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2009 DIGILAW 245 (UTT)

KALYAN SINGH v. INDRA DEVI

2009-05-06

B.S.VERMA, PRAFULLA C.PANT

body2009
JUDGMENT Hon. Prafulla C. Pant, J. (Oral) This appeal, preferred under Section 19 of the Family Courts Act, 1984, is directed against the judgment and order dated 2nd September 2008, passed by the Judge, Family Court, Udham Singh Nagar, in Suit No. 31 of 2000, whereby the petition of divorce filed by the appellant under Section 13(1)(b) of the Hindu Marriage Act, 1955, is dismissed. 2. Brief facts of the case are that the petitioner / appellant Kalyan Singh got married to respondent Indra Devi on 09.05.1984, at Chakarpur, Tehsil Khatima, according to Hindu rites and rituals. The petitioner has pleaded that after living for 15-20 days with the petitioner, the respondent left his house (at Tanakpur) and lived in her parental house for some 11 months. Thereafter, for some 8-10 days, again joined company of her husband. She conceived a child and a son was born out of the wedlock at Tanakpur. Unfortunately, the son died. Thereafter, she left her husband’s house and returned only in May 1988, at the time of death of her father-in-law. Again, she left her husband’s house and started living in her parental house, and did not return back. As such, she has deserted the petitioner / appellant without any sufficient reason. With these pleadings petition for divorce was filed by the husband before the District Judge, Pithoragarh from where the case was transferred to Judge, Family Court at Udham Singh Nagar, under orders of the High Court. 3. The respondent contested the petition for divorce and filed her written statement in which she has stated that she was subjected to cruelty for non-fulfillment of demand of dowry, in her husband’s house. It is further pleaded that the petitioner used to drink liquor and beat the respondent. It is also pleaded by the respondent that in 1987, she did conceive a child, but due to the beating given by her husband, the child got aborted in January 1988. Thereafter, again she got pregnant from her husband and delivered a male child on 31.12.1989. It is alleged by the respondent that due to the negligence on the part of the husband, the child died on 4th January 1990. It is further alleged by her that she was ousted from her husband’s house. Thereafter, again she got pregnant from her husband and delivered a male child on 31.12.1989. It is alleged by the respondent that due to the negligence on the part of the husband, the child died on 4th January 1990. It is further alleged by her that she was ousted from her husband’s house. She has further pleaded that in 1993, when her mother-in-law died, she was not informed and on coming to know of death of her mother-in-law she herself went to her husband’s house, but she was ill-treated on which she had to leave her husband’s house, and as such, she was forced to live separately. 4. The trial court, on the basis of the pleadings of the parties, framed following issues: i) Whether, as alleged in the petition, the petitioner is entitled to decree or divorce? If so, its effect? ii) To what relief, if any, the petitioner is entitled? 5. The parties led their evidence in the form of affidavits and witnesses got cross-examined. After hearing the parties, the trial court found that the respondent was forced to live separately by the husband, due to the ill treatment and cruelty committed against her, as such, it cannot be said that she has deserted her husband without any sufficient reason. With this finding, the trial court found that the petitioner is not entitled to decree of divorce. Aggrieved by said judgment and order dated 2nd September 2008, passed by the Judge Family Court, Udham Singh Nagar, in Suit No. 31 of 2000, the petitioner has preferred this appeal. 6. We have heard learned counsel for the parties, examined the lower court record and gone through the evidence adduced by the parties. 7. It is admitted to the parties that they got married to each other according to Hindu rites in the year 1984. It is also admitted between them that respondent is living separately since 1993. The only question to be seen is whether, she has deserted her husband without any sufficient reason, or not? P.W. 1 Kalyan Singh (petitioner / appellant) has stated in his affidavit that respondent has left his house without any sufficient reason again and again, and after 1988 she has completely given up the company of her husband, as such, she had withdrawn from the society of her husband. P.W. 1 Kalyan Singh (petitioner / appellant) has stated in his affidavit that respondent has left his house without any sufficient reason again and again, and after 1988 she has completely given up the company of her husband, as such, she had withdrawn from the society of her husband. On the other hand, D.W. 1 Indra Devi (respondent) has stated that after her marriage when she joined her husband she was beaten up and subjected to cruelty for non-fulfillment of demand of dowry. She has further stated that due to the beatings given by her husband the child conceived by her got aborted. She has further stated that when she again got pregnant and delivered a male child in the house of the husband, due to the negligence on the part of the husband, the infant died. She has further stated that she is living separately in the compelling circumstances, as the petitioner has treated her with cruelty. The fact that in the first pregnancy the child got aborted is admitted by P.W. 1 Kalyan Singh in his cross-examination. Strangely, this fact appears to have been concealed by the petitioner / appellant in his petition. After weighing the evidence of the parties on record, we concur with the finding of the trial court that it is not proved on the record, that the wife (respondent) has deserted the petitioner. 8. Learned counsel for the appellant referred to the case of Naveen Kohli Vs. Neelu Kohli (2006) 4 Supreme Court Cases 558, and argued that since the relations between the parties have already broken down irretrievably, the petition for divorce should be granted on that ground. We have gone through said case law. The facts of the present case are different to the case referred on behalf of the appellant. It is not a case where the wife lodged any criminal complaints against her husband or in-laws, or got sent them to jail. It has come on the record that the respondent’s father and brother are employed with the police department of State of Bihar where she used to go from her husband’s house. Still, she has not opted to lodge any report against her husband or her in-laws. As such, it cannot be said that the parties to the suit cannot live together. That being so, it cannot be said that the marriage has irretrievable broken down. Still, she has not opted to lodge any report against her husband or her in-laws. As such, it cannot be said that the parties to the suit cannot live together. That being so, it cannot be said that the marriage has irretrievable broken down. Our attention is also drawn to the case of Vijay Kumar Verma Vs. Madhuri Verma alias Puspa Verma; AIR 2007 JHARKHAND 104. In said case also the facts of the case were different and the husband was already living with another woman without waiting for the divorce, and in that situation the marriage between the parties to matrimonial knot were found to have irretrievably broken down. In the present case, the parties are living singly and separately, and they can still unite and live together. 9. For the reasons as discussed above, since the petitioner/ appellant could not make out a case of desertion as against his wife, we do not find any error of law committed by the trial court in dismissing the petition for divorce, filed by the husband. Therefore, the appeal is liable to be dismissed. The same is dismissed. However, no order as to costs.