The inability to prove claims of cruelty and the unrecognized ground of irretrievable breakdown of marriage lead to the dismissal of the divorce appeal.

1. Heard Sri Khursheed Alam, learned counsel for the appellant and Sri Sudhakar Pandey, learned counsel for the respondent.

2. The present appeal has been filed under S.19 of the Family Courts Act , 1984 arising from the judgment and order dated 05.09.2006 passed by Additional District Judge, Court No.1, Ballia, in Case No.58 of 1997 (Om Prakash Singh v. Smt. Shankuntala Verma) whereby the learned court below has dismissed the divorce suit instituted by the appellant seeking dissolution of his marriage on the grounds of adultery and cruelty.

3. Parties were married in June, 1981. According to the the appellant, the respondent went on nursing training course for four and half year, in 1982. Thereafter, she secured appointment as nursing and was posted at Ghazipur in 1987. She continued to work as a nurse at Ghazipur till she attained the age of superannuation. As for the present appellant, it is admitted that he was appointed as government pharmacist. He also remained posted at Ghazipur. He has also attained the age of superannuation.

4. In the context of those basic facts, matrimonial dispute arose between the parties giving rise to above described divorce suit instituted by the appellant. It is also an admitted case, besides the above divorce suit, no other case or proceeding came to be instituted by either parity against the other. In such circumstances, learned counsel for the appellant would contend that the respondent had formed adulterous relationship with an unspecified person. Also, he stated that the respondent treated the appellant with cruelty inasmuch as she refused to cohabit with him and refused to form intimate relationship with him.

5. On her part, the respondent denied the plaint allegations, in entirety. Both as to adultery and cruelty alleged, her stand was otherwise. On the other hand, she made allegation against the appellant of being an alcoholic. Also, she alleged threat practised by the appellant on the respondent to extract money to cater to his addiction to liquor. Thus, in the first place, the respondent disputed the allegation of adultery and cruelty and at the same time, she did level an allegation of cruelty against the appellant. At the same time, she did not exercise her right to seek dissolution of her marriage on the ground of cruelty alleged in her written statement.

6. Thus, according to the respondent, she has chosen to live apart away from the appellant for reason of necessity to continue to work as a nurse and to take care of the girl child born to the parties. Here it may be noted that the said girl child was born to the parties in the year 1989.

7. In such circumstances, learned counsel for the appellant would submit, the learned court below has completely erred in dismissing the divorce suit. Though he would concede that there is no allegation of adultery proven and, therefore, the appellant does not wish to press that ground, at this stage, it is his contention that the respondent had treated the appellant with cruelty by living separately from the appellant. By completely denying cohabitation, an act of cruelty had been committed as may have entitled the appellant to seek dissolution of his marriage. Reliance has been placed on a decision of the coordinate bench of this Court in the case of Jitendra Kumar Srivastava v. Smt. Sweta Srivastava , Neutral Citation No. - 2024: AHC - LKO : 57446 - DB wherein it has been observed in paras 17, 18, 19, 20 and 21 as below :

"17. The Family Court has wrongly discarded the evidence of PW - 2 because he is the plaintiff's father and he would obviously support the plaintiff's case. In matrimonial disputes, the events in question take place between the parties within the four walls of their house, and