The court held that the wife had established a case for divorce on the ground of cruelty.

This appeal, preferred under section 28 of Hindu Marriage Act, 1955, is directed against the judgment and order dated 28.03.2012 passed by District Judge, Tehri Garhwal, in Original Suit No. 31 of 2009, whereby said court has allowed the petition filed by the wife (present respondent) under section 13 of Hindu Marriage Act, 1955, and dissolved the marriage between the parties.

2. Heard learned counsel for the appellant, learned counsel for the respondent, and perused the lower court record.

3. Brief facts, of the case, are that appellant (defendant) Sobat Singh Sajwan got married to respondent (plaintiff) Kaushalaya Devi on 28.05.1985, in village Kaleth within the limits of district of Tehri Garhwal, following Hindu Rites. Three children (two daughters and one son) born out of the wed-lock. The wife (present respondent) filed petition under section 13 of Hindu Marriage Act, 1955, before District Judge, Tehri Garhwal, seeking decree of divorce against the appellant (defendant), on the ground of cruelty. (In District Tehri Garhwal there is no Family Court established so far). It is pleaded by the wife before the trial court against her husband that he was a drunkard and a gambler. It is further pleaded in the petition that her husband used to beat her in a drunken state and also misbehaved with children and treated them with cruelty due to which it was difficult for her, and her children to live with her husband, as such she came from Delhi (where the couple used to live) to Dehradun and started living in a rented accommodation with the help of her parents.

4. The appellant (defendant) contested the suit and filed his written statement. He admitted that he got married to Kaushalaya Devi on 28.05.1985, and the fact that three children namely Sonia, Ambika (two daughters) and Naveen (son) were born out of the wed-lock. But the allegations of cruelty were denied by the husband. He further pleaded that neither he treated his wife with cruelty, nor his children. It is also stated in the written statement by the husband that without any sufficient cause his wife left him and deprived him of company of his children.

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

(i) Whether the petitioner was subjected to cruel behaviour by the respondent? If so, its effect?

(ii) Whether the petitioner is entitled to relief sought on the allegations made in the petition?

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

6. From the side of the petitioner (wife) under Order 18, Rule 4 she filed her own affidavit as examination-in-chief and also of her son Naveen. Petitioner Kaushalaya Devi was cross-examined as P.W.1 and her son Naveen was cross-examined as P.W.2. The third witness Sonia, P.W.3 (daughter of couple) though filed her examination-in-chief in the form of affidavit but she was discharged as she was not produced for cross-examination. From the side of the husband (appellant) he filed his own affidavit and that of two witnesses Narendra Singh Sajwan (D.W.2) and Prem Singh Bisht (D.W.3) as their examination in chief but none of the three witnesses turned up for cross-examination, for the reasons best known to the appellant (husband) as such the evidence adduced on behalf of the petitioner Kaushalaya Devi (present respondent) remained unrebutted.

7. In the present case though as many as three witnesses have filed their affidavits on behalf of the defendant (husband) under Order 18 Rule 4 of Code of Civil Procedure, 1908, as their examination-in-chief, but none of them were produced for cross-examination for the reasons best known to him. The trial court has rightly not given weight to such statements of the witnesses. Examination of a witness means and includes examination- in-chief, and his cross-examination and his re-examination if any, as provided in section 137 of Indian Evidence Act, 1872. No examination of a witness is complete if the adverse party is not allowed to cross-examine hi