IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL First Appeal No. 46 of 2008 Smt. Vimla Chauhan W/o Shri Yashpal Singh Chauhan Presently R/o C/o Shri Anand Singh Negi Gram Durgapur, Patti Mottadang, Tehsil Kotdwar, District Pauri Garhwal. ...…………. Petitioner / Appellant Versus Shri Yashpal Singh Chauhan S/o Shri Chatra Singh Chauhan R/o Tigari, Manakwala, Tehsil Nagina, District Bijnor Presently R/o Nagina Check Post, Dhampur, Nagina Chowk, Dhampur, District Bijnor (U.P.). ...…………. O.P. / Respondent Mr. Pramod Bailwal, Advocate for the appellant. Mr. Abdul Wahid, Advocate for the respondent. Coram : Hon’ble Prafulla C. Pant, J. Hon’ble B.S. Verma, J. Hon. Prafulla C. Pant, J. (Oral) This appeal, preferred under Section 19 of the Family Courts Act, 1984 read with Section 28 of the Hindu Marriage Act, 1955, is directed against the judgment and order dated 31.03.2008, passed by the Judge, Family Court, Pauri Garhwal, in Matrimonial Case No. 12 of 2006 (filed under Section 13 of the Hindu Marriage Act, 1955), and Misc. Case No. 39 of 2005 (filed under Section 125 of the Code of Criminal Procedure, 1973), whereby both the petitions moved by 2 the appellant (wife), were dismissed. In this appeal the appellant has challenged only the decree passed in Matrimonial Case No. 12 of 2006. 2) Heard learned counsel for the parties and perused the lower court record. 3) Brief facts of the case giving rise to this appeal are that the appellant Vimla got married to respondent Yashpal on 23.11.1989, in accordance with Hindu rites, in Durgapur, Kotdwar, District Pauri Garhwal. After her marriage, appellant started living with her husband Yashpal (respondent) in his ancestral house in Tigari, Manakwala, Tehsil Nagina, District Bijnor (U.P.). After sometime the respondent (husband) got a job as a teacher in Saraswati Sishu Mandir, Dhampur. He started living in Dhampur on a rental accommodation with his wife Vimla (appellant). Two daughters namely Meenu and Nidhi were born out of the wedlock. It is alleged by the petitioner (appellant) in her divorce petition that after her marriage with the respondent she came to know that the respondent had two children namely Monika and Gaurav, through his predeceased wife. It is pleaded by her (petitioner / appellant) that respondent after some years of marriage, started treating the petitioner with cruelty. He used to drink with his friends who used to tease the petitioner, in his presence. On protesting, the respondent asked the 3 petitioner to do what he says. It is further pleaded that on 06.11.2005, respondent got beaten the petitioner, with the help of his relatives and ousted her from the matrimonial home. As such, divorce petition (Matrimonial Case No. 12 of 2006) was filed by the wife (appellant / petitioner) on the ground of cruelty and desertion. We do not want to mention the facts relating to the petition filed under Section 125 of the Cr.P.C., as the appellant has not challenged that part of the impugned order, in this appeal. 4) The respondent contested the petition and filed his written statement. He did not deny having married to the appellant / petitioner, nor did he deny that two daughters were born from the wedlock. It is also not denied that the respondent had already two children through his first (predeceased) wife, at the time of marriage with the appellant. However, rest of the allegations are denied. It is stated in the written statement that the petitioner / appellant had herself left the house of the respondent. It is further stated by him that he never treated the petitioner with cruelty. Rather, it is alleged that the petitioner has left the respondent’s house with one Madan Singh Rawat, landlord of the house in which the parties used to live. 5) The trial court, on the basis of the pleadings of the parties, framed following three issues: 4 i) Whether, the respondent Yashpal has treated the petitioner Smt. Vimla with physical and mental cruelty? If so, its effect? ii) Whether, respondent Yashpal has deserted his wife Smt. Vimla? iii) To what relief, if any, the petitioner is entitled? 6) After recording the evidence of the parties and hearing them, the trial court dismissed the suit for divorce vide impugned order dated 31.03.2008, with the finding that neither the respondent has treated the petitioner with cruelty, nor has he deserted the petitioner. 7) Mr. Pramod Bailwal, learned counsel for the appellant argued that the trial court has erred in appreciating the evidence adduced by the parties in coming to the conclusion that the respondent has not treated the petitioner with cruelty. In this connection, it is pointed out that P.W. 1 Vimla Chauhan has proved the allegations contained in the petition, that she was subjected to cruelty by her husband. It is further argued that the (petitioner / appellant) has specifically stated in her statement that her husband is a drunkard, who used to take liquor with his friends in the house where they (friends) used to tease the petitioner, in his presence. It is further stated by her that when she protested she was 5 asked to do what her husband likes. It is further stated by P.W. 1 Vimla Chauhan that on 06.11.2005, the respondent got beaten her with the help of his relatives and ousted from the matrimonial home. Learned counsel for the appellant further submitted that merely for the reason that daughter of the parties C.W. 1 Nidhi Chauhan supported the case of respondent, the evidence adduced by the wife (appellant) should not have been rejected as the younger daughter was under the influence of her father with whom she was living. 8) We have re-examined the evidence on record and found that the trial court has committed no error of law in appreciating the evidence. The statement of P.W. 1 Vimla Chauhan and that of D.W. 1 Yashpal Singh Chauhan is oath against oath. In these circumstances, to examine as to which of the two statements is correct, the trial court summoned C.W. 1 Nidhi Chauhan (daughter of the parties to the suit); C.W. 2 Poonam Negi (sister-in-law / Bhabhi of the petitioner) and C.W. 3 Smt. Prabha (sister of the petitioner). All the three witnesses supported the case of the respondent. Learned counsel for the appellant argued that since Nidhi Chauhan (daughter of the parties) was living with her father, as such, she was under his influence and her testimony should not have been relied. However, we find that there is no explanation as to why the petitioner’s own sister and sister-in-law (Bhabhi) made statement in support of the respondent, and not the 6 petitioner. Not only this, a significant fact which has come in the impugned order, passed by the trial court, is this that the daughters of the petitioner cried in the court and requested their mother (petitioner) to come back to the house of the respondent, but she refused. Not only this, the version of the petitioner that she was forced to live in her parental house was found to be false and the petitioner’s own sister and sister-in-law told that she was not living in her parental house. 9) Learned counsel for the appellant contended that C.W. 2 Poonam Negi (sister-in-law / Bhabhi of the petitioner) and C.W. 3 Prabha (sister of the petitioner) had no opportunity to see in what manner the respondent was treating the petitioner. But, C.W. 1 Nidhi Chauhan has stated that her father had not committed any cruelty with the petitioner and that her mother used to serve ‘Badam Lassi’ to the landlord Madan Singh Rawat, used to dye his hairs and used to cook food for him. This statement corroborates the statement of D.W. 1 Yashpal Singh Chauhan (husband). This witness, who is daughter of the parties, is not too young. She is student of Class X, as is clear from her statement. 10) Having re-assessed the evidence on record, this Court concurs with the findings given by the trial court that the respondent has not treated the petitioner (appellant) with cruelty. We also concur with the 7 finding that the respondent has not deserted the petitioner, and it is the petitioner herself who has left the matrimonial home, without any sufficient reason. It is settled principle of law that the petitioner for her own wrong cannot be granted relief of divorce against the respondent. 11) For the reasons as discussed above, we do not find force in this appeal, which is liable to be dismissed. The appeal is dismissed. No order as to costs. (B.S. Verma, J.) (Prafulla C. Pant, J.) Dt. May 20, 2009. H. Negi