Sanjay Karol JUDGMENT
Sanjay Karol, J.
1. Appellant Monika Sharma (hereinafter referred to as the wife) was wedded to respondent Kuldeep Kumar Dogra (hereinafter referred to as the husband) on 26.04.1993 as per Hindu customary rights. Two children were born out of the wedlock. Incompatibility prompted the parties to reside separately. With the passage of time discord widened with the husband filing a petition under Section 9 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act), wherein wife pleaded infidelity on the part of her husband. Unequivocally it stood averred that the husband was having illicit relationship with his Bhabhi (sister-in-law). Such allegations were also repeated in a petition filed by the wife under Section 125 Cr.P.C. Claiming the allegations to be false, having caused grave mental cruelty and the marriage having broken out irretrievably, husband filed a petition for divorce on the ground of cruelty. This in crux is the averments made in the petition adjudicated by the Court below.
2. In response thereto wife reiterated her allegations.
3. On the basis of the evidence led by the parties, trial Court decided the issues in favour of the husband and allowed the petition by passing a decree of divorce on the ground of cruelty.
4. Such judgment and decree dated 01.11.2012 passed by District Judge, Hamirpur, H.P., in HMA Petition No. 03 of 2010 titled as Kuldip Kumar Dogra Versus Smt. Monika Sharma, is subject matter of challenge before this Court.
5. This Court, made several attempts in making the parties understand the advantage and benefit of having their dispute amicably resolved. Regretfully parties could not arrive at any amicable settlement.
6. That wife levelled false allegations of infidelity stand categorically pleaded by the husband in his divorce petition. Such allegations were made in response to a petition No. 28 of 2004/RBT No. 35/05, titled as Kuldeep Kumar Dogra Versus Smt. Monika Sharma, so filed under Section 9 of the Act; petition for maintenance filed under Section 125 Cr.P.C. and in response to the petition in question, she has inter alia reiterated such allegations and pleaded cruelty through the hands of her husband.
7. Certain facts are not in dispute. Parties to the lis were married on 26.04.1993 and two children Shubham Dogra and Praful Dogra were born out of the wedlock. Since 10.01.2004 parties have been residing separately. Husband shifted to his native village Khasgran, whereas wife continued to reside with her children at Anu, District Hamirpur, H.P. On 04.03.2004, husband filed a petition under Section 9 of the Act (Ex. R-3), seeking restitution of conjugal rights, in which wife filed her response clearly pleading cruelty meted out by her husband. In fact, she categorically pleaded that disharmony inter se the parties started after she observed illicit relationship, which her husband was having with his sister-in-law (Bhabhi). In the said petition, on 18.02.2006, even on oath she made statement (Ex. P-2) to this effect. The said petition came to be dismissed vide judgment and decree dated 30.04.2008 (Ex. R-1). Appreciating the testimonies of the wife and her son as also official witnesses Pawan Kumar and Mohinder Singh, Court found that since the wife stood subjected to cruelty by her husband, who had also disconnected the electricity and telephone connections, so installed in the premises occupied by her, it was a case of constructive desertion. Appeal, so filed by the husband stood dismissed by this Court vide judgment dated 08.12.2009 in FAO (HMA) No. 303 of 2008, titled as Shri Kuldeep Kumar Dogra Versus Smt. Monika Sharma (Ex. R-4).
8. Incidentally the Court, made no observation with regard to the correctness or otherwise of the allegations of the alleged illicit relationship. Thus the issue of restitution of conjug........