Dr. Anil Kishor Joshi vs Smt Uma Joshi on 16 November, 2017

Reserved

IN THE HIGH COURT OF UTTARAKHAND AT
NAINITAL

First Appeal No. 65 of 2011

Dr. Anil Kishor Joshi ……………Appellant
Versus

Smt. Uma Joshi ………………..Respondent

Present: Mr. A.M. Saklani, Advocate for the appellant.

Coram:- Hon’ble Rajiv Sharma, J.

Hon’ble Sharad Kumar Sharma, J.

Reserved on 06.09.2017
Delivered on : 16.11.2017

Per – Hon’ble Sharad Kumar Sharma, J.

The appellant is the husband/plaintiff in the
Suit instituted by him for seeking dissolution of
marriage, which is said to have been solemnized with
the defendant (respondent herein) on 17.02.2001, at
Kaulagarh, District Pauri Garhwal. The marriage
between them was solemnized in accordance to the
Hindu rites and rituals, as both of them were the
followers of the Hindu religion. Out of the wedlock a
daughter Mallika Joshi was born, who at the time of
institution of case was of only about 3 years of age.

2. According to the plaint’s case, the husband
submitted that he was employed in Pant Nagar
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University in the Forestry department and since he
being highly qualified, he also operates a self-financed
institution in the filed of agriculture itself.

3. The case of the appellant was that for the
purposes of undertaking work of his self financed
institution, for which, he undertakes the work of
providing plants for their plantation in various areas as
per their demand, he produces plants/saplings and
distributes the same in various villages of State of
Uttarakhand for their plantation in the remote areas of
the districts. He contends that for the purposes of
undertaking the said work of his self financed institution
and for the purposes of ensuring that the plant reaches
its place in safe condition, he for discharging his
responsibility towards his institution has to stay out for
a considerable long period to ensure that the plants,
which were grown in his nursery are actually planted at
their respective places.

4. According to the husband to coordinate his
work of forestry and rural development, he undertook
the plantation of about 700 hectares of land in Gram
Panchayat Dadoli, Patti Chauthan, District Pauri
Garhal. To assist him in his work, in undertaking the
task, he has to coordinate his activities with various
authorities including Government department and
private sector etc. According to the plaint averment, he,
3

for execution of the work had conducted SCF, DFO
and other five units in which social forestry work are
being performed on regular basis.

5. For these activities, his case was that he gets
the work partially executed through a social worker
named as Kumari Deepa Joshi, who used to discharge
social work through the forest Surpanch of Forest
Panchayat, Mr. Mohan Singh Bisht. This professional
relationship of the appellant with the Deepa Joshi
which was confined to enforcement of the projects was
taken by his institution was taken in an adverse
interpretation by the wife as if there was an illicit
relation which was gradually being established by the
husband with her.

6. It was under that pretext the wife used to
create disturbances in the family, it was the husband’s
case that he tried to console her and even tried to
convince her that the notion which she has drawn that
he is living with Deepa Joshi is absolutely incorrect. But
it is the case of the husband that when she did not
accede to the said consolation given by him, he had no
option except to drop her to her parent’s home at
Haldwani. But her aptitude of creating difficulty for the
appellant did not ceased and she used to consistently
give calls to the husband, disturbing his life and thus
the husband’s case is that he took a room in Gairsain
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and he shifted to that place. But this also did not end
his problem often she used to make the issues of
Deepa Joshi as an issue of public discussion and
thereby humiliating him in public.

7. It chanced so that on 13.08.2004, when the
appellant-husband was discharging his work towards
his institution got delayed in reaching home, the wife
straightway reached Gairsain, the place where he was
executing the work and started misbehaving with
Deepa Joshi, abusing her and leveled all type of filthy
allegations against her and even they entered into
physical altercations.

8. The husband felt highly too because of the
incident which has chanced at Gairsain on 13.08.2004,
wherein she requested the villagers to throw the
husband out of village and not to permit his entry
because of the relationship which he was having with
Deepa Joshi, she also threatened that she will ruin the
life of the husband as well as of Deepa Joshi and
would entrap them in criminal cases. All these incidents
became too torturous for the husband and he contends
that the threats which was consistently given by the
wife to the effect that she will be consuming sleeping
pills and commit suicide, hence he pleaded that the
matrimony between them became irretrievable and for
the purpose to safeguard his future and his career too.

