IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

First Appeal No.76 of 2008

Sunita Arya, W/o Surendra Dev

D/o Ganesh Prasad
R/o Mohalla Ganesh Nagar, Nekpur
Subhashnagar, Bareilly (U.P.)—– Appellant

Versus

Surendra Dev

S/o Late Shankar Dev
R/o Aryanagar, Gadarpur,
District Udham Singh Nagar——Respondent/Plaintiff

Shri D.K. Sharma, Advocate, present for the appellant. Shri M.K. Ray, Advocate, present for the respondent. Hon’ble Prafulla C. Pant, J. Hon’ble Nirmal Yadav, J.

This appeal, preferred under section 19 of Family Courts Act, 1984, is directed against judgment and order dated 12.11.2008, passed by Judge Family Court, Nainital, in suit no. 74 of 2005, whereby said court has allowed the petition under section 13 of Hindu Marriage Act, 1955, and granted the decree of divorce on the petition filed by the present respondent.

2. Heard learned counsel for the parties and perused the lower court record.

3. Brief facts of the case are that appellant Sunita Arya got married to respondent Surendra Dev on 02.05.1999, at Bareilly, according to Hindu rites. A son (named Aman) was born out of the wed-lock on 27.01.2000. Present respondent Surendra Dev filed a petition for divorce alleging that the appellant and her parents used to insist that the present respondent (husband) should live in Barelly to which he did not agree. It is further alleged that the appellant used to frequently leave her husband’s company to join her parents at Bareilly. Earlier a petition under section 9 of Hindu Marriage Act, 1955, was filed by the husband for Restitution of Conjugal Rights, but after the wife joined her, said petition was withdrawn. However, again the appellant left the house of the present respondent and filed the criminal complaint at police station Gadarpur, against her husband and in laws relating to offences punishable under section 498A, 323, 506 IPC, and one punishable under section 3/4 of Dowry Prohibition Act, 1961, in the year 2002. It is further pleaded on behalf of the husband in the divorce petition that since 06.05.2002, appellant (wife) has deserted him without any sufficient reason for a period of more than two years, and therefore the petition for divorce was filed.

4. The appellant who filed written statement before the trial court admitted her marriage to the present respondent. It was also admitted that a son was born out of the wed-lock. It is also not denied by her that she lodged criminal complaint against her husband and in laws at police station Gadarpur. However, rest of the allegations are denied by her and it is pleaded that she was subjected to cruelty for non fulfillment of demand of dowry. It is also pleaded by the appellant in her written statement that she was subjected to physical cruelty, and made to leave her husband’s house.

5. The trial court, after recording evidence and hearing the parties found that the petitioner (present respondent) has made out the case for divorce on the ground of cruelty and desertion, and granted the decree of divorce sought by the husband. Hence this appeal.

6. Learned counsel for the appellant submitted that the trial court has erred in law in holding that the appellant treated the petitioner with cruelty. It is also contended that the trial court has not appreciated the facts properly in holding that the petitioner deserted her husband without any sufficient cause. It is argued that judgment in question is not based on evidence on record. We have gone through the impugned judgment and also perused lower court evidence and record. Admittedly, the parties to the matrimony, in the present case got married on 02.05.1999. It is also not disputed that son of out of the wed-lock, was born in the year 2000. It is also not disputed between the parties that present appellant is living in Bareilly in her parental house. Dispute relates as to whether the appellant treated that petitioner (present respondent) with cruelty, and has she deserted him without any sufficient reason. It has established on the record that crime no. 7 of 2002, was got registered at police station Gadarpur, by the appellant against her husband and in laws in respect of offences punishable under section 498A, 323, 506 IPC, and one punishable under section 3/4 of Dowry Prohibition Act, 1961. Learned counsel for the present respondent pleaded that the respondent was arrested in said case and had remained in jail for three-four days before when he was granted bail. In this connection, our attention is drawn on behalf of the present respondent to the judgment and order dated 24.09.2005, passed by Civil Judge (Jr. Div.)/Judicial Magistrate, Udham Singh Nagar , in criminal case no. 359 of 2005 whereby the present respondent (husband) and her mother Rambeti were acquitted of the charge of offences punishable under section 498A, 323, 506 IPC and one punishable under section 3/4 Dowry Prohibition Act, 1961.

5. In the above circumstances,we have no reason to disagree with the finding of trial court that the present respondent (husband) was treated with cruelty by his wife (appellant) who implicated him in a false case which resulted in acquittal. Apart from this, it is also proved on the record that the wife left her husband’s house without any sufficient reason on 06.05.2002, and did not join his company thereafter, as such after a period of two years from that date the petitioner (present respondent) is entitled to decree of divorce also on the ground of desertion. Therefore, we do not find any error of law committed by the trial court in granting decree of divorce in favour of the husband. However, we are of the view, to do complete justice between the parties, a reasonable amount of permanent alimony should have been awarded in the present case so that the appellant may maintain herself as she has not only to maintain herself but also a son born out of the wed-lock. Learned counsel for the present respondent pleaded that the husband is a poor agriculturist who has hardly one and half (1.5) acres of land. Having considered submissions of learned counsel for the parties on this point, and considering the economic status of the parties, and the fact that son is living with the appellant, we find just and proper to direct the present respondent (husband) to pay permanent alimony amounting rupees three lac within a period of three months as condition precedent for the decree of divorce. Accordingly, this appeal is disposed of affirming the decree of divorce passed by the trial court on the condition that the present respondent shall pay rupees three lac as maintenance to the appellant within a period of three months or deposit the amount in her favour before the trial court within said. In default of payment of the permanent alimony as directed by this Court, this appeal shall stand allowed and the decree of divorce shall stand dismissed. Costs easy.

(Nirmal Yadav, J) (Prafulla C. Pant, J) Dt. 26.08.2010