B. J. SHETHNA, J. ( 1 ) ADMIT, Mr. B. K. Oza, Isarned counsel appearing for the respondent husband waives service of notice. ( 2 ) THIS is a matrimonial matter between the appellant-wife and respondent- husband where Ms. L. R. Abichandani, Judge, family Court No. 3, Ahmedabad partly decreed the suit filed by the present respondent-husband and dissolved the marriage between the parties on the ground of cruelty under Section 13 (1) (1-a) of the hindu Marriage Act, 1955 (for short "the act") and ordered the husband to pay rs. 1,500/= p. m. to his wife towards permanent alimony from the date of judgment till she gets remarry or survive and also ordered the husband to pay Rs. 1,200/ = p. m. to his wife towards the maintenance of her minor child from the date of judgment till the age of majority, this impugned judgment and order dated 13. 10. 2004 passed by the learned Judge, Family Court No. 3, ahmedabad: in Family Suit No. 1721 of 2000 is challenged in this appeal by the appellant- wife. ( 3 ) IN this case, initially on 4. 11. 2004 division Bench consisting of A. M. Kapadia and D. II. Waghela, JJ. ordered to issue notice making it returnable on 8. 12. 2004 and on Civil Application ad-interim relief in terms of para 5 (c) was granted whereby the impugned judgment and order passed by the learned Judge of Family Court was stayed. Thereafter, the matter was adjourned from time to time and on 20. 12. 2004, the Division bench consisting of M. S. Shah and d. H. Waghela, JJ. adjourned the matter to 10. 1. 2005 enabling the parties to appear before the Lok Adalat / permanent Lok adalat for amicable settlement. Thereafter, on 25. 1. 2005 another Division Bench of this court consisting of Dr. Justice J. N. Bhatt and m. D. Shah, JJ, after considering the submissions of the learned counsel for the parties, on their joint request directed the registry to place the matter before the permanent Lok Adalat on 9. 2. 2005. Accordingly, it was placed before the permanent Lok Adalat consisting of Honble mr. Justice J. P. Desai (retd.) and Honble Mr. M. M. Parikh (retd. ). We find from the order sheet dated 9. 2. 2. 2005. Accordingly, it was placed before the permanent Lok Adalat consisting of Honble mr. Justice J. P. Desai (retd.) and Honble Mr. M. M. Parikh (retd. ). We find from the order sheet dated 9. 2. 2005 passed by the Honble members of the Permanent Lok Adalat that the parties were present with their advocates and the matter was kept on 16. 2. 2005. On 16th parties were present before the court. Brother of appellant -Falguniben and father of husband Mouleshkumar were also present. Honble Mr. Justice J. P. Desai (retd.) called the parties alone and tried to find out some solution. But, the husband-Mouleshkumar stated that it is not possible for him to stay with his wife-Falguniben though she was prepared to stay with him. Taking note of the attitude of the husband. His Lordship observed that no settlement is possible and the matter was sent back to regular court. Accordingly, it is placed today before us. ( 4 ) FROM what has been stated above it is clear that the settlement between the parties is not possible, therefore, the matter was required to be decided on merits in accordance with law. Accordingly, this appeal is decided after hearing learned counsel for the parties. ( 5 ) WE have been taken through the impugned judgment and order passed by the learned Judge decreeing the suit of the husband Mouleshkumar and dissolving the marriage solemnized between the parties on the ground of cruelty under Section 13 (1) (1- a) of the Act. Not a single ground assigned by the learned Judge in her order is sustainable for maintaining her judgment and decree of dissolution. ( 6 ) IN the instant case, it has come on record by way of evidence in the nature of affidavit at Ex. 36 filed by the wife that her husband had left the house since last 7 years, therefore, she had to stay along with her minor child with her father in-law i. e. father of her husband-Mouleshkumar-Shri indravadanbhai. The case of the husband that she was looking at him with suspicious eyes was denied. The wife also denied the allegation made against her by the husband that she was careless or non-cooperative to him. The case of the husband that she was looking at him with suspicious eyes was denied. The wife also denied the allegation made against her by the husband that she was careless or non-cooperative to him. In fact, she has stated that she discharged all her duties as a real Hindu wife and she does not want to marry again even if the decree of divorce is passed. In her cross-examination by the husband she admitted that she was more educated and qualified than her husband. Startling fact came out in her cross examination when she admitted that other family members were not keeping any relation with her father-in- law, because her husband do not want her to stay with her father-in-law i. e. father of husband -Mouleshkumar. ( 7 ) IT is not in dispute that the husband-Mouleshkumar himself left his house wayback on 13. 