Point of law : 23. (b) Where the ground of petition is ground specified in clause (i) of sub-section (1) of section 13, petitioner has not in any manner been accessory to or connived at or condoned act or acts complained of, or where ground of petition is cruelty petitioner has not in any manner condoned cruelty.

JUDGMENT :

By way of instant appeal, the appellant has assailed judgment and decree dated 25.6.2011, passed by learned District Judge, Una, H.P. in HMA petition No. 31 of 2008, whereby the petition of the appellant was dismissed.

2. Appellant filed petition under Section 13 of the Hindu Marriage Act, 1955 (for short the Act) before the learned District Judge, Una on 12.11.2008. The grounds for divorce were cruelty and desertion. The parties were Hindu by religion and their marriage was stated to have been solemnized in 1982 in accordance with Hindu rites and customs. Five daughters were born out from the said wedlock.

3. Appellant specifically alleged that respondent was a cruel and quarrelsome lady. She started torturing the appellant from the very beginning of marriage. Three specific dates i.e. 1.1.1984, 15.1.1985 and 30.1.1986 were mentioned on which, the appellant was abused with filthy language and ill-treated by respondent. He further alleged that respondent had turned the petitioner, his old mother and brother out of house and made them to live in cattle shed. Allegations were leveled against respondent that she always used to take help of her sister and a brother, who was posted in police.

4. As per appellant his brother Ramesh Chand came back to India on 7.9.2001. Immediately thereafter, respondent managed to harass the appellant, his mother and brother through police machinery. Reports were stated to have been made to the authorities but without any result.

5. Appellant further alleged that respondent involved him in a false case under Section 125 Cr.P.C. Further, the case of appellant was that on 22.9.2001, respondent along with her children left the house of appellant and started living in the house of her parents at Village Amroh, Tehsil Bangana, District Una, H.P.

6. It was also submitted that respondent was working in some hotel. The Respondent was further accused of having manipulated the children towards her and against the appellant.

7. Respondent in her reply challenged the maintainability of the petition. Plea of estoppel was also raised on the ground that the divorce petition by appellant was filed after 28 years of married life, which was just an attempt to harass the respondent and her children by dragging them into unnecessary litigation. On merits, it was stated that the appellant had not come forward to attend the marriage of his daughter. The allegation that the brother of the respondent was an employee of police department was specifically denied. It was alleged in counter that appellant was habitual of dragging the respondent and her children and other family members into false and frivolous litigations. In fact, appellant and his family members had turned out the respondent and her children from the house after maltreating them. Feeling apprehensive as to their safety, the respondent was forced to live in her parents’ house. It was further submitted that appellant throughout neglected the respondent and the children. He did not pay anything towards maintenance to respondent and her children despite orders from the Court.

8. On the pleadings of the parties, learned trial Court framed following issues:-

1. Whether the respondent treated the petitioner with cruelty as alleged? OPP.

2. Whether the respondent deserted the petitioner as alleged? OPP.

3. Whether the petition is not maintainable? OPR.

4. Whether the petitioner is stopped by his act and conduct from filing the instant petition? OPP.

5. Relief.

Issues No. 1 and 2 were answered in negative, whereas issues No. 3 and 4 were answered in affirmative and the petition of the appellant was dismissed.

9. Aggrieved against the dismissal of his petition, the appellant is before this Court by way of present appeal.

10. The impugned judgment and decree has been assailed predominately on the ground that it is result of mis-appreciation of the evidence. It has also been asserted that the marriage has been broken down irretrievably between the parties, as both are residi