JUDGMENT : 1. The instant misc. appeal has been filed by the appellant/husband, Roshan Lal, under Section 19 of the Family Court Act, 1984 read with Section 28 of the Hindu Marriage Act, 1955, being aggrieved against the judgment dated 20th of October, 2016 passed by learned Judge, Family Court, Rajsamand in Civil Misc. Case No. 74/2016, whereby the learned court below allowed the application filed by the respondent/wife under Section 13 of the Hindu Marriage Act, 1955 (Act of 1955) and granted divorce decree in favour of respondent/wife, Sushila. 2. Briefly stated, the facts of the case are that an application for grant of divorce against the appellant/husband was filed by the respondent, Sushila, inter-alia, on the ground that she was married with the appellant in the year 1998 and after attaining majority, she started living with the appellant as his wife. According to respondent/wife, she was treated badly by the appellant as no child was born out of their wedlock. The respondent further stated that she was mentally harassed for not having any child. It is also alleged that she was harassed for demand of dowry and ousted her out from the matrimonial home. An FIR was also lodged by her against the appellant and his family members. Thus, the respondent/applicant prayed for dissolving the marriage. 3. The appellant/husband filed his reply and categorically denied the allegations and submitted that the applicant/respondent was never ousted out from the matrimonial home, more so, the appellant was maintaining her well with full responsibility but she herself left the house. One of the relative of the appellant lodged a criminal case against his family members and to put undue pressure upon the appellant, coercive measures were taken and when appellant did not bend upon to the demand of the respondent; and her family members a false case for offence under Section 498A of IPC was registered against him. The appellant also filed an application under Section 9 of the Act of 1955 for restitution of conjugal rights. 4. The learned Judge, Family Court, Rajsamand as per pleadings of the parties framed three issues to determine the dispute. The respondent/applicant wife appeared in the witness box as AW. 1 and the appellant/husband appeared as NAW. 1 to give statement in support of their case. 5. 4. The learned Judge, Family Court, Rajsamand as per pleadings of the parties framed three issues to determine the dispute. The respondent/applicant wife appeared in the witness box as AW. 1 and the appellant/husband appeared as NAW. 1 to give statement in support of their case. 5. After hearing final arguments, the learned court below vide its judgment dated 22.10.2016 proceeded to allow the application filed by the respondent/wife under Section 13 of the Act of 1955 and granted divorce decree and dismissed the application filed by the appellant u/s. 9 of the Act of 1955 for restitution of conjugal rights. In this misc. appeal the judgment and decree dated 22.10.2016 is under challenge. 6. Learned counsel for the appellant submits that the impugned judgment and decree passed by the learned court below is contrary to law and facts and, therefore, is not sustainable in law. As per arguments of the learned counsel for the appellant, respondent/wife without there being any reasonable cause had deserted the appellant and in order to prove the same the appellant has tendered very reliable and authentic evidence, so also, filed an application under Section 9 of the Act of 1955 for restitution of conjugal rights, but the learned court below did not consider the said ground while deciding the application filed for divorce by the respondent. 