Research › Search › Judgment

Uttarakhand High Court · body

2011 DIGILAW 159 (UTT)

Vikas Sharma v. Anita Sharma

2011-03-10

PRAFULLA C.PANT, V.K.BIST

body2011
JUDGMENT : Oral: Prafulla C. Pant,J. Both these appeals, preferred under section 19 of Family Courts Act, 1984, are directed against judgment and order dated 25.08.2010, passed by Principal Family Court, Dehradun, in suit no. 70 of 2008, whereby said court has dismissed the petition filed by appellant Vikas Sharma for a decree of divorce under section 13 of Hindu Marriage Act, 1955, and counter claim for restitution of conjugal rights is decreed in favour of the wife. 2. Heard learned counsel for the appellant and perused the lower court record. 3. Brief facts, of the case, are that appellant Vikas Sharma got married to respondent Anita on 07.10.2005, following the Hindu rites at Dehradun. He (Vikas Sharma) is a rifle-man in Indian Army and was posted in Manipur at the time of his marriage. A son (named Prem) was born out of the wed-lock on 04.07.2006. Petitioner's case is that he is the only son of his parents who are unwell. The appellant/petitioner filed a petition under section 13 of Hindu Marriage Act, for a decree of divorce against his wife on the ground that she (Anita) has withdrawn from the society of the appellant/petitioner without any sufficient cause and as such deserted him. He also pleaded that the respondent threatens the appellant to implicate him in false dowry harassment case. Also in the petition, filed before the trial court prayer was made by the appellant/petitioner that he should be given custody of the son born out of the wed-lock who is living with the respondent. It is also pleaded by the petitioner/appellant in his petition that he is already paying maintenance to his wife and son. It is also pleaded that he moved a petition under section 9 of Hindu Marriage Act, 1955, for restitution of conjugal rights, but the same was got dismissed as not pressed. In substance, divorce petition was filed on the ground of desertion and cruelty. 4. The respondent contested the petition before the trial court and filed her written statement in which she admitted that her marriage was solemnized with the appellant/petitioner, and that a son was born out of the wed-lock. She also admitted that appellant/petitioner is serving in Indian Army. In substance, divorce petition was filed on the ground of desertion and cruelty. 4. The respondent contested the petition before the trial court and filed her written statement in which she admitted that her marriage was solemnized with the appellant/petitioner, and that a son was born out of the wed-lock. She also admitted that appellant/petitioner is serving in Indian Army. However, the rest of the pleas were denied by the respondent, and she pleaded that she is ready to live with her husband at the place of his posting but not ready to live with his parents. She made counter claim for restitution of conjugal rights 5. On the basis of the pleadings of the parties the trial court framed following issues:- (i) Whether the respondent harassed the petitioner as alleged in the petition. (ii) Whether respondent on 25.05.2006, left the house of her husband and came to her parental house to save her life as pleaded by her in the written statement and she is ready to live with her husband unconditionally. (iii) To what relief, if any, the petitioner is entitled. 6. On behalf of the petitioner, he got examined himself as P.W.1, and on behalf of the respondent she got examined D.W.1 Ramchandra Joshi, and herself as D.W.2 apart from D.W.3 Chandramohan Naithani and D.W.4 Prabha Naithani. The trial court discussed the evidence at length and came to the conclusion that no ground for divorce could be made out from the evidence on record and accordingly dismissed the petition. Hence, this appeal. Since, counter claim was also filed by the wife under section 9 of Hindu Marriage Act, for restitution of conjugal rights which was allowed by the same judgment and order dated 25.08.2010, as such connected appeal no. 58 of 2010, is also filed by the petitioner. 7. Admittedly, appellant/petitioner Vinod Sharma got married to Anita on 07.10.2005, at Dehradun, following the Hindu Rites. It is also admitted that a son name Prem was born out of the wed-lock on 04.07.2006. It is also not disputed that appellant/petitioner was serving in Indian Army as rifle-man and was posted in Manipur at the time of his marriage. From the record, it appears that he is still serving with Indian Army and has been remained posted in several places. It is also not disputed that appellant/petitioner was serving in Indian Army as rifle-man and was posted in Manipur at the time of his marriage. From the record, it appears that he is still serving with Indian Army and has been remained posted in several places. It has also come on the record that the parties to the matrimony could live together only for a brief period after their marriage, and the respondent left at the time she was carrying pregnancy to her parents home and she did not go back to the house of her husband. The allegation and counter allegations are that the husband says that his wife has deserted him without any sufficient cause, on the other hand, the wife alleges that she is ready to live with her husband but not with his parents. Morally, the stand taken by the wife may not be correct but legally speaking when the husband is posted in Army and not taking his wife with him to his place of posting she cannot be said to have faulted in declining to stay with parents of her husband. From the cross-examination of P.W.1 Vinod Sharma, it has come on the record that in most of his postings either he did not had family quarter when posted in the field or he did not apply for family quarter while posted in peace area. In our opinion the wife was not expected to live in the barrack where other soldiers are living without families. Merely not obliging the petitioner to stay in his parental house, where he himself is not residing, in our opinion cannot be said to be desertion of the husband. That being so, we find that trial court has committed no error of law in appreciating the evidence on record and coming to the conclusion that the petitioner could not make out the case for divorce either on the ground of desertion or cruelty. We have already mentioned above that no incident of cruelty is mentioned in the petition and the period for which couple living together was a brief period. We have already mentioned above that no incident of cruelty is mentioned in the petition and the period for which couple living together was a brief period. From the record, it also reveals that attempts were made by the court below for reconciliation between the parties but the same got locked on the point that the husband wanted that his wife should stay with his parents at Mussoorie (where he was not living as he was posted elsewhere) and the wife insisted that she was ready to go with her husband to the place of posting only. It is also not proved on the record that the husband is making payment of maintenance as directed under section 125 Cr.P.C., by the Magistrate concerned. 8. Having considered submissions of learned counsel for the appellant, and after going through the papers on record, we do not find force in these two appeals filed by the appellant (husband) against the impugned judgment and order dated 25.08.2010, passed in suit no. 70 of 2008. Therefore, both the appeals are dismissed. No order as to costs.