Non-compliance with a decree of restitution of conjugal rights can constitute grounds for divorce due to desertion, in conjunction with established patterns of cruelty.

JUDGMENT :

ANAND SHARMA, J.

1. By way of filling the instant appeal under Section 19 of the FAMILY COURTS ACT 1984, the Appellant-wife has challenged the judgment and decree dated 14.11.2018 passed by Additional District and Sessions Judge, Chomu, Dist. Jaipur, whereby decree of divorce has been granted in favour of the respondent-husband by allowing his application under Section 13 of the HINDU MARRIAGE ACT , 1955 (for short ‘the Act of 1955’).

2. Brief facts giving rise to the instant appeal are that respondent-husband filed an application under Section 13 of the Act of 1955, mentioning therein that marriage between the appellant-wife and respondent-husband took place on 16.02.2010 in accordance with Hindu rites and ceremony. However, the attitude of appellant-wife towards the marriage was totally indifferent right from the day one, she refused to cohabit with the respondent-husband and also refused to consummate the marriage. She revealed that she performed the marriage only on account of insistence of her parents. It was further contended in the application by the respondent-husband that the appellant-wife remained at matrimonial home only for a short period of hardly three months. Thereafter, she left the matrimonial home and resided with her parents. During the period she remained at matrimonial home, her behaviour towards the respondent- husband was totally cruel and she always misbehaved with him. She rudely refused to co-habit with him and used to threaten him that in case he would touch her then she would commit suicide.

3. It was also contended in the application by respondent- husband that the appellant-wife was a lady of pugnacious and combative nature and she used to quarrel with the respondent- husband. She has caused physical as well as mental trauma to the appellant-wife and has also misbehaved with the family members. She along with her family members insisted for purchasing a separate house in her name. She threatened to send the respondent-husband to jail. It was further contended by the respondent-husband that the appellant-wife has never fulfilled the obligations of married life and on account of her consistent rude and cruel behaviour mental cruelty has been caused to the respondent-husband. He stated that he tried to reconcile with the appellant-wife, yet she did not come back to the matrimonial home. Hence, he prayed for granting decree of divorce on the ground of cruelty and desertion.

4. The appellant-wife replied to the application by categorically denying all the allegations of committing cruelty or even deserting the husband. Rather she levelled counter allegation against the respondent-husband, stating therein that she was subjected to cruelty by the respondent-husband for demand of dowry, hence, she also lodged an FIR under Sections 498A and 406 of IPC against the respondent-husband and also lodged a case under Section 12 of The Protection of Women from Domestic Violence Act 2005. She also stated that the respondent has also obtained an ex-parte decree under Section 9 of the Act of 1955 for restitution of conjugal rights. She prayed for rejecting the application filed by the respondent-husband.

5. On the basis of pleadings of the parties, as many as three issues were framed, out of which Issue No. 1 was related to cruelty whereas Issue No.2 was in respect of unwarranted desertion by the wife.

6. The respondent-husband produced himself as AW-1 in order to support pleadings of his application and also got examined Mahaveer Prasad Saini as AW-2, Hanuman Prasad as AW-3