7. According to learned counsel for the appellant the finding recorded by the learned Judge, Family Court, so far as finding with regard to Issue No. 1 is concerned, the same is contrary to the evidence adduced by the appellant because the learned court below has put much stress upon the fact that a criminal case for the offence u/s. 498A IPC is pending against the appellant, but mere pendency of criminal case cannot be proved that the appellant had in any manner acted in cruel manner for demand of dowry. On the contrary, appellant wholeheartedly tried to restore his matrimony. He, therefore, argued that the finding on Issue No. 1 is totally erroneous. 8. On the contrary, appellant wholeheartedly tried to restore his matrimony. He, therefore, argued that the finding on Issue No. 1 is totally erroneous. 8. Learned counsel for the appellant further argued that cogent and convincing evidence was produced to prove the averments made in the reply and so also in the application for restitution of conjugal rights and it was the respondent/wife who without there being any reasonable cause had left the company of the appellant, therefore, it is obvious that the respondent herself is erring party, is required to live with the appellant. 9. The crux of the arguments of learned counsel for the appellant is that if the finding recorded by the learned court below is objectively examined in the light of factual scenario and the evidence of rival parties, then, it will revealed that the court below has very conveniently ignored and overlooked the positive aspect of the appellant's case and has given undue credence to wholly unreliable and untrustworthy evidence and material place on record by the respondent/wife. According to learned counsel for the appellant above fact clearly indicates that leaning of the court below in favour of respondent and that has rendered the impugned judgment, absolutely perverse and consequently the same is not sustainable in law. 10. Learned counsel for the appellant vehemently argued that it is a fit case in which appeal is required to be admitted and decided on merit. 11. After hearing the learned counsel for the appellant, we have perused the judgment passed by learned Judge, Family Court, Rajsamand. 12. 10. Learned counsel for the appellant vehemently argued that it is a fit case in which appeal is required to be admitted and decided on merit. 11. After hearing the learned counsel for the appellant, we have perused the judgment passed by learned Judge, Family Court, Rajsamand. 12. The learned court below has framed three issues to decide the application filed by the respondent/wife under Section 13 of the Act of 1955 and application filed under Section 9 of the Act of 1955 filed by the appellant/husband, which reads as infra:- ^^1- vk;k foi{kh@ifr jks'kuyky us izkfFkZ;k@iRuh Jhefr lq'khyk ds lkFk xkyh&xykSp dj] mls cka>M+h dk rkuk nsdj] ngst es 50 gtkj :i;ksa dh ekax dj] mlds lkFk ekjihV dj Øwjrkiw.kZ O;ogkj fd;k] bl dkj.k izkfFkZ;ks@iRuh dk foi{kh@ifr ds lkFk jgdj] nkEiR; thou fuokZg djuk laHko ugha gS vkSj bl vk/kkj ij fookg foPNsn dh fMØh izkIr djus dh vf/kdkfj.kh gS\ 2- vk;k fd izkfFkZ;ksa Jhefr lq'khyk foi{kh jks'kuyky dh fookfgr iRuh gS vkSj izkfFkZ;k Jhefr lq'khyk us foi{kh jks'kuyky dks fcuk fdlh ;qfDr;q;Dr dkj.k ds nkEiR; lq[k ls oafpr dj jpkk gS vkSj bl dkj.k foi{kh@ifr izkfFkZ;k@iRuh ds fo:) nkEiR; vf/kdkjks ds iquZLFkkZiuk dh fMØh izkIr djus dh vf/kdkjh gS\ 3- vuqrks"ka^^ 13. Learned Judge, Family Court while deciding the Issue No. 1, which was with regard to cruelty being committed by the appellant towards