IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL First Appeal No. 72 of 2008 Shashi Vardhan Adhikari S/o late Sri Fakir Singh Adhikari R/o Village Jeetpur Negi, Manpur West, Rampur Road, Haldwani, District Nainital. ...…………. Appellant / Petitioner Versus Smt. Bhagwati Adhikari W/o Shri Shashi Vardhan ADhikari D/o Shri Pan Singh Rautela, R/o Village Vijaypur (Devpuri), P.S. Dwarhat, District Almora. ...…………. Respondent / O.P. Mr. R.S. Sammal, Advocate and Mr. Prem Kaushal, Advocate for the appellant. Mr. Lalit Sharma, Advocate for the respondent. Coram : Hon’ble Prafulla C. Pant, J. Hon’ble Alok Singh, 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 22.10.2008, passed by the Judge, Family Court, Nainital, in Suit No. 24 of 2006, whereby said court has dismissed the petition for divorce, filed by the husband (present appellant). 2) We heard learned counsel for the parties and perused the lower court record. 3) Brief facts of the case are that the petitioner / appellant Shashi Vardhan Adhikari got married to the respondent Smt. Bhagwati Adhikari on 01.12.1998, in Village Vijaypur (Devpura), District Almora. Out of the wedlock two daughters namely Ms. Divya and Ms. Meenakshi were born. The petitioner / appellant is employed as a Class IV employee with the Forest Department. He filed a petition under Section 13 of the Hindu Marriage Act, 1955, for a decree of divorce against the respondent on the ground of cruelty. He pleaded that on 03.04.2005, the respondent lodged a false report against the petitioner, his father and brothers, relating to offences punishable under Section 498-A, 323, 504, 506 of I.P.C., and one punishable under Section 3 / 4 of the Dowry Prohibition Act, 1961. He further pleaded that on 31.03.2005, the respondent left for her parental house at her own will, and did not return back. It is stated in the petition that the appellant never made any demand of dowry. It is further stated that he is regularly paying the maintenance awarded by the Magistrate under Section 125 of the Cr.P.C. Alleging that the petitioner / appellant has been subjected to cruelty as the respondent lodged criminal cases against him, his brothers namely Shyam Singh, Manohar Singh and Narendra Singh, and his father Fakir Singh, he has prayed for divorce. 4) The respondent contested the petition before the trial court and filed her written statement. In the written statement she admitted having married to the petitioner / appellant. She further admitted that two daughters were born out of the wedlock. However, she denied that she has treated her husband with cruelty. It is further pleaded by the respondent that she was beaten by her husband and in-laws, and ousted from her husband’s house on 31.03.2005. She has further stated that she was compelled to leave her husband’s house and now living in her parental house. As to the maintenance being received under Section 125 of the Cr.P.C., the respondent has admitted that as per the orders of the Judicial Magistrate, Ranikhet (District Almora), the respondent is denied maintenance, but the petitioner / appellant is making payment of Rs. 1,200/- per month to the two daughters. It is further alleged that the petitioner / appellant and his father used to demand the dowry. Lastly, she has pleaded that she is ready to live with her husband. 5) The parties led their evidence by filing the affidavits, and witnesses were got cross-examined before the trial court. The trial court after considering the evidence and hearing the parties, opined that the petitioner had failed to establish that cruelty was committed by his wife and with said finding, the petition for divorce was dismissed. Aggrieved by said order dated 22.10.2008, passed by the Judge, Family Court, Nainital, this appeal is filed by the husband (petitioner). 6) The only question for determination before us is as under: Whether, the petitioner / appellant was treated with cruelty by his wife (respondent), and is he entitled to a decree of divorce on that ground? 