The irretrievable breakdown of marriage can be a valid ground for divorce under the Hindu Marriage Act, 1955, despite the absence of proven cruelty.

PRAFULLA C. PANT, J.-This appeal, preferred under section 19 ot Family Court Act, 1984, is directed against the judgment and order dated 16.6.2010 passed by Judge, Family Court, Nainital, in Suit No. 128 of 2007 whereby said Court has dismissed the petition of the appellant, moved under section 13 of Hindu Marriage Act, 1955. Heard learned Counsel for the parties and perused the papers on record.

2. Brief facts of the case are that the appellant Dayal Joshi got married to respondent Usha Joshi on 24.4.1992 in Mehat Gaon, District Almora. A female child (named Khusbu) was born out of the wedlock on 31.10.1995. The appellant/husband lives in Udaipur where he is employed with Hindustan Zinc Limited. It appears that after a couple of years of marriage, the parties to matrimony started quarreling and their relations got soured. The• husband/appellant filed a divorce petition in the year 2006 alleging that his wife used to quarrel with him and did not pay respect to his parents. He has further alleged that the respondent (wife) did not even care to see her daughter Khusbu when she was suffering from illness. It is also pleaded by the husband that the wife left her matrimonial home in the year 1996 leaving the young female child with him. He has also pleaded that on several occasions he made efforts to bring back his wife but to no avail. Lastly it is pleaded by the husband that for more than ten years the parties to matrimony are living separately, and now it has become impossible for them to live together, as such the decree of divorce is prayed.

3. The respondent (wife) admitted having married to the appellant on 24.4.1992. It is also admitted to her that the female child (Khusbu) was born out of the wedlock on 31.10.1995. However, she denied rest of the allegations. She pleaded that she paid respect to her in-laws. She alleged that it was the husband who treated her with cruelty. She further pleaded that she was beaten by her husband and that is what made her to leave her husband's house in the year 1996. She has further pleaded that she is ready to live with her husband provided he undertakes not to make demand of dowry and not to harass her. She has also alleged that her husband has illicit relations with one Pushpa Papne.

4. On the basis that pleading of the parties, the Trial Court framed following issues:

(i) Whether, the respondent quarreled with her husband and in-laws as pleaded in paras 2 and 3 of the divorce petition?

(ii) Whether, the respondent, leaving her eight months old female chilq, left her husband's house on 25.6.1996 as pleaded in paras 5 and 6 in the petition?

(iii) Whether, the petitioner treated the respondent with cruelty and committed 'MARPEET' against her, and she was made to leave her husbimd's house on 26.5.1996 as pleaded in para 5 of the written statement?

(iv) Whether, on 10.5.2005 the petitioner (appellant) came to the house of the respondent and cohabited with her as alleged in para 10 of the written statement, if so its effect?

(v) Whether, the petitioner had illicit relations with one Pushpa and out of the said relation a son was born, as alleged in para 2 of the additional plea in the written statement?

(vi) To what relief, if any, the petitioner is entitled?

After recording the evidence and hearing the parties, the Trial Court decided issue No. 1, issue No.2 and issue No.3, issue No.4 in affirmative. No finding was given on issue No.5. Issue No.6 was decided in negative. With these findings, the Trial Court dismissed the divorce petition vide impugned order dated 16.6.2010. Hence this appeal.

5. Learned Counsel for the appellant argued that the Trial Court has erred in law in holding that the respondent has not treated the petitioner with cruelty. It is further contended that the Trial Court has not appreciated the facts and evidence on record correctly in holding that the petitioner has not been deserted by the respondent. Lastly it is also submitted that even otherwise it is a case of irretriev