The petitioner for her own wrong cannot be granted relief of divorce against the respondent.

This appeal, preferred under Section 19 of the Family Courts Act, 1984 read with Section 28 of the Hindu Marriage Act, 1955, is directed against the judgment and order dated 31.03.2008, passed by the Judge, Family Court, Pauri Garhwal, in Matrimonial Case No. 12 of 2006 (filed under Section 13 of the Hindu Marriage Act, 1955), and Misc. Case No. 39 of 2005 (filed under Section 125 of the Code of Criminal Procedure, 1973), whereby both the petitions moved by the appellant (wife), were dismissed. In this appeal the appellant has challenged only the decree passed in Matrimonial Case No. 12 of 2006.

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

3. Brief facts of the case giving rise to this appeal are that the appellant Vimla got married to respondent Yashpal on 23.11.1989, in accordance with Hindu rites, in Durgapur, Kotdwar, District Pauri Garhwal. After her marriage, appellant started living with her husband Yashpal (respondent) in his ancestral house in Tigari, Manakwala, Tehsil Nagina, District Bijnor (U.P.). After sometime the respondent (husband) got a job as a teacher in Saraswati Sishu Mandir, Dhampur. He started living in Dhampur on a rental accommodation with his wife Vimla (appellant). Two daughters namely Meenu and Nidhi were born out of the wedlock. It is alleged by the petitioner (appellant) in her divorce petition that after her marriage with the respondent she came to know that the respondent had two children namely Monika and Gaurav, through his predeceased wife. It is pleaded by her (petitioner / appellant) that respondent after some years of marriage, started treating the petitioner with cruelty. He used to drink with his friends who used to tease the petitioner, in his presence. On protesting, the respondent asked the petitioner to do what he says. It is further pleaded that on 06.11.2005, respondent got beaten the petitioner, with the help of his relatives and ousted her from the matrimonial home. As such, divorce petition (Matrimonial Case No. 12 of 2006) was filed by the wife (appellant / petitioner) on the ground of cruelty and desertion. We do not want to mention the facts relating to the petition filed under Section 125 of the Cr.P.C., as the appellant has not challenged that part of the impugned order, in this appeal.

4. The respondent contested the petition and filed his written statement. He did not deny having married to the appellant / petitioner, nor did he deny that two daughters were born from the wedlock. It is also not denied that the respondent had already two children through his first (predeceased) wife, at the time of marriage with the appellant. However, rest of the allegations are denied. It is stated in the written statement that the petitioner / appellant had herself left the house of the respondent. It is further stated by him that he never treated the petitioner with cruelty. Rather, it is alleged that the petitioner has left the respondent's house with one Madan Singh Rawat, landlord of the house in which the parties used to live.

5. The trial court, on the basis of the pleadings of the parties, framed following three issues: 4

i) Whether, the respondent Yashpal has treated the petitioner Smt. Vimla with physical and mental cruelty? If so, its effect?

ii) Whether, respondent Yashpal has deserted his wife Smt. Vimla?

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

6. After recording the evidence of the parties and hearing them, the trial court dismissed the suit for divorce vide impugned order dated 31.03.2008, with the finding that neither the respondent has treated the petitioner with cruelty, nor has he deserted the petitioner.

7. Mr. Pramod Bailwal, learned counsel for the appellant argued that the trial court has erred in appreciating the evidence adduced by the parties in coming to the conclusion that the respondent has not treated the petitioner with cruelty. In this connection, it is pointed out that P.W. 1 Vimla Chauhan has proved the al