JUDGMENT : GOVIND MATHUR, J. 1. This appeal is before us to examine correctness of the judgment and decree dated 24.8.2015, passed by the Family Court No. 2, Jodhpur Metro in Misc. Application No. 13/2012, Smt. Sunita Dwivedi v. Vinod Kumar Sharma. Under the judgment aforesaid learned Family Court rejected an application preferred by the appellant as per provisions of Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as ‘the Act of 1955’). Suffice to mention that under the same judgment an application preferred by respondent Shri Vinod Kumar Sharma as per provisions of Section 9 of the Act of 1955 was accepted and a decree for restitution of conjugal rights was granted. 2. In brief, factual matrix of the case is that the appellant entered into a wedlock with the respondent on 10.11.1997 at Jodhpur as per Hindu rites and customs. After marriage the appellant went to Agra (U.P.), her matrimonial town. As per the appellant, the respondent, a retired Subedar from Indian Army, is an alcoholic with violent attitude. Under intoxication he gave serious beatings to the appellant on several occasions. He was also in habit of adopting unnatural tactics while undergoing physical relations and further that he was compelling the appellant to consume liquor and also to other inhuman activities. It was also averred in the application that due to torture extended to the appellant, her father remained under serious trauma and ultimately died on 21.4.1999. In addition to whatever stated above, as per the appellant, she was third wife of the respondent and two earlier wives left him due to his cruel attitude. Looking to all these circumstances it was not possible for the appellant to stay at her matrimonial house, hence she came to her parental house at Jodhpur. In the month of May, 2004 she again went to her matrimonial house with a hope that there would be some change in attitude of the respondent but of no consequence. The appellant faced serious torture including forceful consumption of liquor with allopathic medicines. She was ultimately compelled to left her matrimonial house on 6.6.2004. 3. With this factual background a decree of divorce was claimed on the ground of cruelty and desertion. 4. The appellant faced serious torture including forceful consumption of liquor with allopathic medicines. She was ultimately compelled to left her matrimonial house on 6.6.2004. 3. With this factual background a decree of divorce was claimed on the ground of cruelty and desertion. 4. In written statement, the respondent denied the facts with assertion that the appellant being in Government School was intentionally not coming to her matrimonial house and as such the allegation of desertion was not correct. It was also stated that whatever stated about cruelty too is not correct and as a matter of fact the appellant borrowed a sum of Rs. 3,50,000/- on 3.6.2004 from the respondent and then left for Jodhpur on 6.6.2004. She then on 16.6.2006 borrowed a sum of Rs. 45,000/- and that was also paid by the respondent from his pension account. All this amount was given to have a residential house for the appellant at Jodhpur. As per the respondent, he made his best efforts to keep the appellant happy and to make the marriage successful. 5. An application under Section 9 of the Act of 1955 was also preferred by the respondent for restitution of conjugal rights. ON the request of the parties the application under Section as well as the application under Section 9 were clubbed and the application preferred under Section 13 was also treated as written to the application preferred under Section 9 of the Act of 1955. 6. On basis of the pleadings available, the Family Court framed following issues:— “1. Whether Vinod Kumar extended post marriage cruel attitude as described under Section 13 of the Hindu Marriage Act against Sunita Dwivedi? 2. Whether Vinod Kumar Sharma deserted Smt. Sunita Dwivedi for more than a period of two years without any just and reasonable cause? 3. Whether Smt. Sunita Dwivedi refused Vinod Kumar Sharma from consuming conjugal rights without any just and proper cause? 4. Relief?” 7. To support the application preferred under Section 13 of the Act of 1955, statements of appellant Smt. Sunita (AW-1) and Smt. Mala Dwivedi (AW-2) were recorded and to oppose the application aforesaid with support to application under Section 9, testimony of Shri Vinod Kumar (NW-1), Ashok Dwivedi (NW-2), Ganesh Kumar (NW-3) and Sushil Kumar Sharma (NW-4) was examined. Certain documents too were adduced in evidence. 8. Certain documents too were adduced in evidence. 8. Learned trial court, after examining entire evidence available on record, decided the issues No. 1 and 2 against the appellant and issue No. 3 in favour of the respondent. Accordingly, the application under Section 13 was rejected and the application under Section 9 was accepted with a decree for restitution of conjugal rights. 9. While adjudicating the appeal, the matter was referred for mediation on 6.3.2017. As per the report of the Mediator, the mediation failed and, therefore, the appeal came to be listed before the Court for hearing on 9.8.2017. Looking to all facts of the case the Court considered it appropriate to arrange conciliation between the parties, accordingly, on 9.8.2017 the appellant as well as the respondent were present before us. 10. Having considered all facts of the case and on being apprised with the objective conditions, we deemed it appropriate to examine merits of the appeal, hence, learned counsel appearing on behalf of the appellant was heard on 1.9.2017. None was present on behalf of the respondent, therefore, the appeal was adjourned for 5.9.2017. On 5.9.2017 also none was present to oppose the appeal, hence, the hearing was concluded. 11. Heard learned counsel and scanned the evidence available on record. 12. In appeal, the argument advanced by learned counsel is that the court below seriously erred while arriving at the conclusion that there was no cruelty on part of the respondent that may be sufficient for awarding a divorce decree. According to learned counsel the court below instead of examining the issue pertaining to cruelty gave much emphasis to the issue relating to grant of some money said to be paid to the appellant for purchasing a house at Jodhpur. It is asserted that adequate evidence is available on record to establish the violent and hostile attitude of the respondent towards the appellant. The trial court also failed to appreciate that the respondent concealed material fact about his two earlier marriages and having children therefrom. This fact in itself is sufficient to establish the cruelty. 