The legal point established is the interpretation and application of 'cruelty' and 'desertion' as grounds for divorce under the Hindu Marriage Act, Section 13.

Heard Sri Rakesh Thapliyal counsel for the appellant and Sri Sarad Sharma, counsel for the respondent.

2. Present appeal has been filed against the judgment and decree dated 31-10-2006 passed by the District Judge, Tehri Garhwal in O.S. No. 14 of 2004, thereby decreeing the petition of the petitioner-respondent for divorce.

3. Briefly stated Sri Satendra Dutt respondent has filed a petition under section 13 of the Hindu Marriage Act, before the District Judge, Tehri Garhwal for divorce against the appellant-defendant Smt. Pramod Bijalwan with the allegations that the parties are Hindu and they were married according to the Hindu rites on 23-11-1984. The petitioner husband was serving in Army. Two issues were born from their wedlock. According to the petitioner he constructed a house at Dehradun in the year 2002 in the name of his wife. There after the appellant abandoned the relationship of husband and wife and the petitioner husband started living separately.

4. The petitioner has alleged that in August 2003, he came to Dehradun on leave but the appellant did not allow him to enter inside the house. When he entered in the house forcefully, the appellant did not provide him tea and meal and misbehaved him. He was locked in his room. On the subsequent occasions also, when he came to his house he was maltreated by the appellant due to which he had to stay in hotel. Thus the petitioner has prayed for a decree of divorce on the ground of cruelty.

5. The appellant filed her written statement admitting her marriage with the petitioner. However, rest of the allegations were denied. She has stated that the house at Dehradun was constructed by her from her savings and loaning from mother and friends.

6. On the basis of the pleadings of the parties following issues were framed:

1. Whether the petitioner is entitled to get a decree of divorce on the ground given in the petition?

2. To what relief, if any, is the petitioner entitled?

7. The petitioner examined himself as P.W.1 and also filed 11 papers per list 21C/ 1. Smt. Pramod Bijalwan examined herself as D.W.1 and Anil Badoni as D.W.2 and filed 6 papers per list 27C.

8. On the basis of the evidence adduced by the parties the trial Court has held that the wife committed cruelty with the petitioner husband and husband is entitled to a decree of divorce and accordingly allowed the petition of the husband by the impugned judgment and order. Feeling against the present appeal has been filed by the appellant wife.

9. Petition for divorce can be filed under section 13 of the Hindu Marriage Act on the following grounds:

13. Divorce-( 1) Any marriage solemnized, whether before or after the commencement of the Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party-

(i) has, after the solemnization of the marriage had voluntary sexual intercourse with any person other than his or her spouse; or

(ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or

(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or

Explanation.- In this sub-section, the expression "desertion" means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the willful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expression shall be construed accordingly.

10. Two grounds have been claimed for a decree of divorce. Firstly that the Opposite party wife has treated the petitioner with cruelty and secondly that the wife has deserted the husband for more than two years. The relevant paragraph of the plaint is quoted as under:

11. To prove his allegations against the appellant the respondent examined himself as P.W.1 and reiterated the plaint allegations in his affidavi