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2010 DIGILAW 24 (UTT)

AKHILESH KUMAR BISHT v. SUNITA KUMARI

2010-02-09

DHARAM VEER, PRAFULLA C.PANT

body2010
JUDGMENT This appeal preferred under Section 19 of Family Courts Act, 1984 is directed against the judgment and order dated 28.6.2008 passed by Additional Judge, Family Court, Roorkee in Suit No. 196/2006, whereby the petition/divorce filed by the husband (appellant) is dismissed. 2. Heard learned counsel for the parties and perused the lower court record. 3. Brief facts of the case giving rise to this appeal are that the appellant/petitioner Akhilesh Kumar Bisht got married to respondent Sunita Kumari on 22.2.2002 according to Hindu RITES. Two sons were born out of the wedlock. The allegations made by the appellant/petitioner in the petition filed u/s 13 of Hindu Marriage Act, 1955 are that after marriage, the respondent started misbehaving with the petitioner. She insulted his mother. It is pleaded that he (appellant) suffer mental and physical cruelty at the hands of his wife. It is specifically pleaded that the respondent used to utter words like “jaMh] dqYVk] cnek”k” for his mother. She also used to sketch drawing and titled it as “[kMwl cqf<+;k”. Not only this according to the petitioner the respondent once came to his office and insulted him in the presence of his colleagues. 4. On the other hand, the respondent though admitted the marriage with the petitioner and the fact that two sons were born out of their wedlock, denied the other pleas. It is denied that the respondent misbehaved with her husband and treated him with cruelty. It is stated in the written statement that on demand of her husband, Rs. 40,000/- was paid by her father to him. It is also pleaded that time and again the petitioner used to oust the respondent from his house. It is stated that after the settlement of matrimonial dispute through Women’s Helpline, the respondent once again made attempt to live with him but to no avail. 5. On the basis of the pleadings of the parties, the trial court framed following two issues :- (i) Whether on the grounds pleaded in the petition, the petitioner is entitled to decree of divorce prayed by him? (ii) Whether the petitioner is entitled to the relief claimed by him? 6. After recording the evidence and hearing the parties, the trial court dismissed the petition holding that the petitioner has failed to prove the cruelty pleaded by him. Hence, this appeal. 7. (ii) Whether the petitioner is entitled to the relief claimed by him? 6. After recording the evidence and hearing the parties, the trial court dismissed the petition holding that the petitioner has failed to prove the cruelty pleaded by him. Hence, this appeal. 7. We have re-examined the evidence on record and considered the submissions of learned counsel for the parties. 8. Statement of P.W.1 Akhilesh Kumar Bisht (petitioner/appellant) on the record shows that he has proved the averments made in the petition against his wife. He also got examined in support of his case P.W.2 Sunil Sharma, his colleague in the office apart from P.W.3 Chetram and P.W.4 Rajesh Walia. In our opinion, the trial court has erred in law in appreciating the evidence by observing that P.W.2 Sunil Sharma, P.W.3 Chetram and P.W.4 Rajesh Walia have not supported the allegations made by petitioner against his wife, as to her behaviour. We find that what has happened only between husband and wife could have been stated only by the husband and he has proved it. Whatever incident had occurred before other persons in office or elsewhere the witnesses have corroborated the case of the petitioner to that extent in their testimony. 9. It is settled principle of law that what constitutes “cruelty”, for the purposes of Section 13 of Hindu Marriage Act, 1955 depends on the facts and circumstances of each case. In our considered opinion using for mother-in-law words like “jaMh* dqYVk” certainly constitutes mental cruelty to the husband. Apart from this, if some wife goes in the office of her husband and in presence of his colleagues asks him not to do work and that if he does not come during lunch period to home, the office would not get closed also amount insult to the husband which ultimately can be said to be a behaviour constituting cruelty against the husband. However, we are conscious of the fact that two children are living with the respondent. The Court has also to keep in mind the economic status of the parties. The petitioner/appellant is admittedly in a ministerial job with the Indian Institute of Technology, Roorkee. However, we are conscious of the fact that two children are living with the respondent. The Court has also to keep in mind the economic status of the parties. The petitioner/appellant is admittedly in a ministerial job with the Indian Institute of Technology, Roorkee. Considering the facts and circumstances of the case and after re-appreciating the evidence on record while we are satisfied that the petitioner has made out a case for divorce on the ground of cruelty but we feel it necessary to do complete justice between the parties by directing the petitioner/appellant to pay a reasonable amount of permanent alimony to the wife, as a condition for granting the divorce and allowing this appeal. 10. For the reasons as discussed above, this appeal and the divorce petition of the petitioner is allowed on the condition that the petitioner/appellant shall pay Rs. 5.00 Lacs (Five Lakhs) as permanent alimony to the respondent within a period of three months from today. If the petitioner/appellant pays said amount to the respondent, or deposits in her favour in the trial court within a period of three months, this appeal shall stand allowed and impugned judgment and order passed by the trial court shall stand set aside. Petition for divorce shall stand decreed and marriage between the parties shall stand dissolved. However, if the condition is not fulfilled this appeal shall dismissed with costs.