IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL First Appeal No. 73 of 2010 Yograj Singh …Appellant Versus Smt. Anandi @ Annu ….Respondent Present : Mr. Mohd. Azim and Mr. B. S. Parihar, Advocates for the appellant. Mr. K. S. Rautela, Advocate for respondent. Coram: Hon’ble Prafulla C. Pant, J. Hon’ble Sudhanshu Dhulia, J. Prafulla C. Pant, J. (Oral) (1) This appeal, preferred under Section 19 of Family Courts Act, 1984, is directed against judgment and order dated 20.08.2010 passed by Judge, Family Court, Nainital in suit No. 32 of 2005, whereby the said court has dismissed the petition of the husband (appellant) under Section 13 of the Hindu Marriage Act, 1955. (2) Heard learned counsel for the parties, and perused the lower court record. (3) Brief facts of the case are that appellant Yograj Singh got married with respondent Smt. Anandi Devi in May, 2001 following the Hindu Rites. There is no issue born out of the wedlock. After the marriage, the respondent joined the company of her husband in Gorakhpur, for some months, whereafter she came back to Kathgodam i.e. place of in-laws of husband, and from there in February, 2002 left for her parents house in District- Bageshwar. She is still living there in Bageshwar in her parental house. The husband (appellant) 2 filed the petition in the year 2005 under Section 13 of Hindu Marriage Act, 1955 on two grounds, namely, cruelty and desertion. He pleaded that the behavior of his wife (respondent) was not good. She used to treat the petitioner/appellant with cruelty, as economic status of her parental side was richer as compared to that of the petitioner/appellant. It is also pleaded by the husband that his wife used to ask him that he should bring the food from some restaurant. It is further pleaded by the husband that on 20th October, 2001, the respondent left her husband’s house in Gorakhpur and came to Kathgodam. From there, she went to her parental house and did not come back. It is also pleaded that earlier the petitioner/appellant filed the petition under Section 9 of Hindu Marriage Act, 1955, but after the respondent contested it on allegedly on false grounds, said petition was dismissed. (4) Respondent Anandi Devi contested the suit for divorce before the trial court, and filed her written statement. She admitted that she got married to the appellant. It is pleaded by her that the appellant was Marketing Officer with Shri Ram Fertilizers Limited in Gorakhpur. She has denied that she ever treated the appellant with cruelty. She further stated that she did not ask her husband to bring the food from any restaurant. However, she admitted that she came to her parent’s house in February, 2002. It is also stated by her that after leaving her husband’s house, she came to Kathgodam (Haldwani) in her in-laws place, and from there she left for her parental house. It is alleged by the respondent that she was subjected to cruelty for non fulfillment of demand of dowry. (5) On the basis of pleadings of the parties, the trial court framed the following issues:- (i) Whether the respondent treated the petitioner with cruelty? 3 (ii) Whether the respondent has withdrawn herself from society of her husband and refused to discharge the matrimonial obligations? (iii) Whether the respondent has deserted her husband for more than two years, if so, its effect? (iv) Whether the suit is barred by jurisdiction as alleged in the petition? (v) To what relief, if any, petitioner is entitled? (6) The trial court recorded the evidence of the parties. Petitioner Yograj Singh got himself examined as PW1 and thereafter Narain Lal Chaudhary (landlord) was examined as PW2. On the side of respondent Smt. Anandi Devi got herself examined as DW1, and in her support, DW2 Harak Singh Kanwal (father of the respondent) was also examined. The trial court, after hearing the parties, found that neither the ground of cruelty nor that of desertion could be made out as against the respondent. However, on the point of jurisdiction, the trial court held that since parties to matrimony last resided together in Haldwani (District- Nainital), as such trial court had jurisdiction to try the suit. With these findings, petition under Section 13 of Hindu Marriage Act, 1955 was dismissed by Judge, Family Court, Nainital. Aggrieved by said judgment and order dated 20th October 2010 passed by the trial court in Suit No. 32 of 2005, this appeal is filed before this Court by the husband. (7) Admittedly, parties to this appeal got married to each other in May, 2001. It is also not disputed that there is no issue born out of the wedlock. It is also clear from the pleadings itself that parties to matrimony lived together for a period of less than one year after their marriage, and for last more than 9 years they are living separately. 4 (8) As far as the ground of cruelty is concerned, the husband had simply pleaded that behavior of the respondent was not good and she used to ask him to bring food from some restaurant. In our opinion, merely asking the husband to bring food from a restaurant by itself does not constitute cruelty against him. There are no instances, pleaded or proved by the husband that he was ever physically assaulted or any abuses were hurled on him, which insulted him or any other such act is done, which amounts to any mental cruelty. We have gone through the evidence led by the parties. We concur with the view taken by the trial court that as far as the ground of cruelty is concerned, the same is not made out on the record. (9) Now, we come to the point of desertion. Admittedly, parties to matrimony are living separately from each other since February, 2002. It is pleaded by husband that the respondent left her matrimonial house on her own volition. It is no where pleaded by the respondent (wife) that she was ousted by her husband or her in-laws. DW1 Anandi Devi, in her cross-examination, states that she went to her parental house on 13th February, 2002. She further told the court that she had gone with her father. She has further stated that after 13th February, 2002, she had never been to the house of her husband Yograj Singh. It is also stated by DW1 Anandi Devi that his father came to call her. She has further admitted that she lived for about two months with her husband in Haldwani before she left her house. In this background, the statement of PW1 Yograj Singh that his wife has deserted him deserves to be believed, and in our opinion the trial court has erred in law in discarding the testimony of PW1 Yograj Singh on the point of desertion. After carefully going through the affidavits and cross-examinations of the witnesses of both the sides, we are of the view that it is proved 5 on the record that respondent Anandi Devi deserted the petitioner for a continuous period of more than two years without any sufficient reason. Therefore, we are of the view that the findings recorded by the trial court on issue no. 2 and issue no. 3 cannot be sustained and is liable to be reversed. Accordingly, we hold that the petitioner/appellant has proved his case for divorce on the ground of desertion as against the respondent. Accordingly, issue nos. 2 and 3 stand decided in favour of the petitioner/appellant. (10) For the reasons, as discussed above, in our opinion, this appeal and petition for divorce deserves to be allowed. However, we are conscious of the fact that the respondent (wife) deserves a reasonable sum of maintenance to maintain herself, from the petitioner/appellant. Considering the economic status of the parties and facts and circumstances of the case, in our opinion, a lump sum amount of permanent alimony of ` 7.5 lakhs to be paid by the petitioner/appellant to the respondent would meet the ends of justice. Accordingly, this appeal is allowed, and petition for divorce filed by the petitioner/appellant Yograj Singh, stands allowed on the condition that he pays ` 7.5 lakhs as a lump sum one time permanent alimony to his wife Anandi Devi or deposits the same in her favour within a period of two months from today, before the trial court. With said condition, the appeal as well as the petition are allowed, and the marriage between the parties is dissolved. If the condition is not fulfilled, the appeal as well as the petition shall stand dismissed. Costs easy. (Sudhanshu Dhulia, J) (Prafulla C. Pant, J.) 7.7.2011 Kuldeep