IMPORTANT POINT
Cruelty must be of such type which satisfy conscience of Court that relationship between parties deteriorated to such extent that it has become impossible for them to live together without mental agony.

Ajay Rastogi, J.—Instant appeal is directed against the judgment & decree passed by the ld. Family Court, Ajmer, dt.15.6.2007 dissolving the marriage between the parties to the appeal by decree of divorce on the ground of cruelty under Section13 of the Hindu Marriage Act, 1955 (The Act).

2. The facts giving rise to the present appeal in nutshell are that the appellant wife got married with the respondent husband on 20.5.1994 according to Hindu religion at Udaipur. Parties to the appeal have a son from their wedlock namely Abhimanyu born on 19.9.1999 and their marriage was arranged one.

3. The respondent husband having noticed frequent visits of defendant-2 which he has impleaded in his matrimonial case 237/2001 namely Virendra Singh Tank S/o Shri Hari Narain Singh Tank who as alleged by the appellant initially as her uncle and was treating him like a brother but in the testimony of NAW1 herself and NAW2 her father Gulab Chand it was stated that Virendra Singh Tank S/o Hari Narain Singh Tank was the appellants mothers uncles son who was unmarried at the relevant point of time was in govt. service and posted at Alwar. Presence of Virendra Singh Tank was noticed while they were at Beawar which is a native place of respondent or at Udaipur where father of the appellant was residing at the relevant point of time or at Jamnagar where respondent was in service and that was the cause suspecting the character of the appellant and which ultimately resulted in daily matrimonial differences between husband and wife and that suspicion in the mind of respondent husband resulted in making enquiries about her life style prior to her marriage and it revealed to respondent-husband that the appellant wife had some illicit relation with Virendra Singh Tank and after son was born on 19.9.1999, because of strong suspicion respondent husband got DNA test conducted that ultimately found to be positive and it was the major cause in the mind of respondent, husband ultimately giving rise to the matrimonial dispute.

4. The respondent husband on 17.7.2001 filed a divorce petition 237/2001 in the Family Court, Ajmer for seeking divorce on the ground that appellant wife practiced mental cruelty upon him envisaged under Section13 of the Act. That apart, appellant wife filed separate application under Section125 Cr. P.C. seeking maintenance for herself and for her son Master Abhimanyu who is at present 15 years of age and student of Class-IX.

5. It has also been informed to this Court that separate application has been filed by the respondent husband seeking custody of his son under Section25 of the Guardian & Wards Act that is pending adjudication.

6. The petition for divorce contained serious allegation against appellant wife alleging illicit relation with Virendra Singh Tank who was impleaded as party to the divorce petition and despite being served before the ld. Family Court, the proceedings remain ex parte against him but he has not been impleaded as party respondent in the instant appeal by the appellant.

7. In the written statement filed by the appellant to the divorce petition before the ld. Family court while refuting the allegation levelled by the respondent regarding illicit relation with Virendra Singh Tank counter allegation were alleged by the appellant wife that respondent husband is having illicit relation with her real sister Deepika and that is the reason for which respondent wanted to get rid of her. At the same time, it was also stated with specific averment by the appellant that the respondent was demanding dowry of Rupees five lacs and a Maruti car from her father to take her back to matrimonial home which was not possible by her parents and as the respondent is residing with her real sister Deepika since July 2001 and to overcome that reason petition was filed seeking divorce under Section13 of the Act on the ground of wife treating him with cruelty.

8. The appellant wife in the written statement contended inter alia that the petition