IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL FIRST APPEAL NO. 19 OF 2010 Yogesh Chandra Joshi …....Appellant. Versus Munni Joshi ….……Respondent. Present:- Sri Rajesh Joshi, Advocate for the appellant. Sri Anil Kumar Joshi, Advocate for the 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 the Family Courts Act, 1984, read with Section 28 of the Hindu Marriage Act, 1955, is directed against the judgment and decree dated 29.3.2010 passed by Judge, Family Court, Nainital in Suit No. 125 of 2008, whereby the trial court has dismissed the petition filed by 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 petitioner/appellant Yogesh Chandra Joshi got married to respondent Munni Joshi on 27.5.1998 in district Nainital. Two children (a son and a daughter) born out of the wedlock. It is pleaded by the husband (appellant) that after the marriage, behaviour of his wife was cruel towards him and she treated him with cruelty. It is pleaded that the petitioner is a teacher in a Government Intermediate College. It is alleged by him that the respondent used to hurl abuses at him and his family members time and again by saying “rw dks<+h gS] rsjh ekWa Hkh dks<+h gS”. It is further alleged that this she used to say in the presence of the friends and relatives. As such, the petitioner was insulted by the respondent. It is also pleaded by the husband (appellant/petitioner) that after the 2 respondent left petitioner’s house, he made efforts to call back his wife to his house, but she threatened him to implicate in the false cases of dowry harassment. With these pleadings, as aforesaid, a decree of divorce was sought by the husband by moving an application under Section 13 of the Hindu Marriage Act, 1955. 4. The respondent contested the petition, and filed written statement. She admitted her marriage with the petitioner. She also admitted birth of two children out of the wedlock. However, she alleged that her husband is drunkard, and used to beat her in a drunken state. She has further alleged that the petitioner/appellant used to demand dowry. It is also pleaded by the wife (respondent) that the daughter is living with her. It is also pleaded by her that after she complained about the behaviour of her husband, the two were called at Police Station Bhimtal, where the husband gave written apology, but once again he started beating her, and as such, she was compelled to leave her husband’s house. 5. On the basis of the pleadings of the parties, the trial court framed the following issues :- (i) Whether the respondent treated the petitioner with cruelty, and whether the respondent has left to her parental house without any sufficient reason? (ii) Whether the respondent was harassed and compelled to leave her husband’s house, as pleaded by her in para 21 of the written statement? (iii) To what relief, if any, the petitioner is entitled? 6. After recording evidence of the parties, the trial court found that the petitioner has failed to prove the ground of cruelty pleaded by him, and accordingly dismissed the petition. Hence this appeal. 7. Admittedly, parties are married to each other. It is also admitted to them that two children (a son and a daughter) born out of the 3 wedlock. It is also not disputed that the petitioner is a teacher in a Government Intermediate College. It is also admitted that the son of the parties is living with the father, and the daughter with the mother. The dispute relates as to the fact, whether the respondent treated the petitioner with cruelty or not. PW 1 Yogesh Chandra Joshi, in his statement, has stated that his wife used to insult him by saying that “rw dks<+h gS] rsjh ekWa Hkh dks<+h gS” . PW 1 Yogesh Chandra Joshi further stated that his wife used to utter such words in the presence of his relatives and friends. Though DW 1 Munni Joshi has stated that it was she, who was subjected to cruelty, but she has not specifically denied that she never uttered the words as alleged by PW 1 Yogesh Chandra Joshi. She has stated that her husband was a drunkard and used to treat her with cruelty. 8. From the record, it is also evident that respondent Munni Joshi has lodged a First Information Report at Haldwani against the petitioner Yogesh Chandra Joshi and his mother and sisters in the year 2008, relating to offences punishable under Sections 498 A/323/506/308 IPC. It has also come in the statement of PW 1 Yogesh Chandra Joshi that he had to remain in jail in connection with said case, before he was released on bail. In our opinion, the above development has irretrievably broken down the marriage between the parties. 9. Having gone through the entire evidence on record, and on its reassessment, we are of the view that the petitioner has proved that the case of divorce has been made out in favour of the petitioner on the ground of cruelty. In our opinion, the trial court has not correctly appreciated the evidence on record. Utterances quoted above certainly constitute the mental cruelty to the husband and cannot be set aside lightly. 10. For the reasons, as discussed above, we are of the view that this appeal deserves to be allowed. However, we are conscious of the fact that the husband is a teacher in a Government Intermediate College, and the wife is not the earning member. We are also conscious of the 4 fact that the daughter is living with the respondent (wife). Considering the economic status of the parties, and facts and circumstances of the case, we think it just and proper to pass the conditional decree of divorce by directing the husband (appellant) to pay a lump sum permanent alimony amount of ` 6,00,000/- (Six lacs) to the wife (respondent) within a period of three months. 11. Accordingly, the appeal is allowed. Impugned judgment and order dated 29.3.2010 passed by Judge, Family Court, Nainital in Suit No. 125 of 2008 is set aside. The petition for divorce filed by husband is allowed on the condition that he shall pay a lump sum amount of permanent alimony amounting to ` 6,00,000/- (Six lacs) to the respondent Munni Joshi or deposit in her favour within said period, before the trial court, failing which the petition for divorce and the appeal shall stand dismissed. (Sudhanshu Dhulia, J.) (Prafulla C. Pant, J.) 18.11.2010 Avneet