Important Point—Cruelty by husband is a firm ground for divorce.

1. The instant misc. appeal has been filed by the appellant/husband, Roshan Lal, under Section 19 of the Family Court Act, 1984 read with Section 28 of the Hindu Marriage Act, 1955, being aggrieved against the judgment dated 20th of October, 2016 passed by learned Judge, Family Court, Rajsamand in Civil Misc. Case No. 74/2016, whereby the learned court below allowed the application filed by the respondent/wife under Section 13 of the Hindu Marriage Act, 1955 (Act of 1955) and granted divorce decree in favour of respondent/wife, Sushila.

2. Briefly stated, the facts of the case are that an application for grant of divorce against the appellant/husband was filed by the respondent, Sushila, inter-alia, on the ground that she was married with the appellant in the year 1998 and after attaining majority, she started living with the appellant as his wife. According to respondent/wife, she was treated badly by the appellant as no child was born out of their wedlock. The respondent further stated that she was mentally harassed for not having any child. It is also alleged that she was harassed for demand of dowry and ousted her out from the matrimonial home. An FIR was also lodged by her against the appellant and his family members. Thus, the respondent/applicant prayed for dissolving the marriage.

3. The appellant/husband filed his reply and categorically denied the allegations and submitted that the applicant/respondent was never ousted out from the matrimonial home, more so, the appellant was maintaining her well with full responsibility but she herself left the house. One of the relative of the appellant lodged a criminal case against his family members and to put undue pressure upon the appellant, coercive measures were taken and when appellant did not bend upon to the demand of the respondent; and her family members a false case for offence under Section 498A of IPC was registered against him. The appellant also filed an application under Section 9 of the Act of 1955 for restitution of conjugal rights.

4. The learned Judge, Family Court, Rajsamand as per pleadings of the parties framed three issues to determine the dispute. The respondent/applicant wife appeared in the witness box as AW. 1 and the appellant/husband appeared as NAW. 1 to give statement in support of their case.

5. After hearing final arguments, the learned court below vide its judgment dated 22.10.2016 proceeded to allow the application filed by the respondent/wife under Section 13 of the Act of 1955 and granted divorce decree and dismissed the application filed by the appellant u/s. 9 of the Act of 1955 for restitution of conjugal rights. In this misc. appeal the judgment and decree dated 22.10.2016 is under challenge.

6. Learned counsel for the appellant submits that the impugned judgment and decree passed by the learned court below is contrary to law and facts and, therefore, is not sustainable in law. As per arguments of the learned counsel for the appellant, respondent/wife without there being any reasonable cause had deserted the appellant and in order to prove the same the appellant has tendered very reliable and authentic evidence, so also, filed an application under Section 9 of the Act of 1955 for restitution of conjugal rights, but the learned court below did not consider the said ground while deciding the application filed for divorce by the respondent.

7. According to learned counsel for the appellant the finding recorded by the learned Judge, Family Court, so far as finding with regard to Issue No. 1 is concerned, the same is contrary to the evidence adduced by the appellant because the learned court below has put much stress upon the fact that a criminal case for the offence u/s. 498A IPC is pending against the appellant, but mere pendency of criminal case cannot be proved that the appellant had in any manner acted in cruel manner for demand of dowry. On the contrary, appellant wholeheartedly tried to restore his matrimony. He, therefore, argued