UTTARAKHAND HIGH COURT
Bench: JUSTICE Prafulla C. Pant V.K. Bist
PRADEEP KUMAR JUYAL
KANTI DEVI On 24 March 2011
This appeal, preferred under Section 19 of the Family Courts Act, 1984, is directed against the judgment and order dated 21.4.2010, passed by Judge, Family Court, Pauri Garhwal, in Matrimonial Suit No. 33 of 2007, whereby said Court has dismissed the petition filed by the appellant (husband) under Section 13 of the Hindu Marriage Act, 1955, and declined the decree of divorce.
2. Heard learned Counsel for the parties and perused the lower Court record.
3. Brief facts of the case are that appellant Pradeep Kumar Juyal got married to respondent Kanti Devi on 19th of June, 1999, in District Pauri Garhwal. On 18th of February, 2002, a female child (named Upasana) born out of the wedlock. The appellant/husband is in the service of Indian Army. He pleaded in the petition under Section 13 of the Hindu Marriage Act, 1955, that the respondent not only committed cruelty against him, but insulted his parents by hurling abuses at them. It is also pleaded by the husband that when he was leaving for his duty to serve the nation in the Kargil Sector, the respondent said (Hindi matter omitted) “Do not come back, I will enjoy the pension”. It is also alleged by the appellant/petitioner that after the year 2002, his wife (respondent) did not allow him to have physical relations with him. She used to chain the doors from inside before the appellant could enter the room, and thereby she deprived him of conjugal rights. With these allegations, the petitioner/appellant sought decree of divorce on the ground of cruelty and desertion.
4. The respondent contested the suit and filed her written statement. She admitted the marriage with the petitioner/appellant. She further admitted that a female child (named Upasana) was born out of the wedlock, but rest of the allegations are denied by her. She pleaded that it was she who was subjected to cruelty for non-fulfilment of demand of dowry. However, she admitted that she is living in the ancestral house of her husband.
5. On the basis of the pleadings of the parties, the Trial Court framed following issues:
(i) Whether the respondent treated the petitioner with cruelty, and deprived him of conjugal rights. If so, its effect?
(ii) Whether the respondent has deserted the petitioner for more than four years. If so, its effect?
(iii) Whether the respondent treated the members of family of the petitioner with cruelty?
(iv) To what relief, if any, the petitioner is entitled?
6. Both the parties led oral and documentary evidence in support of their cases. The Trial Court, after hearing the parties, dismissed the petition of divorce disbelieving the evidence adduced on behalf of the husband.
7. Learned Counsel for the appellant argued before us that the Trial Court has erred in law in appreciating the evidence on record. He referred to the specific instances of cruelty brought on record by the husband. From the evidence on record, we find that the testimony of the husband cannot be said to be unreliable. He has stated on oath that his wife, when he was proceeding to attend his duties during Kargil war, told him not to come back, so that she may have the pension. He has also stated that his wife used to beat him and used to hurl abuses at him. He has also stated that he was not allowed by his wife to have physical relations with her. P.W. 1 Pradeep Kumar Juyal further states that his parents were insulted time and again by his wife. On going through the cross-examination, we do not find anything which makes his testimony, unreliable. In our opinion, the Trial Court has committed error of law in rejecting the evidence of P.W. 1 Pradeep Kumar Juyal, merely on the ground that physically the husband is stronger than the wife. By nature the males are physically stronger as against the females of their age, but merely for that reason the instances of cruelty narrated by the husband, cannot be rejected.
8. P.W. 2 Laxmi Devi, mother of the appellant, has stated that Kanti Devi used to throw utensils at her husband and she caught hold of his head by hairs, on which she went to save her son, but pushed aside by his daughter-in-law. P.W. 3 Urmila Devi, a neighbour of the parties, has stated that on the day of ‘HOLI’ when Kanti Devi (respondent) was asked by her father-in-law to prepare tea, she (Kanti Devi) threw shoes at her father-in- law. With this kind of acts of cruelty brought on record, the Trial Court has given more importance to the denial made by the wife and the daughter C.W. 1 Upasana. It is pertinent to mention here that admittedly, since 2004, the husband and wife are not living together. At that point of time, age of the daughter was only two years. Her testimony made in favour of her mother cannot be believed, as an infant child could not have remembered the instances and the happenings, during her infancy.
9. Having re-assessed the entire evidence on record, and considering the submissions advanced on behalf of the parties, we are of the view that the acts of cruelty committed by respondent are fully proved on the record, which entitles the husband a decree of divorce. The Trial Court has committed grave error of law in declining the relief sought by the husband.
10. For the reasons as discussed above, this appeal is allowed. The impugned judgment and decree, passed by the Trial Court, is set aside. The petition for divorce filed by the appellant/petitioner is allowed on the ground of cruelty. Marriage between the parties Pradeep Kumar Juyal and Kanti Devi is hereby dissolved. No order as to costs.