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2010 DIGILAW 767 (UTT)

RISHI MOHAN NAUTIYAL v. SHASHIBALA

2010-10-21

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 judgment and order dated 31.10.2009 passed by Additional Judge, Family Court, Rishikesh, Dehradun in suit No. 35 of 2007, whereby the said court has dismissed the petition moved by the petitioner (husband) under section 13 of the Hindu Marriage Act, 1955. 2. Heard learned counsel for the parties and perused the lower court record. (We also made efforts for reconciliation but failed). 3. Brief facts of the case are that the appellant/petitioner Rishi Mohan Nautiyal got married to respondent Shashibala on 15.01.2005 at Moradabad according to the Hindu rites. Out of wedlock one daughter named Bhumika was born on 14.04.2006. The petitioner (husband) filed a petition under section 13 of Hindu Marriage Act, 1955 against respondent seeking divorce on the ground of cruelty. It is pleaded by him in the petition that the behavior of the respondent with the petitioner was cruel. He has pleaded that she (respondent) used to abuse the petitioner. It is also alleged that she used to assault him. It is also stated in the petition that on 10.06.2007, the respondent crossed all the limits and poured kerosene oil on the petitioner. Petitioner (husband) has further pleaded that on that day police was called (by the husband). It is alleged by the writ petition that respondent (wife) left her matrimonial house on 22.06.2007, and since then she is living in her parental house. 4. Respondent contested the divorce petition before the trial court and filed her written statement in which she admitted having got married with petitioner Rishi Mohan Nautiyal. She also admitted that a female child was born out of wedlock. However, rest of the allegations were denied by her. She pleaded in the written statement that the petitioner and his mother used to demand of dowry from the respondent, and on non-fulfillment of demand of dowry she was not allowed to live with the petitioner. She further pleaded that the petitioner was a divorcee at the time of marriage with the respondent. Lastly it is pleaded in the written statement that she was ousted on 22.06.2007 by the petitioner, and since then she is living with her mother. 5. She further pleaded that the petitioner was a divorcee at the time of marriage with the respondent. Lastly it is pleaded in the written statement that she was ousted on 22.06.2007 by the petitioner, and since then she is living with her mother. 5. The trial court on the basis of the pleadings of the parties framed the following issues :- (i) Whether the respondent treated the petitioner with cruelty and subjected him to mental cruelty? (ii) To what relief, if any, the petitioner is entitled? Both the parties led their oral and documentary evidence before the trial court. The trial court after hearing the parties gave a finding that minor incident of quarrel cannot be said to be cruelty, and decided issue no (i) against the petitioner, and dismissed the petition. Hence this appeal. 6. Perusal of the evidence on record shows that the petitioner has specifically stated in paragraphs-11 and 12 of his affidavit filed in evidence before the trial court that on 09.06.2007 the respondent broke the mobile phone of the petitioner and on 10.06.2007 she poured kerosene oil not only upon the petitioner but also on the daughter Bhumika. When the petitioner got threatened of being setting ablazed he informed at the police outpost. The petitioner has further stated on oath that the two police constables came in the house. As to the incident dated 22.06.2007 when the wife left her husband’s house, it is stated in the affidavit of the husband that she left after quarreling with the petitioner. Though the fact is denied by wife in her affidavit filed before the trial court in evidence, but before this Court (at the time of reconciliation, efforts was made) she admitted that the police did come in the house on that day i.e. 10.06.2007. 7. Learned counsel for the appellant submitted that after the divorce petition was filed, the respondent lodged false first information report relating to demand of dowry and the petitioner was arrested by the police. This fact is admitted, at the time of reconciliation before this Court, by the respondent that she did file dowry harassment case against the husband denying that it was false. In the facts and circumstances of the case, we do not find that it is possible for the parties to live together. 8. This fact is admitted, at the time of reconciliation before this Court, by the respondent that she did file dowry harassment case against the husband denying that it was false. In the facts and circumstances of the case, we do not find that it is possible for the parties to live together. 8. Having reassessed the evidence on record, particularly relating to the incident dated 10.06.2007, we are of the view that the trial court has erred in law in saying that the incident of that day was a minor quarrel and cannot be said to be cruel act. In our opinion, the act on the part of the respondent against her husband was nothing but the cruelty. The trial court’s finding on issue no. (i) is erroneous and liable to be reversed. After going though the evidence on record, for the reasons as discussed above, we hold that the petitioner/appellant was subjected to cruelty by the respondent (wife). Accordingly, issue no. 1 is decided in favour of the petitioner/appellant. 9. For the reasons as discussed above, this appeal deserves to be allowed. But we are conscious of the fact that respondent Shashibala is unable to maintain herself, and it is the duty of the husband to maintain her. Considering the economic status of the parties (the petitioner is an Electro Homeopathic Practitioner), we are of the view that the divorce petition can be allowed on the condition that the petitioner shall pay to the respondent one time lump sum permanent alimony Rs. 5,00,000/- (Rs. Five lacs only). 10. Accordingly appeal is allowed and the petition for divorce is allowed, subject to the condition that the petitioner shall pay Rs. 5,00,000/- (Rs. Five lacs only) as lump sum one time permanent alimony within a period of three months from today to the respondent, or deposit in her favour in the trial court within the said period. In case the appellant fulfills the condition, the marriage between the parties shall stand dissolved. If the amount is not paid or deposited as directed above, this appeal shall stand dismissed. We further direct that the Stridhan, which the respondent left at the house of the appellant, shall be returned to her.