9. 1994 leaving behind him his destitute wife and minor child helplessly. Prior to that at least twice her husband left the house in this manner, but this time after 1994, he had never returned. In spite of this, the learned Judge came to the conclusion that there was a cruelty on the part of the wife and, therefore, passed (he decree of dissolution by allowing the suit. After the marriage, if the husband is not staying at his home and remaining out with the excuses of business and used to come late regularly, then obviously any wife would ask that question. That can never be said to be cruelty on the part of the wife. If at all there was any cruelty it was on the part of the husband towards his wife. It appears from the evidence and the record of the case that in the instant case, the husband has studied up to 12th Standard, whereas, his wife was graduate and very well educated and because of that the husband was keeping distance from his wife. It clearly appears from the cross-examination of the wife made by her husband that her husband never liked his wife staying with her father in- law and, therefore, he left his house. Could it be a cruelty on the part of the wife or husband? It clearly appears from the cross-examination of the wife made by her husband that her husband never liked his wife staying with her father in- law and, therefore, he left his house. Could it be a cruelty on the part of the wife or husband? ( 8 ) IT is unfortunate that without properly considering the judgment of the honble Supreme Court in case of ASHOK govindram HURRA V/s. RUPA ASHOK hurra REPORTED IN 1996 (2) HINDU L. J. 512, the learned Judge came to the conclusion that when the parties stayed separately for a period of 10 years without any matrimonial tie, love or affection between them, then court must grant decree of dissolution in favour of the husband. The learned Judge has completely ignored the fact that it was the husband who was staying separately from his wife for certain reasons. That cannot be used in favour of the husband for passing decree of divorce. ( 9 ) IT is unfortunate that the learned judge has relied upon the judgment of the honble Supreme Court in case of Ashok hurra (supra) where the facts were totally different. In our considered opinion, it was not at all applicable on the facts of this case. Unfortunately, without properly considering the same in the impugned judgment, the learned Judge observed that the judgment of the Honble Supreme Court squarely applies to this case because in this case also though re-union was out of question and the husband has not cared for his child and wife because the wife is maintained by her father- in-law. According to the learned Judge, the marriage was completely dead and there was no love and affection and emotions and continuance of marital alliance for namesake would be agony. It the decree of dissolution of marriage was to be passed on such ground, then ungrateful husband would stay separately from, his wife for couple of years and go to the court and ask for divorce on the ground of cruelty. At the cost of repetition, we may state that if at all there was a cruelty then it was on the part of the husband and not on the part of wife. In the instant case, like other Hindu wife the appellant-wife suffered and tolerated her husband, but ultimately what she got from her husband? At the cost of repetition, we may state that if at all there was a cruelty then it was on the part of the husband and not on the part of wife. In the instant case, like other Hindu wife the appellant-wife suffered and tolerated her husband, but ultimately what she got from her husband? Firstly, suit for divorce and then the decree of divorce passed merrily by the learned Judge. ( 10 ) IN such type of cases if this court does not interfere with the orders then it would be failing in discharging its duty. ( 11 ) IN view of the above discussion, this appeal, is allowed, and the impugned judgment and decree of dissolution of marriage dated 13. 10. 2004 passed by the learned Judge, Family Court No. 3, ahmedabad in Family Suit No. 1921 of 2000 is hereby quashed and set aside and the suit filed by the present respondent-husband Is hereby dismissed. ( 12 ) COPY of this judgment be kept on record of the learned Judge by the registry. ( 13 ) ONCE the appeal is allowed, therefore, the Civil Application for stay would not survive any more and it is disposed of. .