The main legal point established in the judgment is that allegations of cruelty must be proven, and the petitioner must not have condoned the cruelty before a decree of divorce can be granted on the ground of cruelty.

JUDGMENT :

Appellant assails judgment and decree dated 18th October, 2011, passed by learned Additional District Judge, Fast Track Court, Shimla, in H.M.A. Petition No. 17- S/3 of 2005/04, whereby the petition of respondent/husband for dissolution of marriage on the ground of cruelty has been allowed.

2. The parties hereinafter shall be referred as wife and husband respectively for clarity.

3. Husband filed a petition for dissolution of marriage under Section 13 of the Hindu Marriage Act (for short “the Act”) on the grounds of cruelty and desertion. Learned trial Court allowed the petition on the ground of cruelty. The issue with respect to desertion was decided against the husband. Wife has assailed the impugned judgment and decree on the ground that the same is not sustainable in the eyes of law.

4. The marriage between the parties was solemnized on 8/9 September, 2001 at Dakharantu, Tehsil Jubal, District Shimla, H.P. Parties were Hindus by religion and hence their marriage was solemnized in accordance with Hindu rites and ceremonies. A baby was born to wife on 11.11.2002 out the wedlock. Husband alleged that his mother went to the house of father of wife, where the wife was staying at the time of birth of baby, but the father of the wife did not allow the mother of husband to see her daughter-in-law and newly born baby. The mother of husband was insulted and she had to come back without seeing the newly born child. Thereafter, husband went to see his wife at Solan and enquired as to why his mother was insulted and humiliated, but the husband was also treated in the same manner. Two respectable persons were sent to call the wife to her matrimonial home, but wife refused the offer. Husband again went to the wife, this time he was accompanied by his relatives and on their persuasion, the wife along with her mother and father came to the house of husband. On the very next day, father of wife collected all the belongings of wife and went away. While leaving the place, he instructed the husband to send the wife on 19.12.2002 as there was a “poojan” ( religious ceremony) to be solemnized. Accordingly, husband and wife along with newly born baby visited Solan to join “pooja” ceremony. On the next day of “pooja” ceremony, husband requested the wife to accompany him to matrimonial home, but he faced hostility at the hands of the wife and her parents. False allegations of dowry demand were levelled against him as well as his parents. Husband termed these allegations as frivolous and ridiculous. The parents of the wife also levelled allegations that the wife tried to commit suicide by taking poison. In order to save the marriage of parties, parents of husband again sent some respectable persons, but to no avail.

5. Husband thereafter filed a petition under Section 9 of the Hindu Marriage Act for Restitution of Conjugal rights before the learned Civil Judge (Junior Division), Jubbal. Wife prayed for transfer of said petition and accordingly the same was transferred to the Court of learned Civil Judge (Senior Division), Shimla. Petition under Section 9 of the Act was stated to be pending at the time of filing of petition for dissolution of marriage.

6. In response, wife submitted her reply and denied the allegations as levelled against her and her parents in the petition. It was submitted that in petition under Section 9 of the Act, wife filed her reply and also an application under Section 24 of the Act for maintenance pendente lite, but the petition was withdrawn by husband. As a counter allegation, it was submitted that after one month of marriage wife was pressed hard by husband and his family members to arrange marriage of the sister of husband with her (wife's) brother. She tried to arrange such marriage, but the sister of husband was found to be elder in age. Thereafter, the behaviour and attitude of husband and his family members became hostile towards wife. She was maltreated and threatened. Demands of dowry were made from her. It wa