Cruelty under S.13(1)(ia) may be condoned by continued cohabitation, affecting the ground for divorce.

1. This appeal in a matrimonial case is by the wife and is directed against the judgment and decree dated 21-9-2004 passed by the Additional District Judge, Bemetara, in Civil Suit No. 7 - A / 2004 whereby the petition for dissolution of marriage filed under S.13(1)(ia) of the Hindu Marriage Act, 1955 (for short, 'the Act') has been allowed. It is not in dispute that parties to the proceedings were married as per Hindu rites some time in June, 1994. During this period, four children were born from the wedlock, out of which one has died and three are alive and are living with the respondent / husband.

2. According to the plaintiff / respondent, the appellant expressed her unwillingness to live with the plaintiff as she wanted to marry somewhere else. She was in the habit of abusing, misbehaving and threatening to inflict in false criminal cases including dowry cases. However, the plaintiff / respondent, looking to reputation of his family in society, managed to live with her but the things became worse and it became impossible for him to live with her 7-8 months prior to the filing of divorce petition, and therefore, they started living in separate rooms and he was forced to file the divorce petition.

3. The appellant filed her written statement and denied all the allegations.

4. The respondent examined himself as PW 1, Laxmi (PW 2), Sarita Bai (PW 3), Ku. Keerti Jaiswal (PW 4), Bhagwan Deen (PW 5), Saroj (PW 6), Jamuna Bai (PW 7) and Manoj Jaiswal (PW 8), whereas, the appellant examined herself as DW 1 and one Radhelal as DW 2.

5. The trial Court, on the basis of evidence adduced in the case, allowed the respondent's petition and granted decree of divorce; granted Rs. 1200/- per month as permanent alimony in favour of appellant while dismissing her application filed under S.27 of the Act. Hence this petition.

6. Shri Viprasen Agrawal, learned counsel appearing for the appellant assails the decree of divorce mainly on following two grounds -
(i) The instances quoted by the respondent to prove appellant's guilt are trivial in nature and do not amount to cruelty within the meaning of S.13(1) (ia) of the Act.
(ii) By placing reliance upon the judgment of Supreme Court in case of Dr. N. G. Dastane v. Mrs. S. Dastane AIR 1975 SC 1534 , it was further contended, the fourth child took birth even after filing of divorce petition, and therefore, the cruelty, if any, was condoned by the respondent, therefore, decree passed by the trial Court is bad and deserves to be set aside.

7. On the other hand, Y. C. Sharma, learned counsel for the respondent supported the judgment and decree impugned and submitted the trial Court has passed the decree based on evidence adduced in the case which does not call for any interference of this Court.

8. I have heard learned counsel for the parties and perused the judgment and decree impugned as also the record of the Court below.

9. The core question arises for determination of this Court is whether the Court below was justified in granting decree of divorce in favour of respondent under S.13(1)(ia) of the Act?

10. After marshalling the evidence adduced in the case, the trial Court came to a conclusion that it has been proved by the plaintiff / respondent that the appellant / wife was in the habit of abusing, insulting, misbehaving and threatening to inflict the plaintiff in false criminal cases including dowry cases and to send him and his family members in jail, which created a reasonable apprehension in the mind of the plaintiff that it is not safe for him and his family members to live with the appellant. Th