IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL First Appeal No. 105 of 2006 Smt. Guddi Devi @ Rashmi W/o Sri Anil Bahuguna R/o Dobhal Road, Pauri, District Pauri Garhwal. At Present Head Mistress Primary School Kotsara, Patti Sitonsuin, Pauri Garhwal. ...…………. Defendant / Appellant Versus Anil Bahuguna S/o Sri Durga Prasad Bahuguna R/o Dobhal Road, Pauri District Pauri Garhwal. ...…………. Plaintiff / Respondent Mr. D.C.S. Rawat, learned counsel for the appellant. Mr. U.P.S. Negi, learned counsel for the respondent. Coram : Hon’ble Prafulla C. Pant, J. Hon’ble Dharam Veer, 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 28.11.2006, passed by the learned Principal Judge, Family Court, Pauri Garhwal, in Matrimonial Suit No. 21 of 2002, whereby the divorce petition filed by the husband (Anil Bahuguna), moved under Section 13 of the Hindu Marriage Act, 1955, is allowed. 2) Heard learned counsel for the parties and perused the lower court record. 3) Brief facts of the case are that the plaintiff / respondent Anil Bahuguna got married to defendant / appellant Guddi Devi @ Rashmi on 18.06.1998 in Village Aali in District Pauri Garhwal. There is no issue born out of the wedlock. For about 1½ year after the marriage, the parties lived together without any problem. However, thereafter it appears that relations between the parties started getting sour. The plaintiff / respondent has stated in the divorce petition filed before the trial court that the defendant / appellant started behaving with him and his parents, in a cruel manner. It is pleaded in the divorce petition that the defendant / appellant used to hurl abuses at the plaintiff / respondent and his parents. It is further pleaded that father of plaintiff (husband) is heart patient and the defendant / appellant used to hide the medicines and thereby tortured them. The husband in the present case is a Journalist while the wife is a Teacher. It is also pleaded by the husband in his divorce petition that the defendant / appellant once took out the utensils from the house and struck them on the ground and created a scene outside the house and also gave a threat that she would commit suicide. When the plaintiff (husband) reported the matter to the parents of his wife they simply brushed aside the complaint by saying that their daughter is short tempered. It is further alleged that on 04.10.2001, defendant / appellant left house of her husband at her own will and since then did not return, except on 14.12.2001 when she hurled abuses at her husband and in-laws and gave a threat that she would implicate them in false cases. It is also alleged by the husband that even after providing medical treatment to the defendant / appellant the doctors declared her unfit to conceive a child. With these averments, petition under Section 13 of the Hindu Marriage Act, 1955, was moved by the husband before the Principal Jude, Family Court, Pauri Garhwal. 4) The defendant / appellant contested the suit filed by her husband for divorce. It is alleged by her in her written statement that the plaintiff (husband) is a drunkard. He used to beat the defendant (wife). It is further pleaded in the written statement that on 07.01.1999, he gave a beating to the defendant (present appellant) due to which a three months foetus got aborted on 08.01.1999. However, it is admitted that she was taken for treatment to Dehradun, Rishikesh and Delhi, but this fact is denied that it was declared by the doctors that defendant is unable to conceive child. As to the allegations of cruelty against the husband and in-laws, Guddi Devi @ Rashmi (appellant) has denied the same in the written statement. She has stated that she was compelled to take bread from the market at the time of returning from school, as she was not getting sufficient food in her matrimonial home. As to the incident of 14.12.2001, it is pleaded by the defendant (wife) that she was ousted by her husband and in-laws on that day from her matrimonial house, which was closed for her by them. It is also alleged by the defendant that her husband has deserted her without any reason and it was the husband and his parents who have committed cruelty against her. 5) On the basis of the pleadings of the parties, following issues were framed by the trial court: i) Whether, the respondent (wife) has treated the petitioner (husband) with cruelty, as alleged in the divorce petition. If so, its effect? ii) Whether, the petitioner (husband) himself is responsible for committing cruelty against his wife. If so, its effect? iii) To what relief, if any, the petitioner (husband) is entitled? 6) The trial court after recording the oral evidence of the parties, considering the documentary evidence on record and after hearing them, found that the husband (present respondent) has been successful in proving the fact this his wife (present appellant) has treated him with cruelty, and as such, is entitled to decree of divorce on that ground. Aggrieved by said judgment and order dated 28.11.2006, passed by Principal Judge, Family Court, Pauri Garhwal, in Suit No. 21 of 2002, this appeal is filed by the defendant (wife). 