IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Second Appeal No. 101 of 2003 Kharak Singh Dhapola S/o Sri Trilok Singh Dhapola R/o Village Dhapola Sera, D istrict Bageshwar. ...…………. Petitioner / Appellant Versus Mrs. Sarojini Dhapola W/o Sri Kharak Singh D/o Sri Chandra Singh Rautela R/o Assistant Teacher Junior High School Reuni, R/o Mazkhali, Tehsil Ranikhet, District Almora. ...…………. Respondent Mr. B.D. Pande, Advocate for the petitioner / appellant. Mr. Lalit Samant, Advocate for the respondent. Hon’ble Prafulla C. Pant, J. This second appeal is directed against the judgment and decree dated 23rd of September 2003, passed by the District Judge, Almora, in Civil Appeal No. 05 of 2001, whereby the said court has set aside the decree passed by the trial court, and dismissed the suit for divorce. (There is no family court established in Almora). 2) Heard learned counsel for the parties and perused of lower court record. 2 3) Brief facts of the case are that the petitioner / appellant Kharak Singh Dhapola got married to the respondent Sarojini Dhapola in the year 1988, according to Hindu rites. Out of the wedlock two female children were born. Unfortunately, elder one of the daughters of the couple died in accident. Both the parties are teachers. Initially, when both of them were posted in Danya, they were living together. Thereafter, the husband got posted in Almora and wife also got posted in a nearby place from Almora, and both of them started living in Almora. The petitioner / appellant has pleaded in the plaint that the respondent is in the habit of abandoning him and the children and she has treated the petitioner with cruelty. It is further pleaded that respondent got herself transferred to Titoli and did not join the society of the petitioner, as such, the respondent has deserted the petitioner, since August 1995. 4) The respondent contested the suit and filed her written statement, in which it is admitted that the parties got married in the year 1988. It is also admitted that they had two children out of which one has died in accident. It is also admitted that both the parties are teachers. The places of postings are also admitted. However, allegation of cruelty and desertion are denied. It is pleaded by the respondent in the additional pleas that the petitioner used to blame the respondent for the accident in which their daughter Km. Bhawani died, but 3 actually it was the fault of the petitioner due to which death of their daughter resulted. As to the desertion it has been pleaded by the respondent that even after her posting in Reuni, she is still living in Almora, and she has no intention to leave the company of her husband. 5) The trial court, on the basis of the pleadings of the parties framed, following issues: 1. Whether, the respondent has treated the petitioner with cruelty? 2. Whether, the respondent has deserted the petitioner without any sufficient cause. If so, its effect? 3. To what relief, if any, the petitioner is entitled? 6) The trial court (Civil Judge, Senior Division, Almora) decided issue No. 1 against the petitioner (appellant). However, it gave finding on issue No. 2 in favour of the petitioner, and decreed the suit for divorce on the ground of desertion vide its judgment and order dated 17th of August 2001, passed in Suit No. 80 of 1997. Aggrieved by said judgment and order, the wife (respondent) preferred an appeal before the first appellate court (District Judge, Almora), who after hearing the parties, allowed the appeal and set aside the decree passed by the trial court, and dismissed the suit. Hence, this appeal filed by the husband (petitioner) 4 before this Court, which was admitted on 23.12.2003, on the questions of law suggested in the memorandum of appeal, which read as under: A. Whether, in absence of a cross appeal the a respondent is barred from raising the plea that the finding of trial court on issue No. 1 decided against him ought to have been in his favour, and that the first appellate court was wrong in law in refusing to consider the same? B. Whether, even if the grounds of cruelty and desertion not proved the court had jurisdiction to grant relief of divorce on the grounds that marriage has failed and irrevocably broken down, and there are no chances of happy married life? C. Whether, finding on issue No. 2 is perverse, for the reasons mentioned in memorandum of appeal? D. Whether, the first appellate court had jurisdiction to grant alternative relief of judicial separation in suit for divorce and whether, the court below erred in law by not applying its mind to this aspect while deciding the appeal? [ Answer to question of law ‘A’: 5 7) Learned counsel for the appellant drew attention of this Court to provisions of Order 41 Rule 22 of the Code of Civil Procedure, 