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2011 DIGILAW 142 (UTT)

Prakash Chandra v. Janki Arya

2011-03-03

PRAFULLA C.PANT, V.K.BIST

body2011
Prafulla C. Pant, J. (Oral) This appeal preferred under Section 19 of Family Court Act, 1984 is directed against the judgment and order dated 8th October, 2010 passed by Judge, Family Court, Nainital in Suit No.73 of 2006, whereby said Court has dismissed the petition of the appellant/ petitioner, moved under Section 13 of the Hindu Marriage Act, 1955, for divorce. 2. Heard learned counsel for the parties and perused the lower court record. 3. Brief facts of the case are that appellant/ petitioner Prakash Chandra filed a petition under Section 13 of the Hindu Marriage Act, 1955 before Family Court, Nainital in the year 2006 stating that he got married to respondent no.1 Janki Arya on 04.06.1998 following the Hindu rites in District Almora. After the marriage, the couple lived in the ancestral house of the husband, for about two years whereafter both husband and wife came to Haldwani (District Nainital) and lived as tenants in the house of defendant no.2 Vinod Kumar Arya. Appellant/ petitioner is employee with Almora Urban Cooperative Bank Ltd., Branch Haldwani. The allegations are made by the petitioner in the petition that after the petitioner used to leave his house for office (Bank), his wife (respondent no.1) started passing time with different persons. After sometime, she also started living with other people by leaving the petitioner for about a week or so. It is specifically pleaded by the petitioner/appellant in the petition for divorce that on 25.03.2004 when P.W.2 Nandi Devi, aunt of the petitioner went to his house and knocked the door she found that respondent no.1 Janki Arya was all alone with respondent no.2 Vinod Kumar Arya. The two were in objectionable position. P.W.2 Nandi Devi when saw respondents in said situation, the respondent no.1 immediately apologized and promised that she would not repeat that conduct. Alleging that respondent no.1 Janki is living in adultery, the petitioner sought divorce on that ground. 4. Respondent no.1 Janki (wife) filed written statement before the trial court and contested the suit. However, she admitted that she was married to petitioner Prakash Chandra. She also admitted that she alongwith her husband (Prakash Chandra) used to live in Gusai Nagar Ward No.7, Haldwani as tenants in the house of respondent no.2 Vinod Kumar Arya. But she denied all allegations relating to adultery. However, she admitted that she was married to petitioner Prakash Chandra. She also admitted that she alongwith her husband (Prakash Chandra) used to live in Gusai Nagar Ward No.7, Haldwani as tenants in the house of respondent no.2 Vinod Kumar Arya. But she denied all allegations relating to adultery. She pleaded that Nandi Devi (Aunt of the petitioner) is bent upon to spoil the matrimonial life of the answering respondent and the petitioner. 5. Respondent no.2 Vinod Kumar Arya filed separate written statement in which he denied that he had illicit relations with respondent no.1, but pleaded that she lives in adultery with other persons. He admitted that he is landlord, and petitioner and respondent no.1 are his tenants. He also admitted that the petitioner/ appellant is in job with Almora Urban Coopeartive Bank, Branch Haldwani. 6. On the basis of the pleadings of the parties, the trial court framed following issues: (i) Whether respondent no.1 and respondent no.2 lived in adultery as alleged by the petitioner? (ii) Whether the petitioner is entitled to decree of divorce on the ground of illicit relations between respondent no.1 and respondent no.2? (iii) To what relief if any is petitioner is entitled? 7. On behalf of the petitioner, he got himself examined as P.W.1, his Aunt Nandi Devi as P.W.2, mother of the respondent no.2 Kamla Devi as P.W.3 and one Per Ram Arya as P.W.4. From the side of the respondent no.1 she got herself examined as D.W.1, one Jagat Ram as D.W.2, Kailash Prasad as D.W.3. On behalf of the respondent no.2 Vinod Kumar he got himself examined as D.W.4. The parties also filed documentary evidence in support of their case. The trial court after hearing the parties found that the ground of adultery is not proved on the record. 8. Clause (i) of Sub Section (1) of Section 13 of Hindu Marriage Act, 1955 provides that a petition may be presented by either the husband or the wife for getting the marriage dissolved by a decree of divorce on the ground that after solemnization of their marriage, the other party had voluntary sexual intercourse with any person other than his or her spouse. 