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2012 DIGILAW 247 (UTT)

BEENA DEVI v. MADHU RAJ SINGH

2012-06-05

PRAFULLA C.PANT, SERVESH KUMAR GUPTA

body2012
JUDGMENT Oral: Hon’ble Prafulla C.Pant, J. Ms. Sheetal Selwal, Advocate, present for the appellant. Mr. Pratul Kumar, Advocate, holding brief of Mr. Lokendra Dobhal, Advocate, present for the respondent. 2. This appeal, preferred under Section 19 of the Family Courts Act, 1984 is directed against the judgment and order dated 28.8.2010 passed by the Additional Judge, Family Court, Rishikesh in Suit No.59 of 2009, whereby the said Court has allowed the Divorce Petition filed by the husband (present respondent) under Section 13 of the Hindu Marriage Act, 1955. 3. Heard learned counsel for the parties and perused the lower court record. 4. In brief, the facts of the case are that appellant Beena Devi got married to respondent Madhuraj Rawat on 23.1.2007, following the Hindu rites. It appears that after some period, the relations between the two got soured and the appellant started living in her parental house. The present respondent Madhuraj Rawat filed a divorce petition under Section 13 of the Hindu Marriage Act, 1955, stating that the appellant did not allow him to establish conjugal relations. It was also pleaded by the husband that he was subjected to cruelty at the hands of his wife. The present respondent also pleaded before the trial court that on 3.7.2009 and 5.7.2009, efforts were made for reconciliation but the appellant did not agree to stay with the present respondent. There is no issue born out of the wedlock. 5. The appellant contested the petition and filed her written statement before the trial court in which she admitted the marriage with the present respondent, but denied other allegations. It was further pleaded by her that it was she who was subjected to cruelty and harassment in her in-laws house. It is also pleaded that the alleged compromise said to have been entered between the parties was got signed against the wishes of the appellant. 6. The trial court, on the basis of the pleadings of the parties, framed following issues: - A. “Whether the defendant is living separately from the petitioner since 3.8.2007 without any sufficient reason, and as such, on this ground, is the petitioner entitled to decree of divorce? B. Whether the respondent was subjected to cruelty at the hands of the petitioner (husband) for non-fulfillment of demand of dowry and is she living separately due to that reason? C. To what relief, if any, the petitioner is entitled? 7. B. Whether the respondent was subjected to cruelty at the hands of the petitioner (husband) for non-fulfillment of demand of dowry and is she living separately due to that reason? C. To what relief, if any, the petitioner is entitled? 7. Both the parties were given opportunity to adduce evidence. On behalf of the petitioner (present respondent), apart from documentary evidence, PW1 Madhuraj Rawat, PW2 Virendra Mohan Bahuguna, PW3 Vijay Singh Manwal, PW4 Vijendra Tewari and PW5 Smt. Kusum Tirathwal were got examined. However, no evidence was led by the defendant (present appellant). The trial court after hearing the parties, discussed the evidence on record and decided both issues no.1 and 2 in favour of petitioner (husband), and decreed the suit for divorce. 8. Learned counsel for the appellant argued that the alleged compromise, said to have been executed between the parties, was a forged one and as such, the petitioner was not entitled to decree of divorce. Had the decree of divorce been passed on the basis of compromise, what the appellant has argued could be accepted, but the decree of divorce has been granted after discussing the evidence by the trial court on the issue of desertion. A perusal of the lower court record shows that the present appellant did not adduce any evidence to rebut the evidence adduced on behalf of the petitioner (husband). 9. Learned counsel for the appellant further submitted that the matter be remanded and the appellant be given one more opportunity to adduce the evidence. However, perusal of the order sheet of the lower court shows that the counsel of the present appellant, after cross-examining the witnesses of the petitioner, made an endorsement on the order sheet that the respondent (present appellant) did not want to adduce any evidence. In such circumstances, this Court finds that it is not a case where the appellant was not given opportunity to adduce her evidence. The appellant has contested the suit through out the proceedings till the arguments were heard in the case before the trial court. As such, this Court is of the opinion that there is no any sufficient reason to remand the case back to the trial court. 10. The appellant has contested the suit through out the proceedings till the arguments were heard in the case before the trial court. As such, this Court is of the opinion that there is no any sufficient reason to remand the case back to the trial court. 10. Since the findings recorded by the trial court are based on the oral and documentary evidence on record and the evidence has been appreciated without error, this Court is not inclined to interfere with the impugned order passed by the trial court. 11. For the reasons, as discussed above, this Court finds no force in this appeal which is liable to be dismissed. Accordingly, the appeal is dismissed. No order as to costs.