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2010 DIGILAW 803 (UTT)

SADHNA v. SUSHIL KUMAR

2010-11-11

PRAFULLA C.PANT, SUDHANSHU DHULIA

body2010
JUDGMENT Hon’ble Prafulla C. Pant, J.: This appeal, preferred under section 19 of Family Courts Act, 1984, is directed against judgment and order dated 20.04.2009, passed by Judge, Family Court, Haridwar, in suit no. 136 of 2006, whereby said court has dismissed the divorce petition filed by the wife (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, petitioner/appellant Sadhna got married to respondent Sushil Kumar on 11.05.1994, according to Hindu rites at Haridwar. It is pleaded in the petition, filed by the wife under Section 13 of Hindu Marriage Act, 1955, that in the marriage customary items of dowry were given. It is alleged that the petitioner/appellant started living with her husband but the respondent who was a drunkard used to come late in a drunken condition and beat the petitioner/appellant. Out of the wedlock three children namely Urvashi, Devendra and Abhishek were born. In June 2004, the petitioner went to her parental house where her father gave Rs. 50,000/- for being deposited in the name of the children. It is alleged by the wife that since her husband was a greedy man, he took Rs. 10,000/- out of those Rs. 50,000/- and purchased Kisan Vikas Patra of Rs. 40,000/- only in the name of the children. It is further alleged that after the death of the father of the petitioner/appellant, now the respondent presses the petitioner to get partitioned her share from her brother. She has specifically pleaded that on 09.06.2006 at about 05.00 P.M., respondent Sushil Kumar asked that the petitioner (Sadhna) should bring Rs. 5,00,000/- (rupees five lacs) from her brother. When the petitioner refused to do that she was beaten with kicks and fists, and ousted by her husband. It is further pleaded by her that the three children are living with her. As such, on the ground of cruelty the petitioner (wife) sought decree of divorce. 4. The respondent (husband) contested the petition of divorce and filed his written statement before the trial court. He admitted that the petitioner was married to him, and three children were born out of the wedlock. However, he denied the other allegations that he is a drunkard or that he beats his wife. As to the Kisan Vikas Patra of Rs. The respondent (husband) contested the petition of divorce and filed his written statement before the trial court. He admitted that the petitioner was married to him, and three children were born out of the wedlock. However, he denied the other allegations that he is a drunkard or that he beats his wife. As to the Kisan Vikas Patra of Rs. 40,000/- he says that it was his money which was deposited in the name of the children. He has alleged in the written statement that petitioner is a clever lady, and pressing him to dispose his property in District Bijnor and stay with her in Haridwar. Lastly, he has pleaded that he is willing to keep his wife with him. 5. On the basis of the pleadings of the parties, the trial court framed following three issues : (i) Whether the respondent treated the petitioner with cruelty as alleged? If so, its effect? (ii) Whether the petitioner is living without any sufficient reason in her parental house? If so, its effect? (iii) To what relief, if any, petitioner is entitled? 6. After recording evidence, and hearing the parties, the trial court held that the petitioner failed to prove the factum of the cruelty. It is further held that petitioner is living voluntarily in her-in-laws place and dismissed the suit for divorce. Hence, this appeal. 7. Admittedly, parties are married to each other and they have three children. It is also not disputed that the wife (petitioner/appellant) is now living in her parental house. The only question to be considered by this Court is that whether the factum of alleged cruelty as pleaded in the petition is proved on the record or not. The trial court has disbelieved the testimony of P.W.1 Sadhna only on the ground that she has not specified the dates when she was beaten by her husband. Having gone through the statement of P.W.1 Sadhna, we are of the view that the trial court has not carefully read the evidence on record. It is alleged and proved that respondent used to drink liquor and beat frequently. In such circumstances, it is difficult to disclose specific dates. The acts of cruelty inside the house are known only to the parties to the matrimony who are living together. It is alleged and proved that respondent used to drink liquor and beat frequently. In such circumstances, it is difficult to disclose specific dates. The acts of cruelty inside the house are known only to the parties to the matrimony who are living together. If the husband comes in the drunken state, and beats his wife it is only the wife who can tell what she has undergone. It is also natural that for each and every kind of cruelty the matters are not reported to the police. P.W.1 Sadhna has stated that Sushil Kumar (respondent) was a drunkard, and used to beat her. She has further stated that for thirteen years she lived with him and tried to improve him and to make him leave the alcohol but he did not improve. Regarding the incident of 9th of June 2006, she has specifically stated that on that day respondent asked her to bring Rs. 5,00,000/- (rupees five lacs) from her brother which she declined, and on this she was beaten with kicks and fists and ousted from the house with three children. Normally, a wife who was living for thirteen years with her husband would not like to leave his company and prefer to stay with her brother. If she states that she was beaten, her testimony could not be rejected only on the ground that she did not lodge any report of the incident. 8. The trial court has given much emphasis to the fact that husband was ready and willing to take his wife back but she refused to go with him. What the trial court has ignored is the fact that when the wife was being subjected to cruelty she could not be expected to stay with the husband for, and suffer with him. Merely for the reason that husband told the court that he is ready to take his wife back does not mean that the wife would not be subjected further to the cruelty. The perusal of the statement of D.W.2 Smt. Ruchi Rani, sister of the respondent and D.W.2 Sukhram shows that they are not aware of the fact that what happens between Sushil Kumar and Sadhna (when they are alone) as is apparent from the statements given by them in their cross-examination. The perusal of the statement of D.W.2 Smt. Ruchi Rani, sister of the respondent and D.W.2 Sukhram shows that they are not aware of the fact that what happens between Sushil Kumar and Sadhna (when they are alone) as is apparent from the statements given by them in their cross-examination. P.W.2 Rajeev, brother of the petitioner has stated in the cross-examination that he has personal knowledge that respondent Sushil used to take liquor and he took liquor in his presence. 9. Having reassessed the evidence on record, we find that trial court has erred in law in not believing the oral evidence adduced on behalf of the petitioner. In our opinion, petitioner has sufficiently proved on record that she was subjected to cruelty by her husband, and ultimately she has to leave her husband’s house. Therefore, we reverse the findings recorded by the trial court on issue no. 1 and 2. 10. For the reasons as discussed above, this appeal is allowed. The impugned judgment and decree dated 20.04.2009, passed by the Judge Family Court, Haridwar, in suit no. 136 of 2006 is set-aside. The petition moved under section 13 of Hindu Marriage Act, 1955, for divorce is allowed. The marriage between the parties is dissolved. Costs easy.