5

He felt that the dissolution of marriage is the only
recourse, hence he instituted the suit on 12.07.2005 for
dissolution of marriage.

9. The respondent-wife had put in appearance
and filed her written statement before the learned
family Court, denying the plaint allegation about cruelty
exerted by her. She admitted the fact about the nature
of the work in which the husband is involved, pertaining
to the operation of nursery and the supply of
plantations and pertaining to the plantation activities
being carried out by him in various parts of the State.
She submitted that under the garb of his official
engagements, he is also deliberately staying out of
home for the fulfillment of his illegal activities and to
satisfy his illegal relationship with Deepa Joshi. She
submitted that the relationship which the husband is
having with Deepa Joshi was the reason why that he
has used to overstay the places where his work was
being carried.

10. Rest of the contents of the plaint was denied
but what is relevant in the instant case are additional
plea taken by respondent-wife. In the additional plea
the wife has taken the ground that the husband is in
the habit of being attracted to the females and is quite
often entangled with relationship with different females
and she also contended that she has come to know
6

that even prior to his marriage, he was in relationship
with Shanti and she has also come to the knowledge of
her though at a later stage that he was married with
Shanti to whom later on he has given divorce.

11. She further in her written statement submitted
that the workplace of the petitioner is Village Maletha in
Kirti Nagar Nagar, Tehri Garhwal, whereas Deepa
Joshi works in Dadoli, Thaili Sain but under the pretext
of the projects being enforced in the said area, the
appellant lives at Dadoli and to achieve aim of
spending time with Deepa Joshi, that object the case of
the wife is that she was left at her parent’s home at
Haldwani. She alleged that on 23.03.2004 when the
wife went to Maletha and visited the place where her
husband was staying as tenant she was informed by
the landlord that the husband has left the tenanted
accommodation and he has shifted to Gairsain, where
Deepa Joshi used to visit and the husband has taken
the entire households of Deepa Joshi too to Gairsain.

12. According to the plea raised by wife was that
she after taking her father-in-law visited Gairsain had
found that the father of the Deepa Joshi and Deepa
Joshi herself were present in the residence of the
appellant-husband. She contended that this
relationship of the appellant-husband with Deepa Joshi
is the sole reason why the husband is making out
7

grounds to get away with respondent-wife and to get
the marriage dissolved so that he may succeed in
solemnizing his marriage with Deepa Joshi with whom
according to wife, he enjoys an illicit relation. She
pleaded that the relationship between the appellant-
husband and Deepa Joshi had crossed all limits of
social decency and both of them are not fearful and do
not have any sensitivity towards the society and the
discussion which are being carried on in the society
against them, this is not only spoiling the image of the
husband but also the family as well as the respondent.

13. During the pendency of the proceedings after
the exchange of the pleadings, a transfer application
was filed before the High Court being Civil Transfer
Application No. 21 of 2005 and the proceedings of
divorce petition was transferred by the High Court’s
order dated 03.07.2007 and thereafter the following
issues were framed:-

1- D;k mRrjnkrk us ;kph ds lkFk dzwjrk dk O;ogkj
fd;k
2- D;k mRrjnkrk us ;kph dks wBs okn esa Qalkus dh /kedh
nh
3- D;k ;kph ;kfpr vuqrks’k ikus dk vf/kdkjh gS

14. In support of his contention, the appellant
appeared in the witness box recorded his statement as
PW1 and submitted his affidavit in examination in chief.
Similarly he also produced the documentary evidences
8

paper No. 8 Ga, the letter and other supporting
documents. For example; notice issued by Deepa
Joshi, notice issued by the Member State Women’s
Commission etc. Whereas on the other hand, the
respondent-wife apart from recording her oral
statement as DW-1 has submitted her affidavit in
examination in chief and produced the documents
paper No 86 GA/1 and 86 Ga/2 i.e. the photographs in
a sealed envelop paper No. 86 Ga/5. The learned trial
Court decided both the issues by consolidating them
together. First issue pertaining to the cruelty and
second issue was as to whether the respondent-wife
has threatened the husband to rope him in false
criminal cases.

