1. Heard learned counsel for the appellant.

2. Marriage between the appellant and the respondent as per Hindu custom was solemnized on 20.5.1996.

3. The respondent filed a petition for divorce decree being granted on 23.3.2011 alleging mental cruelty, adultery and desertion against the appellant.

4. Case pleaded by the respondent was that after the marriage was solemnized in the year 1996 the appellant stayed with her parents for five years because she was pursuing her studies. During this period of five years the appellant developed illicit relationship with one Anil Vyas (impleaded as respondent no. 2 in the divorce petition) through whom she conceived but underwent an abortion. This fact respondent claims came to his knowledge after the appellant joined consortium with him. Pleading further that after the appellant joined him in their matrimonial house her attitude was hostile towards his family members and she would constantly threaten to hang herself, a threat to intimidate him and his family members. A child named Rahul born to the appellant was not conceived through him because at the alleged time of conception he was not mentally fit and was undergoing a stage of depression. The child was actually conceived through Anil Vyas. That the appellant lodged false and frivolous criminal cases against the respondent. That the appellant and her father practiced ritual (jadu-tona) on him and his family members. That since 3.11.2007 the appellant was living in adultery with Anil Vyas.

5. In the written statement filed the appellant denied the allegations made against her and pleaded dowry demand in sum of Rs. 25,000/- as the cause of the discord with additional cause, as pleaded in paragraph 3 of the written statement, “that the respondent had kept another woman in his house through whom a child was born”.

6. On the pleadings of the parties three issues were settled by the learned Judge, Family Court. The first was whether the appellant treated the respondent with cruelty. The second was whether the appellant left the matrimonial house without a justifiable cause. The third was whether the appellant was living in adultery with Anil Vyas (respondent No.2).

7. The respondent examined himself as AW1, his father as AW2, Lokesh as AW3 and one Bhajja as AW4. The appellant besides examining herself as NAW1 examined her father as NAW2, Nandlal as NAW3 and one Ramesh as NAW4.

8. Suffice it to state as is expected in matrimonial cases where oral evidence is led, the appellant’s witnesses supported her version, the respondent’s witnesses supported his version.

9. The appellant could not prove her allegation that the respondent had started living with another woman in his house and a child was born to them. Similarly, the respondent could not prove against the appellant that she was having illicit relationship with Anil Vyas (respondent No.2) and had undergone an abortion when she conceived through him, as also that the child named Rahul was actually born from the relationship of Anil Vyas.

10. From the fact that the appellant had lodged FIR for offences punishable under Section 498A read with Section 406 IPC the learned Judge, Family Court concluded that this act constituted the act of cruelty. Thus, issue No.1 was decided against the appellant and so was issue No.2. Issue No.3 pertaining to the adultery was decided against the respondent and in favour of the appellant.

11. We agree with the submission advanced by learned counsel for the appellant that merely because the appellant lodged complaint against the respondent for offences punishable under Section 498A read with Section 406 IPC it could not be said that she had acted with cruelty, more so for the reason, by the time the impugned decision was pronounced, the trial in said FIR was on.

12. It may also be correct when the appellant urges that upon respondent not being able to prove allegations of adultery she could not be expected to live with him and thus had a good cause to withdraw