The court established that allegations of cruelty must be substantiated with evidence, and the absence of such evidence can lead to the dismissal of divorce petitions.

JUDGMENT :

(HEMANT M.PRACHCHHAK, J.)

1. The present appeal has been filed by the appellant wife under Section 13(1)(i-a) of the Hindu Marriage Act (hereinafter be referred to as “the H.M. Act”) against the judgment and decree dated 09.07.2021 passed by the learned Principal Judge, Family Court, Gandhinagar, (hereinafter be referred to as “the Family Court”) in Family Suit No. 68 of 2019 filed by the husband, whereby the Family Court has dismissed the suit.

2. Brief facts of the present case are in nutshell as under:-

2.1 That the marriage solemnized between the appellant and the respondent on 28.01.2012 at Village : Khodamli, Taluka: Satlasana, District: Mehsana and after marriage they went to Mahabaleshwar and Panchgini. After coming from Mahabaleshwar, the respondent stayed at matrimonial home for a period of 15 days and, thereafter, she went to Mumbai at her parental home as the class for C.S. from Ideal Coaching Institute was going on. In the year 2013, the appellant asked the respondent to come for festival at matrimonial home to which she came at her matrimonial home and after living for 10 to 15 days, she went to her parental home. That in November 2013, the respondent got pregnant and by taking the leave in January 2014, the appellant went to help the respondent for preparation of exam of C.S and thereafter both came to Gandhinagar as there was C.S. exam at Ahmedabad. The respondent delivered a baby girl child namely Vedokti on 23.07.2014 at Visnagar, District: Mehsana and the respondent resided at her parental home till 01.03.2015 and after delivery of Vedokti, the appellant, his parents and uncle went to his in-laws’ house to take respondent and daughter, however, the father of the respondent refused to send both of them, as also on the death of the grandfather of the appellant also.

2.2 When the daughter Vedokti was suffering from Pneumonia, the father of respondent did not inform to the appellant and he admitted Vedokti to the hospital, Satlasan, District: Mehsana and the same was informed through the person of the village of the mother of the appellant. The appellant along with his parents went to Satlasan on 28.02.2015 to see the daughter where he came to know that his daughter discharged on 28.02.2015. The cruelty of the respondent was in such a nature that she had not allowed the appellant and father-in-law and mother-in-law to see the daughter, but the father of the respondent put an condition that if they apologized then only they should be allowed to see the daughter.

2.3 In view of the above, the appellant filed an application before the Mahila Ayog on 10.09.2018 for settlement. However, the respondent had filed Criminal Misc. Application for maintenance before the concerned Court and the concerned Court allowed the application and awarded Rs.15,000/- per month towards maintenance, for which, the appellant has preferred Criminal Revision Application No. 1450 of 2018 before this Court and thereafter the matter was sent to mediation centre on 18.04.2019, but it was not fruitful for the appellant as the respondent was not able to take the decision and it became four years that the respondent deserted the appellant. The appellant filed an application under Section 9 of the H.M. Act for restitution of conjugal rights and the order of conjugal rights passed by the Court below has not been complied with by the respondent and hence, it was not possible to re-unite and, therefore, the appellant had preferred above-mentioned Family Suit for dissolution of marriage. The Family Court has framed the issues at Exhibit 6 which reproduced as under:-

(1) Whether the plaintiff husband proves that he has been treated with cruelty by the respondent wife ?

(2) Whether the plaintiff husband proves that he has been deserted by the respondent wife without any reasonable cause?

(3) Whether the respondent wife proves that she has been deserted by the plaintiff husband without any sufficient reason?

(4) Whether the plaintiff husband is entitle