WA 36/2006 BEFORE HON’BLE THE HON’BLE MR.JUSTICE AMITAVA ROY THE HON’BLE MR.JUSTICE A.POTSANGBAM The appellant-wife being aggrieved by the determination made against her in Titl e Suit (M)14/2003 registered on an application under section 13 of the Hindu Mar riage Act, 1955 ( hereinafter referred to as the Act) of the respondent- husban d granting decree for dissolution of marriage, is before this Court seeking redr ess. [2] We have heard Mr. J.P.Sharma, learned counsel appearing for the appellan t. Though the names of the learned counsel for the respondent appear in the Caus e List, none is in attendance. Having regard to the year of registration of the appeal, we are not inclined to adjourn the hearing thereof. [3] The pleaded assertions of the parties have to be briefly dealt with for better appreciation of the submissions advanced on behalf of the appellant-wife. The parties are Hindus and were married in accordance with their religious rite s on 11.12.2000 whereafter, they set up their marital home. In his application, the respondent husband alleged total non-cooperation and indifferent attitude of the appellant- wife to perform her matrimonial obligations. According to him, n ot only she refused cohabitation on various pretexts, she disclosed as well the lingering attachment with some other man in her mind. The Respondent-husband als o alleged infertility of the wife at the time of marriage. He further alleged th at the appellant used to frequently visit her father’s house on slightest excuse s and, eventually, deserted the matrimonial home on 7.6.2002. He, therefore, ass erted unbearable cruelty towards him by her and thus sought a decree for divorce . The appellant-wife denied the imputation of non-cooperation a nd indifference as well her infertility and imputed the respondent-husband’s lac k of inclination to cohabit with her more particularly, in view of his illicit r elationship with his sister- in -law, who used to reside in the same premises. S he also alleged physical and mental torture so much so that she was ousted from the marital home on 7.6.2002. She asserted that the false plea of lack of cooper ation in the matter of cohabitation was only to cover the respondent’s immoral r elationship with his sister- in- law. [4] On the basis of the pleadings, issues were framed. The parties examined themselves and 3 witnesses each in support of their respective cases. The learne d Trial Court on a consideration of the pleadings and the evidence decreed the s uit for divorce by the impugned Judgment and order-dated 15.9.2006. [5] Mr.Sharma, learned counsel for the appellant has strenuously urged tha t the impugned judgment and order suffers from jurisdictional error inasmuch as considering the allegation of non-consummation of marriage made by the responden t, an application under section 12 of the Act ought to have been filed. As the l earned Court below had no jurisdiction at all to entertain an application under section 13 of the Act, the impugned judgment and decree is liable to be annulled on that ground alone. He has questioned the maintainability of the proceeding a lso on the ground that the same has been lodged within two years of the physical separation of the parties w.e.f. 7.6.2002 and thus hit by section 13(1)(i b) of the Act. While contending that the appellant wife had not deserted her matrimon ial home but was forced to leave the same and that respondent husband entertaine d animus deserendi from 13.12.2002, the learned counsel for the appellant has ar gued that he having failed to adduce medical evidence to establish the infertili ty of the wife, the learned Court below ought to have rejected the petition. Mr. Sharma, has further pleaded that in absence of any evidence on record that marri age has not been consummated, the learned Trial Court fell in error in accepting the said plea of the respondent husband and decreeing the suit. [6] Before recording our findings, it would be apt to summarily traverse the evidence on record. [7] The respondent husband in his evidence has broadly substantiated the fac ts pleaded in his petition and, therefore, no reiteration thereof in details is essential. He admitted his marriage with the appellant and also highlighted her continuous aversion to cohabitation on the ground of tiredness or otherwise. H e stated that such conduct and inability of the wife resulted in unbearable ment al cruelty to him. He also testified about appellant- wife’s frequent visit to h er parental house without any cause. He proved Exhibit-1, exhibited by appellant -wife’s father to the effect that he has withdrawn his daughter because of incom patibility of conduct of the parties. The respondent husband also stoutly denied the allegation of his illicit relationship with his sister- in- law who is 10/1 2 years elder to him resulting in agonizing and shameful state of mind. PW 3, Smti Protiva Ray, sister- in- law of the respondent husb and on oath stridently denied the allegation of immoral and objectionable relati onship of her with the respondent. She deposed that on being enquired by her, th e appellant wife had disclosed to her that she had been forcibly married with th e respondent and, therefore, it would not be possible for her to cohabit with hi m. PW 4, a neighbour of the