IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL First Appeal No. 16 of 2008 Ajay Batra S/o Sri Vinod Kumar, At present R/o C/o Roshan Lal Gulati, 192 Vankhadi Gram, Rishikesh, District Dehradun. .................Plaintiff/Appellant. Versus Smt. Monika, W/o Sri Ajay Batra, D/o Shri S. Nanda, R/o Nanda Communication 18/12 Araghar Chowk, Dehradun. .............Defendant/Respondent Sri R.K. Verma, Advocate for the plaintiff / appellant. Sri Lokendra Singh, Advocate for the defendant / respondents. Hon’ble Prafulla C. Pant, J. Hon’ble Dharam Veer, J. [Oral- Prafulla C. Pant, J.] This appeal, preferred under Section 19 of Family Courts Act, 1984, read with Section 28 of Hindu Marriage Act, 1955, is directed against the judgment and order dated 23.02.2008, passed by Additional Judge, Family Court, Rishikesh, in Suit No. 55 of 2007, whereby the plaintiff’s suit for decree of divorce is dismissed. (2) Heard learned counsel for the parties and perused the lower court record. (3) Brief facts of the case are that plaintiff / appellant Ajay Batra got married to defendant / respondent Monika, according to Hindu rites on 05.09.2006 in a temple of Ambala and thereafter they lived in Rishikesh. There is no issue born out of the wedlock. Their relations did not remain cordial and it is pleaded by the plaintiff in his petition under Section 13 of Hindu Marriage Act, 1955, which was registered as a Suit, that his wife respondent started treating him with cruelty. She used to insult him and his family members. It is also alleged that the matrimonial relations between the parties have totally broken down. It is further pleaded that the parties have not cohabited since the marriage, as the respondent had not allowed her husband (plaintiff) to consummate the marriage. With these allegations petition for divorce was moved on the ground of cruelty mentioned in Section 13(1)(ia) of the Hindu Marriage Act, 1955. (4) The defendant / respondent contested the suit and filed her written statement. The factum of marriage was admitted by her. However, she alleged that it was the behaviour of the husband, which was cruel towards her. Lastly it is stated by the wife that it has become impossible for her to liver with her husband (plaintiff). (5) On the basis of the pleadings of the parties, following issues are framed by the trial court:- (i) Whether the defendant has treated the plaintiff with cruelty, as alleged in the plaint. (ii) To what relief, if any, the plaintiff is entitled. (6) It appears that both the parties led their evidence before the trial court by filing the affidavits as provided under the amended Code of Civil Procedure, 1908. However, the trial court dismissed the petition / suit for divorce on the ground that the parties had filed a compromise praying for divorce, and suit cannot be decreed in terms of compromise. (7) Having heard learned counsel for the parties and after going through the lower court record, we are of the view that the trial court has erred in law in not deciding the issue relating to cruelty on merits. If the trial court did not think it proper to decide the suit in terms of compromise filed by the parties, it could have rejected the same but should have decided the suit on merits. Merely for the reason that in a pending suit for divorce, if the parties enter into compromise that does not necessarily mean that they were in collusion at the time of the filing of the suit, particularly in view of the fact that the allegations contained in the plaint are denied by the defendant / respondent in her written statement and issue has been framed on its basis. (8) The marriage between the parties is admitted. It is also not denied that parties have not yet consummated the marriage. As a first appellate court we have also to appreciate the evidence adduced by the parties. The affidavit filed by the plaintiff before the trial court proves the fact that the defendant / respondent has treated the plaintiff / appellant with cruelty. It has been stated in the affidavit filed on behalf of the plaintiff before the trial court that the respondent used to hurl abuses at her husband and in-laws and also used to insult them. Hurling abuses at the husband and in-laws without any reason and insulting them does amount to cruelty. Not only this, not permitting the spouse to cohabit without sufficient reason also amounts to cruelty. The plaintiff (husband) has stated that the respondent did not permit him to cohabit. The wife (respondent) in her affidavit has admitted that marriage is not consummated. (9) For the reasons as discussed above, the trial court has erred in law in not decreeing the suit for divorce, on the ground of cruelty. Therefore, the appeal is allowed. The impugned judgment and order dated 23.02.2008, is set aside. The petition, under Section 13 of Hindu Marriage Act, 1955, is allowed. Suit for divorce is decreed. Marriage between the parties is hereby dissolved. (Dharam Veer, J.) (Prafulla C. Pant, J.) 08.05.2008 NS