JUDGMENT
1. This appeal is directed against the judgment and decree of the trial court dt. May 13, 1986, whereby the petition filed under S. 13 of the Hindu Marriage Act, (hereinafter called the Act), by the wife, was dismissed.
2. During the pendency of this appeal, application under S. 24 of the Act, was filed for the grant of maintenance pendente lite and litigation expenses by the wife. Vide order dt. May 21, 1987, this Court granted a sum of Rs. 125/- per mensem as maintenance with effect from the presentation of the application and a sum of Rs. 600 as litigation expenses. The learned counsel for the respondent husband stated at the bar that the husband was not prepared to pay the said maintenance and the litigation expenses as he was unable to pay the same. On this statement made by the learned counsel for the husband, the learned counsel for the appellant-wife submitted that her appeal should be accepted on this ground alone and a decree for divorce be passed in her favour. Reliance in support of the contention was placed on Smt. Banso v. Shri Sarwan, 1978 Hindu LR 2S1(Punj & Har) and Ram Swaroop v. Smt. Janak (1972) 74 Pun LR 933 : (AIR 1973 Punjab 40). A reference was also made by the learned counsel to F.A.O. No. 70-M of 1973(Surinder Kumar v. Smt. Sharda Rani), decided on Aug. 25, 1975.
3. The proposition of law, as laid down in the abovesaid rulings is not disputed. However, in the present case, the original petition for the grant of a decree for divorce was filed by the wife herself which was dismissed by the trial Court on merits. In the appeal filed by her, she moved the application under S. 24 of the Act, which was allowed, but the husband did not pay the maintenance as ordered. Even if his defence is struck off the appeal could not be allowed on that ground alone unless the court is satisfied on merits of the claim made by the wife in her divorce petition. None of the judgments, referred to above, deals with this question as such, nor it was ever raised therein. The position would have been different if the original petition was filed by the husband and the same was either allowed or dismissed and the appeal was filed by either party w was not complying with this court order therein. In case, this court order under S. 24 of the Act, was not complied with, by the husband, the appeal filed by him could dismissed by this court, but since the original petition was filed by the wife and the same was dismissed by the trial court, in appeal it would not be allowed simply on the ground that no maintenance was paid by the husband in pursuance of the order under S. 24 of the Act. In these circumstances, the appellant was called upon to satisfy this court on merits.
4. The marriage between the parties was solemnised in the year 1982. They lived together as husband and wife up to the year 1984 when she was turned out of the house. The present petition for divorce was filed on Aug. 3, 1985, on the allegations that she was being maltreated by the husband and his mother on the ground that she had not brought sufficient dowry and was not beautiful. She also maintained that he was bibulous and also took opium and dealt in opium and illicit liquor. Bad characters used to visit him who on several occasions tried to outrage her modesty, but she was not heard by the husband on complaints being made to him. Instead she was beaten by her husband when such a complaint was made. Ultimately, she was turned out of the house and was not kept despite attempts in this regard. In the written statement, the husband pleaded that he was a poor man and had mortgaged a part of his land for the marriage; hence there was no question of any alleged maltreatment. It was also not admitted by the husband that he was addicted to liquor or opium or that he was dealing in such things. The allegation that bad characters used to visit him or any of them tried to outrage her modesty wife also contested. The case set up by him was that the mother of the wife and another lady came and took her away with her gold ornaments and Rs. 8,000/- in cash and had not come back despite the best efforts on his part. He also alleged that he was of the opinion that she had remarried one Satnam Singh and was living with him. On the pleadings of the parties, the trial Court framed the following issues :
1. Whether the respondent has treatad the petitioner with cruelty, as alleged?
2. Relief.
The learned Additional District Judge came to the conclusion that the wife had not been able to prove the issue that the husband had treated the wife with cruelty: The learned Additional District Judge also observed-
“The most important thing to be seen in this case is that whereas the petitioner has flatly refused to accompany the respondent, the respondent has shown his willingness to take back the petitioner even now. This is, therefore, another circumstance to say that the petitioner claims divorce from the respondent because of some other reason best known to her and not because of the alleged circumstance.”
5. The learned counsel for the appellant submitted that the trial Court has misread the evidence and the testimony of the witnesses produced by her has been discarded arbitrarily and without any cogent reason. According to the learned counsel, there is absolutely no explanation on the part of the husband as to why he did not want to join the matrimonial home. In the absence of any explanation, according to the learned counsel the allegations made by the wife should have been accepted. According to the learned counsel it has been wrongly observed by the trial Court that the wife never complained to her mother-in-law and in case she would have complained, she (her mother-in-law) would have told her son (the husband) not to behave in that way. This observation, according to the learned counsel is against the record. The wife while appearing in the witness-box as A.W. 3, categorically stated,–
“I had complained to the mother of the respondent to his brother and to the respondent. himself, but I was told that it was his business”
6. After hearing the learned counsel for the parties and going through the evidence on the record I find that the whole approach of the learned Additional District Judge was wrong and misconceived. He even did not care to go through the evidence produced by the appellant. He himself observed in para 10 of the judgment under appeal as under :
“So, without going to the evidence of the petitioner, it can be easily said that the petition has got no legs to stand and is a bundle of wrong allegations for some other reasons best known to the petitioner or her parents.”
The wife while appearing as A.W. 3, stated in her examination-in-chief that some persons of bad repute had been visiting the husband and they tried to molest her and that she had complained to the husband’s mother, his brother and to him, itself, but she was told that it was her husband’s business. In view of this statement, it has been wrongly observed by the learned Additional District Judge,–
“It has come in evidence that the mother of the respondent is alive. No lady can like that her daughter-in-law should be so treated and had it been so alleged by the petitioner to her, the mother of the respondent would have raised a hue and cry before the respondent under protest.”
These observations of the trial Court are against the record. Not only that, the trial Court also observed,–
“Moreover, a person who got himself married at such an advanced age with a very young girl, after spending money, cannot afford that his wife should submit to others.”
This approach is again wholly misconceived. The wife was maltreated by her husband for the reasons best known to him and when she failed to comply with his wishes, she was turned out of the house. The allegations made by her that the people of bad character used to visit the husband’s house and she was forced to satisfy their just have not been rebutted by him by any cogent evidence. This fact is further proved by the conduct of the husband in this Court while not paying the maintenance to her as determined by this Court. Thus, taking into consideration all the facts and circumstances of the case, it was amply proved on the record that the husband was cruel towards his wife and on that account, she was entitled to a decree of divorce.
7. Consequently, this appeal succeeds and is allowed. The judgment and decree of the trial Court are set aside and the marriage between the parties is dissolved by a decree of divorce. The wife will be entitled to the costs of this appeal.
8. Appeal allowed.