Research › Search › Judgment

Uttarakhand High Court · body

2010 DIGILAW 784 (UTT)

AJAY KUMAR GUPTA v. ANAMIKA GUPTA

2010-10-28

NIRMAL YADAV, PRAFULLA C.PANT

body2010
JUDGMENT Hon’ble Prafulla C. Pant, J. : This appeal, preferred under section 19 of Family Courts Act, 1984, is directed against the judgment and decree dated 11.05.2010 passed by Judge, Family Court, Udham Singh Nagar in matrimonial suit No. 160 of 2004, whereby the petition filed by the appellant under section 13 of Hindu Marriage Act, 1955 for divorce, has been dismissed. 2. Heard learned counsel for the parties and perused the lower court record. 3. Brief facts of the case are that petitioner/appellant Ajay Kumar Gupta got married to respondent Anamika Gupta on 02.07.1997 according to the Hindu rites, after the marriage, the couple started living in Kashipur District U.S. Nagar. It is stated that a female child was born out of the wedlock but died. It is alleged by the petitioner/appellant in his petition under section 13 Hindu Marriage Act, 1955, filed before the trial court, that in March, 1998 respondent left the company of her husband and started living in Moradabad. She used to work with a firm known as M/s. Garg & Sons. The petitioner had also suspected that she is not living a life of chaste woman. It is further pleaded by the petitioner that he made every efforts to bring back his wife but failed. He has further pleaded that respondent is living separately from him without sufficient reasons for more than six years. With these pleadings, petitioner had prayed for divorce. 4. The petitioner was contested by the respondent who filed her written statement before the trial court. She admitted having married to the petitioner. However, she denied the other allegations made in the petition. She further pleaded that earlier in 1999, a divorce petition was filed by appellant but the same was dismissed by the court at Moradabad. She specifically pleaded that due to non-fulfilment of demand of dowry, she was assaulted and ousted by her husband on 02.07.1998. It has also been pleaded by her that she has filed an application under Section 125 of Cr.P.C. before the court at Moradabad in which Rs. 500/- per month were directed to be paid by the husband to the respondent. She also pleaded that the petitioner wanted to marry with one woman known as Bharti Rani. 5. It has also been pleaded by her that she has filed an application under Section 125 of Cr.P.C. before the court at Moradabad in which Rs. 500/- per month were directed to be paid by the husband to the respondent. She also pleaded that the petitioner wanted to marry with one woman known as Bharti Rani. 5. On the basis of pleading of the parties, the trial court framed the following issues :- (i) Whether the respondent treated the petitioner with cruelty, and deserted her as alleged in the petition. (ii) Whether the petitioner is entitled to any relief? (iii) ‘Whether the court has no jurisdiction to try the suit as alleged in para 14 of the written statement. (iv) Whether the suit is barred by principle of res-judicata. The trial court recorded evidence of the parties, and after hearing them, dismissed the suit. From the perusal of the lower court record, it appears that issue Nos. 3 & 4 were decided as preliminary issues on 20.07.2007, and attained finality as no one challenged the same. On the issue No. 1, the trial court found that petitioner failed to show that the respondent treated the petitioner with cruelty and dismissed the suit. 6. It is argued before this Court on behalf of the appellant that trial court has erred in law in appreciating the evidence on record. It is further contended that the trial court has ignored the fact that the respondent had deserted the petitioner for a long time. We have examined the evidence on record. We find that admittedly respondent is living separately from the petitioner since March 1998. From the evidence of PW-1 Ajay Kumar Gupta (petitioner/appellant) and that of PW-2 Virendra Pal Gupta, father of the petitioner, it is proved on the record that the respondent left the company of her husband in the year 1998. The matrimonial suit was instituted in the year 2004. As such, it is established on the record that the respondent deserted the company of her husband. Now it is for respondent to show that there was sufficient reason with her for not joining the company of her husband. 7. We went through the Statement of DW-1 Anamika, who has stated that she was subjected to harassment for non-fulfillment of demand of dowry and ousted by her husband. Now it is for respondent to show that there was sufficient reason with her for not joining the company of her husband. 7. We went through the Statement of DW-1 Anamika, who has stated that she was subjected to harassment for non-fulfillment of demand of dowry and ousted by her husband. However, before filing of the divorce petition, there appears to be no complaint made by the wife for more than five years that she was subjected to cruelty for non-fulfillment of demand of dowry. Had it been a case that the wife was ousted by the husband in the year 1998 after committing MAARPEET with her, she would have lodged the first information report to this effect. What appears from the record is that in the year 2000, respondent was awarded three months’ imprisonment in connection with some case of forgery regarding which learned counsel for the respondent pleaded that it was on the instigation of the petitioner. It is further evident from the evidence of DW-1 Anamika that she too got sent petitioner and his father to jail in the year 2004 after lodging a first information report against them relating some MAARPEET. 8. In the above circumstances, having reassessed the evidence on record, this Court finds that the petitioner had proved the case of desertion by his wife Anamika for a period of more than two years on the presentation of the petition. It is further clear from the record that now the parties are not only living separately but the petitioner and his father had to remain in jail on the complaint of the wife made in the year 2004, which has irretrievably broken down the marriage. 9. Therefore, this appeal deserves to be allowed and divorce petition deserves to be allowed on the ground of desertion. However, we are conscious of the fact that the reasonable amount of permanent alimony is required to be paid by the husband to his wife. Considering the economic status of the parties and facts and circumstances of the case, we think it just and proper to direct the appellant to pay a lump sum permanent alimony amounting Rs. 4,00,000/- (Rupees Four lacs only) to the respondent. 10. The appeal is allowed. The judgment and decree passed by the Judge, Family Court, Udham Singh Nagar in matrimonial suit no. 160 of 2004 on 11.05.2010 is set aside. 4,00,000/- (Rupees Four lacs only) to the respondent. 10. The appeal is allowed. The judgment and decree passed by the Judge, Family Court, Udham Singh Nagar in matrimonial suit no. 160 of 2004 on 11.05.2010 is set aside. The petition under Section 13 of Hindu Marriage Act, 1955 filed by the petitioner/appellant is allowed. The marriage between the parties is dissolved. But the petitioner/appellant shall pay a lump sum Rs. 4,00,000/- (Rupees Four lacs only) as permanent alimony to respondent Anamika Gupta within a period of three months or shall deposit in the trial court in her favour within said period.