Honble ARORA, J. — This appeal is directed against the decree and judgment dated 6.1.93, passed by the Judge, Family Court, Udaipur, by which the learned Judge of the Family Court allowed the application under Section 13 of the Hindu Marriage Act filed by the petitioner-respondent and passed the decree of divorce ordering for the dissolution of the marriage between Prakash Chandra Jain and Smt. Chandrawati Jain.

(2). Prakash Chandra Jain, on 8-12-87, filed an application under Section 13 of the Hindu Marriage Act in the Court of the District Judge, Udaipur, for the dissolution of the marriage and the grant of decree of divorce on the grounds that (i) after the soleminization of the marriage he has been cruelly treated by the wife, she levelled false allegations against him regarding the demand of dowry, got it published in the news papers and circulated it amongst the relatives and the public at large; and (ii) Smt. Chandrawati (the wife) has deserted him for a continuous period of not less than two years immediately preceding the filing of the petition under Section 13 of the Act. The petitioner for divorce, filed by Prakash Chandra Jain, was opposed by Smt. Chandrawati and she filed reply to the petition on 15.12.88. In the reply, she denied all the allegations made in the petition for divorce and further submitted that she never left the house of the petitioner out of her own sweet will but she, alongwith her son, was left by the petitioner himself, on 15.9.85, at the residence of her father and thereafter he did not take any care either of his son or her and she was time and again tortured and the demands for dowry in the shape of wrist watch, gold-chain, Sofa-set, almirah etc. were made by the husband and his family members. After the establishment of the Family Court at Udaipur, the case was transferred to the Court of the learned Judge of the Family Court, Udaipur. On the basis of the pleadings of the parties, the following issues were framed : —

¼1½ D;k izkFkZuki= ds dze la[;k 3 yxk;r 13 esa of.kZr dkj.kksa ls izkFkhZ fookg foPNsn dh fMdzh izkIr djus dk vf/kdkjh gS\

¼2½ i{kdk;u fdl lgk;rk ds ik= gSa\

The petitioner (husband), in support of his case, examined himself as AW 1 and, also, got examined Kanhaiya LaL AW 2, Bheru Lal AW 3, Navneet Lal AW 4, Sudhir AW 5 and Shanti Lal AW 6. The non-petitioner (wife) Smt. Chandrawati, in support of her case, examined herself as NAW 1 and got examined Ram Singh NAW 2, Prakash Jain NAW3, Man Shanker NAW 4 and Smt. Vidhyawati NAW 5. The learned Judge of the Family Court, after trial, by its decree and judgment dated 6.1.93, passed the decree of divorce in favour of petitioner Prakash Chandra and ordered for the dissolution of the marriage between the parties. While decreeing the suit filed by Prakash Chandra Jain, the learned Judge of the Family Court held that the petitioner has been able to prove that he has been treated with cruelty by the wife and he has, also, been deserted by the wife for a continuous period of not less than two years immediately preceding the presentation of the petition. It is against this decree and judgment dated 6.1.93, passed by the learned Judge of the Family Court that the appellant (non-petitioner) has preferred this appeal.

(3). It is contended by the learned counsel for the appellant that neither the cruelty nor desertion has been proved by the petitioner-husband and the learned trial Court was not justified in decreeing the suit on the basis of the cruelty and desertion. According to the learned counsel for the appellant, for proving the case of cruelty it has to be established that the conduct of the non-petitioner, Which is inflicted upon the other party such mental pain and suffering, has made it not possible for that party to live with the other party and the mental Cruelty must be of such a nature that the party cannot reasonably be expected to live together and for proving the desertion the petitioner has to prove (i) the factum of separation; an

Click Here to Read the rest of this document