Rohit Arya, J.@mdashThis appeal by the appellant/husband (hereinafter referred to as the appellant) under section 28 of the Hindu Marriage Act is directed against the judgment and decree dated 15/05/2009 passed by District Judge, Shivpuri in case No. 72/2008HMA dismissing the suit for divorce against the respondent/wife (hereinafter referred to as the respondent) filed under section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as ''the Act''). Undisputed facts between the parties are to the effect that marriage between the appellant and the respondent was solemnized on 15/06/2002 as per Hindu rites and customs. Since January, 2003, the respondent is residing with her father. As such, more than 11 years'' period has passed by, the appellant and respondent are living separately. As such, there is no cohabitation between the two is an admitted fact.
2. Furthermore, the appellant had filed a petition under section 9 of the Act before I Additional District Judge, Shivpuri vide HMA case No. 39A/2003. This petition was dismissed based on compromise between the parties, on 01/05/2004. It appears that there was an agreement between the two that the appellant shall bring her back to his home. However, as discussed by the trial Court in the instant case with due advertence and critical evaluation of the evidence on record, the statement of the appellant that he had made several attempts to bring back the respondent to his house was found to be false. On the contrary, father of the appellant, Mohan Lal Shivhare has admitted that on 11/06/2004, the respondent had come to his house after due information to the police. As such, the statement of respondent to the aforesaid effect was found to be fully corroborated. Under such circumstances, the trial Court observed that the appellant had made a false statement of having complied with the conditions of the compromise entered between the two on 01/05/2004 (supra). The appellant did not bring the respondent to his house.
3. Further, the appellant filed the suit for divorce vide HMA case No. 26A/2004 before I Additional District Judge, Shivpuri under section 13 of the Act. The suit was dismissed for want of evidence of the appellant and his non-appearance.
4. In the aforesaid factual background, the instant case for divorce was filed under section 13 of the Act.
5. The trial Court while addressing upon the issue as regards the reason for divorce on the ground that there was no restitution of conjugal rights between the parties for a period of one year vide amended Act No. 68 of 1976 (prior to 27/05/1976 - 02 years) after passing of the decree for restitution of conjugal rights in a proceeding to which they were parties, has dealt with the averments made in the plaint and evidence lead, so also, denial in the written statement and evidence in support thereof by parties. In the opinion of this Court, the trial Court has extensively and justifiably analysed and discussed the evidence of the parties from paragraph 6 to paragraph 35 of the impugned judgment. It has been found that after dismissal of the suit for restitution of conjugal rights under section 9 of the Act, on the basis of compromise on 01/05/2004 (supra), wherein it was agreed that the appellant shall bring back the respondent from the house of her parents. On analysis of the evidence, it has been found that on 31-05-2004, the respondent''s parents and her brother had visited the house of the appellant but the appellant was not prepared to keep her. On 11-06-2004, the respondent had gone to her matrimonial home under intimation to the local police station but appellant did not allow her to stay there. This fact is fully corroborated with the statement of father of the appellant, Mohan Lal (A.W. 2) as in paragraph 6 of his cross-examination, he has stated that on 11-06-2004, Archana came to his house after giving information to the police. This statement of A.W. 2, Mohan Lal falsified the statement of the appellant, Rajesh (A.W. 1) who had stated that after January, 2003, the respondent did not come to his house though he had made several attempts to bring her back. Therefore, sequence of events were found to be of the nature that on one hand, the respondent was inclined to live with the appellant and stay in his house but the appellant was reluctant and did not make any effort to bring her back to home and on the other hand, he has filed the suit for divorce on the ground of desertion.
6. Trial Court thereafter relying upon the judgment of the Hon''ble Apex Court reported in
7. As regards issue No. 2 as to whether the respondent practiced cruelty on the appellant, the trial Court has again discussed the evidence brought on record by the parties and dealt with 05 instances quoted by the appellant as regards cruelty separately. Detailed examination with reference to each of the instances starting from paragraphs 44 to 77, in the opinion of this Court is absolutely impeccable in nature. The trial Court has found that allegation of cruelty made against the respondent was not established. There is nothing on record to suggest that findings so recorded suffers from perversity or non-application of mind to the material evidence on record. As such, no interference is warranted in that behalf. Hence, in the opinion of this Court, the trial Court has rightly answered issue No. 2 in the negative and against the appellant. The suit has been accordingly dismissed.
8. True it is, that there is hardly any scope to set aside the findings recorded by the trial Court on both the issues but the fact remains that undisputedly, the appellant and the respondent are living separately for the last 11 years, i.e. marriage was solemnized on 15-06-2002 and after few months, i.e. from 03-01-2003, both have been living separately. As such, during these 11 years, both the appellant and the respondent have lived independently and there has been no cohabitation for such long period. There is no attraction between the two. Love is lost and emotions are dried up. The efforts by this Court for reconciliation between the two through mediation have also failed.
9. In view of the aforesaid facts and circumstances of the case, in the opinion of this Court, no useful purpose would be served by dismissing this appeal. Instead, in the interest of both, we are of the view that it is just and proper to draw final curtain between the parties by granting permanent alimony.
10. Now, we turn to the issue as to what relief should be granted to the respondent/wife. The wife did not remarry and by now she is aged about 36 years. She has social status. She is to be respected and accorded social and financial recognition to lead a decent and dignified life. Further, from the statement of respondent on oath dated 11/02/2008 (Exhibit D/11), the appellant is a settled businessman and also running STD PCO booth besides associated with foreign liquor business, earning about Rs. 10,000/- per month in the year 2008 evident from the affidavit sworn on 11/12/2008 by her wherein she has also stated that at the time of marriage; cash Rs. 50,000/-, motorcycle of Hero Honda make, T.V., & cot, approximately Rs. 1,50,000/- has been given as dowry to the appellant. The aforesaid statement withstood the cross-examination. In the opinion of this Court by invoking section 25 of the Act and relying on the judgment of Hon''ble Supreme Court rendered by it in the matter of
