JUDGMENT
K.K. Adhikari, J.
1. This appeal by the appellant/wife Bhagwati Bai under Section 28 of the Hindu Marriage Act (hereinafter referred to as ‘the Act’), is directed against the dismissal of her suit for divorce under Section 13 on the ground of cruelty.
2. It is not disputed that the appellant was married to the respondent according to the Hindu customs sometimes in June 1976. The marriage was performed in village Bharguvan, under the jurisdiction of police station Bijawar, district Chhatarpur. It is alleged that after the marriage, the appellant was ill-treated by the respondent and the respondent/husband was not providing her with proper food and clothes and alto compelled her to have sexual intercourse with his elder brother. It is further alleged that the respondent was also compelling her to have sexual intercourse with the dacoits in Kharyani forest against her consent and will. On her refusal, she was beaten. It has been further alleged that the appellant has been living a miserable life with the respondent and the treatment meted out to her amounts to cruelty within the meaning of Section 13 of the Act and, therefore, prayed for a decree of divorce. In support of her allegations she examined herself as PW 1. Perusal of her statement shows that she has narrated the allegations set-forth ia petition for divorce. The learned trial Court on evaluation of the evidence came to the conclusion that the testimony of Bhagwati Bai (PW 1) is not corroborated by any of the villagers and, therefore, dismissed the suit.
3. Learned counsel appearing for the appellant submitted that the very nature of the allegations was such that she could not have spoken about it to the villagers, particularly when she was residing with the respondent and, therefore, the learned trial Court wrongly rejected her evidence and denied her the decree of divorce. The respondent, inspite of notice, did not appear and S.P.C. was sent informing him about the date of final hearing.
4. I have considered the arguments advanced on behalf of the appellant and perused the record. It is seen from perusal of the testimony of the Bhagwati Bai (PW 1) that she has in no uncertain terms stated that she was married to the respondent about 9-10 years earlier, but she was never kept by the respondent in comfort. She was not given proper clothes and food and the respondent used to compell her to have sexual intercourse with his elder brother as also with the dacoits. The nature of allegation is such that it cannot be expected from Bhagwati Bai (PW 1) to have told about this to some one in the village where she was residing and being ill-treated by the respondent, which would have had repercussions and under these circumstances, the learned trial Court ought not to have insisted upon corroboration of the fact that the respondent compelled her to have sexual intercourse with his elder brother and-or dacoits. The fact that the respondent has not appeared to oppose the application coupled with the intention of the Legislature that where the parties cannot live together, it is of no use to keep them together if any of the parties to the marriage wants to seek divorce, shows that the appellant has completely proved her case and she is entitled to a decree of divorce.
5. Consequently this appeal is allowed. The judgment and decree passed by the trial Court is set aside and instead a decree of divorce on the ground of cruelty is granted to the appellant. Under the circumstances of the case, there shall, however, be no order as to costs.
