Smt. Seema vs Shiv Singh Negi on 18 July, 2017

IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL

First Appeal No. 13 of 2016

Smt. Seema ……Appellant
Versus

Shiv Singh Negi …… Respondent.

With

First Appeal No. 14 of 2016

Smt. Seema ……Appellant
Versus

Shiv Singh Negi …… Respondent.

Present:
Mr. Tapan Singh, Advocate for the appellant.
Mr. M.S. Bisht, Advocate for the respondent.

JUDGMENT

Coram: Hon’ble Rajiv Sharma, J.

Hon’ble Sharad Kumar Sharma, J.

Dated: 18th July, 2017

Per Hon’ble Sharad Kumar Sharma, J.

These are two appeals, being First Appeal No. 13 of
2016, Smt. Seema Vs. Shiv Singh Negi and First Appeal No.
14 of 2016, Smt. Seema Vs. Shiv Singh Negi.

In the former appeal, the appellant wife has challenged
the judgment dated 16.12.2015, whereby, the Family Court
has decreed the Suit, being Suit No. 118 of 2013, filed by the
respondent Shiv Singh Negi, under Section 13 of the Hindu
Marriage Act for dissolution of marriage.

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While, in the connected Appeal, being First Appeal No.
14 of 2016, filed by the wife, challenges have been given by
the appellant wife to the judgment dated 17th December,
2015, whereby her Original Application No. 91 of 2011, Smt.
Seema Vs. Shiv Singh Negi under
Section 9 has been rejected.

The factual backdrop in both the appeals are identical,
hence, for the purposes of brevity, these appeals are being
decided together.

The case of the appellant wife in the appeals is that she
was married with the respondent in accordance with the
Hindu rites and rituals on 19th April, 2000, and out of the
wedlock, a son Anshul was born who has been forcefully
kept by the wife. Primarily, the divorce petition was filed by
the husband on the ground of cruelty and desertion which
was registered as Suit No. 117 of 2011. The learned Trial
Court, vide order dated 6th August, 2011, had dismissed the
Suit holding thereof that the Suit was not maintainable in
view of the bar created by law and issue no. 4 pertaining to
the jurisdiction was decided against the respondent by the
judgment dated 17th May, 2013, and High Court quashed the
findings recorded by the District Judge in its order dated 6th
August, 2011, while deciding issue No. 4.

Thereafter, the plaint was returned under Order 7 Rule
10 C.P.C. to be presented before the Court of competent
jurisdiction. Consequently, the present petition under
Section 13 of the Hindu Marriage Act was instituted by the
respondent before the Family Court, Rishikesh, Dehradun.

In the petition, thus filed, the wife submitted that out
of the wedlock, one son Anshul was born, who was at the
time of presentation of the petition for dissolution of
marriage, was 11 years of age.

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The primary ground for desertion was that the
respondent wife is of extrovert nature and often moves
around freely without prior consent and permission from the
husband or other elderly persons of the family. A certain
misunderstanding and over ambitiousness increased
whereby the wife wanted that the property belonging to the
parents may be transferred to the wife. When the same was
not acceded to, the situation of the family gradually started
worsening. According to the husband, the wife started
harassing the parents for transfer of the land in her name.
She wanted the parents to transfer their land in her favour
which was yet again not accepted by the family members
which increased misunderstanding amongst themselves.

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The allegation of the husband was that often, now and
then, the appellant/wife was seen in an objectionable
situation alongwith her brother-in-law and her continuance
with the brother-in-law in the said relationsnhip was
doubtful as it goes to show that she had some illicit
relationship with him as she was found in a doubtful
situation with him.

According to the husband, the wife was an Aaganwari
Karyakarti who was receiving a sum of Rs.5,000/- p.m. as an
honorarium. Her income gave her a sense of superiority
complex and she tried to develop superiority complex as
against the husband.

