False criminal complaints can constitute cruelty, justifying divorce under the Hindu Marriage Act.

JUDGMENT :

HEMANT M. PRACHCHHAK, J.

1. Present First Appeal is filed under Section 96 of the Civil Procedure Code by the appellant wife against the judgment and decree dated 13.10.2022 passed by the learned Principal Judge, Family Court Mahesana (hereinafter referred to as the "Family Court") in Family Suit No. 38 of 2021, whereby the marriage solemnized between present appellant and defendant was dissolved with effect from the date of judgement.

2. The brief facts giving rise to present appeal are that the marriage of the appellant was solemnized with opponent on 10.12.2019 according to Hindu rights and rituals at Patan. After marriage the appellant and opponent became legally husband and wife.

2.1 After marriage, the appellant and opponent were residing in their matrimonial home at Jotana. From the said wedlock, the appellant gave birth to two female children named "Foram" and "Ishani". The appellant was doing job at Kadi and for the said reason she daily travelled from Jotana to Kadi.

2.2 Thereafter, somewhere in 2010 the appellant and opponent had decided to buy a home at Mahesana, and subsequently a bunglow was purchased at "Shukan Bunglows" at Mahesana. Thereafter, in 2012 both the parties shifted to Mahesana and started residing together in new bunglow namely "Shukan Bunglows" at Mahesana. For the said purpose, the family of the appellant had borrowed a sum of Rs.10 lakhs from the father of the opponent. The said amount had been returned to the opponent subject to the family settlement at Ex.28 and Ex.29 of the record dated 29.01.2016.

2.3 Thereafter, the appellant came to know that her husband had given an advertisement to sell the house in a newspaper on 3.4.2016 and for the said reason, an altercation took place between the husband and wife. Therefore, criminal proceedings was initiated by the appellant under Section 498A of I.P.C. against the opponent and his family members and the same was registered as Criminal Case No. 9762 of 2016. The same was tried and ultimately, the opponent and his family members were acquitted of the charges levelled against them. Since then the husband and wife were residing separately.

2.4 In that view of the matter, the husband had filed petition for dissolution of the marriage under Section 13 of the Hindu Marriage Act, 1955 before the Family Court, Mahesana being Family Suit No. 38 of 2021. The Family Court, after hearing both the parties framed issues at Exh. 17, which read as under:-

1. Whether the petitioner proves that he is legally wedded husband of the opponent?

2. Whether the petitioner proves that after the solemnization of the marriage, the opponent treated petitioner with cruelty is alleged in the petition?

3. Whether the petitioner is entitled to get divorce on the ground of cruelty?

4. Whether the petitioner proves that, the opponent has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of this petition?

5. Whether the petitioner is entitled to get relief, as prayed, if yes, what order and decree?

2.5 The Family Court has given answer of four issues in affirmative and so far as fifth issue is concerned, the Family Court has passed the impugned judgment and decree. The Family Court has also referred and relied upon the oral as well documentary evidence produced by the appellant and the opponent side in paragraph No.6 which read as under:-

"Petitioner has submitted following documentary as well as oral evidence in his support:

Opponent has submitted following evidence in her support: