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2008 DIGILAW 458 (UTT)

DEEPALI JAIN v. VIKAS JAIN

2008-10-16

B.S.VERMA, PRAFULLA C.PANT

body2008
JUDGMENT [Per : Hon’ble Prafulla C. Pant, J. (Oral)] This appeal, preferred under Section 19 of Family Courts Act, 1984, is directed against the judgment and order dated 08.02.2008, passed by Judge, Family Court, Haridwar, in suit No. 143 of 2005, whereby petition under Section 13 of Hindu Marriage Act, 1955, by the appellant Deepali Jain for divorce, is dismissed. 2. Brief facts of the case are that appellant – Deepali Jain, filed a petition under Section 13 of Hindu Marriage Act, 1955, against her husband Vikas Jain (respondent) for divorce. It is pleaded in the divorce petition that the petitioner/appellant got married to the respondent at Haridwar on 21.11.1996, according to Hindu rites. Out of the wedlock, on 26.02.1998, a son named Kishu alias Samyak Jain was born (who is presently living with the petitioner/appellant). The allegations of the petitioner/appellant is that she was harassed by her husband and in-laws for non fulfillment of demand of dowry. It is further stated in the petition that she was mentally and physically treated with cruelty so much so that she had to be admitted in the hospital. On her part, she made every effort to live with the respondent but respondent used to assault her. Due to beating, the petitioner suffered paralysis. Ultimately, in March 2000, petitioner along with her son left house of the respondent and since then living with her parents. With the above pleadings, the divorce was sought by the petitioner/appellant. 3. The respondent contested the petition before the trial court and filed his written statement. In the written statement, it is admitted by the respondent that the marriage between the parties did take place on 21.11.1996, at Haridwar. It is also admitted that a son was born out of the wedlock, who is living with his mother (appellant). However, rest of the contents of the petition are denied by the husband (respondent). He denied having harassed the petitioner for non fulfillment of demand of dowry. Rather he has stated that no demand of dowry was made. The respondent further denied that he ever committed MARPEET or assaulted the petitioner. However, he admitted hat the petitioner did suffer paralysis and she was given treatment in the hospital. It is further pleaded by the respondent in his written statement that the petitioner and her parents wanted that the respondent should leave his parents and start living separately. The respondent further denied that he ever committed MARPEET or assaulted the petitioner. However, he admitted hat the petitioner did suffer paralysis and she was given treatment in the hospital. It is further pleaded by the respondent in his written statement that the petitioner and her parents wanted that the respondent should leave his parents and start living separately. Even that demand was met by the respondent but still the petitioner was not happy and started living with her parents in March 2000, with her son. Lastly, it is pleaded that the petitioner is not entitled to decree of divorce. 4. On the basis of the pleadings of the parties, the trial court framed following issues :- 1. Whether the petitioner is entitled to decree of divorce on the ground mentioned in the petition? 2. To what relief, if any, the petitioner is entitled? 5. The parties adduced documentary and oral evidence before the trial court. The trial court after hearing the parties, gave a finding that the petitioner had failed to prove her case and dismissed the divorce petition. Hence this appeal by the wife (petitioner/appellant). 6. We have heard arguments of learned counsel for the appellant and also perused the lower court record. 7. Admittedly, the petitioner got married to respondent on 21.11.1996, at Haridwar, following the Hindu rites. It is also admitted between the parties that out of the wedlock, a son named Kishu alias Samyak was born on 26.02.1998. It is also not disputed between the parties that since March 2000, the parties are living separately, as the wife (appellant) is living with her parents. The question to be determined in this case is whether the wife (petitioner/appellant) was subject to cruelty, as alleged in the writ (sic) petition for divorce and if so, is she entitled to decree of divorce or not. On the date of evidence, before the trial court, the petitioner filed her affidavit on 05.05.2006, in evidence and she was cross examined as P.W.1 In the affidavit filed by the petitioner before the trial court all the averments are made relating to facts pleaded in the plaint/petition. It has been specifically stated that the respondent and his parents made unreasonable demand of dowry. For non fulfillment of demand of dowry, she was subjected to cruelty. She has specifically stated that she was assaulted by her husband. It has been specifically stated that the respondent and his parents made unreasonable demand of dowry. For non fulfillment of demand of dowry, she was subjected to cruelty. She has specifically stated that she was assaulted by her husband. She has further stated that she had to undergo medical treatment. As D.W.1 respondent Vikas Jain denied the facts alleged by P.W.1 Deepali Jain. He denied having made any demand of dowry and further denied that the petitioner was ever assaulted or subjected to cruelty. However, in the cross examination, he admits that at the time of marriage, Deepali was hale and hearty and got a paralytic attack on 13.12.1999. He has admitted that said attack did occur in his house. He has admitted that Deepali was taken to hospital and she had to undergo treatment. The trial court has disbelieved the statement of the petitioner (P.W.1) only on the ground that no First Information Report was lodged by her for harassment due to non fulfillment of demand of dowry or for the alleged assault made by the respondent. We are of the view that in a family it is a natural tendency on the part of the parties to the matrimony or their parents to avoid any confrontation so that the matrimonial home can be saved. Generally the parties avoid taking a matter to the police or to the court so that the family can be saved. In the circumstances, if the wife has not complained the matter to the police, it does not mean that whatever she is saying, is a lie. 8. Having reassessed the entire evidence on record, we have no reason to disbelieve what P.W.1 Deepali Jain, has stated on oath before the trial court. That being so, the petitioner/appellant has made out a case of divorce against her husband on the ground of cruelty as provided in Clause (ia) of sub-section (1) of Section 13 of Hindu Marriage Act, 1955. 9. For the reasons, as discussed above, we are of the view that the appellant is entitled to decree of divorce. This appeal deserves to be allowed. The appeal is accordingly allowed. The impugned judgment and decree dated 08.02.2008, passed by Judge, Family Court, Haridwar, in suit No. 143 of 2005, is hereby set aside. The divorce petition, filed by the appellant before the trial court is allowed. Suit for divorce is decreed. This appeal deserves to be allowed. The appeal is accordingly allowed. The impugned judgment and decree dated 08.02.2008, passed by Judge, Family Court, Haridwar, in suit No. 143 of 2005, is hereby set aside. The divorce petition, filed by the appellant before the trial court is allowed. Suit for divorce is decreed. The marriage between the parties stands dissolved. No order as to costs.