UTTARAKHAND HIGH COURT
Bench: JUSTICE Prafulla C. Pant V.K. Bist
PRADEEP KUMAR JUYAL
KANTI DEVI On 24 Mar 2011
This appeal, elite underneath Section 19 of a Family Courts Act, 1984, is destined opposite a visualisation and sequence antiquated 21.4.2010, upheld by Judge, Family Court, Pauri Garhwal, in Matrimonial Suit No. 33 of 2007, whereby pronounced Court has discharged a petition filed by a appellant (husband) underneath Section 13 of a Hindu Marriage Act, 1955, and declined a direct of divorce.
2. Heard schooled Counsel for a parties and perused a reduce Court record.
3. Brief contribution of a box 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 womanlike child (named Upasana) innate out of a wedlock. The appellant/husband is in a use of Indian Army. He pleaded in a petition underneath Section 13 of a Hindu Marriage Act, 1955, that a respondent not usually committed cruelty opposite him, though angry his relatives by hurling abuses during them. It is also pleaded by a father that when he was withdrawal for his avocation to offer a republic in a Kargil Sector, a respondent pronounced (Hindi matter omitted) “Do not come back, we will suffer a pension”. It is also purported by a appellant/petitioner that after a year 2002, his mom (respondent) did not concede him to have earthy family with him. She used to sequence a doors from inside before a appellant could enter a room, and thereby she deprived him of conjugal rights. With these allegations, a petitioner/appellant sought direct of divorce on a belligerent of cruelty and desertion.
4. The respondent contested a fit and filed her created statement. She certified a matrimony with a petitioner/appellant. She serve certified that a womanlike child (named Upasana) was innate out of a wedlock, though rest of a allegations are denied by her. She pleaded that it was she who was subjected to cruelty for non-fulfilment of direct of dowry. However, she certified that she is vital in a ancestral residence of her husband.
5. On a basement of a pleadings of a parties, a Trial Court framed following issues:
(i) Whether a respondent treated a postulant with cruelty, and deprived him of conjugal rights. If so, a effect?
(ii) Whether a respondent has forlorn a postulant for some-more than 4 years. If so, a effect?
(iii) Whether a respondent treated a members of family of a postulant with cruelty?
(iv) To what relief, if any, a postulant is entitled?
6. Both a parties led verbal and documentary justification in support of their cases. The Trial Court, after conference a parties, discharged a petition of divorce disbelieving a justification adduced on interest of a husband.
7. Learned Counsel for a appellant argued before us that a Trial Court has erred in law in appreciating a justification on record. He referred to a specific instances of cruelty brought on record by a husband. From a justification on record, we find that a testimony of a father can't be pronounced to be unreliable. He has settled on promise that his wife, when he was move to attend his duties during Kargil war, told him not to come back, so that she might have a pension. He has also settled that his mom used to kick him and used to play abuses during him. He has also settled that he was not authorised by his mom to have earthy family with her. P.W. 1 Pradeep Kumar Juyal serve states that his relatives were angry time and again by his wife. On going by a cross-examination, we do not find anything that creates his testimony, unreliable. In a opinion, a Trial Court has committed blunder of law in rejecting a justification of P.W. 1 Pradeep Kumar Juyal, merely on a belligerent that physically a father is stronger than a wife. By inlet a males are physically stronger as opposite a females of their age, though merely for that reason a instances of cruelty narrated by a husband, can't be rejected.
8. P.W. 2 Laxmi Devi, mom of a appellant, has settled that Kanti Devi used to chuck utensils during her father and she held reason of his conduct by hairs, on that she went to save her son, though pushed aside by his daughter-in-law. P.W. 3 Urmila Devi, a neighbour of a parties, has settled that on a day of ‘HOLI’ when Kanti Devi (respondent) was asked by her father-in-law to ready tea, she (Kanti Devi) threw boots during her father-in- law. With this kind of acts of cruelty brought on record, a Trial Court has given some-more significance to a rejection done by a mom and a daughter C.W. 1 Upasana. It is impending to discuss here that admittedly, given 2004, a father and mom are not vital together. At that indicate of time, age of a daughter was usually dual years. Her testimony done in foster of her mom can't be believed, as an tot child could not have remembered a instances and a happenings, during her infancy.
9. Having re-assessed a whole justification on record, and deliberation a submissions modernized on interest of a parties, we are of a perspective that a acts of cruelty committed by respondent are entirely valid on a record, that entitles a father a direct of divorce. The Trial Court has committed grave blunder of law in disappearing a service sought by a husband.
10. For a reasons as discussed above, this interest is allowed. The impugned visualisation and decree, upheld by a Trial Court, is set aside. The petition for divorce filed by a appellant/petitioner is authorised on a belligerent of cruelty. Marriage between a parties Pradeep Kumar Juyal and Kanti Devi is hereby dissolved. No sequence as to costs.