IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal From Order No. 125 of 2005 Smt. Kiran Duggal Lecturer, W/o Sri Sanjeev Prakash Duggal Through Principal Indira Gandhi Institute Of Co-operative Management, Rajpur Road, Dehradun. ……………. Appellant Versus Sri Sanjeev Prakash Duggal S/o Dr. O.P. Duggal R/o Duggal Villa, Library, Mussoorie. ……………… Respondent Mr. M.C. Pande, learned counsel for the appellant. Mr. A. Rab, 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, is directed against the judgment and order dated 29.03.2003, passed by Principal Judge, Family Court, Dehradun, in Matrimonial Case No. 57 of 2002, whereby the petition filed by the husband (present respondent) under Section 13 of the Hindu Marriage Act, 1955, is allowed by said court, granting the decree of divorce between the parties. 2) Heard learned counsel for the parties and perused the lower court record. 3) Briefly stated, facts of the case are that Sanjeev Prakash Duggal (present respondent) filed a petition under Section 13 of the Hindu Marriage Act, 1955, before the trial court seeking decree of divorce against his wife (present appellant) with the pleadings that the respondent Sanjeev Prakash Duggal got married to Kiran Duggal (present appellant) on 12th of June 1990, following Hindu rites and rituals, at Lucknow. A daughter named Saloni was born out of wedlock on 22nd of July 1991. It is alleged by the respondent (husband) in his petition that appellant (wife) never wanted to live with the parents of the respondent and forced him to live separately in Indira Nagar, Lucknow. The respondent (husband) is an Engineer and his father is a medical practitioner and his mother is an Advocate and Ex. Member of Legislative Counsil. It is further alleged by the respondent (husband) that he opened a joint saving account No. 2655 with the appellant (wife) in the Bank of Baroda on 04.06.1990. After three months of the marriage, it is alleged that the appellant started insisting the respondent to live separately. In March 1992, appellant took away the eight months old daughter Saloni, and she refused to look after the respondent. In the year 1993, she got a job as lecturer in indira Gandhi Institute of Co- operative Management, Lucknow. It is further alleged in his petition by the respondent (husband) that the appellant (wife) used to insult him and treated him with cruelty. Consequently, the respondent (husband) became ill and had to be admitted in Noor Manzil Psycatric Center, Lucknow from 17.08.1993 to 31.08.1993. It is further alleged that the appellant withdrew all amount of the respondent from the bank without his knowledge. It is further alleged that she (appellant) used to behave in aggressive manner against the respondent. It is further pleaded in the petition before the trial court by respondent that the appellant left the company of the respondent (husband) in Mussoorie in 1996, and never returned back. 4) The appellant (wife) contested the petition and filed her written statement before the trial court in which it was admitted that the parties got married following Hindu rites and a female child named Saloni was born out of the wedlock. However, rest of the allegations in the petition of the respondent (husband), were denied. It is pleaded that the money was withdrawn from the account by the appellant only as per the needs of the family. It is further alleged that it was her husband who ill-treated her. It is admitted that the appellant is doing job in an Institute at Lucknow, and thereafter, transferred to Dehradun. It is stated in the written statement that the daughter Saloni was living with her maternal grand mother (Naani). It is not disputed that the appellant’s husband (present respondent) fell ill and was to be hospitalized. 5) On the basis of the pleadings of the parties, the trial Court framed following issues:- i) Whether, the defendant (wife) treated the plaintiff (husband) with mental, physical and economic cruelty? ii) Whether, the defendant has deserted the plaintiff over years, at her will? iii) Whether, the plaintiff is entitled to the maintenance from the defendant (wife)? iv) Whether, the defendant was subjected to cruelty by the plaintiff (husband), and was forced to leave the house? v) Whether, the petition of divorce is liable to be dismissed? vi) To what relief, if any, the plaintiff (husband), is entitled? 6) After recording the evidence and hearing the parties, the trial court found that the husband (present respondent) was treated with cruelty by his wife. However, issues No. 2, 3 and 4 were decided against the husband and decree was granted, as prayed by the husband. Hence, this Appeal before this Court. 7) Admittedly, the parties got married on 12th of June 1990, at Lucknow, following the customs, rites and rituals applicable to Hindus. It is also admitted that out of the wedlock a daughter named Saloni was born on 22.07.1991. In the evidence adduced by the parties it has also come that, though, each of the parties has alleged against each other that the fact that he or she was a divorcee at the time of marriage was concealed, but both were found divorcees. It is pertinent to mention here that from the record it is also apparent that the marriage between the parties got settled in 1990, through advertisement. We have gone through the statements of P.W. 1 Sanjeev Prakash Duggal and that of D.W. 1 Kiran Duggal, recorded by the trial court. It is not disputed that the plaintiff (husband) did not fell ill and had to be hospitalized. P.W. 1 Sanjeev Prakash Duggal (present respondent) has stated that he was not only ill- treated mentally by his wife but also his all money lying in the bank was withdrawn by his wife. He has further alleged that he is deprived of the company of his child. It is not disputed between the parties that Saloni (daughter of the parties) is living with her maternal grand mother. It is also not disputed by D.W. 1 Kiran Duggal that money was withdrawn by her and what she has stated is that the same was withdrawn as per the needs of the family. 8) Having considered the submissions of learned counsel for the parties, and after going through the lengthy statements of the witnesses, recorded by the trial court, we do not find any error of law committed by the trial court in holding that the defendant (wife) has treated her husband (present respondent) with cruelty. 9) Learned counsel for the appellant argued that the Principal Judge, Family Court, Dehradun has no jurisdiction to try the suit, and as such, the decree passed by the trial court is liable to be dismissed. To examine the question, we had scrutinized the pleadings between the parties. In Para 47 of plaint, it has been pleaded by the plaintiff that cause of action arose at Mussoorie, District Dehradun, where the parties last resided in Deggal Villa Estate, in 1996. The said pleading has been denied by the appellant in her written statement. However, it appears that the pleading was not pressed on behalf of the defendant (wife) and that is why no issue was framed on that point. Section 19 of the Hindu Marriage Act, 1955, provides that a petition under the Act is maintainable in the District Court where marriage was solemnized or where at the time of presentation of petition (respondent in the petition) resides or where parties to the marriage last resided. In the case of a petition filed by husband at the place where parties last resided. Since, the plea on the point appears to have not been pressed on behalf of the present appellant before the trial court, nor it was framed, nor any argument was advanced before that trial court, this factual aspect cannot be allowed to be raised now at this appellate stage and the decree of divorce cannot be set aside, on that technical ground. 10) Learned counsel for the appellant further submitted that, though, the appellant is living separately and has her own means of income, but she does not want to have a stigma of being a divorcee. The argument, in our opinion, has no legs as it has come on the record that even at the time of their marriage in June 1990, both the parties were divorcees. 11) For the reasons discussed above, we do not see any sufficient reason to allow the appeal. Accordingly, the appeal is dismissed. No order as to costs. (Dharam Veer, J.) (Prafulla C. Pant, J.) Dt. April 04, 2008. H. Negi