JUDGMENT :

S. Ravindra Bhat, J.

1. The appellant is aggrieved by a judgment and order of the Family Court, Udaipur rejecting the appellant's application under Section 13(1) (ia) and (ib) of the Hindu Marriage Act, 1955 (hereafter "the Act"). The court held that the appellant (hereafter "the husband") was not entitled to divorce as he failed to prove that the respondent (hereafter "the wife") treated him with cruelty or that she had deserted him.

2. The undisputed facts are that the appellant and the respondent were married on 09.02.1989 at Badgaon according to Hindu customs and rites. A girl was born on 11.01.1993 out of wedlock; she was named Ms. Mitu (who is presently about 26 years of age). The marriage of the appellant and the respondent/wife was not successful and hence, the appellant filed for divorce on two counts, i.e. cruelty and that the wife had deserted him.

3. The husband alleged that since the beginning of the marriage, the respondent/wife used to pressurize him to separate from his joint family. The appellant alleged that time and again, the respondent/wife used to quarrel with him and his family members as he did not yield to her demand of leaving his parents' house. He alleged furthermore, that most of the time, the respondent/wife used to live with her parents and that she and her family members did not even inform him and his family about the birth of his daughter, Mitu. The appellant and his family, on hearing the news, went to see the new-born and convinced the respondent/wife to return to her matrimonial home. The respondent/wife then lived with the appellant and his family from 11.04.1993 till 07.07.1993. It is alleged that even during this time, the wife used to pressurize the appellant to move out of his parents' house and live separately. However, he again opposed this as he felt that better care could be given to their daughter if they lived with the whole family. The appellant alleges that the respondent/wife left for her parents' house on 07.07.1993 without any reasonable cause and she continued to live there till May 1995.

4. The appellant also alleged that the respondent/wife did not return when his father met with an accident on 18.04.1995 and she only came back on the death of the appellant's father on 04.05.1995. During this time, the appellant alleges that the respondent/wife did not do any household chores and on top of all of that, she used to beat up their young daughter. Again, after living at her matrimonial home for one and a half months, the respondent/wife left for her parents' house and she continued to live there till April 1998, for almost three years. The respondent/wife however came back on the appellant's insistence when his sister was getting married on 29.04.1998. However, due to ongoing fights regarding various matters, the respondent/wife finally left for her parents' house on 17.05.1998 and did not come back. The main ground on behalf of the appellant in his application for a decree of divorce was that the respondent/wife did not want to live with the family of the appellant and wanted to live separately which came under the definition of cruelty.

5. The respondent/wife even filed a complaint against the appellant and his family members under Sections 406, 498(A), 313, 325 of the Indian Penal Code, 1860. She had alleged in that complaint that she was beaten up and booted out of the house on 17.05.1998. She had alleged that the appellant and his family members had demanded dowry, had constantly beaten her up and mentally and physically tortured her, which made her leave the house of the appellant and his parents. She had alleged to being subjected to torture and harassment, and that the torture had started when a daughter (Mitu) was born to her and in fact, the appellant and his family had even forced her to secure an abortion earlier. Even though the complaint was filed against the appellant and his family members, however, six members of his family were dropped as accused due to