1908, and argued that it is not necessary for a party to file a cross-objection and it can attack / challenge a finding decided against him by the lower court in an appeal filed by the other party. Order 41 Rule 22 of the Code, reads as under: “22. Upon hearing, respondent may object to decree as if he had preferred separate appeal. – (1) Any respondent though he may not have appealed from any part of the decree, may not only support the decree [but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour; and may also take any cross-objection] to the decree which he could have taken by way of appeal, provided he has filed such objection in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow. [Explanation. – A respondent aggrieved by a finding of the Court in the judgment on which the decree appealed against is based may, under this rule, file cross-objection in respect of the decree in so far as it is based on that finding, notwithstanding that by reason of the decision of 6 the Court on any other finding which is sufficient for the decision of the suit, the decree, is, wholly or in part, in favour of that respondent.] (2) Form of objection and provisions applicable thereto. – Such cross-objection shall be in the form of a memorandum, and the provisions of rule 1, so far as they relate to the form and contents of the memorandum of appeal, shall apply thereto. (3) *** (4) Where, in any case in which any respondent has under this rule filed a memorandum of objection, the original appeal is withdrawn or is dismissed for default, the objection so filed may nevertheless be heard and determined after such notice to the other parties as the Court thinks fit. (5) The provisions relating to pauper appears shall, so far as they can be made applicable, apply to an objection under this rule.” Reading of the aforesaid provision of law with principle of law laid down in Ravinder Kumar Sharma Vs. State of Assam and others; A.I.R. 1999 Supreme Court 3571, makes it abundantly clear that a respondent in an appeal can, without filing cross-objection, attack an adverse finding. The filing of the cross-objection after amendment incorporated in Rule 22 (quoted above) vide Code of Civil Procedure (Amendment) Act, 7 1976, is purely optional and not mandatory. That being the position of law, the impugned judgment and decree passed by the first appellate court, is erroneous in law to that extent in not considering the challenge against the finding on issue relating to cruelty, given by the trial court. This Court heard learned counsel for the parties on said issue also. Mr. B.D. Pande, learned counsel for the appellant argued that the respondent has treated the petitioner / appellant with cruelty and the trial court has erred in law in deciding the issue relating to cruelty, against the petitioner. I have perused the evidence adduced by the parties before the courts below. What has been stated by P.W. 1 Kharak Singh Dhapola (petitioner) is that due to the respondent’s mistake elder daughter of the couple died in an accident in 1995, at Haridwar. The said mistake (which is not elaborated either in suit or in evidence), even if committed by the wife, from no stretch of imagination can be said to be a cruelty committed by her against her husband, as the death of the daughter of the parties had occurred in accident. Apart from this, it is not clarified what negligence was committed by the wife (respondent) which resulted in said accident. From the perusal of the statement of P.W. 1 Kharak Singh Dhapola, this Court failed to find any specific act of cruelty committed by the wife against her husband. Merely leaving children at home in a family where both parents are serving as teachers in school, cannot be said to be a cruelty. 8 8) As to the desertion P.W. 1 Kharak Singh Dhapola, the husband has stated that his wife got herself transferred to a school in Village Titoli and deserted the petitioner, in August 1995. It is further stated that later she was transferred to Reuni. Thus, as far as transfer is concerned, said fact is admitted to the parties, but it is not proved on the record that wife on her own made any attempt for her transfer to live separately from her husband. As against this, there is evidence on record adduced by D.W. 1 Sarojini Dhapola (respondent) that even after her transfer to Titoli, she used to live with her father-in-law. Not only this, thereafter when she was transferred to Reuni, she started living in Almora and used to go daily to the school from there. This statement of D.W. 1 Sarojini Dhapola gets corroborated from the statement of D.W. 2 Trilok Singh (father of the husband). Said witness D.W. Trilok Singh has stated on oath what Sarojini Devi states that both husband and wife are living in the same house belonging to the