Judgment:
Sudhir Narain and Onkareshwar Bhatt, JJ.
1. This appeal is directed against the judgment of the Family Court, Moradabad, whereby the suit under Section 13 of the Hindu Marriage Act filed by the plaintiff-respondent for divorce has been decreed.
2. The allegation of the husband plaintiff was that he married the appellant on 8.12.1994. She lived with him for about two months, and thereafter she left the matrimonial house and went to live with her parents. He doubted that his wife had relationship with some other persons. She dtd not permit him to have the sexual relationship. She gave birth to a son in July, 1996, who was not bom out of their wedlock. The relations became strained but the relative of both the parties got compromise written on 2.12.1995 wherein it was agreed that the appellant will come and reside with him. The wife after the compromise came to reside with him but after some lime, she left and started living with her parents.
3. The appellant contested the suit and she denied the allegations of desertion, adultery and cruelty. The family court found that the respondent failed to prove by cogent evidence that his wife had any unfairrelationship with any other person and was not guilty of adultery. The suit was, however, decreed on the ground of cruelty.
4. We have heard Shrl Faujdar Rai, learned counsel for the appellant and Shri Prakash Krishna learned counsel for the respondent.
5. The core question for consideration before us is as to whether under the facts and circumstances. the plaintiff-respondent has been able to prove the cruelty against him by the appellant.
6. The basic allegation of the plaintiff-respondent against the appellant was that she left her matrimonial house at her own will without his consent and without any reasonable cause and she avoided having any sexual relationship with him. The husband also appeared as a witness in support of his allegations. He did not adduce any other evidence in support of his version.
7. In Smt. Deepika alias Baby y. Naresh Chandra Singhania. AIR 2000 All 148, the allegation of the husband was that the wife had treated him with cruelty but the Court did not rely upon his solitary testimony in absence of testimony of his parents, brother, sister, friends and relatives and held that they were material witnesses to prove the allegations made by the husband in his pleadings. In Smt. Beena v. Suresh Vir Tomer, 1995 (25) ALR 277, similar view was taken that accusation by the husband against wife should be proved by producing other members of the family. In the present case, the appellant in her statement before the family court denied the allegations made by the respondent. There was no other cogent evidence except the oral statement made by the parties before the family court.
8. It is admitted to the appellant that the matter was settled between the parties and they had entered into a compromise duly signed by the parties and their relatives and friends on 2.12.1995. In the compromise, it was accepted by the respondent that the appellant shall reside with therespondent. If there was any wrong by any of the parties, that shall be deemed to have been condoned.
9. The version of the respondent is that the appellant came to reside with him after 2.12.1995 but she left the house without any intimation to him on 20.3.1996. It was further stated that after two days, the parties agreed that they shall seek divorce by consent but later on she resiled from such an agreement.
10. The appellant appeared as a witness and made a statement before the Court that in fact on 20.3.1996, the respondent beat her and forced her to leave his house. Admittedly, the appellant started residing with the respondent after they entered into compromise on 2.12.1995 and it is also admitted to both the parties that the appellant left her matrimonial house on 20.3.1996. The question is whether she left the matrimonial house voluntarily or respondent forced her to leave the house. There does not seem to be any reason why the appellant, who was residing with the respondent, would leave the matrimonial house. The appellant has given the reason that the respondent again talked about dowry. As her parents did not satisfy his demands, he forced her to leave his house. The version of the appellant appears to be correct. There was no other reason that the appellant would leave the matrimonial house of her husband.
11. The family court has taken a view that the appellant had filed an application claiming maintenance against the respondent under Section 125. Cr. P.C. during the pendency of the suit, that discloses her intention not to reside with the respondent husband and that would amount to cruelty. The appellant was entitled for the maintenance in case her husband had forced her to leave the matrimonial house and there was nothing wrong in claiming such maintenance. The respondent had filed the suit for divorce in July. 1996. He was not paying any amount ofmaintenance to the appellant and in these circumstances, she was Justified in claiming the amount of maintenance.
12. The next reason given by the family court is that the respondent had given a notice to the appellant on 23.3.1996 asking her to live with him but the appellant did not give any reply to the said notice, that shows that she was not inclined to live with the husband. The respondent appeared as witness before the family court but he did not prove the alleged notice dated 23.3.1996. On the other hand, in para 10 of the plaint, the respondent had stated that both the parties had entered into the agreement that they would seek divorce by consent. If according to the respondent, the agreement had taken place to seek divorce by consent, then there was no question of having sent any notice to the appellant by the respondent to live with him.
13. The third reason given by the family court is that in para 36 of the written statement filed by the appellant, she had stated that in case divorce decree is passed, she may be granted alimony, and such claim shows her Intention was that the decree for divorce may be passed. This view of the family court is manifestly illegal. The appellant had asked for alimony that in case decree for divorce is passed, she may be given maintenance but it does not mean that she had admitted the version as put forward by the respondent in his divorce petition.
14. The version of the respondent was that the appellant had given birth to a son who was not bom out of their wedlock but this fact was not proved by any cogent evidence by him. The marriage had admittedly taken place between the parties on 8.12.1994. The son was born, as alleged by respondent, in July. 1996. The respondent did not lead any evidence to prove that his wife had no access with him and there was no other cogent evidence to prove either adultery or she gave birth to an illegitimate child. Secondly the parties had entered into compromisewith the respondent on 2.12.1995 and if there were any difference or wrong done by any of the parties that shall be deemed to have been condoned.
15. We had asked the parties to appear in person in this Court for the purpose of reconciliation. The respondent made a categorical statement that he is not prepared to take his wife while the appellant made a categorical statement that she is prepared to go and live with her husband.
16. On considering the entire evidence, we do not find there is any material evidence to come to the conclusion that the wife had treated the husband with cruelty.
17. Learned counsel for therespondent has placed reliance on the decision in the case of Parag Mittal v. Smt. Vikita Mittal AIR 2000 Del 304, wherein the Court has held that when the wife remained absent in the proceedings before trial court and signed petition for divorce by mutual consent, the allegation of husband of cruelty by wife against him should be accepted. In the case of Angalla Padmalatha v. A. Sudershan Rao. AIR AP 353, it was found that when the parties lived together for short time and thereafter the wife left her matrimonial house of her own without his consent and the husband made efforts to bring her back but she did not return, and more so wife filed petition under Section 498A. I.P.C. and Section 125, Cr. P.C., indicated that the wife had decided to abandon matrimonial house permanently. These cases have no application to the facts of the present case as discussed above, in the present case the appellant has not left the matrimonial house voluntarily. She was forced to leave the house by her husband and she always expressed her willingness to reside with her husband.
18. In view of above discussion, the appeal is allowed with cost and the decree of the family court dated 27.10.1997 passed in O. S. No. 410 of 1996, family court Case No. 621 of 1997 is set aside.