Honble GOYAL, J.–Both these appeals have been filed by the husband and wife respectively challenging the judgment and decree dated 18.8.1998 passed by learned Judge, Family Court, Ajmer in matrimonial case No. 277/97, Rakesh Sharma vs. Surbhi Sharma. The learned Judge while allowing the application of the husband passed the decree of judicial separation instead of decree of divorce in favour of the husband and against the wife.

(2). The applicant husband Rakesh Sharma has filed appeal No. 281/2000 with a prayer that a decree of divorce instead of judicial separation should be passed in his favour while the wife Smt. Surbhi Sharma has challenged by filing appeal No. 411/2000, all the findings alongwith the above judgment and decree. We shall refer the parties in this judgment as husband and wife.

(3). The facts in brief are that the applicant Rakesh Sharma was married to Smt. Surbhi Sharma on 11.2.1989 at Ajmer according to Hundu Rites and Rituals. A son was born out of this wedlock on 23.7.1992. The husband filed an application for divorce on 24.9.197 in the Family Court, Ajmer under Sec. 13 (1), (ia) and (ib) of the hindu Marriage Act 1955 (for short `the Act of 1955) on the grounds of cruelty and desertion. It is pleaded that wife is living separately at Ajmer since 27.11.1994 and thus she has deser- ted her husband Rakesh Sharma without any reasonable cause and without his consent. The husband tried many a times to bring her back and also served notices in this regard on 21.5.94 and 23.6.94 but all in vain. Thus, the wife deserted him for a continuous period of more than 2 years, preceding the presentation of the application.

(4). It is further pleaded that the wife instituted an application for judicial separation under Sec. 10 of the Act of 1955 against him making false allegations of ill treatment, demand of dowry from time to time and use of abusive language by the husband and his parents. Some of the details of the averments regarding these allegations in the application under Sec. 10 of the Act are mentioned in Para 4 of this application under Sec. 13 of the Act. The husband Rakesh Sharma submitted his reply to the application under Sec. 10 of the act, denying all the allegations. Thereafter, the wife got the above application under sec. 10 of the act, dismissed on 11.12.1995.

(5). It is also pleaded by the husband that he filed an application for the custody of his minor son in the Family Court, Ajmer and in reply to this application, his wife Smt. Surbhi Sharma reiterated and raised some further false allegations about law family background,t he character and conduct of the husband Rakesh Sharma. The allegations in nut shell were that her husband and his father used to consume liquor & smoke jointly, they often used filthy and abusing language, husband is suffering from bronchitis and on account of that, her minor son had also got infection, the mother of the husband is also suffering from mental disorder and other ailments and thus, it would not be in the interest of child to give his custody to the husband, that the husband was guilty of adulterous conduct and one such incident dated 11.11.95 has been specifically mentioned.

(6). It is further stated that she made certain false complaints against him to his office his seniors and its caused mental tension to him and thus the wife has committed various acts of cruelty.

(7). The wife Smt. Surbhi Sharma contested this application by filing reply on 4.4.98. She denied all the allegation made against her and further pleaded that the averments made in her application under Sec. 10 of the act of 1955 and in reply to the application of the husband for guardianship of minor son were and are true. Regarding dismissal of the application under Sec. 10 of the Act, 1955, it is stated that her husband assured her to live together, therefore, that application was got dismissed but, there was no change in the behaviour of the husband and he continued his cruel behaviour towards her. It

Click Here to Read the rest of this document