his wife/respondent, and so also restitution of conjugal rights, discussed the statement of respondent/wife, so also, statement of the appellant/husband and considered the fact that an FIR was registered against the appellant under Section 498A of IPC and proceedings were also initiated against the appellant under Section 12 of the Domestic Violence Act. 2005. The aforesaid proceedings were pending against the appellant, and considering all these facts, the learned trial court gave finding that it is a case in which the allegation of cruelty and desertion cannot be rejected because in the application filed u/s. 9 of the Act of 1955, the appellant in cross-examination, at Page 2 of the cross-examination, has accepted that he has ousted his wife from the house and thereafter no efforts were made by him to take her back in the house. The learned court below gave finding that the respondent/wife has proved the cruelty and desertion by leading evidence and as per evidence on record, u/s. 13(1)(B) of the Act of 1955, the respondent is entitled for divorce decree because without any reason the appellant/husband has deserted his wife. 14. Upon perusal of the finding recorded by the learned trial court, we are of the opinion that no error has been committed by the learned court below so as to give finding that there were criminal cases under Section 498A of IPC and u/s. 12 of the Domestic Violence Act, which were pending; and as per the statement of appellant/husband has ousted respondent/wife from the house and has not made any efforts to take back her in his matrimonial home. The only argument was raised by the appellant that FIR registered against him u/s. 498A IPC is based upon false allegations. 15. The only argument was raised by the appellant that FIR registered against him u/s. 498A IPC is based upon false allegations. 15. Learned counsel below has considered the very important aspect of the matter that in the cross-examination appellant accepted that he has ousted the respondent/wife from the matrimonial home, and gave following finding, which reads as infra:- ^^foi{kh us viuh ftjg ds ist la-2 esa bl lq>ko dks Lohdkj fd;k gS fd tc lq'khyk dks ?kj fudkyk ---------- fdUrq ckn esa dgk fd lq'khyk dks eSusa ugha fudkykA foi{kh viuh ftjg ds izkjaHk esa vius f[kykkQ izkfFkZ;k dh fjiksVZ ij vkjksi i= is'k gksuk vLohdkj djrk gS tcfd mlds f[kykQ vkjksi&i= U;k;ky; U;kf;d eftLVªsV ¼d-[k½ jsyexjk esa is'k gqvk gSa ftl izdkj foi{kh us viuh ftjg ds ist la-2 ds izkjaHk esa bl lq>ko dks lgh crk;k gS fd lq'khyk dks ?kj ls fudkyus ds ckn & dks lgh Lohdkj fd;k tkuk lk{; ls vyx jgk gSA foi{kh us ckn esa lq/kkj djds dgk gS fd mlds lq'khyk dks ?kj ls ugh fudkyuk dgk gSA izkfFkZ;k us foi{kh dh vksj ls lsU;k ds laca/k esa fn;s x;s lq>koks ds ckjs esa irk ugha gksus dgk gSA lsU;k ds lac/ka esa fdlh Hkh ckr dh tkudkjh mls ugha yxrh gSA vr% ;g ugha dgk tk ldrk fd lsU;k ds izkfFkZ;k ds HkkbZ dks NksM+ nsus ds ckn foi{kh ds f[kykQ dk;Zokgh dh gksA foi{kh ds HkkbZ dks NksM+_ nsus ds ckn foi{kh ds f[kykQ dk;Zokgh dh gksA foi{kh ds f[kykQ U;k;ky; esa vkjksi i= is'k 'kqnk gS o izkfFkZ;k dh lk{; esa Hkh mlds }kjk o mlds oknfe= dh mifLFkfr esa izn'kZ&3 vkjksi i= is'k ugh gqvk gSA foi{kh dh rqyuk esa izkfFk;ka dh lk{; vf/kd fo'oluh; gks tkrh gS u fd foi{kh dhA foi{kh dk dguk gS fd lq’khyk dks mlus ?kj ls ugha fudkyk] ysfdu 5&4 lky ls vyx jguk Lohdkj fd;k gSA fnukad 16-06-2016 ls igys eSusa izkfFkZ;k dks lkFk j[kus ds fy, dksbZ dk;Zokgh ugh dhA foi{kh ds }kjk izkfFkZ;k ds f[kykQ /kkjk 9 fgUnq fookg vf/kfu;e dk izfrizkFkZuk i= izkfFkZ;k dh ;kfpdk is'k djus ds ckn tokc ds lkFk is'k fd;k gSA mlds }kjk dksbZ dk;Zokgh ugha dh x;hA foi{kh vius f[kykQ /kkjk 498, Hkka-n-la- dk izdj.k U;k;ky; esa is'k gksuk vLohdkj djrk gSA bl izdkj foi{kh dk ;g dFku lgh gS fd mlus lq'khyk dks ?kj ls ugha fudkyk RkFkk mldks lkFk j[kus ds fy, dksbZ dk;Zokgh ugh dhA foi{kh ds fo:) /kkjk 498, Hkk-na-la- dh dk;Zokgh fopkjk/khu gS rFkk vkjksi i= U;k;ky; esa is'k gqvk gSA fgUnq fookg vf/kfu;e] 1955 easa Øwjrk dks dgha ifjHkkf"kr ugha fd;k gSA /kkjk 13¼1½¼1d½ esa bl ckr dk mYys[k gS fd 'kknh ds mijkUr ;kph ds lkFk Øwjrk dkfjr dh x;h gksA Øwjrk esa 'kkfjfjd vkSj ekufld Øwjrk nksuks 'kkfey gSA ‘kkfjfjd Øwjrk rF; dk iz'u gS ,oa ,d i{k nwljs i{k dks ,slk vklk/kkj.k d"V nsrk gS ftlls mldk nks"kh O;fDr ds lkFk jguk vlHko gks tkrk gSA ngst dh ekax djuk ,d voS/k d`R; gSA izkfFkZ;k foi{kh ds chp fookg ls dksbZ larku mRiUu ugha gqbZ gSA tcfd izkfFkZ;k ds vuqlkj foi{kh ds }kjk mlds lkFk ngst dh ekax dj ekjihV dh x;h rFkk mldk L=h/ku Nhudj mls ?kj ls ckgj fudky fn;k RkFkk ngst dh eakx cuk;s j[khA izdj.k esa ,slh ifjfLFkfr;ka vo'; gS fd lsU;k ds }kjk izkfFkZ;k ds HkkbZ ds f[kykQ /kkjk 498, Hkka-n-l- izn'kZ & ,u-,-2 fjiksVZ fnukad 23-01-2013 dks is'k dh mlds mijkUr izkfFkZ;k ds }kjk foi{kh ds fo:) /kkjk 498, Hkk-n-la dh fjiksVZ is'k dh x;hA tks fd fnukad 08-02-2013 dks is'k dhA fdUrq foi{kh dh lk{; bl izdj.k esa fo'oluh; izd`fr dh ugha ik;h gS rFkk ;g vius f[kykQ /kkjk 498, Hkk-n-l- dh dk;Zokgh gksuk o fopkjk/khu gksuk vLohdkj djrk gSA fdUrq mlds }kjk viuh ftjg ds ist la-2 esa ;g Lohdkj fd;k gS fd mlus izkfFkZ;k dks ?kj ls fudkyk FkkA^^ 16. In our opinion, the aforesaid finding is further supported by the judgment Hon'ble Apex Court, therefore, no interference is called for in the finding recorded by the court below on Issue No. 1. 17. We have examined the findings given by the learned court below with regard to Issue No. 2. It is true that an application was filed by the appellant under Section 9 of the Act of 1955 for restitution of conjugal rights but the said application was filed after filing of application by the respondent/wife under Section 13 of the Act of 1955. While deciding the Issue No. 2, the learned Judge, Family Court considered the factual aspect of the matter in which it was emerged that FIR under Section 498A of IPC was filed by the respondent/wife for cruelty being committing against her in connection demand of dowry. Smt. Sushil (AW. 1) specifically stated in her statements that initially the behaviour of the appellant was cordial, however, after some time, he (appellant) started harassing her for the reason that no issue was born to the couple. He was regularly using filthy language that you are barren ^^cka>^^ . He was constantly demanding 50,000/- rupees and all the family members assaulted her be hands in the night and forcibly ousted her out from the matrimonial home. It is also observed that marriage of one Seniya, daughter of appellant's maternal uncle, got marriage with brother of respondent and a dispute was going on in between them and due to that reason the respondent/wife was living separately, however, the circumstances loudly speaks that said ground taken by the appellant was far from the truth because appellant himself accepted in his reply to the application filed under Section 13 of the Act that charge sheet was filed after investigation against him under Section 498A IPC, so also, no efforts were made by him to take back the respondent to the matrimonial home. 18. In our opinion, no error has been committed by the learned court below in granting divorce decree in favour of respondent-Smt. Sushila. 19. Consequently, there is no force in this misc. appeal and the same is hereby dismissed.