ORDER

1. The appellant/wife has filed this First Appeal under section 19 of the Family Courts Act 1984 challenging the impugned judgment and decree dated 29.11.2023 passed by the Principal Judge, Family Court, Gwalior in case No.10697/2020 RCSHM, whereby the petition filed by the appellant/wife under section 13 (1) of the Hindu Marriage Act seeking dissolution of marriage between appellant and respondent solemnized on 21.11.2011 has been dismissed.

2. The facts of the case in short are as under :--

(i) The marriage of the appellant/wife and the respondent/ husband was solemnized on 21.11.2011 under the Hindu custom and rituals at Gwalior. Due to the said wedlock, the appellant/wife gave birth to a baby girl namely Bhumi on 30.7.2012. At the time of marriage, the parents of the appellant/wife gave Rs.2,51,000/- cash along with household articles to the parents of the husband but they were not satisfied, hence, she had to live in the house of her matrimonial uncle-in-law . After compromise, she lived in the house of her inlaws at Deen Dayal Nagar from November 2011 to May 2012. Thereafter, again they shifted to the rented house at Adityapuram, Gwalior. According to the appellant/wife, the nature and behaviour of the respondent/husband towards her was very cruel, aggressive and short tempered. He used to torture her physically and mentally by using filthy language. Therefore, he made her life measurable and she has started living in depression. Because of his bad habits and association with the criminal, a criminal case at Crime No.19/2014 was registered against him under section 364A, 307, 147, 148 and 149 of IPC at Police station, Kurwai, District Vidisha. After release on bail, there was no improvement in his nature. Thereafter, another criminal case was registered on 23.5.2017 at Police Station Maharajpura at Crime No.252/2017 under section 302, 307 and 323 of IPC and section 25 and 27 of the Arms Act for murdering his own father late Hanuman Singh Tomar. He has been convicted vide judgment dt.30.9.2019 and languishing in jail till date. In such premises, the appellant/wife filed a petition before the Family Court seeking divorce on the grounds of cruelty and desertion.

(ii) The respondent/husband appeared and filed a written statement admitting most of the facts but denied allegations of cruelty. He has specifically denied any cruelty towards the wife. However, he admitted in a written statement that since May 2012, the appellant/wife has lived with inlaws and residing in a rented house and he has very much love and affection with the wife and daughter and in any circumstances he would not give divorce to her.

(iii) Learned Family Court framed two issues for examination. The appellant/wife examined herself as P.W.1 and exhibited documents. In rebuttal, respondent/husband examined himself as D.W.1 and deposed that up to 23.5.2017 she lived as wife with him and there was no dispute between them. He has never tortured her for demand of dowry.

(iv) After appreciating the evidence came on record, learned Family Judge vide impugned judgment dt.29.11.2023 dismissed the petition holding therein that conviction in a criminal case does not amount to cruelty and the criminal case was registered only on 23.5.2017 and before that there is no evidence that respondent used to commit any cruelty with the wife. Hence, this appeal.

3. The sole issue which is liable to be considered by us in this appeal is as to whether conviction in a criminal case under section 302 of IPC and sentenced to undergo life imprisonment amounts to “mental cruelty” to wife ? In this case to the conviction of the husband in the criminal case, the appellant/wife did not file a petition under section 13 (1) of the Hindu Marriage Act seeking dissolution of marriage.

4. According to the appellant/wife, the nature of the respondent/ husband has been very cruel, aggressive and short-tempered and because of which two criminal cases were registered against him. He commi