JUDGMENT : Ajit Singh, J. 1. We had reserved the Judgment and kept it for pronouncement on 8th March 2021 but as the advocates were on strike, we did not pronounce the Judgment on that day. We have kept the matter for pronouncement today as it was made to understand that the strike would be called off today. 2. Heard Sri Anurag Sharma for the appellant. 3. By way of this appeal, the appellant has felt aggrieved by the judgment and order dated 25.9.2017 passed by Additional Principal Judge, Family Court, Meerut, where he had instituted a Suit, being Case No.544 of 2015, for dissolution of his marriage with the respondent. 4. The factual scenario as it goes to be divulged before the learned Family Court Judge is that the appellant/ applicant herein, who shall be referred to as “the appellant” and the respondent would be herein after referred to as “the opponent” as they appear before the subordinate court. 5. The appellant got married with the respondent on 10.12.2009 and on 25.10.2010 they were blessed with the son, who is now 11 year of age and is in the custody of the defendant. Most unfortunately on 7.5.2012, the opponent herein complained against the appellant that he had perpetrated cruelty and had demanded dowry and that is how he and his parents had committed an offence under Section 498 of the I.P. Code. 6. After waiting for 3 years, the appellant herein filed a petition for desolation and harassment. The said matter was filed on 20.4.2015. Despite service of notice, the opponent did not appear. The appellant adduced documentary evidence and filed his own Affidavit which came to be numbered as 27 ka. His evidence and examination-in-chief was in the form of an Affidavit. Most unfortunately on 25.9.2017, the learned Judge dismissed the matter. 7. In the petition, it was averred that both the parties belong to a profess Hindu religion and their marriage was solemnized as per Hindu Rites and Ritual on 10.12.2009. It is averred that no dowry was offered by the opponent or taken by the appellant or his family members. This was the first marriage of the appellant. As far as the opponent is concerned, it was her first marriage. It is averred that no dowry was offered by the opponent or taken by the appellant or his family members. This was the first marriage of the appellant. As far as the opponent is concerned, it was her first marriage. The averment in the petition filed before the Family Court went on to paint a picture whereby it was brought on record that it was the opponent, who was forcing the appellant to stay separate from his parents and she would use bad language. She would colour in the house and try to pressurize the appellant. It is alleged that she has threatened the appellant that if he did not separate from his parents, she would file false cases against him. 8. The appellant further contended that it was the father and the daughter, who pressurized him for staying separate from his parents which he was not willing to do. He even succumbed to pressure and started staying separately. The appellant was serving as a salesman with Mukesh Jain Jewellers Private Limited and his time of service was 09.30 a.m. to 08.00 p.m. 9. The respondent did not state any pleadings in written statement is an admitted position of fact and avoided coming to the witness box so that she may be put to examination-in-chief or cross-examination. This itself is enough to come to the conclusion that the averments made in the Suit are unrebutted. A party must state his or her own case on oath and if that is done, a presumption would arise that the case set out by the petitioner or the plaintiff or the applicant as in our case is correct and that she had filed an application under Section 24 of the Hindu Marriage Act. A copy of Affidavit on her behalf on 26.5.2015 was also filed to which reply was filed by the present appellant herein. 10. The family court waited for 2 years and 2 months. The respondent absented herself thereafter. In our case, therefore, a situation is akined to the decisions passed by the various High Courts and Privy Council in the case of Vidhyadhar Vs. Manikrao, AIR 1999 SC page 1441 and also in Sardar Gurbaksh Singh Vs. Gurdial Singh and another. This was followed by the Lahore High Court in Kripa Singh Vs. The respondent absented herself thereafter. In our case, therefore, a situation is akined to the decisions passed by the various High Courts and Privy Council in the case of Vidhyadhar Vs. Manikrao, AIR 1999 SC page 1441 and also in Sardar Gurbaksh Singh Vs. Gurdial Singh and another. This was followed by the Lahore High Court in Kripa Singh Vs. Ajaipal Singh and others, AIR (1930) Lahore 1 and the Bombay High Court in Martland Pandharinath Chaudhari Vs. Radhabai Krishnarao Deshmukh AIR (1931) Bombay 97. The Madhya Pradesh High Court in Gulla Kharagjit Carpenter Vs. Narsingh Nandkishore Rawat also followed the Privy Council decision in Sardar Gurbakhsh Singh’s case (supra). The Allahabad High Court in Arjun Singh Vs. Virender Nath and another, held that if a party abstains from entering the witness box, it would give rise to an inference adverse against him. Similarly a Division Bench of the Punjab & Haryana High Court in Bhagwan Dass Vs. Bhishan Chand and others, drew a presumption under Section 114 of the Evidence Act against a party who did not enter into the witness box. 11. The genesis of the application rather Suit which was filed for divorce was on the basis of the perpetrated