IN THE HIGH COURT OF JUDICATURE AT PATNA ---------- Miscellaneous Appeal No.685 of 2010 -------- Appeal against the judgment and decree dated 14-7-2010 passed by the Principal Judge, Family Court, Bhojpur, Ara in Matrimonial Case no. 208 of 2008. --------- Abhishek Verma @ Chunnuji, Son of Gopalji Gupta, R/o Mohalla- Bichli Road Tari, P.S.Ara Town, District- Bhojpur.......................Appellant Versus Khusbu Kumari @ Khusbu Devi , Wife of Abhishek Verma, D/o Ashok Kumar Shaumeyari, R/o Abarpur Bari Masjid, Ara, P.S.Ara Town,Dist- Bhojpur............Respondent -------- 6 18-11-2011 Heard learned counsel for the appellant and learned counsel for the respondent-wife. 2. This appeal under section 19 of the Family Court Act is directed against the judgment and decree dated 14th July,2010 passed by Principal Judge, Family Court, Bhojpur, Ara in Matrimonial Case No. 208 of 2008. The appellant-husband preferred the aforesaid case seeking divorce on the ground of cruelty and desertion. The suit has been dismissed with a cost of Rs.5,000/- after recording a finding in respect of issue no.4 that no case of desertion 2 could be alleged because according to the plaintiff the wife left the matrimonial house on 29-3-2008 and the case was filed on 10-12-2008 before the required period of two years of separation or desertion was completed. In view of provisions in Section 13 (1) (ib ), the learned court below has rightly held that no case for desertion could be made out. 3. So far as issue no.3 relating to cruelty is concerned, the case of the plaintiff/appellant is that the wife and her family members had behaved with cruelty and the wife used to abuse the husband and his family members. Allegedly, she tortured her mother-in-law and always quarreled with her in-laws as well as with the husband. The plaintiff had filed two informatory petitions in the court of Chief Judicial Magistrate dated 28-3-2008 and 21-7-2008. These are exhibits 2 and 2/a respectively. It is further case of the plaintiff that he was being pressurized by the wife and her family members to live separately from his father and evidence has also been led to this effect. However, the plaintiff also attempted to show that he and his father had separated through an agreement dated 30th March, 2008 3 (Ext.1). The court below found the case of the plaintiff being contrary to Ext.1 because there would have been no occasion to pressurize the husband to live separately if he had already separated from his father as per Ext.1. 4. Learned counsel for the appellant has submitted that altogether five witnesses were examined on behalf of plaintiff including the plaintiff himself as P.W.1 and that they have supported the case of the plaintiff on the point of cruelty by the wife. His further submission is that the court below should have accepted the case of the plaintiff as more probable and allowed the prayer for divorce at least on the ground of cruelty. On the other hand, learned counsel for the respondent-wife has submitted that the court below has perused and discussed the evidence of all the five witnesses examined on behalf of plaintiff and has also considered the exhibits for coming to a proper conclusion that no case of cruelty was proved. He further submitted that five witnesses were examined by the defendant, who was herself examined as O.P.W.4 and from such evidence, it is clear that she was being tortured for dowry etc. and she had been thrown- out of the matrimonial house which forced her to 4 file a criminal case bearing Ara ( Town ) P.S.Case No. 172 of 2009 wherein the plaintiff and his family members are accused . That case under section 498(A) of the I.P.C.,was filed on 2-1-2009 and is still pending. 5. No doubt, the plaintiff as P.W.1 has supported his case but as appears from paragraph-14 of the judgment under appeal, he has resorted to speak exaggerated versions much beyond the pleadings. He has admitted that he was not ready to live with the wife even if she wanted to live with him. That is the inference we have drawn even from submissions advanced on behalf of the parties. He has admitted that he did not read over the contents of the plaint and was unaware of the pleadings. He claimed that he signed on the plaint on being asked by his counsel. Admittedly, no information was given to the police or to the court regarding assault and abuse by the wife. He also attempted to create doubt regarding character of the wife, contrary to the pleadings. The court below rightly found this witness unreliable. The very reason for the alleged cruelty by the wife, her desire to live separately, was found untrustworthy in view of Ext.1 produced on behalf of 5 plaintiff that shows that he separated from his father on 30th March, 2005. In our view, Ext.1 itself is also doubtful because the plaintiff is only son of his father and the father has come to support the case of the plaintiff by deposing as P.W.4. As P.W.4 the father has alleged that the defendant harassed them with the help of police. This could not be the case in the plaint because admittedly the police case was lodged after filing of the suit. P.W.2 has deposed that the plaintiff and his father wanted to bring the defendant to their house but she did not come. This was contrary to deposition of the plaintiff that he was not ready to live with his wife. He has further deposed beyond the case of the plaintiff by alleging that family members of the defendant had assaulted the plaintiff and his father when they had gone for “Bidai”. P.W.3 is not a witness on the point of cruelty. He has attempted to create doubt regarding the character of the defendant-wife which is not the case of the plaintiff. P.W.4, the father of the plaintiff has not supported the version of P.W.2 that he and his son had gone for Bidai of the defendant where they were assaulted . He has contradicted the case of the plaintiff by stating that plaintiff 6 is not dependent on him as he has got separate business. He has deposed that no Sanha or information was lodged in respect of threat or assault by the defendant. P.W.5 has deposed that he heard the defendant quarrelling with her in- laws and husband but admittedly he is interested in deposing in favour of the husband because he works out- side the shop of the plaintiff. He has admitted that he had come to depose on the request of the plaintiff. 6. The contents of the informatory petitions contained in Exts 2 and 2/a have also been discussed by the court below to show that they are contradictory to the case of the plaintiff. From Ext.3, the police case lodged by the wife, it is apparent that the defendant was allegedly being tortured for demand of dowry. 7. The witnesses examined on behalf of defendant have stated that the defendant was being tortured. They have also stated that she was ready to live with the husband . They have deposed that behavior of the defendant is quite good and she bears a good character. In our considered view, the evidence on record does not permit to come to a conclusion that the respondent-wife had committed any 7 such act of cruelty which entitled the appellant to a decree of divorce. We find no merit in this appeal. It is accordingly dismissed with cost of Rs.5,000/- Naresh ( Shiva Kirti Singh, J.) ( Shivaji Pandey,J)