witness, but separately. From the petitioner’s side it cannot be explained that why the respondent is not being allowed by him to live with him. 9) For the reasons as discussed above, the question of law ‘A’ stands answered, accordingly i.e. it is not necessary for a respondent in an appeal to file cross- objection before he could attack an adverse finding in a decree under challenge, (but in the present case, after examination of record no error of fact or that of law was 9 found in the finding on issue of cruelty, recorded by the trial court). Answer to question of law ‘B’: 10) Learned counsel for the appellant drew attention of this Court to the case of Naveen Kohli Vs. Neelu Kohli; (2006) 4 Supreme Court Cases 558, and argued that in a case where the marriage is irrevocably broken down and parties are living separately for a sufficient length of time, in the interest of both the parties, divorce should be granted. I have considered the submission of learned counsel for the petitioner / appellant and found that the facts of the case of Naveen Kohli (supra) are different from the present case. In the present case, the respondent has not left her husband’s house. She is still living in his (appellant’s) father’s house and when the petitioner did not allow her to live with him she is living in a separate room of the same house. In such a case, this Court does not find any sufficient reason to grant decree of divorce on the ground of irrevocable breaking down of marriage. In Shyam Sunder Kohli Vs. Sushma Kohli; (2004) 7 Supreme Court Cases 747, it has been held by the Apex court that where the wife is forced to leave the house of the husband, the marriage should not be dissolved lightly on aforesaid ground. As such, this Court is of the view that though the court has jurisdiction to grant the relief of divorce when the marriage has failed and irrevocably broken down, but in 10 the present case, both the parties are living in the house of the father of the husband and they have a children, this Court does not think it proper to grant decree of divorce on aforesaid ground. Question of law ‘B’ stands answered. Answer to question of law ‘C’: 11) Learned counsel for the appellant argued that the finding on issue No. 2 given by the first appellate court is perverse. From the pleadings and evidence on record, this Court has already observed that both the parties are teachers. It has also come on the record that even after transfer of Sarojini Dhapola (respondent) to Titoli, she started living in her in-laws house, as she was unable to travel from Almora to Titoli, and thereafter, when she was transferred to Reuni, she again stayed at Almora where her husband was posted, and there she is living in her father-in-law’s house. This fact has also been proved on the record that (when the petitioner did not allow the respondent to live with him) she has started living in a separate room in the same house belonging to the father of the petitioner (husband). In such a case, from no stretch of imagination can it be said that the wife has deserted her husband. As such, there is no error of law committed by the first appellate court in setting aside the finding of the trial court on the point of desertion, and in dismissing the suit for divorce. The finding on issue 11 No. 2 does not suffer from any perversity. Question of law ‘C’ stands answered, accordingly. Answer to question of law ‘D’: 12) Learned counsel for the parties did not argue on this question of law. However, having gone through the record and after considering the grounds in appeal, this Court is of the view that, though, before granting divorce trial court as well as the appellate court have jurisdiction to pass a decree of judicial separation in appropriate cases instead of passing the decree of divorce. But said situation arises only when the petitioner has proved a ground for judicial separation, as mentioned in Section 10 read with Section 13 of the Hindu Marriage Act, 1955. Section 13-A of the Hindu Marriage Act provides that in any proceeding under the Act, on a petition for dissolution of marriage by a decree of divorce, except in so far as the petition is founded on the grounds mentioned in clauses (ii), (vi) and (vii) of sub-section (1) of section 13, the court may, if it considers it just so to do having regard to the circumstances of the case, pass instead a decree for judicial separation. But unless the ground for judicial separation is established by the petitioner, there is no question of applicability of Section 13-A of the Hindu Marriage Act, 1955. The question of law ‘D’ stands answered, accordingly. 12 13) For the reasons as discussed above, this appeal is liable to be dismissed. The same is dismissed. Costs easy. (Prafulla C. Pant, J.) [ Dt.: March 23, 2009 H.Negi