The case of the appellant before the Court below was a
case under Section 13 (i) (i-b) that the alleged pregnancy
which the appellant claimed to be was not a pregnancy
which has occurred because of him, because, according to
him, for last more than two years, they didn’t have any
physical relationship which in itself constitutes to be a
4

ground of desertion. The wife, in response, submitted that
for the last 11 years from the date of the marriage, she was
residing with the respondent and is teaching in Vijay Laxmi
School, Rani Pokhari in Class V.

The learned Trial Court, on exchange of pleadings,
framed the following issues:-

“(i) D;k oknh ikoyh ds okn i esa fn;s vfHkdFkuksa ds vk/kkj ij foi{kh
lhek ls rykd ysus dk vf/kdkjh g S ;fn gk] rks dkj.k

(ii) vuqrks’k ”

The plaintiff in support of his evidence placed reliance
on the information as given by Bal Vikas Adhikari, the copy
of the High Court’s order dated 17th May, 2013, the decision
of the District Judge dated 6th August, 2011, and then, he
recorded the statement of PW4, PW2, PW3 and PW1.
Similarly, the appellant appeared before the Court below
and recorded her statement as DW1 and almost made an
effort to deny the allegation made in the plaint, but the
denial itself was vague and not specific in view of the Order
8 Rules 5 and 6 of the CPC
The learned Trial Court, while considering the
respective evidences, recorded the finding to the effect that
as to whether wife has committed any cruelty or desertion as
against her husband and whether she has misbehaved with
the parents by quarreling and abusing them.

The main dispute which has arisen is that on 10th April,
the defendant appellant after quarrelling with the parents of
the respondent, after taking his son Anshul, has left for her
brother-in-law’s place. The said act was not informed to any
person in the family. Hence, since she has deserted on 10th
April, 2007, the allegation of cruelty against her stand
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established and, according to the husband, the decree of
divorce as granted by the Court below was just and proper.

To justify her efforts, the appellant submitted that on
17th June, 2009, after the dissertation on 10th April, 2007,
mother of the appellant and other respectable persons visited
the home of the respondent but he declined to join her back.
In the cross examination before the Court below was held on
15th September, 2014, in the cross examination, in paper 29-
ka/4, it has been admitted by the appellant that she used to
quarrel with the mother and was living separately from the
parents.

READ  Ambika Mandal Vs. The State Of Bihar Now Jharkhand on 28 November, 2008

On perusal of statement of PW1 Shiv Singh, he has
admitted in his cross examination as held on 04.08.2014 that
he has signed the affidavit paper 29-ka which is evident from
the statement annexed as Annexure A2 to the affidavit in
appeal, he admits signature.

Appellant in her statement as DW1 admitted that she
was living separately since 15.08.2008, this fact also
established by admission in cross examination, nor it is a
case of appellant that ever after 15.08.2008, she ever resided
together with respondent. Intention of desertion was also
apparent from the fact that paper No. 27-C2, the complaint
was jointly filed.

The learned Trial Court held that from all the reasons
as pleaded which have contributed to the cruelty was that
wife always forced upon the respondent to live separately
from his parents.

To examine the issue of cruelty, in the affidavit, in
examination-in-chief, it was specifically stated by the
husband that there were various misunderstandings which
attracted Section 13 (i-a). The learned Trial Court, while
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considering the effect of the affidavit, paper No. 48 ka/2, has
observed that respondent has admitted that the main reason
of dispute between them was that the husband did not
accept her request to move separately from the parents.
While dealing with the issue of desertion, the Court held that
the appellant has deserted the respondent for last more than
two years. While dealing with the statement of respondent
that the appellant is not pregnant from him because they had
no relationship for last two years. The Court, while
considering the issue of desertion, also observed in para 29
of the judgment that in the affidavit filed in examination-in-
chief, paper No. 29-Ga, the respondent had specifically given
details of number of efforts to bring back wife from her
parents’ house.

