IMPORTANT POINT
A dead marriage must be given a decent quietus.

JUDGMENT

S.A. Dharmadhikari, J.—This First Appeal under Section 19 of the Family Courts Act read with Section 28 of the Hindu Marriage Act 1955 (hereinafter referred to as the Act) has been filed by the appellant being aggrieved by the judgment and decree dated 25.11.2017 passed by the Principal Judge, Family Court Dewas, Camp Court Barwani, District Barwani in H.M.A. Case No. 21-A/2016, whereby the application filed by the appellant/husband seeking divorce under Section 13 of the Act has been dismissed.

2. The brief facts of the case are that the marriage between the appellant/husband and the respondent/wife was solemnized in the year 2004 as per Hindu rites and customs. From the wedlock, they have a son named Prince. After sometime, behaviour of the respondent/wife started changing. She used to quarrel with the appellant and raised doubt about his character, threatening to involve him in false case. Being aggrieved, appellant/husband filed a suit for divorce which was later withdrawn by him vide order dated 26.11.2014 on the basis of assurance given by the respondent/wife that she will not misbehave with him in future. However, the respondent/wife again started misbehaving with the appellant/husband. She used to abuse him with filthy language and embarrass him in public.

3. Subsequently, appellant/husband filed a suit for divorce under Section 13 of the Act on the ground of cruelty. The grounds raised in the divorce suit were that the respondent/wife used to raise doubt about his character and abuse him publicly. Appellant/husband and respondent/wife are living separately since 2016. It is further stated that the respondent/wife was earlier married to some other person in Gujarat, but due to unknown reasons, she was divorced, thereafter, appellant/husband got married to her. In rebuttal, the respondent/wife denied the allegations and stated that the appellant/husband used to physically and mentally harass the respondent/wife. Appellant/husband had relations with other females and when the respondent/wife objected, he used to beat her and even admitted their son in a boarding school to mentally torture the respondent/wife. Appellant/husband wants to indulge in illicit activities, therefore, he wants to get rid of the respondent/wife. Further, appellant and respondent are residing separately under the same roof. After appreciation of evidence on record and considering the statement of the parties, the suit was dismissed vide the order impugned observing that the appellant/husband was not able to prove the allegations of cruelty.

4. Being aggrieved, the appellant has filed the present appeal for decree of divorce.

5. After admitting the appeal, this Court made all efforts for reconciliation, but the same failed due to non-appearance of the respondent/wife before the Mediator on fixed dates. Thereafter, this Court had called upon the parties to explore the possibility of settlement, however, the respondent/wife was not present before the Court, hence the case was fixed for final hearing.

6. Learned counsel for the appellant/husband submits that the appellant and respondent are residing separately under the same roof since 2016. Respondent has not taken any initiative nor filed any application for restitution of conjugal rights against the appellant. Further, in cross-examination before the trial Court, respondent herself admitted that she doubted the appellant, without any cogent or reliable evidence, which comes within the definition of cruelty.

7. On the other hand, learned counsel for the respondent/wife supported the judgment and decree passed by the learned Court below.

8. Heard learned counsel for the parties. Perused the record.

9. It is an admitted fact that though the marriage of the appellant and respondent have been solemnised in the year 2004, but, they are residing separately since 2016. The appellant/husband filed application before the learned trial Court for divorce against respondent/wife on the ground of cruelt