Research › Search › Judgment

Uttarakhand High Court · body

2006 DIGILAW 117 (UTT)

Nirmala Bhandari v. Mangal Singh Bhandari

2006-03-27

PRAFULLA C.PANT

body2006
JUDGMENT Prafulla C. Pant, J. 1. This appeal, is preferred by defendant (wife) against the judgment and decree dated 29.6.2005, passed by the learned District Judge, Bageshwar in Original Suit No. 6 of 2005, whereby the decree of divorce has been granted dissolving the marriage between the parties. (There is no Family Court established at Bageshwar.) 2. Brief facts of the case are that appellant (wife) got married with respondent (husband) five years before the presentation of the divorce petition, according to Hindu rites and rituals. For some time after the marriage they lived together and two daughters Km. Rajani and Km. Hema were born out of the wedlock. Out of the two siblings, Km. Rajani (elder one) is handicapped. It is alleged in the divorce petition by the respondent (husband) that leaving the handicapped child with him, the appellant (wife) left to her parents house about a year before presentation of the petition. It is stated in the petition that the parties are not in collusion. In paragraph No. 6 of the divorce petition, it is pleaded that soon after the marriage, the appellant started quarrelling with the husband (respondent) and used to hurl abuses at him. Initially, respondent and his parents used to persuade the appellant to behave but she did not bring any improvement in her behaviour. The behaviour was so cruel on the part of the appellant that it was difficult for the respondent to live with her, It is also mentioned in the divorce petition that the appellant intimidated the respondent and his parents that she would get them implicated in a case under Dowry Prohibitation Act. In paragraph No. 7 of the divorce petition, it is stated that before the petition was filed, on 18.9.2003 and 16.11.2003 to resolve the dispute between the parties some amicable settlement were also got arrived at, but again the appellant started to behave as she used to do earlier and, finally left the matrimonial home, without any reasonable or sufficient cause. It is further pleaded in the divorce petition that on 18.8.2004 at about 4.00 p.m., appellant (wife) assaulted the husband with a sickle and the husband had to run away to save his life. It is also alleged that a report was made to the Sub-Divisional Magistrate, Bageshwar of the said incident and proceedings under Sections 107/106 Cr. P.C. were drawn. It is also alleged that a report was made to the Sub-Divisional Magistrate, Bageshwar of the said incident and proceedings under Sections 107/106 Cr. P.C. were drawn. Apart from this, on 22.9.2004, the wife filed a complaint under Sections 498-A/323/503/ 506 of IPC and Section 3/4 of the Dowry Prohibition Act, whereby, the respondent (husband) and his parents were alleged to have been flasely implicated. It is alleged in the petition that the respondent or his parents never demanded any dowry. 3. A written statement was filed by the defendant/appellant before the Trial Court, in which the factum as to marriage with the plaintiff/respondent was admitted. It is also admitted in the written statement that two daughters were born out of the wedlock. It is also admitted that one of the daughters is living with the mother while the other is living with the father. Rest of the contents of the petition (plaint) are denied. It is pleaded in the additional pleas by the defendant/appellant that the plaintiff/respondent and his parents used to harass her for non-fulfilment of demand of dowry. But the factum as to the amicable settlement on the dates mentioned in the plaint are admitted to the defendant, It is specifically pleaded that, since the respondent himself has thrown the defendant/appellant out from the matrimonial house, as such, he is not entitled to the decree of divorce. 4. Learned Trial Court on the basis of the pleadings, framed following issues: 1. Whether the marriage between the parties, deserves to be dissolved by decree of divorce as alleged in the plaint? 2. To what relief, if any, the plaintiff is entitled? 5. After recording evidence and hearing the parties, the Trial Court decreed the suit for divorce on the condition that the plaintiff shall pay Rs. 1,00,000 as alimony to the respondent, within a period of three months. Aggrieved by said judgment and decree of 29.6.2005, this appeal has been preferred by the defendant (wife). 6. I heard learned Counsel for the parties and perused the record. 7. Admittedly, appellant got married to the respondent, according to Hindu rites and rituals, five years before the petition of divorce filed before the Trial Court. It is also admitted between the parties that two daughters were born out of the wedlock. 6. I heard learned Counsel for the parties and perused the record. 