9. It is true that it is easy to make allegations against a woman that she lives in adultery but it is not that easy to prove the same. 9. It is true that it is easy to make allegations against a woman that she lives in adultery but it is not that easy to prove the same. However, in the present case in our opinion, after going through the evidence on record, we find that the petitioner/appellant has not taken a false plea and the ground for divorce taken in the divorce petition is proved on the record. Not only P.W.1 Prakash Chandra and his aunt Nandi Devi (P.W.2) has stated on oath that respondent no.1 was living in adultery with respondent no.2, but respondent no.2 who was examined as D.W.4 has denied the allegations half heartedly. Nay, even Kamla Devi, mother of respondent no.2, Vinod Kumar who has been examined as P.W.3 has stated that her son was living in adultery with respondent no.1. Though D.W.4 Vinod Kumar and his mother P.W.3 Kamla Devi have stated that Janki (respondent no.1) had illicit relations with others also, but that does not dilute the evidence given by mother against his son that he had illicit relations with respondent no.1 (wife of the present appellant/ petitioner). 10. We agree with the trial court that P.W.2 Nandi Devi being aunt of petitioner/appellant was an interesting witness and her testimony that she found respondent nos.1 & 2 in objectionable position cannot be accepted as gospel truth. But, what we feel is this that the trial court has erred in law in disbelieving the testimony of P.W.3 Kamla Devi, who is mother of respondent no.2 Vinod Kumar Arya. Adultery is an act, which is not committed in open. It is an act, which is normally done in the closed doors. P.W.2 Nandi Devi has stated that she had gone to the house of the petitioner on 25th March, 2004 and at that time she was accompanied by two daughters Bhuvneshwari, Geeta and her son Naval Kishore. She further told when she knocked the door and the doors were opened and she found that the respondent no.1 was all alone inside with respondent no.2. 11. D.W.4 Vinod Kumar though states that he had no sexual relations with the respondent no.1 and alleges that she (respondent no.1) used to have relations with others in the neighborhood but his mother P.W.3 Kamla Devi specifically states that the respondent no.1 had not only illicit relations with others but with the respondent no.2 also. 11. D.W.4 Vinod Kumar though states that he had no sexual relations with the respondent no.1 and alleges that she (respondent no.1) used to have relations with others in the neighborhood but his mother P.W.3 Kamla Devi specifically states that the respondent no.1 had not only illicit relations with others but with the respondent no.2 also. A mother regarding whom, it is not shown on the record that her relations were soured with her son, would normally not give such statement that his son is having illicit relations with the tenant, who is a married woman. Whether it is P.W.1 Prakash Chandra or P.W.2 Nandi Devi, or P.W.3 Kamla Devi or D.W.4 Vinod Kumar, all state that after petitioner Prakash Chandra used to leave his house for office thereafter many persons used to come to respondent no.1 and she had relations with them. 12. In the above circumstances having reassessed the entire evidence on record, we find that in the present case the petitioner/appellant has successfully proved his case for divorce on the ground of adultery and he is entitled to the decree of divorce. However, we are conscious of the fact that respondent no.1 needs financial support to maintain herself. Considering the economic status of the parties particularly the fact that petitioner/appellant is a class IV employee in the Bank, we think it just and proper to direct the petitioner/appellant to pay a one time permanent lump sum alimony of ` 2,00,000/- as a condition precedent for the decree of divorce. 13. Accordingly, the appeal is allowed. The impugned judgment and order dated 8th October, 2010 passed by Judge, Family Court, Nainital dismissing the suit of the petitioner is set aside. Suit no.73 of 2006 is decreed. Petition moved under Section 13 of Hindu Marriage Act, 1955 by the petitioner Prakash Chandra for dissolution of his marriage with respondent no.1 Janki Arya, is hereby dissolved by a decree of divorce on the condition that the petitioner/ appellant shall pay ` 2,00,000/- (Rupees two lakhs) as a one time permanent lump sum alimony within a period of three months from today to the respondent no.1 Janki Arya, or deposit in her favour before the trial court within the said period, failing which this appeal shall stand dismissed. It is further directed that the Stridhan of respondent no.1 shall be returned by the appellant petitioner to her immediately. Costs easy.