[Per : Hon’ble Prafulla C. Pant, J. (Oral)]

This appeal, preferred under Section 19 of the Family Courts Act, 1984, is directed against the judgment and decree dated 21.08.2008, passed by the Judge, Family Court, Haridwar, in Suit No. 57 of 2002 (Old No. 156 of 1997), whereby the petition filed by the petitioner/appellant under Section 13 of the Hindu Marriage Act, 1955, was dismissed.

2. Heard learned counsel for the parties and perused the record.

3. Brief facts of the case giving rise to this appeal are that the petitioner/appellant Rakesh Kumar Bhatia got married to respondent Sudesh on 14.04.1983, at Roorkee, Tehsil and District Haridwar, according to Hindu rites and rituals. There is no issue born out of the wedlock. It is pleaded by the husband (petitioner/appellant) in his petition filed under Section 13 of the Hindu Marriage Act, 1955 for divorce, that in the first night after the marriage the respondent made allegations of impotency against the petitioner/appellant. She went to the extent of making hue and cry and got collected the neighbours in Mohalla Aryanagar, Jwalapur, where she was living with her husband. It is further pleaded by the petitioner/appellant in the petition that on 07.06.1983, the respondent got published defamatory news item ‘KIYA BANK MANAGER HIZARA HAIN’ (Is the Bank Manager impotent?) in a weekly local newspaper titled “APNE LOG”. The petitioner and her family members tried to persuade the respondent to improve her conduct but she threatened to implicate the petitioner in false cases. On 24.10.1983, it appears that some complaint was made from the parental side of the respondent in the police station, but after intervention of the mediators, a compromise was arrived between the parties. It is further alleged by the petitioner that still the respondent continued to treat the petitioner with cruelty. Thereafter, a Suit No. 98 of 1984; Rakesh Kumar Bhatia Vs. Sudesh, was instituted on 31.05.1984 for a decree of divorce, in the court of Civil Judge, Roorkee, which was dismissed in the year 1985, for non-prosecution. The restoration application was also dismissed by the court. (At that point of time there was no family court in District Haridwar). The present petition was filed in the year 1997 (later renumbered as Suit No. 57 of 2002 on being transferred to the family court, Haridwar) on the ground that the respondent has continued to treat the petitioner with cruelty and has deserted him, without any sufficient reason.

4. The respondent contested the petition for divorce and filed her written statement in which she denied having made any allegations of impotency against her husband. She has also denied having got published the defamatory news item against the petitioner/appellant. The respondent has further denied that she ever treated the petitioner with cruelty or deserted him. It is pleaded that she is still living in her husband’s house in Mohalla Aryanagar, Jwalapur, Haridwar. The respondent has raised an objection in the written statement that the present suit is barred under Rule 9 of Order IX of the Code of Civil Procedure, 1908.

5. The trial court, on the basis of the pleadings of the parties, framed following issues :

i) Whether, the respondent treated the petitioner with cruelty?

ii) Whether, the petitioner treated the respondent with cruelty?

iii) Whether, the petitioner is entitled to relief, as claimed?

iv) Whether, the suit is barred by Order IX Rule 9 of the C.P.C. If so, its effect?

v) Whether, the respondent has deserted the petitioner since 15.04.1983, without any sufficient cause, as alleged in para 14 of the plaint?

6. The trial court after recording the evidence of the parties and hearing them, gave the finding that the respondent has not treated the petitioner with cruelty. Rather, it is the petitioner who treated the respondent with cruelty. On Issue No. 4, finding has been given that the suit is barred under Order IX Rule 9 of the Code of Civil Procedure. On Issu