7. Admittedly, appellant got married to the respondent, according to Hindu rites and rituals, five years before the petition of divorce filed before the Trial Court. It is also admitted between the parties that two daughters were born out of the wedlock. It is also not disputed that one daughter is living with the mother, who is living in her parents' house and the other daughter, who is handicapped, is living with the father. The dissolution of the marriage has been sought on two grounds. Firstly, on the ground of desertion and secondly on that of cruelty. Though, no specific issue has been framed on these points but both these points are covered in issue No. 1 and no failure of justice has resulted as the parties have led evidence on these points and argued before the Trial Court as well as this Court. 8. As to the ground of desertion, learned Counsel for the appellant argued that since plaintiff/respondent has himself pleaded that the wife was living separately from the home only for the last one year before the date of presentation of the petition, as such, the ground of desertion is not available to the husband to get a decree of divorce. In this connection, it is pertinent to mention here that under Clause (ib) of Sub-clause (1) of Section 13 of the Hindu Marriage Act, 1955, a person is entitled to divorce on the ground that, the other party: ‘has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition. Since, admittedly, the two years period had not expired from the date of alleged desertion at the time of institution of the suit for divorce. Therefore, this Court has no hesitation in accepting the submissions advanced on behalf of the appellant that decree of divorce could not have been granted on said ground. However, judgment of the Trial Court shows that the decree has been granted due to the reason that parties were quarrelling to the extent that it had become difficult for the husband to live with the wife. In other words, the decree was granted on the ground of cruelty. 9. Cruelty can be physical as well as the mental. However, judgment of the Trial Court shows that the decree has been granted due to the reason that parties were quarrelling to the extent that it had become difficult for the husband to live with the wife. In other words, the decree was granted on the ground of cruelty. 9. Cruelty can be physical as well as the mental. In the divorce petition, not only physical cruelty has been pleaded but mental cruelty has also been pleaded. P.W. 1, Mangal Singh Bhandari, plaintiff (husband) has stated that he and his parents kept on tolerating the cruel behaviour of the defendant/appellant and they kept on tolerating the abuses hurled by her on them. It is been stated by P.W. 1, Mangal Singh in his cross-examination also that defendant threatened the plaintiff to implicate him and his parents under Dowry Prohibition Act by making a complaint to the Police. It is also stated that the wife has filed a criminal complaint in this regard, falsely implicating the husband and his parents. Apart from this, from the statement of D. W. 1, Nirmala Bhandari, it appears that the Dowry Prohibition case against the husband and the in-laws has been filed. From the evidence on record, it also appears that there are another litigation pending between the parties i.e., pertaining maintenance, etc. Efforts for amicable settlement every time for compromise had failed. In the circumstances, this Court do not find any error in the impugned judgment, whereby decree of divorce has been granted for the reason that the ground of cruelty has been made out by the husband as against his wife (appellant). It is hard to believe that after the wife has made a criminal complaint against the husband and her in-laws, who have been sent to jail, the husband would now be able to live together under one roof with her in cordial atmosphere. 10. For the reasons as discussed above, this Court is of the opinion that the Trial Court's judgment as to the decree of divorce need not be interfered with. Accordingly, the appeal is liable to be dismissed, except for the amount of alimony which appears to be too low as one of the daughters is also living with the mother. Accordingly, the appeal is dismissed on the relief of divorce granted by the Trial Court. Accordingly, the appeal is liable to be dismissed, except for the amount of alimony which appears to be too low as one of the daughters is also living with the mother. Accordingly, the appeal is dismissed on the relief of divorce granted by the Trial Court. However, the amount of alimony is enhanced from rupees one lakh to rupees two lakh, and the husband is allowed further three months time from today for depositing the enhanced sum of remaining rupees one lakh, before the Trial Court, which the appellant may withdraw. No order as to costs.