Cruelty and desertion are valid grounds for divorce under the Hindu Marriage Act, particularly when the marriage is irretrievably broken down.

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 Act”) against the judgment and decree dated 18.04.2022 passed by the learned Principal Judge, Family Court, Morbi, (hereinafter be referred to as “the Family Court”) in Family Suit No. 36 of 2021 filed by the respondent – husband, whereby the Family Court has allowed the suit and dissolved the marriage solemnized between the appellant and respondent.

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

2.1 The appellant and the respondent got married on 08.09.2015 as per the Hindu rites and rituals in Aarya Samaj. After two months of the marriage, the dispute was started between the appellant and respondent and cohabitation, the appellant left the matrimonial home and started living with her parental home.

2.2 Thereafter, the appellant filed Criminal Misc. Application No. 206 of 2016 under the provisions of the Domestic Violence Act against the respondent and his near relatives which is at present pending before the concerned Court at Rajkot and one another complaint under Section 498A of the Indian Penal Code was filed against the respondent and his mother before the concerned Court at Rajkot and during the pendency of the said complaint, the mother-in-law of the appellant was expired and, therefore, the proceeding was abated qua mother-in-law. Before filing an application in 2021, the appellant hardly resided with the respondent at the matrimonial home for a period of two months and since last more than eight years, the appellant was residing at her parental home. Therefore, the respondent – husband had filed Family Suit No.36 of 2021 in the Family Court at Morbi under Section 13(1)(a), (i-a) the Act for dissolution of the marriage solemnized between the appellant and the respondent. The Family Court has framed the issues at Exhibit 6 which reproduced as under:-

(1) Whether the applicant proves that he is the legal husband of the opponent?

(2) Whether the applicant proves that the opponent has without reasonable excuse withdrawn himself from society?

(3) Whether the applicant proves that after solemnization of the marriage the opponent has treated the petitioner with cruelty?

(4) Whether the applicant proves that the opponent has deserted the petitioner for a continuous period of more than two years immediately preceding the presentation of the petition?

(5) What order & decree?

2.3 The appellant – wife has produced the oral as well as documentary evidence before the Family Court which came to be referred in para – 9 of the judgment and decree and the appellant has not produced any documentary evidence and not examined any other witnesses, except she herself examined at Exhibit 29. After considering the evidence oral as well as documentary, the Family Court allowed the application filed by the respondent – husband and dissolved the marriage solemnized between the appellant and the respondent.

3. Being aggrieved by the judgment and decree, the appellant – wife has preferred the present first appeal.

4. Heard Mr.H. J. Karathiya, learned advocate appearing on behalf of the appellant – wife and Mr.Kalrav Patel, learned advocate appearing on behalf of the respondent – husband at length.

5. Mr.Karathiya, learned advocate has submitted that the Family Court has not considered the relevant facts in its proper spirit and not appreciated the evidence led by the appellant. He has submitted that the proceeding initiated by the appellant against the respondent and his family members are yet to be decided by the concerned Court and, therefore, at present the same is required to be considered in favour of the appellant. He has submitted that the Family Court has failed to appreciate aforesaid facts in its proper perspective while passing the judgment and decree. He has submitted that while passing the judgment and decree of dissolution of marriage, the Family Cour