IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL First Appeal No. 88 of 2007 Gautam Chaddha, S/o Shri Chaman Lal Chaddha, R/o M-281, First Floor Guru Harkishan Nagar, Paschim Vihar, New Delhi. .…… Appellant. Versus Smt. Richa Chaddha, W/o Shri Gautam Chaddha, D/o Shri Vinod Jauhar, R/o 104/24, Dehradun Road, Rishikesh. ……Respondent. Mr. L.P. Naithani, Senior Advocate, assisted by Mr. Lalit Sharma, Advocate, for the appellant. Ms. Prabha Noliyal, Advocate, for the respondent. Hon’ble Prafulla C. Pant, J. Hon’ble B.S. Verma, J. (Oral-Hon’ble Prafulla C. Pant, J.) This appeal, preferred under Section 19 of Family Courts Act, 1984, read with Section 28 of the Hindu Marriage Act, 1955, is directed against the judgment and order dated 10.09.2007, passed by Additional Judge, Family Court, Rishikesh, District Dehradun, in Suit No. 02 of 2004, whereby the petition for divorce, filed by the respondent, has been allowed and marriage between the parties has been dissolved. (2) Heard learned counsel for the parties and perused the Lower Court Record. (3) Brief facts of the case are that respondent-Richa Chaddha got married to appellant-Gautam Chaddha on 13.12.1999, in accordance with Hindu Rites, at Delhi. Twins, namely, Sana Chaddha and Sparsh Chaddha, born out of the wedlock on 25.01.2002. Since 20th October 2003, the parties are living separately from each other. The respondent filed a petition for divorce under Section 13 of Hindu Marriage Act, 1955, alleging that she has been treated with cruelty by her husband. She has further pleaded that she was harassed for demand of dowry. She has further pleaded that her husband Gautam Chaddha (present appellant) is living in adultery. The details of cruelty are also pleaded date-wise in the petition, alleging that the husband insulted the wife by hurling abuses at her. It is also alleged that the respondent was assaulted by the appellant. It is further pleaded by the respondent that conditions were made intolerable by the appellant after delivery of twins, as he was more violent thereafter. It is also alleged that on 08.08.2003, the appellant attempted to strangulate the respondent. It is also stated by respondent in her petition that she lodged First Information Report relating to harassment for no fulfillment of demand of dowry against her husband and in-laws, in which in-laws were arrested and released on bail. With the petition for divorce, the respondent also made prayer for alimony and custody of children, and return of the articles given in marriage. (4) The petition was contested by the husband (present appellant) and written statement was filed by him before the trial court, in which marriage between the parties is admitted. Birth of twins is also admitted. However, all allegations made against husband (present appellant) were denied by him. It is pleaded by the husband that it was the respondent (wife) who treated the appellant with cruelty. It is further pleaded that the husband made every effort to make his wife happy in the matrimonial house. It is further stated that he deposited money amounting Rs.6,25,000/- in the joint accounts of the parties, including Fixed Deposit Receipt of Rs.5,00,000/- in favour of the respondent. The allegations, relating to demand of dowry are specifically denied and it is alleged that a false case was lodged by the wife. It is further pleaded that appellant neither treated the respondent with cruelty nor he lived adulterous life. He has stated that he took his wife to Europe. It is also stated that he took every care of the children born out of the wedlock. It is also stated that respondent has shown inhumane behaviour by leaving the kids in the house of the husband, who are still living with him. It is further stated that for the sake of children, the appellant made every effort for reconciliation, but failed. It is alleged that the respondent is a woman of free and luxurious life. It is further stated that all the articles given in marriage were kept by the wife in the locker provided to her, which she operates, as such, there is nothing to be returned to her. It is also stated that the respondent (wife) is a earning member and not entitled to any alimony from the husband, as he is maintaining the children also. (5) On the basis of the pleadings of the parties, the trial court framed following issues:- (i) Whether the defendant treated the plaintiff with cruelty? (ii) Whether the plaintiff is entitled to any relief claimed by her against the defendant? (iii) To what relief, if any, the plaintiff is entitled? (6) The trial court, after recording the evidence adduced by the parties, gave the finding that the respondent (wife) was treated with cruelty by her husband, as such, is entitled to the decree of divorce. However, as to the prayer under Sections 25, 26 and 27 of the Hindu Marriage Act, 1955, the trial court found that no case is made out to pass any order under these sections in favour of the wife. The wife has not challenged the findings recorded by the trial court and rejection of her prayer under Sections 25. 