cruelty by the wife. 12. Having considered the argument advanced and on perusal of the record, it is evident that the family court failed to consider the cruelty pleaded by the plaintiff-appellant in which the plaintiff’s wife illegally lodged the criminal case under Sections 498A/323/504/506 of I.P.C. and 3/4 Dowry Prohibition Act, Police Station – Lisadi Gate, Meerut, and in the aforesaid case the appellant as well as his father and mother were acquitted on merits vide judgment and order dated 1.2.2016 passed by the A.C.J.M. Ist, Meerut. The behaviour and action of the appellant’s wife with her husband/appellant was not according to sacrament as per the Hindu Marriage Act. The public interest as well as social interest in the society demands not only that the married status should, as far as possible, and whenever possible, be maintained. The appellant tried his level best to improve the relationship but the wife and her relative at every stage did not make any endeavour to settle marriage/relationship and did not do any act in welfare of the child. 13. It appears that the learned Family Court Judge has given much stress to deed of settlement dated 3.11.2014. The appellant tried his level best to improve the relationship but the wife and her relative at every stage did not make any endeavour to settle marriage/relationship and did not do any act in welfare of the child. 13. It appears that the learned Family Court Judge has given much stress to deed of settlement dated 3.11.2014. The appellant herein had preferred a petition for divorce which was numbered as 39 of 2013 and respondent had filed an application for maintenance under Section 24 and on 3.11.2014 the said litigations were to be withdrawn as the party has decided to cohabit and the application under Section 498A came to be decided in favour of the appellant herein and the learned Judge dismissed the complaint vide order dated 1.2.2016. 14. The petitioner -appellant herein instituted a Suit for divorce in the year 2015. Pursuant to the earlier litigations, the parties started cohabiting on 6.11.2014. We may reconsider the factual data as it emerges after the settlement. The plaint divulges the fact that there was a marriage in the house of the younger sister of the respondent and the applicant had to withdraw the litigation on 14.3.2015 but the complaints were not withdrawn and it is alleged that the respondent committed breach of trust and did not withdraw the criminal proceedings. It was pleaded that the brother-in-law Sonu demanded Rs.20,000/- on the marriage of his sister-in-law dated 22.3.2015. After about 8 – 10 days, the respondent and her sister demanded Rs.15,000/-from the appellant and he refused to oblige them thereafter she re-started to harass them. The appellant was staying with his wife in a rented house. It is alleged that after the appellant left for his job, the respondent would go to her parental home and to meet with her boy friends and spends whole day with them. She forced the appellant to leave Meerut and was forcing him to move and take a job in Delhi, which would be arranged by her uncle. The appellant being the only child of his parents did not wish to leave Meerut and go to Delhi. It is stated that she had severed all relations the day the appellant withdrew the Suit for divorce. She had stopped cooking, she had stopped cohabiting. The appellant would cook himself before leaving and after coming back from the shop at night. It is stated that she had severed all relations the day the appellant withdrew the Suit for divorce. She had stopped cooking, she had stopped cohabiting. The appellant would cook himself before leaving and after coming back from the shop at night. The respondent would harass him mentally to such a level that he even tried to commit suicide but could not succeed. There are allegations in the plaint about the character of the lady. 15. The police refused to lodge the complaint which the appellant wanted to lodge against the respondent and on 14.4.2015 she summoned her parents and took all her belongings in a mini truck. It is stated in the plaint that the relations has become so strained that there is no chance of reconciliation between the parties, which has been recorded by the learned Judge that the conciliator also failed in his efforts to reconcile both the parties. The respondent stopped coming to the Court and, therefore, on 30.1.2017 the learned trial Judge decided her matter ex-parte. The appellant herein produced the following documents:- (I) Application under Section 156 (3) of Cr.P.C. dated 7.5.2012. (II) Petition under Section 13 of the Hindu Marriage Act dated 10.12.2009. (III) Affidavit 27-Ka dated 2.3.2017. (IV) Compromise Agreement dated 3.11.2014 16. The learned Judge framed the following 4 issues:- (I) Whether the opposite party is leading an adulterous life with Varun Sharma? (II) Whether Varun Sharma is a necessary party in the petition? (III) Whether the opposite party has committed cruelty with the applicant? (IV) Which relief, if any can be granted, the applicant is entitled to get? which we are also supposed to answer. 17. The learned Counsel has relied on the following judgements:- (I) K. Srinivas Vs. K. Sunita, 2014 0 Supreme (SC) 819; (II) Rani Narsimha Sastry Vs. Rani Suneela Rani, 2019 0 Supreme (SC) 1301; (III) Mangayakarasi Vs. M. Yuvaraj, 2020 0 Supreme (SC) 221. 