penal Code, 1860 and Section 7 of the Dowry Prohibition Act at Karelibaug Police Station, Vadodara, which was subsequently transferred to Satellite Police Station, Vadodara, on 10.01.2009. It is alleged that the cause behind the cruel behaviour of the respondent-husband was the ill-advice of his elder brother-Mehul and his wife-Yogini.

3.3 On 19.03.2009 the appellant returned to Ahmedabad at her residence and found that the flat, which is owned and purchased by her out of her own resources and for which she has also obtained loan from the bank, has been in illegal occupation of the respondent's cousin sister's daughter and son-in-law and, therefore, another F.I.R. was lodged by the appellant. Ultimately, the appellant filed the divorce petition being Family Suit No. 601 of 2009 before Family Court at Ahmedabad under Section 13A of the Act, for dissolution of the marriage on the ground of cruelty meted out by the respondent-husband to the appellant-wife.

3.4 Upon service of the notice of the aforesaid petition, the respondent-husband appeared and filed a detailed reply/written statement below Exh. 10 wherein the allegations of cruelty have been denied. It is the case of the respondent-husband that the appellant has voluntarily deserted and pressurized him to give consent for divorce. It is submitted that the appellant forcibly took the possession of a three-bed room flat situated at Ahmedabad. After denying all the averments made and contentions raised by the appellant in the aforesaid petition, the respondent narrated the details of the misdeeds and cruelty meted out by the appellant to the respondent-husband and the illicit relations with his cousin. Ultimately, in the reply/written statement the respondent prayed that considering the facts of the case, the petition of the appellant may be dismissed.

3.5 After considering the pleadings of the parties, Family Court framed the issues below Exh. 16. Thereafter both the parties led their evidence. The evidence of the respondent is recorded below Exh. 20 wherein she stated that as the respondent used to give mental torture and physical cruelty, she started residing separately w.e.f. 03.01.2009. She has further alleged that the respondent is impotent. In the cross-examination the appellant admitted her illicit relation with Rashmin (cousin brother of the respondent) and has admitted that children born out of the wedlock are not born due to conjugal relation with the respondent-husband. She admitted lodging of two FIRs and other proceedings