7) Admittedly, the parties got married to each other on 01.12.1998. It is also admitted that two daughters Divya and Meenakshi were born out of the wedlock. It appears that after marriage parties were living together in their matrimonial home in Village Jeetpur Negi, Manpur West, Haldwani, District Nainital. It is also not disputed that since 31.03.2005, the parties to the matrimony are not living together. The allegation of the husband is that the wife has left at her own will and started living in her parental place in District Almora. On the other hand, the wife has alleged that she was beaten and compelled to leave her husband’s house on 31.03.2005. The question before us is whether, the respondent has treated her husband (appellant) with cruelty, on not? 8) Learned counsel for the appellant drew attention of this Court to the fact that admittedly the wife lodged first information report on 03.04.2005 against her husband and in-laws, relating to offences punishable under Section 498-A, 323, 504, 506 of I.P.C., and one punishable under Section 3 /4 of the Dowry Prohibition Act, 1961. It is further contended that she made every attempt so that the petitioner / appellant, his father and brothers be sent to jail. He further submitted that there couldn’t be more cruelty than this. From the record it appears that the petitioner and her father and brothers sought an interim stay of their arrest from the High Court. It is also pointed out to us that the report of demand of dowry is lodged after six years of marriage. It is argued that there was not such complaint prior to the date first information report is lodged. It is further contended that the false first information report is lodged only to harass the husband, his father and brothers. 9) In these proceedings we are refraining from making any comment as to the truthfulness of the allegations made in the first information report, as it would prejudice the trial before the court concerned. However, we feel it our duty to consider this fact as to whether, the act on the part of the wife amounts committing cruelty against her husband, or not? Considering the fact that there was no complaint from the side of the wife for six years as to the demand of dowry, and then suddenly the first information report was got lodged by the wife by which attempt was made to send the petitioner / appellant and his three brothers and father to jail, in our opinion, does create a condition where it can be said that the wife has treated the husband with cruelty. After the parties are already under litigation in criminal cases, they cannot be expected now to live together in a peaceful atmosphere. Apart from this fact the record reveals that the Judicial Magistrate, Ranikhet, who awarded maintenance of Rs. 1,200/- per month to the two daughters, and denied the same to the wife (present respondent) found that the present respondent was living in her parental house without any sufficient cause. Though, this Court is not bound by the finding recorded by the criminal court in the proceedings under Section 125 of the Cr.P.C., but in our opinion, the same can be read as a corroborative piece of evidence to throw light as to the conduct of the wife. 10) In the above circumstances, we are of the view that the trial court has not correctly appreciated the evidence on record. Depriving the husband of matrimonial company in the manner as discussed above, and an attempt to send him to jail, in our opinion shows that the respondent wife has committed cruelty against the petitioner. Therefore, in our opinion, the divorce petition filed on behalf of the petitioner deserves to the allowed. However, we are conscious of the fact that the respondent is not an earning member and we have to make provision for her maintenance. Considering the fact that petitioner is a Class IV employee with the Forest Department and the wife is not doing any job, we think that by directing the petitioner / appellant to pay Rs. 3,00,000/- (rupees three lacs only) as one time permanent alimony to the respondent would meet the ends of justice, we would like to direct accordingly under Section 25 of the Hindu Marriage Act, 1955, while allowing this appeal. 11) For the reasons as discussed above, the appeal is allowed. The impugned judgment and order dated 22.10.2008, passed by the Judge, Family Court, Nainital, in Suit No. 24 of 2006, is set aside. The petition moved before the trial court on behalf of the petitioner / appellant under Section 13 of the Hindu Marriage Act, 1955, is hereby allowed on the condition that the petitioner shall pay to the respondent or deposit in her favour before the trial court, within a period of three months, an amount of Rs. 3,00,000/- (rupees three lacs only) as one time permanent alimony, failing which the petition for divorce and this appeal shall stand dismissed. If the condition is fulfilled by the petitioner / appellant as directed by this Court, the marriage between the parties shall stand dissolved. No order as to costs. (Alok Singh, J.) (Prafulla C. Pant, J.) Dt. November 05, 2009. H. Negi