He submitted in his affidavit in examination-in-chief,
the appellant had submitted on 17th June, 2009, he went to
take the defendant but she refused. The learned Trial Court
has held that while considering the affidavit 41-ka,
submitted by the appellant, as in her examination-in-chief,
which is available on record in which she has stated in her
cross examination, she has admitted that on 06/06/2009, six
or seven persons from the husband’s home came to the
sister’s place but nothing succeeded. Thus, the Court came
to the conclusion that the issue of cruelty and desertion has
stand established because this proves two things that she
was residing with parents and secondly efforts to bring back
also failed.

One very crucial aspect which has been dealt by the
Court below for the purposes of granting the decree of
divorce to the respondent has been dealt by the Court by
deciding issue no. 2 to the effect that apart from findings
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recorded on issue No. 1 on desertion and cruelty, the factum
of living separately for the period more than two years, prior
to the filing of the suit, was established.

It was also held out that the appellant wife has
deserted the plaintiff respondent forever and for the said
aspect she has already taken a decision which is apparent
from a joint affidavit which has been filed before the Court
below, paper No. 27-Ga, in which, there exists signature of
the plaintiff and the defendant and their Advocates which is
in accordance with the provision contained under Order 23
Rule 3 of the C.P.C. A compromise was settled whereby the
appellant has expressed that she wants a decree of divorce
subject to the condition of payment to the amount as settled
in the affidavit, paper No. 27Ga-2, and she has claimed for
the alimony of Rs. 8 lacs as permanent alimony.

READ  P.K. Mohanram vs B.N. Ananthachary & Ors on 15 March, 2010

It is not that enough because subsequently the
appellant wife in her affidavit, Paper No. 48-Ga, had
admitted the submission of the affidavit, paper No. 27-Ga,
that in case if she is paid Rs.8 lacs as permanent alimony,
then, she is agreeable for the dissolution of marriage. Both
these affidavits were placed on record before the Court
below on 27th April, 2014, and in a cross examination with
plaintiff held on 15th September, 2014, the defendant
admitted the fact that the plaintiff has accepted that he will
pay Rs. 8 lacs, in which, the plaintiff appellant was present
on 15th September, 2014.

Thus, the Court has rightly held that as the appellant
wife has wrongly deserted the respondent for a period of
more than two years, hence the respondent was entitled for
decree of divorce by invoking Section 13 (I) (i-a) (i-b) and,
secondly, the Court, while considering the impact of
8

settlement, paper No. 27 GA-2, has held that since wife was
agreeable to severement of relationship by submitting the
affidavit under certain terms and conditions by acceptance of
Rs.8 lacs and dissolving the marriage, this Court feels that
looking to the admission made by the parties before the
Court below whereby the appellant herself has expressed
her willingness to get the marriage dissolved after accepting
the alimony of Rs.8 lacs, the marriage under the aforesaid
condition deserves to be dissolved, and thus, the learned
Trial Court has not committed any error in passing with the
decree and dissolving the marriage dated 19th April, 2000.

Thus, the Court directs that the plaintiff respondent
would pay the agreed amount of permanent alimony of Rs.8
lacs to the appellant. As soon as the said amount is paid, the
marriage between dated 19th April, 2000, between the
appellant and the respondent will stand dissolved subject to
the condition that the said amount has not already been
paid. The respondent will pay the amount of alimony within
a period of four weeks from today.

Thus, the appeal stands dismissed subject to the above
observations.

First Appeal No. 14 of 2016
This is the connected appeal, which has been filed by
the wife, who is the appellant and plaintiff before the Court
below. Her application under Section 9 of the Hindu
Marriage Act seeking restitution of conjugal rights has been
dismissed by the impugned judgment dated 17th December,
2015. Since, the marriage between them has been dissolved
in pursuance to the settlement arrived at between them
under Order 23 Rule 3, which was submitted by way of
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affidavit before the Court below where Section 13
proceedings were pending and which has been settled in the
connected appeal, being First Appeal No. 13 of 2016. This
appeal too stands dismissed in the light of the observations
made in First Appeal No. 13 of 2016.

(Sharad Kumar Sharma, J.) (Rajiv Sharma, J.)
18.07.2017 18.07.2017
Shiv

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