Narendra Singh Dhaddha, J.
1. Appellant husband filed a divorce petition under Section 13 of the Hindu Marriage Act, 1955 (for short “the Act”) before the learned Family Court No. 1, Jaipur which came after transmission for disposal vide order dated 30.8.2016 of this Court, before the learned Family Court No. 3, Jaipur.
2. This appeal has been preferred by appellant Vijay Soni against the judgment & decree of the learned Family Court No. 3, Jaipur passed on 11.7.2017 in matrimonial Case No. 56/2016 (562/2014) filed by him under Section 13 of the Hindu Marriage Act, 1955 (for short “the Act”) against Smt. Anju @ Uma whereby the learned Family Court dismissed the divorce petition.
3. Brief facts giving rise to this appeal are that the marriage of the appellant and respondent was solemnized on 5.3.2003 at Gachhipura, District Nagaur according to the Hindu rites and customs. The parties were blessed with two daughters. After marriage, respondent wife started pressurizing her husband to live separately. The respondent had male friends and she used to talk to them. She used to quarrel on trivial issues. Appellant made a complaint to his father-in-law but he did not reply satisfactorily. Father of respondent had taken her with him. After intervention of some respectabales, respondent was sent with the appellant on 12.10.2013. In July 2014 when appellant went to Madurai and Hyderabad, respondent quarreled with his family members. Respondent threatened the appellant and his family members to implicate them in false dowry case. The respondent-wife lodged a false criminal case at Police Station Nasirabad and police found the allegations to be false. The appellant husband filed an application under Section 9 of the Act for restitution of conjugal rights. She also filed a petition under Section 125 of the Code of Criminal Procedure. Both the petitions were disposed of by way of compromise. The appellant husband started to live in a rented accommodation at Ajmer. Mother of respondent forced her for abortion and the appellant-husband had to take 15 days leave and as a result, he was dismissed from service. The respondent-wife was caught red handed in City Palace “Palace Artliyar” in a theft case of Rs. 5,000. Earlier also, she was caught red handed in Hyper City Mall in a case of theft. The respondent-wife lodged another criminal case under the provisions of the Protection of Women from Domestic Violence Act which was also rejected on 29.3.2014. Thus, the respondent-wife had deserted the appellant since 2011 without any reasonable cause. So, the divorce petition be allowed.
4. In reply, respondent-wife denied all the allegations except factum of marriage and birth of two daughters. She stated that after marriage, the appellant-husband and his family members had tortured and threatened her for demand of dowry and they did not respect her. She did not put any pressure on the appellant to live separately. She had no mobile handset in year 2013. When she informed her in-laws about her pregnancy, they did not care for her. She did not lodge any report to police. So, the petition be dismissed.
5. On the basis of the pleadings and arguments advanced by both the parties, the following issues were framed by the learned Family Court:
“1. Whether the respondent-wife treated appellant-husband with cruelty as mentioned in the petition?
2. Whether the respondent-wife deserted the appellant-husband for more than 4 years?
6. The appellant-husband examined himself as AW-1 and one witness-Rakesh Soni as AW-2 and exhibited five documents.
7. The respondent-wife examined herself as NAW 1 and Exhibited 7 documents.
8. Learned Family Court after hearing the arguments of both the sides, decided all the issues in favour of the respondent-wife and against the appellant husband and dismissed the petition on 6.1.2018.
9. Learned Counsel for the appellant submitted that the impugned judgment & decree dated 6.1.2018 are illegal, arbitrary and against the material available on record. He submitted that it is an admitted fact that both the parties were living separately since 2011 before filing application under Section 13 of the Act as it was evident from the report of the Protection Officer which was summoned in a complaint filed by the respondent under the provisions of the Protection of Women from Domestic Violence Act. It is an admitted position that both the parties are living separately for more than two years before filing the petition under Section 13 of the Act. The appellant in his evidence clearly proved that respondent was living separately without any reasonable cause. The learned Family Court had erred in not considering these aspects properly.
10. Learned Counsel for the appellant further submitted that since 2011 both the parties were living separately therefore, there was no possibility of their co-habitation. Their marriage was irretrievably broken down. The appellant and his brother clearly stated in their evidence that behaviour of respondent was not cordial. She used to quarrel on trivial matters. She had no respect towards family members of the appellant. The appellant had forcibly shifted to Jaipur on her desire, but he was removed from job and he requested the respondent to move to Nasirabad with him. But on her refusal, he had to settle at Nasirabad alone as she did not want to accompany him.
11. Learned Counsel for the appellant further submitted that the respondent in her cross-examination clearly stated she could not reside with him. So, it clearly reveals that she also wants separation from the appellant. He further submitted that the learned Family Court failed to appreciate the fact of failure of discharge of matrimonial obligations as it amounts to cruelty on the spouse. He further stated that the respondent had not taken any step to reconcile with the appellant after returning from Jaipur. Therefore, the appeal be allowed.
12. Learned Counsel for the respondent submitted that there is no illegality and infirmity in the judgment of the learned Family Court. He submitted that the appellant had not respected the sentiments of the respondent. He and his family members used to torture her on trivial issues. Therefore, appeal be dismissed.
13. We have given our thoughtful consideration to the arguments advanced by both the parties, perused the impugned judgment and the material available on record.
14. Appellant had filed petition under Section 13 of the Act against the respondent for seeking divorce on the ground of cruelty and desertion.
15. Appellant in his petition alleged that the respondent used to talk on mobile phone to unknown persons in the night and on query, she did not give a satisfactorily reply. To prove these facts, the appellant had not produced any call details regarding this. The appellant in his statement stated that the respondent did not want to do household work but he had not pleaded these facts in the petition. Therefore, the learned Family Court rightly held that this piece of evidence was without any pleading, so it could not be looked into. The appellant in his statement stated that in the year 2004, when he had gone to Madurai and Hyderabad for company work, the respondent had quarreled with his family members and thereafter, she lodged a false report at Nasirabad Police Station. But the said report was not exhibited in evidence. The appellant in his statement stated that the respondent pressurized him to live separately but respondent in her statement stated that when the appellant was in service at Ajmer, he had so many difficulties in daily travelling from Nasirabad to Ajmer. So, he had shifted to Ajmer. When he got good job at Jaipur, he shifted to Jaipur. Rakesh Soni (AW-2), brother of the appellant, had not stated in his statement that respondent had put any pressure on the appellant to reside separately. So, appellant had failed to establish that the respondent had ever put any pressure to live separately. Appellant in his st
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atement stated that he had taken 15 days’ leave in August 2010 on account of illness of respondent. Therefore, the fact that the respondent was forcefully made to abort by her mother and due to this reason the appellant had to take leave, was not established from evidence on record. 16. The respondent in her statement clearly stated that the appellant and his family members used to torture her for demand of dowry and they did not take care of her during the time of pregnancy. The appellant left her alone at Jaipur. Her father had to bear the rent of accommodation and he had taken her with him. Thereafter, she was residing with her father. 17. Therefore, the learned Family Court had not committed any error in dismissing the petition filed by the appellant. So, the appeal being devoid of merit, is liable to be dismissed. 18. Dismissed. Appeal dismissed.