Pramod Kumar Srivastava, J.—Heard learned counsel for the parties and perused the records. During arguments it is found that on the basis of available records, matter may be decided at this stage. Therefore it is accordingly decided.

2. Original suit no. 214/2008 (Manish Gautam v. Smt. Shikha Gautam) was filed for the relief of divorce under Section 13 of Hindu Marriage Act. The plaint case in brief was that after the marriage of parties on 31.01.2005, opposite party Smt. Shikha came in house of petitioner, but she was not satisfied with this marriage and her behaviour was bad. She had been abusing and humiliating the petitioner and his family members. She stayed only for one week and left house of the petitioner. Then again she visited the house of the petitioner in February, 2005 and left his house in same month. During this period, she has been misbehaving, threatening and treating the petitioner and his family members with cruelty. In spite of repeated request of the petitioner, the opposite party-wife had refused to live with him and even filed criminal case for offences of cruelty for demand of dowry and unnatural lust against the petitioner for offences punishable u/ss 498A, 323, 504, 506, 377 IPC and 3/4 D.P. Act. Due to cruel behaviour and wild allegation of opposite party-wife, the petitioner had suffered unbearable mental trouble and agony. Because of criminal case instituted by opposite party-wife, the petitioner and his parents were arrested and detained in jail. Due to this they were defamed. O.P.-wife left petitioner’s house without any sufficient reason. Therefore, petitioner had filed petition for divorce on the ground of cruelty and desertion.

3. In written-statement filed in trial court, O.P.-Smt. Shikha had admitted her marriage with petitioner and pleaded that petitioner and his family members had been treating her with physical and mental cruelty. The petitioner had tortured her by unnatural intercourse, by beating her and by demanding dowry. The petitioner had evicted her from his house in the year 2008 and had filed suit for divorce on incorrect facts; therefore, petition is liable to be dismissed.

4. After framing issues and accepting evidences of the parties, the Additional Civil Judge (S.D.) Court No.-2, Mathura had dismissed the divorce petition. The trial court had given finding that although it is admitted that petitioner and his parents had to be confined in jail due to criminal case filed by opposite party-wife, but said criminal case has not been decided, therefore it cannot be accepted that such criminal case was unfounded. The trial court also held that if criminal case of O.P.-wife will be proved then it will be proof of fact that petitioner had been treating her with cruelty. Learned Civil Judge has also gave finding that petitioner had failed to prove that his wife-O.P. has deserted her in year 2005. Inter alia, on these main findings, the trial court had dismissed the original suit.

5. Aggrieved by the judgment of trial court, Civil Appeal no. 128/2011 (Manish Gautam v. Smt. Shikha Gautam) was preferred which was heard and dismissed by the judgment dated 26.11.2012 of Additional District Judge, Court No.-11, Mathura. Lower appellate court had held in this judgment that petitioner-appellant had failed to prove that he had been willing to keep his wife with him or that respondent-wife had declined to accept him as husband. Lower appellate court had discussed the institution of earlier another suit which was filed by petitioner in the year 2007 for restitution of conjugal rights, but was withdrawn on 24.05.2008. The lower appellate court had treated this act of petitioner-appellant as proof of mala-fide on his part of. In this judgment, lower appellate court had also considered the pendency of criminal proceedings initiated by respondent against appellant but had not accepted it as cruelty in spite of the fact that appellant and his parents had been detained in jail in this case. Wit