IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

First Appeal No. 105 of 2011

Decided On: 23.07.2018

Sonia

Vs.

Sanjay Mehta

Hon’ble Judges/Coram: Rajiv Sharma and Alok Singh, JJ.

Citation: AIR 2018(NOC) 882 UTR

1. Present appeal is filed against judgment and decree dated 10.8.2011 passed by Judge, Family Court, Haridwar whereby Suit No. 128 of 2004 filed by the appellant wife under Sections 13 and 27 of the Hindu Marriage Act was dismissed. Heard Mr. S.K. Shandilya, Advocate for the appellant and Mr. Adavit Noliyal, Advocate for the respondents and perused the record.

2. Marriage of appellant/wife was solemnized with respondent/husband on 5.3.2003 as per Hindu rites and rituals. Appellant is resident of Haridwar and respondent is resident of Saharanpur. From the very inception of the marriage, there were differences between the parties and in the year 2004, appellant left her matrimonial home and came to her parental home. Since 2004, appellant is residing in her parental house.

3. Case of the appellant is that respondent is abusing her and doing maarpeet with her. After marriage, he demanded a motor cycle and Rs. 20,000. Respondent is also using obscene language against the parents of the appellant and respondent is in habit of drinking.

4. Per contra, respondent’s case is that respondent made every effort to save his matrimonial life. Appellant and her parents were pressurized him to sell his ancestral land and live with them. In order to save his marriage, he left his parental house and started living with his in-laws but in vain.

5. Learned Trial Court framed following three issues: (i) Whether cruelty is meted out to the appellant at the hands of respondent (ii) whether appellant deserted her matrimonial house without reason, and (iii) whether appellant is entitled for items mentioned in the list.

6. First issue was regarding the cruelty meted out to the appellant at the hands of respondent. Learned Judge Family Court disbelieved the version of the appellant of maarpeet on the ground that she had not enclosed the medical report. Appellant in her statement stated that she was beaten by respondent on 1.3.2004. He used to give beating to her, consequently, she is not ready to live with him. She affirmed the incident of 1.3.2004. Apart from this, she stated that respondent used obscene language and had not given food to her. Respondent used to humiliate and insult the appellant and her family. Appellant party tried to reconcile the matter, therefore, they went to respondent’s home but in respondent and his party attacked and beat them. She further stated in her statement that respondent has not come to her home leaving her parental house. He has not opened any shop in her village. Respondent made an allegation of adultery that appellant has illicit relation with Qayyum. In our opinion, it is also cruelty. PW 2 Qayyum reiterated and supported all the statement made by PW1 Sonia. Respondent failed to state when he had opened the shop in appellant’s village. Even he was not able tell the month. DW2 Subhash was also not able to inform when respondent had opened the shop in the appellant’s village.

7. Learned Trial Court observed that burden to prove cruelty lies on the appellant and the appellant has failed to do so because she has not enclosed medical report. In our opinion, it is not always possible to do medical for every injury. It is tendency in our society to avail home remedies and to avoid doctors as far as possible, until or unless injury or disease is not very serious. Even otherwise, had the appellant gone to doctor for medical treatment, even then, it cannot be presumed that appellant would keep the prescription of doctor assuming that in future, she will file a Court case and medical prescription would be required in the matter. So we are convinced with the arguments of learned Counsel for the appellant.

8. Second issue was whether appellant deserted her matrimonial house without reason. From the perusal of record, it can be said that appellant was treated with cruelty. PW2 Qayyum stated that parents and uncle of the appellant tried to reconcile the matter but efforts made by them went in vain. In Indian society, there is a tendency to save matrimonial life as far as possible. Everybody makes effort to save matrimonial life be it mother, father, relatives or Court. Nobody would like to break his/her nuptial knot without any rhyme or reason. Appellant left her matrimonial home, just after one year of her marriage, due to cruelty meted out to her.

9. Third issue was whether appellant is entitled for items mentioned in the list. Appellant in her statement has categorically mentioned the items given in marriage. Learned Judge Family Court believed the version of respondent/husband that he had returned the items of appellant, however, disbelieved the version of appellant without any reason. He further observed that there was no bill of any item and no gift item was given in the marriage. Appellant in her statement categorically mentioned the list of items given in the marriage. In our opinion, nobody keeps bill of purchased item unless item is so expensive and it cannot be believed that in the marriage, nobody would not give any gift.

10. Parties are living separately since 2004. This Court also made endeavour to settle the differences amicably between the parties and sent the matter twice to Lok Adalat but of no avail. In our view, parties are not ready to live together. Accordingly, the appeal is allowed. Impugned judgment and decree dated 10.8.2011 passed by Judge, Family Court, Haridwar is set aside. Decree of divorce is granted. Marriage between the parties stands dissolved. Respondent is directed to return the items mentioned in the list (4B/7 and 4B/8) to the appellant within eight weeks from today. Let lower Court record be sent back forthwith.