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2010 DIGILAW 867 (UTT)

PRAMOD SINGH NEGI v. AMBIKA NEGI

2010-12-09

PRAFULLA C.PANT, SUDHANSHU DHULIA

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JUDGMENT Hon’ble Prafulla C. Pant, J. (Oral): This appeal, preferred under Section 19 of the Family Courts Act, 1984, is directed against the judgment and decree dated 17.03.2009, passed by Principal Judge, Family Court, Dehradun, in Suit No. 370 of 2004, whereby said court has dismissed the petition filed under Section 13 of the Hindu Marriage Act, 1955, by the husband. 2. Heard learned counsel for the parties and perused the lower court record. 3. Brief facts of the case are that petitioner/appellant Pramod Singh Negi got married to respondent Ambika Negi on 30th of November 1991, according to Hindu rites, at Dehradun. Out of the wedlock three children (one son and two daughters) were born. Out of the three children, one son and one daughter are living with the father (petitioner/appellant), and one daughter is living with her mother (respondent). The petitioner/appellant moved an application in the year 2004, before the trial court, under Section 13 of the Hindu Marriage Act, 1955, seeking divorce on the ground of cruelty. It is pleaded by him that after about four years of marriage, the respondent started treating the petitioner with cruelty. It is alleged by him that his mother and father were beaten by the respondent. It is stated by the petitioner/appellant in the petition that he is an Assistant Teacher in District Tehri Garhwal. Alleging that petitioner’s life has been made miserable by the respondent by her behaviour, it is prayed that the decree of divorce be granted. 4. Respondent contested the petition and filed her written statement before the trial court in which she admitted that she was married to the petitioner in the year 1991, and three children were born out of the wedlock. However, she denied the other allegations made in the petition. The respondent further pleaded that it was she who was subjected to mental cruelty by her husband, who used to make demand of dowry. She has further stated that she is living with her mother. It is also stated in the written statement that a case under Section 125 of Code of Criminal Procedure, 1973, was filed by her in which on the basis of compromise, the petitioner started paying Rs. 400/- as maintenance every month (now the said amount is said to have been enhanced to Rs. 1,500/- per month). It is also stated in the written statement that a case under Section 125 of Code of Criminal Procedure, 1973, was filed by her in which on the basis of compromise, the petitioner started paying Rs. 400/- as maintenance every month (now the said amount is said to have been enhanced to Rs. 1,500/- per month). It is also admitted by the wife that her youngest daughter Suman is living with her. 5. On the basis of the pleadings of the parties, the trial court framed following issues :- i) Whether, the petitioner was treated with cruelty by the respondent, if so its effect? ii) To what relief, if any, the petitioner is entitled? 6. After recording the evidence and hearing the parties, the trial court gave the finding that the petitioner has failed to prove factum of cruelty, and dismissed the suit/petition. Hence, this appeal. 7. Admittedly, appellant Pramod Singh Negi and respondent Ambika Negi are husband and wife, who got married to each other on 30th of November, 1991. It is also admitted to the parties and two daughters and a son were born out of the wedlock, and two children are living with their father and one child is living with the mother. The question before this court is whether, the petitioner was subjected to cruelty at the hands of his wife (respondent) as alleged in the petition, and if so, whether the petitioner is entitled to the decree of divorce, or not. The trial court has rejected the evidence adduced by P.W.1 Pramod Singh Negi only on the ground that the incidents of cruelty stated by said witness are not corroborated from any complaints made to the police. In our opinion in the matters of quarrel between husband and wife in a matrimonial home, it is not natural for a party to go to police to complain each and everything. Merely on the ground that the incidents of cruelty were not reported at the police station, particularly, which relate to the mental cruelty, cannot be a ground to reject the otherwise reliable evidence of the witness. What has been stated by P.W.1 Pramod Singh Negi is that the respondent used to beat his mother and father. If said fact is true, it certainly constitutes mental cruelty to the husband. What has been stated by P.W.1 Pramod Singh Negi is that the respondent used to beat his mother and father. If said fact is true, it certainly constitutes mental cruelty to the husband. After assessing the evidence of both the parties, P.W.1 Pramod Singh Negi and D.W.1 Ambika Negi, we are of the view that the evidence adduced by P.W.1 Pramod Singh Negi is more reliable and cannot be discarded merely on the ground that no report is made at the police station by him. Apart from the above fact, learned counsel for the parties admitted that the parties to the matrimony are living separately for last more than ten years, and there is no scope of reconciliation, and the marriage between them is irretrievably broken down. 8. Therefore, this appeal deserves to be allowed. However, we are conscious of the fact that the wife has no independent means of her income. The husband (appellant) is an Assistant Teacher in a primary school. Considering the facts and circumstances of the case and the economic status of the parties, we are of the view that directing the petitioner/appellant to pay a lump sum amount of permanent alimony to the tune of Rs. 5,00,000/- to his wife (respondent) as a condition precedent for divorce, would meet the ends of justice. 9. Accordingly, the appeal is allowed. Impugned judgment and decree dated 17.03.2009, is set aside. The suit for divorce filed by Pramod Singh Negi (petitioner/appellant) shall stand decree on the condition that he shall pay to the respondent Ambika Negi a lump sum amount of permanent alimony of Rs. 5,00,000/- (Rupees Five lac only), or deposit in her favour in the trial court, within a period of three months, failing which the appeal shall stand dismissed. If the amount of alimony as directed above, is paid to the respondent or deposited in her favour before the trial court, within the time allowed as above, i.e. three months from today, the marriage between the parties shall stand dissolved. Costs easy.