18. We are convinced that the appellant has been treated with cruelty. The reasons are as follows. The appellant had preferred a petition for claiming conjugal rights under Section 9 of the Hindu Marriage Act. Unfortunately, the same came to be dismissed for non-prosecution but the fact that the respondent did not appear nor did she show any willingness to cohabit with the petitioner is also one of the grounds which can be said to be against the respondent. Unfortunately, the same came to be dismissed for non-prosecution but the fact that the respondent did not appear nor did she show any willingness to cohabit with the petitioner is also one of the grounds which can be said to be against the respondent. The Apex Court and the High Courts judgment relied upon by the learned Advocate for the appellant have categorically held that if criminal litigations are filed and if they culminate into acquittal then it amounts to cruelty. 19. May that as it may be after the settlement also the wife did not co-habit with the appellant is a matter of fact. Further, in that view of the matter, we allow this appeal. The wedlock is in our view if come to irretrievable breakdown as the parties are leaving separately since 2015. Unfortunately, the mediation between the parties failed. The respondent herein refused to even withdraw the criminal proceedings despite the fact that post mediation in the matrimonial petition no.39 of 2013. The parties cohabited for a short period of 25 days. It appears that even in the criminal complaint, the respondent who was examined as PW-1. She has conveyed to the Court that she wants what can be said to be divorce. She has stated “PARIVADINI DWARA 244 Cr.P.C. KE ESTER PAR KI GAI JIRAH ME KAHA GAYA HAI KI MERE PATI NE TALAK KA MUKADMA KIYA HUVA HAI. MAI USME UPASTHIT HUN. MAI BHI TALAK CHAHTI HUN. JIRAH ANTARGAT DHARA 246 Cr.P.C. ME BHI IS SACHHI DWARA KAHA GAYA KI YADI DEEPAK AAJ MUJHE LE JANA CHAHE TO MAI UNKE SATH JANE KE LIYE TAIYAR NAHI HUN. MAI USSE TALAK CHAHTI HUN.” 20. The matter can also be looked into from one another aspect. The learned Judge has committed an error, which can be said to be an error apparent on the face of the record. We do not go into the premise of break down of marriage as it is still now recognized ground for granting divorce. The principles of Civil Procedure Code are applicable. The learned Judge did not place reliance on the Judgment of Ravindra Pyarelal Vidlan and others Vs. State of Maharashtra, 1993 CrLJ 3019 wherein it has been held that if a party fails to bring home the charges under Section 498A, it would amount to cruelty. The principles of Civil Procedure Code are applicable. The learned Judge did not place reliance on the Judgment of Ravindra Pyarelal Vidlan and others Vs. State of Maharashtra, 1993 CrLJ 3019 wherein it has been held that if a party fails to bring home the charges under Section 498A, it would amount to cruelty. The learned Judge again did not place reliance on the statement of the wife, who in a deposition in judicial proceedings, which is part of the record before the Family Court, has categorically mentioned that she also showed her desire to live separately from the appellant and bring an end to the marriage. Learned Judge has come to the conclusion that there was no cruelty perpetrated by the respondent rather he has come to the negative finding that cruelty was perpetrated by the husband. The evidence on record of the wife in other matters has been made the main basis for refusing grant of decree of divorce. 21. The matter had gone before the mediator where both the parties rather the appellant showed his desire to take the respondent back to the matrimonial home where also she has not showed any desire in continuing the marriage which showed that the learned Judge ought to have pressed into service the provisions of Order XII Rule 6 of the Code of Civil Procedure which are made applicable to the proceedings before the Family Courts. As, in our case, there is clear admission though not in the Form No. 10 of the Appendix, the admission of facts should have been taken into consideration while passing the judgment. The provisions of Order 12 Rule 6 reads as follows:- [6. Judgment on admissions.-(1) Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions. (2) Whenever a judgment is pronounced under sub-rule (1), a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced.] 22. Much emphasis has been placed on record by the Counsel for the appellant. (2) Whenever a judgment is pronounced under sub-rule (1), a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced.] 22. Much emphasis has been placed on record by the Counsel for the appellant. The Hon’ble Supreme Court in the case of K. Srinivas Vs. K. Sunita reported in (2014) 16 SCC 34 , has held that the respondent wife filed a false criminal complaint resultant acquittal of husband and his family members, such complaint is sufficient to constitute matrimonial cruelty. 23. In an another matter, the Hon’ble Supreme Court in the case of Rani Narsimha Sastry Vs. Rani Suneela Rani, civil Appeal No.8871 of 2019, decided on 19.11.2019 held that when a person undergoes a trial in which he is acquitted of the allegation of offence under Section 498A of IPC, levelled by the wife against the husband, it cannot be accepted that no cruelty has meted out to the husband. 24. In that view of the matter, the appeal is allowed. Unfortunately, as the wife is not before us we do not pass any orders for maintenance which she may raise under the law as/if permitted to her.