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2010 DIGILAW 753 (UTT)

YASHPAL SINGH BAGRI v. PUJA

2010-10-07

NIRMAL YADAV, PRAFULLA C.PANT

body2010
JUDGMENT Hon’ble Prafulla C. Pant, J. : This appeal, preferred under section 19 of Family Court Act, 1984, is directed against the judgment and order dated 01.12.2009, passed by Additional Judge, Family Court, Rishikesh, in Suit No. 31 of 2006, whereby said court has dismissed the petition for divorce filed by the appellant, moved under section 13 of Hindu Marriage Act, 1955. 2. Heard learned counsel for the parties, and perused the lower court record. 3. Brief facts of the case are that the petitioner/appellant Yashpal Singh Bagri got married to respondent Puja on 10.10.1999, in Rishikesh. At the time of marriage the petitioner/appellant was teacher in Government Inter College, Devaldhar, District Tehri. Parties to the matrimony, after the marriage, stayed together, but after some time the respondent came back to her parental house in Rishikesh in the year 2002. At that time she was pregnant, and delivered a female child on 16.10.2002 in Rishikesh. The petitioner/appellant has pleaded in his petition for divorce that the respondent avoided to join company of her husband and continued to live in her parental house. It is alleged that she was not ready to live in Devaldhar, District Tehri Garhwal which is a remote place in a hill district. It is further stated that a petition under section 125 Cr.P.C., was filed by the respondent against the petitioner/appellant (which has been disposed of and the appellant is making payment of maintenance as per the order passed in said case). It is further alleged in the petition for divorce that a false First Information Report was lodged by the wife against the husband relating to offences punishable under section 452, 354, 323 and 506 I.P.C. (It is stated that said criminal case has terminated in favour of the petitioner/appellant). It is alleged by the husband (appellant) that he has to undergo mental cruelty due to the false criminal cases filed against him. On said ground a decree of divorce is sought by filing a petition under section 13 of Hindu Marriage Act 1955 in the year 2006. 4. The aforesaid petition was contested by the respondent (wife) who filed the written statement before the trial court. It is admitted to her that she got married to the appellant, and a female child was born out of the wedlock. 4. The aforesaid petition was contested by the respondent (wife) who filed the written statement before the trial court. It is admitted to her that she got married to the appellant, and a female child was born out of the wedlock. However, she has pleaded that she was subjected to cruelty for non fulfillment of demand of dowry. It is also stated by her that the petitioner abused her, and subjected her to cruelty. However, it is not denied that she is living in her parental house. 5. On the basis that pleading of the parties, the trial court framed following issues:- (i) Whether, the petitioner was treated with cruelty by the respondent, and whether, the petitioner was subjected to cruelty? (ii) Whether, the petitioner treated the respondent with cruelty and has he intentionally deserted her? (iii) To what relief, if any, the petitioner is entitled? 6. Oral and documentary evidence was adduced by both the parties before the trial court. After hearing the parties the trial court held that petitioner failed to prove that the respondent has committed cruelty against him. 7. Learned counsel for the appellant argued that before this court that the trial court has not appreciated the evidence on record in a correct perspective. Attention of this court is drawn to the fact that it has been proved on the record that the criminal case was instituted by the wife against the husband. It is also shown to us from the record that the petitioner was acquitted by the court in criminal case (copy of said judgment of the Judicial Magistrate acquitting accused is filed as 104C in the trial court’s is record. If we read the statement of PW1 Yashpal Singh Bagri, with said document we find that the petitioner has proved the factum of cruelty committed against him by his wife by implicating him in a false criminal case. That being so, we are of the view, the trial court has not appreciated evidence correctly. It is relevant to mention here the respondent is living in her parental house for more than six years. The fact that the respondent did not agree to stay with her husband in Devaldhar gets corroborated from the cross examination of DW1 Puja who has admitted that instead of staying in Devaldhar she lived in Srinagar for doing Yoga Classes, and thereafter she lived in Rishikesh. The fact that the respondent did not agree to stay with her husband in Devaldhar gets corroborated from the cross examination of DW1 Puja who has admitted that instead of staying in Devaldhar she lived in Srinagar for doing Yoga Classes, and thereafter she lived in Rishikesh. (Copy of statement of the respondent given before the Judge, Family Court, Rishikesh in the proceedings of 125 Cr.P.C., is also filed before the trial court in these proceedings) which shows that she has stated at the end of her examination that she was ready to live with her husband only if he was posted in Rishikesh, and she was not ready to go to Devaldhar. 8. Having reassessed the evidence on record, we are of the view that the petitioner has successfully proved that he was treated with cruelty by her wife who filed uncalled for criminal case against him (in which he was acquitted) and refused to stay with him in Devaldhar. Therefore, the finding recorded by the trial court on issue no. 1 is erroneous and liable to be reversed. On the same ground the finding recorded that issue no. 2 also requires reversal. Accordingly, for the reasons already discussed above, both the issues 1 and 2 are decided in favour of the petitioner (husband). And the suit filed by the petitioner for divorce deserves to be decreed on the ground of cruelty. However, we are conscious of the fact that the respondent is required to be paid reasonable amount of maintenance in case the decree of divorce is granted against him. Considering the facts and circumstances of the case, economic status of the parties, and statements made by the learned counsel for the parties before us, a lumpsum amount of Rs. 10 lakhs as maintenance to the wife and the daughter, by the appellant in two quarterly installments would meet the ends of justice. 9. Accordingly, the appeal is allowed on the payment of the maintenance mentioned above. The impugned judgment and order dated 1.12.2009 passed by Additional Judge, Family Court, Rishikesh, in Suit No. 31 of 2006, is set aside. Suit for divorce is decreed, and marriage between the parties is dissolved on the condition that the petitioner/appellant Yashpal Singh Bagri shall pay Rs. Accordingly, the appeal is allowed on the payment of the maintenance mentioned above. The impugned judgment and order dated 1.12.2009 passed by Additional Judge, Family Court, Rishikesh, in Suit No. 31 of 2006, is set aside. Suit for divorce is decreed, and marriage between the parties is dissolved on the condition that the petitioner/appellant Yashpal Singh Bagri shall pay Rs. 10 lakhs to his wife Puja and daughter, in two equal quarterly installments, or deposit in favour of respondent before the trial court, first installment shall be paid by 31st of December 2010, and second installment by 31st of March 2011. In case the petitioner/appellant fails to comply with the condition mentioned above, this appeal shall stand dismissed.