7) Admittedly, plaintiff / respondent Anil Bahuguna got married to Guddi Devi @ Rashmi (defendant / appellant) on 18.06.1998, in Village Aali, District Pauri Garhwal. It is also not disputed that no issue is born out of the wedlock. It is also not disputed fact that the husband is a Journalist and the wife is a Teacher. From the evidence on record it is also clear that the parties are living separately since December 2001. The question before this Court is whether the trial court’s finding that the defendant (wife) had treated the plaintiff (husband) with cruelty and thereby he has proved his case for a decree of divorce, is correct or not? It is pertinent to mention here that Clause (ia) of sub Section (1) of Section 13 of the Hindu Marriage Act, 1955, provides that either of the parties to matrimony can seek dissolution of marriage by a decree of divorce on the ground that after solemnization of marriage, the respondent spouse treated the petitioner with cruelty. To prove said fact in the present case the plaintiff (husband) has got examined himself as P.W. 1. He further got examined his nephew Gaurav Pant (P.W. 2); Om Prakash Semwal (P.W. 3), who is tenant of the plaintiff; Durga Prasad Bahuguna (P.W. 4), father of the plaintiff and Kamlesh (P.W. 5). P.W. 1 Anil Bahuguna has stated on oath that his father is a heart patient. Medicines used to be brought for him from Dehradun, but the defendant (present appellant) used to hide the medicines and thereby used to torture the family. (It is observed by the learned trial court that during pendency of suit Sri Durga Prasad Bahuguna, father of the plaintiff has died). It is further stated by him that she used to hurl abuses at him and his parents. It is also stated by P.W. 1 Anil Bahuguna that defendant (present appellant) used to shout and create scene coming out of the house. He has also stated that he has complained about the conduct of his wife to her parents, but they took it lightly and said that their daughter is ‘jiddi’ (stubborn). In the cross examination of this witness nothing has come out which discredits his statement on the point of cruelty committed by his wife against him. Statements of P.W. 2 Gaurav Pant; P.W. 3 Om Prakash, P.W. 4 Durga Prasad Bahuguna and P.W. 5 Kamlesh corroborate the statement of the plaintiff (husband). Defendant / appellant, who got herself examined as D.W. 1, has stated that on 07.03.1999 her husband has given her a beating and consequently on 08.03.1999, the foetus was aborted. She has further alleged that behaviour of her husband and in- laws was not good with her. In support of the case of the defendant, another witness D.W. 2 Arvind Kumar, a shopkeeper was got examined, who has stated that Durga Prasad Bahuguna (father of the husband) after his retirement used to do his business as a Stamp Vendor. D.W. 3 Pramod Kumar is brother of the defendant (present appellant) who has corroborated the statement of D.W. 1 Guddi Devi @ Rashmi. But, Court Witness No. 1 Dr. Manorama Purohit, who is Chief Medical Superintendent of Female Hospital, Pauri Garhwal has stated that the abortion which took place was not result of any maar peet, nor was there any mark of beating on the person of the defendant. 8) In the circumstances, we are of the view that the trial court has not committed any error of law in appreciating the evidence on record, in accepting the testimony given by P.W. 1 Anil Bahuguna, and in reaching the finding that Guddi Devi @ Rashmi had treated her husband Anil Bahuguna with cruelty. 9) Apart from this, the trial court has observed that on as many as five dates, efforts were made for re-conciliation between the parties, but the same could not be materialized. Having considered the stands taken by the parties, the trial court taking into consideration the fact that for five years parties are living separately and marriage between them have irrevocably broken down, granted the decree of divorce on the ground of cruelty. 10) Learned counsel for the appellant argued that the appellant’s conduct cannot be said to be cruel, as she has not lodged any first information report relating to offence punishable under Section 498-A of I.P.C., implicating her husband or in-laws in criminal cases. No doubt, appellant appears to have restrained herself from doing such an act, but merely for that reason her other acts of cruelty which had been brought on record by the plaintiff / respondent cannot be set aside all together. 11) For the reasons as discussed above, we do not find sufficient reason to interfere with the impugned judgment and decree passed by the trial court. Therefore, the appeal is dismissed. No order as to costs. (Dharam Veer, J.) (Prafulla C. Pant, J.) Dt. May 08, 2008. H. Negi