parties shared the information, which he received fr om the respondent husband that the appellant wife had disclosed about her fondne ss for another man. [8] In contradistinction, the appellant wife in her evidence reiterated her assertions in her written statement. She also proved the application Exhibit Ka on 11.12.2000 submitted by her before the President of Vetagaon Mahila Samity about continuous confrontation between the parties leading to their miserable st ate of existence. In cross examination, the appellant wife conceded that it woul d not be possible to live any more with the respondent husband in view of his il licit relationship with his sister-in-law. DW 2, father of the appellant wife ad mitted exhibit-I and stated that he had withdrawn his daughter from the company of the respondent husband. DW 3, President of the Vetagaon Mahila Samity stated about the complaint-dated 11.12.2002 regarding physical and mental torture meted out by the husband and that in this connection a meeting was held. DW 4, a mem ber of the aforesaid Vetagaon Mahila Samity also deposed in the same lines. She by referring to the Exhibit ’Ka’ stated that it did not disclose any allegation of illicit relationship between the respondent husband and his sister-in-law. Th e learned Trial Court, on the basis of the said evidence, concluded as herein be low: (a) There was no cohabitation between the parties. (b) The appellant- wife had been given in marriage to the respondent husband against her will. (c) Non-consummation of marriage and indifference of the wife for cohabitati on resulted in mental cruelty to the husband. (d) The father of the appellant wife withdrew her from the company of the re spondent husband because of incompatibility of the conduct of the parties. (e) Exhibit ’Ka’ did not disclose any complaint of illicit relationship betw een the respondent husband and his sister-in-law and thus the evidence of the ap pellant wife, DW 3 and DW-4 on this charge was not acceptable. (f) Imputation of illicit relationship between the respondent husband with his sister- in- law is also not acceptable amongst other due to the fact they live in the same premises along with grown up daughters of the latter. The suit was thus decreed on the ground of cruelty. [9] The decision of the Apex Court in R.Lakshmi Narayan Vs. Santhi reported in (2001) 4 SCC 688 relied upon by Mr.Sharma, learned counsel for the appellant is of no application in the facts of the instant case. In the above case, the re spondent had filed application under section 12(1)(b) read with Section 5(ii)(b) of the Act for a declaration that the marriage with the appellant was a nullity . The instant proceeding having been instituted under section 13 of the Act for dissolution of marriage on the ground of cruelty, this decision is of no avail t o the appellant. Section 12 and 13 of the Act operate in different fields contemp lating separate reliefs as envisaged therein. The other decision of the Apex Cou rt relied by the learned counsel for the appellant in Shyam Sunder Kohli Vs.Susm a Kohli @ Satya Devi reported in (2004) SCC 747 relates to the petition for diss olution of marriage under section 13(1)(I-b) of the Act on the ground of deserti on. This decision as well, in the facts of the instant case, does not advance th e case of the appellant wife. [10] Though in a given fact situation, any one and more of the grounds enumer ated in Section 13 of the Act may have a nexus with those as envisaged in Sectio n 12, the same per se would not render a petition seeking divorce unsustainable only because some other reliefs could be sought for by one of the litigating par ties. [11] The respondent has sought a decree for dissolution of marriage on the gr ound of cruelty and not desertion as may be noticed from his pleadings. The plea of bar of two years as envisaged in Section 13(1)(i)(b) of the Act is also not drawn in the facts of the instant case. The plea against maintainability of the proceeding, therefore, is negatived. [12] The evidence on record does not disclose any material in support of the plea of infertility of the appellant wife. Testimony of both sides on the aspect of cohabitation is also evenly balanced. The fact that the appellant wife had l eft her marital home on 7.6.2002 with her father giving an undertaking demonstra ting incompatibility on the conduct of the parties, however, cannot be lightly b rushed aside. The parties have lived separately thereafter. Unproved charges of infidelity of the respondent husband and brazen illicit relationship with his si ster- in- law in, our opinion is sufficient to subject him to unbearable mental agony resulting in cruelty, as contemplated under section 13 of the Act. The app ellant wife in her cross-examination has also candidly expressed her unwillingne ss to live with the respondent. [13] On a totality of the considerations hereinabove, we are persuaded to hol d that neither the appreciation of the evidence nor the findings recorded on the basis thereof by the learned Trial Court can be repudiated as absurd and illogi cal. The view taken by the learned Trial court is plausible one and in absence o f any irrationality and outright illegality, we are disinclined to interfere. Co nsequently, the appeal is dismissed. No costs.