IMPORTANT POINT
Where the wife left matrimonial home without consent of the husband, it would not amount to desertion if she had not left permanently.

Vineet Kothari, J.—None present for the respondents despite service.

2. This appeal has been filed by the appellant-husband Mr. Vinod being aggrieved by the judgment of the District Judge, Pratapgarh District Chittorgarh rejecting his application under Section 13 of the Hindu Marriage Act seeking divorce respondent from Smt. Sangeeta.

3. The brief facts of the case as per appellant are that the appellant-petitioner filed a divorce petition against the respondent for granting decree of divorce on the ground of cruelty. The respondent whenever lived with the appellant, she treated the appellant and his family persons with cruelty. She used to quarrel with the family members and use irony and filthy language and never paid respect and regards to the family members and oftenly caused damage to the property of the petitioner unnecessarily and by this fact the respondent created mental cruelty in the mind of appellant and she also not allowed the appellant to have a co-habitation and as such the CMA No.859/05-Vinod v. Smt. Sangeeta. Judgment dt.2.2.10 2/6 respondent created the mental cruelty and the life of the appellant become difficult and harden with the respondent. The respondent was also a nature of free moving and without any consent of the family members and the appellant. She left the matrimonial home at so many occasions. The appellant and his parents tried to solve such type of problem but the parents of the respondent stated that esjh yM+dh ugha jguk pkgrh vkSj fouksn dks ilan ugha djrh rks eSa D;k d:] vki rks gekjs “kknh dk lkeku okil ns nksA esjh csVh dks rykd vkSj lkeku pkfg;s vkSj ugha nksxs rks ges nwljs rjhds vkrs gSA In this respect tried to call the Panchayat meeting and therefore the parents of the respondent lodged a false case under section 498A and 406 against the appellant and his parents. In this false case, the learned trial court though convicted the appellant but the learned Sessions Judge acquitted the appellant on 5,12.2002 in criminal appeal No.72/2002 and against which no appeal has been filed and therefore this judgment has become final.

4. The learned counsel for the appellant-husband Mr. N.K. Rastogi relying upon the judgment of this Court in the case of Rakesh v. Surbhi Sharma, AIR 2002 Raj 138 submitted that act of wife of leaving matrimonial home without husband’s consent and not returning thereafter amounts to mental cruelty and thus, divorce decree deserves to be passed in the present case and, therefore, the rejection of his application under Section 13 of the Act CMA No.859/05-Vinod v. Smt. Sangeeta. Judgment dt.2.2.10 3/6 by the learned courts below was wrong. He submitted that by evidence in the form of statement of various persons who appeared on behalf of the; appellant-husband before the learned court below it was proved that the respondent-wife willingly and voluntarily deserted the matrimonial home of the appellant and his behaviour towards the appellant-husband and before other family members was cruel and, therefore, the present appeal deserves to be allowed.

5. On the other hand, Mr. Abhishek Sharma appearing for the respondent-wife submitted that the appellant had remarried another lady Usha and had also begot two children out of the said second marriage and the family members of the appellant-husband also harassed the respondent- wife for dowry and that is why a criminal complaint under Section 498A I.P.C. was filed against. them and even though the learned Sessions Judge after conviction by the learned trial court acquitted the appellant in appeal by the judgment dated 5.12.2002, giving them the benefit of doubt, it does not prove that the behaviour of the family members of the appellant- husband towards the respondent-wife was not that of harassment and cruelty. It is on account of such cruelty and dowry demands that the respondent wife had to leave the matrimonial home and in that second marriage for which the father and mother of the respondent-wife had clearly stated