IMPORTANT POINT
Concealment of fact about earlier marriage is mental cruelty.

Govind Mathur, J.—This appeal is before us to examine correctness of the judgment and decree dated 24.8.2015, passed by the Family Court No.2, Jodhpur Metro in Misc. Application No.13/2012, Smt. Sunita Dwivedi v. Vinod Kumar Sharma. Under the judgment aforesaid learned Family Court rejected an application preferred by the appellant as per provisions of section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as ‘the Act of 1955’). Suffice to mention that under the same judgment an application preferred by respondent Shri Vinod Kumar Sharma as per provisions of Section 9 of the Act of 1955 was accepted and a decree for restitution of conjugal rights was granted.

2. In brief, factual matrix of the case is that the appellant entered into a wedlock with the respondent on 10.11.1997 at Jodhpur as per Hindu rites and customs. After marriage the appellant went to Agra (U.P.), her matrimonial town. As per the appellant, the respondent, a retired Subedar from Indian Army, is an alcoholic with violent attitude. Under intoxication he gave serious beatings to the appellant on several occasions. He was also in habit of adopting unnatural tactics while undergoing physical relations and further that he was compelling the appellant to consume liquor and also to other inhuman activities. It was also averred in the application that due to torture extended to the appellant, her father remained under serious trauma and ultimately died on 21.4.1999. In addition to whatever stated above, as per the appellant, she was third wife of the respondent and two earlier wives left him due to his cruel attitude. Looking to all these circumstances it was not possible for the appellant to stay at her matrimonial house, hence she came to her parental house at Jodhpur. In the month of May, 2004 she again went to her matrimonial house with a hope that there would be some change in attitude of the respondent but of no consequence. The appellant faced serious torture including forceful consumption of liquor with allopathic medicines. She was ultimately compelled to left her matrimonial house on 6.6.2004.

3. With this factual background a decree of divorce was claimed on the ground of cruelty and desertion.

4. In written statement, the respondent denied the facts with assertion that the appellant being in Government School was intentionally not coming to her matrimonial house and as such the allegation of desertion was not correct. It was also stated that whatever stated about cruelty too is not correct and as a matter of fact the appellant borrowed a sum of Rs. 3,50,000/- on 3.6.2004 from the respondent and then left for Jodhpur on 6.6.2004. She then on 16.6.2006 borrowed a sum of Rs. 45,000/- and that was also paid by the respondent from his pension account. All this amount was given to have a residential house for the appellant at Jodhpur. As per the respondent, he made his best efforts to keep the appellant happy and to make the marriage successful.

5. An application under Section 9 of the Act of 1955 was also preferred by the respondent for restitution of conjugal rights. ON the request of the parties the application under Section as well as the application under Section 9 were clubbed and the application preferred under Section 13 was also treated as written to the application preferred under Section 9 of the Act of 1955.

6. On basis of the pleadings available, the Family Court framed following issues:—

“1. Whether Vinod Kumar extended post marriage cruel attitude as described under section 13 of the Hindu Marriage Act against Sunita Dwivedi?

2. Whether Vinod Kumar Sharma deserted deserted Smt. Sunita Dwivedi for more than a period of two years without any just and reasonable cause?

3. Whether Smt. Sunita Dwivedi refused Vinod Kumar Sharma from consuming conjugal rights without any just and proper cause?

4. Relief?”

7. To support the application preferred under Section 13 of the Act of 1955, statements of appellant Smt. Sunita (AW-1) and Smt. Mala