A wife cannot be granted divorce on the ground of cruelty if her own conduct amounted to cruelty.

Sarojnei Saksena, J.

1. Wife has filed this appeal under Section 28 of the Hindu Marriage Act (for short the Act) against the judgment and decree of the matrimonial Court dated 28.4.1987, whereby her divorce petition filed under Section 13 of the Act on the ground of cruelty was dismissed.

2. Uncontroverted facts of the case are that the parties were married 8 years before the date of filing of divorce petition (25.7.1986) as per Hindu rites. After three years of the marriage, she gave birth to a female child. Since 1981 parties are living separately, female child is living with the appellant-wife. In the divorce petition, wife avers that after the birth of daughter, respondents behaviour became quite indifferent and cruel towards her. On this count alone that she has not given birth to a son, respondent started beating her off and on. She tried to pacify him, but to no effect. Ultimately, 1-1/2 years before filing of the divorce petition, after giving her beating respondent turned her out of the matrimonial home in wearing apparel along with minor daughter. She went to her parental home. Thereafter, her father convened a panchayat consisting of Gopal Singh Lambardar and two other respectables for persuading the respondent to rehabilitate her. In consequence of such panchayat, appellant went to her matrimonial home along with her daughter, but within 4/5 months, she was again beaten and was turned out of nuptial home by the husband. Since then she is living in her parental home. Thereafter, also twice panchayats were convened for rehabilitation, but the respondent refused to rehabilitate her. Thus, according to her, on account of desertion and cruelty, she is entitled to a decree of divorce.

3. Respondent countenanced all the allegations of cruelty made in the divorce petition. He averred that she on her own left the matrimonial home on the pretext of meeting her mother, but thereafter, she never came back. He is still ready and willing to keep her in the marital home. He denied that he beat or treated her cruelty on the ground that she gave birth to a female child. He pleaded that he is God fearing person. He has never shown any resentment or unhappiness over the birth of a female Child. He was maintaining petitioner-appellant with love and affection, but she left the matrimonial roof on her own. He also denied that the appellant and her parents convened panchayats for her rehabilitation or she declined. When his father died, he sent message to her to come back, but she declined. Again he sent two person to call her to attend the Bhog ceremony of his late father. Even at that time, she did not come. His mother has died. He is living all alone in his house. Assailing the prayer of divorce, he alleged that the petitioner-wife cannot take advantage of her own wrong and hence, petition is liable to be dismissed.

4. On these pleadings, issues were framed. Each party examined two witnesses more apart from themselves.

5. While deciding issues 1 and 2, the matrimonial Court minutely scanned the evidence adduced by the parties and came to the conclusion that wife has failed to prove that her husband treated her with cruelty and turned her out of the matrimonial home on the count that she has given birth to a female child. Resultantly, the divorce petition was dismissed.

6. Appellants learned counsel contended that the Lower Court has not minutely scanned the evidence of the parties. She was turned out of the matrimonial home in 1981. She waited for 5 years for her rehabilitation and only in 1986, when all her hopes of rehabilitation went in thin air, she was forced to file the divorce petition. There was no reason to disbelieve her oath that she was beaten by the husband and was treated cruelly by him on the court that she has not given birth to a son. There was no other reason of estrangement between the two. On this count, she was maltreated, beaten, and was finally turned out of matrimonial home along with minor child. He a