15. While dealing with the pleading of the
husband learned Trial Court considered that according
to the arguments extended by the respondent though it
was reiteration of the facts as pleaded in the plain but
in the cross-examination, the husband has contended
that Uma Joshi (respondent herein) happens to be his
second wife and it was recorded in the findings that he
further admitted the fact that while he was getting the
work enforced of plantation at Maletha, Kirti Nagar in
2003, he submitted the fact that his wife stayed with
him there. He in his cross-examination admitted the
fact that he has met Deepa Joshi in 2002 at the time
when she was the member of Zila Panchayat, Dadoli.

9

In his examination in chief if scrutinized what is
relevant is that therein he has submitted that Uma
Joshi had resided with him at Thaili Sain, Dadoli, for six
months and thereafter she left the place and went to
Haldwani. In his cross-examination, he admitted that
when he has shifted from Maletha to Gairsain, “mek tks” kh
esjs lkFk Fkh”.

16. Learned family Court has also taken note of
the fact that the appellant has stated on oath that for
getting his official work executed, Deepa Joshi used to
help him and in relation to the work when he visited
Nainital, they had stayed together and husband-
appellant and Deepa Joshi had gone for boating. This
fact in itself is sufficient to show that it is an admitted
case of the appellant that he was in close relationship
with Deepa Joshi. In the affidavit as produced by
respondent-wife which contained four photographs
along with their negatives which showed that the
appellant was along with Deepa Joshi and the
photographs showed the intimacy between Deepa
Joshi and the appellant.

17. The fact alleged by the wife that the Deepa
Joshi visiting Nainital and going for boating has been
admitted by the husband in his statement. Learned
family Court rightly so while interpreting the provisions
contained under Section 13(1)(i-a) held that for the
10

purpose of getting a decree of divorce, the onus to
prove the existence of conditions contained under
Section 13 of the Hindu Marriage Act of cruelty,
desertion, adultery etc. entitling for the decree of
divorce has to be established by the party who makes
the allegation as to be the basis for divorce. Here in the
instant case, the respondent had placed on record the
photographs of Deepa Joshi and the appellant in
various situations which shows the existence of
intimate relation between them.

18. These photographs have not been denied nor
any effort has been made by the husband to prove the
same contrary to fact justifying the intimacy of the
relationship which he enjoys with Deepa Joshi. Thus,
the burden of proving of an act for a decree for
dissolution of marriage in view of under
Section 13(1)(i-

a) was to be discharged by the husband to show that
wife had committed cruelty which he has failed to do
and thus rightly so the decree of divorce was refused.
Because the husband cannot be permitted to take
advantage of his own deeds and continue an illicit
relation and take the decree of divorce for his illegal
benefit and since the husband has failed to prove any
cruelty having been committed by the wife against him
after the marriage and since he has failed to prove any
of the grounds existing as contemplated under
Section
13(i)(i-a) of the
Hindu Marriage Act, dissolving the
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marriage the learned family Court rightly held that a
dissolution of marriage cannot be granted to husband
for his own act of cruelty on the grounds which are
created by the husband but it could be granted only on
the ground when the husband is aggrieved by an act of
cruelty, committed by wife and not for his own act of
cruelty which has not been established in the present
case and thus the learned family Court rightly
dismissed the suit filed by the appellant for dissolution
of marriage.

19. It has been a consistent view of the Courts
that whoever comes in a Court for a decree under a
given set of circumstances and particularly for a decree
of divorce has to discharge his responsibilities to place
the actions of the defendant within the framework of
the parameters of cruelty given under
Section
13(1)(i-a) of the
Hindu Marriage Act, Though the Act or
Section 13(1)(i-a) do not itself defined as to what would
be the cruelty as the cruelty always happens to be a
variating factor depending upon case to case and from
circumstances to circumstances.

20. In the case at hand, once the husband has
come forward for a dissolution of marriage, alleging
cruelty against the respondent, the cruelty has to
exercised by other side i.e. wife and not by the plaintiff
who seeks decree. It was he who has to prove that
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there was a cruelty exercised by the wife and not
otherwise. Hence this Court feels that there is no
infirmity in the judgment and decree passed by the
learned Court below, declining the decree of divorce to
the appellant. Thus the appeal fails and is dismissed.
No order as to costs.

(Sharad Kumar Sharma, J.) (Rajiv Sharma, J.)
16.11.2017
Mahinder/

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