13. The appellant in her statement narrated all facts in detail. As per this witness, after marriage she went to her matrimonial house but on the very first day she was compelled to have liquor. This fact in itself is sufficient to establish the cruelty. 13. The appellant in her statement narrated all facts in detail. As per this witness, after marriage she went to her matrimonial house but on the very first day she was compelled to have liquor. On the second night too the respondent consumed liquor and made an effort to have forceful consumption of liquor for appellant too. Under intoxication the respondent was quite ruthless in physical activities and further that under intoxication he also disclosed that he had two wives earlier and also had six children. This witness further stated that while staying at her matrimonial house she was under constant torture, thus, ultimately moved for her parental house. Her father died on 21.4.1999 but the respondent did not choose to attend the mourn hours also. This witness ultimately went to Agra on 22.5.2004, but this time also she was subjected to cruelty. In cross examination, this witness reiterated her stand and further provided details about two earlier wives of the respondent. She accepted that no criminal case was lodged by her against the cruel and criminal activities of the respondent. She also denied the allegation about borrowing money from the respondent. 14. The other witness Smt. Mala (AW-2) is wife of brother of the appellant and she also detailed the facts to establish cruelty on part of the respondent. 15. To oppose the application preferred under Section 13 and to support the application under Section 9, the respondent got himself examined. As per this witness (NW-1), he neither tortured the appellant nor made any effort to victimise her in any form. He categorically denied the allegations made by the appellant pertaining to causing physical injuries. This witness, much emphasised about the fact that the appellant fraudulently borrowed a sum of Rs. 3,50,000/- and subsequently a sum of Rs. 45,000/- from him and just to grab that money she preferred the applications to have a decree of divorce. As per this witness, the appellant at her own did not join the matrimony since 1997 and then only in 2004 she came to have money from him. This witness accepted about his earlier marriage and having two children therefrom. It is also stated that earlier marriage was no more in existence being annulled legally. 16. The other evidence adduced on behalf of the respondent too is mainly of same nature. 17. This witness accepted about his earlier marriage and having two children therefrom. It is also stated that earlier marriage was no more in existence being annulled legally. 16. The other evidence adduced on behalf of the respondent too is mainly of same nature. 17. Learned counsel appearing on behalf of the appellant while pressing the allegations of cruelty, much emphasised that the parties are living separately since 2004, therefore, no useful purpose shall now be served by maintaining the order passed by the trial court. It is asserted that as a matter of fact the cohabitation in the year 2004 too was for a little period and the parties in fact are not residing together from last about two decades, the marriage as such has arrived at an irretrievable point. The irretrievability of marriage is not a ground available to be pursued before us in view of the provisions of Section 13 of the Act of 1955, however, the same is also a factor i.e. to be taken into consideration while examining the ground pertaining to desertion and also the cruelty. 18. In the case in hand, beside all other allegations pertaining to physical cruelty, an important aspect is concealment of fact about earlier marriage. The appellant in quite specific terms stated that she came to know about the third marriage of the appellant only on second night subsequent to marriage. She also stated about six children of the respondent. The respondent in his evidence though has stated that as a matter of fact he had only one marriage earlier but has not rebutted the statement about non disclosure of earlier marriage before solemnising the wedding with the appellant. We are of considered opinion that non disclosure of such an important aspect is nothing but a mental cruelty. We are not in agreement with the averment contained in the statement that first marriage was of no consequence being already annulled in view of the fact that even the first marriage, if was not in existence then too it was obligatory to disclose this fact before entering into second marriage. It is also not denied that the respondent is having children from earlier marriage. All these facts, in our considered opinion, should have been disclosed before the marriage with the appellant and concealment of the same is nothing but a cruelty. It is also not denied that the respondent is having children from earlier marriage. All these facts, in our considered opinion, should have been disclosed before the marriage with the appellant and concealment of the same is nothing but a cruelty. Learned court below has not taken into consideration this aspect of the matter. It would also be appropriate to mention that during the course of conciliation proceedings we noticed that the main anxiety of the respondent is only to have money i.e. said to be borrowed from him by the appellant and not the continuation of marriage. Be that as it may, the factual aspect noticed above is sufficient enough to arrive at a conclusion that the respondent was cruel towards the appellant and i.e. sufficient to annul the marriage. 19. Accordingly, this appeal is allowed. The judgment and decree dated 24.8.2015 passed by learned Family Court are set aside. The application preferred by the appellant as per Section 13 of the Act of 1955 is allowed. The marriage solemnised between the parties on 10.11.1997 is hereby annulled. A decree of divorce be accordingly prepared and granted.