In a marriage that has broken down irretrievably, the court may grant a divorce on the grounds of cruelty and desertion, even if there has been no physical violence or adultery.

Tej Shanker, J.

1. This appeal Under Section 28 of the Hindu Marriage Act has been preferred by Smt. Rekhaben Manubhai Vajirani against the order dated 22.9.1994 passed by Smt. Manjusha Namjoshi, Seventh Additional Judge to the Court of District Judge, Gwalior, whereby the petition of the respondent Under Section 13 for dissolution of the marriage has been allowed.

2. Briefly narrated the facts are that admittedly the parties were married on 7.11.1979 at Ahmedabad according to Hindu rites and after the marriage they reside at husband's place. Out of this union a son was also born who later on expired. The petitioner alleged that one month from the marriage the present appellant showed her inclination to go to her parents' house and she was sent. The present appellant as well as members of parental family tried to persuade the petitioner to settle at Gwalior but he did not agree. It annoyed the present appellant as well as members of parental family. When she returned to Ahmedabad her behaviour was changed. She avoided day-to-day work and insulted petitioner's parents and sister. He, therefore, separated from his parents in accordance of the wishes of his wife and started living separately at Bapunagar. The attitude of the wife did not improve even thereafter. After two months of death of the child, wife's mother went to Bapunagar and she went with her mother to Gwalior without intimating him behind his back alongwith her clothes, ornaments at the instigation of her mother. However, after long persuation he succeeded in bringing her to Ahmedabad to have a happy married life but in vain. In 1985 she left him permanently with bag and baggages and went to Gwalior A notice was given which was wrdngly replied. A petition Under Section 125 Cr.P.C. was also moved by the wife and alimony @ Rs. 300/- per month was fixed which he was paying regularly. He filed a suit for restitution of conjugal rights Under Section 9 of the Hindu Marriage Act which was compromised. Under the terms of the parties had agreed to live together and the wife to accompany the petitioner at Railway Station, Gwalior. The petitioner went to Railway Station and waited for her but she did not turn up. Hence he had to go Ahmedabad alone. After the decree for restitution of conjugal rights there had been no cohabitation between the parties and hence he was also entitled to divorce. The case was contested by the respondent who denied all the allegations. The fact of passing of the decree for restitution of conjugal rights has been admitted. She, however, asserted that she herself went to Railway Station but her husband was not there and she had to go back. The learned Trial Court framed as many as 6 issues on the pleadings of the parties and after taking into consideration the entire material on record passed decree for divorce on 22.9.1994. Hence this appeal.

3. The learned Counsel for the appellant contended that the learned Trial Court framed an issue relating to the allegation of desertion and cruelty as such. No issue on the plea of non-cohabitation was formulated. The material on record does not justify the finding of cruelty and desertion as claimed by the petitioner's husband.

4. Learned Counsel for the respondent, on the other hand, contended that it is one of those cases where parties are living separately since pretty time i.e., since 1986. The marriage in reality has become dead marriage. The wife had herself deserted him out of her own accord. There has been no cohabitation after passing of the decree for restitution of conjugal rights. Respondent went to Ahmedabad even after passing of the decree but she did not go to her husband's residence. Thus, all goes to show that it was she who had neglected the respondent. The appellant also treated him with cruelty including mental cruelty. The findings of the learned Trial Court are correct. There is no use of continuing the marriage under these circumstances. He referred to, (1995)2 Supreme Court Cases 7, I