26 and 27 of Hindu Marriage Act, 1955. Only the husband has challenged the impugned judgment and order dated 10.09.2007, passed by the trial court (Additional Judge, Family Court, Rishikesh), in Suit No. 02 of 2004, whereby the wife’s petition for divorce has been allowed. (7) Learned counsel for the appellant argued that the impugned judgment and order, passed by the trial court, is self contradictory and it is contended that there is no finding that the respondent was treated with cruelty by the appellant, as such, the impugned decree of divorce be set aside. Having gone through the entire impugned judgment and order, passed by the trial court, we found that there is nothing self contradictory in the judgment. The trial court has discussed the evidence adduced by the parties at length and given a clear finding to what extent the wife (present respondent) had proved her case for divorce, and on what points she failed to prove her case. The trial court has specifically mentioned that the wife failed to prove that the husband had relations with any other woman on the ground that no details of such woman are disclosed either in the plaint or in the affidavit filed in evidence. The trial court further found that the children born out of the wedlock are left by the wife in her husband’s house. It also found that articles given in marriage are in the possession of the wife, as she was operating the locker of the Bank. It further found that the wife is a earning member and needs no alimony from her husband. The only finding recorded against the husband is that he treated his wife with cruelty and on that ground the trial court decreed the suit for divorce. The contention of learned counsel for the appellant that there is no finding on the point of cruelty is against the record. After discussing the statement of each and every witness, produced on behalf of the parties, the trial court at page 40 of its judgment categorically concludes that from the evidence on record, it is established that appellant has treated the respondent with cruelty and to that extent she has been successful in proving her case for a decree of divorce. (8) Learned counsel for the appellant (husband) drew attention of this Court to Clause (b) of Section 23 of Hindu Marriage Act, 1955, and argued that acts of cruelty even if proved, if condoned by the party, cannot be a basis for granting a decree of divorce. We have gone through said provision of law contained in the statute and we feel that the spirit of the provision is required to be kept in mind. What in fact under Clause (b) of Section 23 of the aforesaid Act is provided is that where the petitioner has himself / herself been the accessory in commission of the alleged act or where parties have connived or where acts complained of are condoned, the court may refuse decree of divorce. Learned counsel for the appellant pointed out that the wife (respondent), who filed the petition for divorce got pregnant for the first time in the year 2000, second time in April 2001, third time twins were born and fourth time in the year 2003. It is alleged that except for the third time, in the rest of the cases, the pregnancies were got terminated. On its basis, it is argued that this indicates that the acts of cruelty alleged by the respondent in her petition for divorce stood condoned. However, we are unable to agree with the contention of learned counsel for the appellant and we are of view that merely for the reason that wife got pregnant after the alleged acts of cruelty it cannot be said that she has condoned the acts of cruelty committed by her husband. At this stage, we think it just and proper to mention certain dates and events, which has come on the record. The date of marriage is 13th December 1999. In the petition, it is alleged that on 10th March 2000, the husband for the first time hurled abuses and assaulted his wife (present respondent). Thereafter, this conduct continued. On 07.06.2000, it is alleged by the wife that she was beaten for getting late in coming from a parlour. It is alleged that the husband tried to throttle her with a wire on that date. On 14.10.2000, for not getting a shirt re-stitched from a tailor, the husband misbehaved with the wife and went to the extent of throwing her out of house in the night. On 12.01.2001, it is alleged that the appellant struck head of the respondent on a wall. It is alleged that even during pregnancy, the appellant continued to assault her. On 23.11.2002, it is stated in the petition for divorce filed by the wife that appellant became so violent that he did not leave the little daughter who was also mercilessly beaten by him, on which the matter was reported to the Police and it is only after the intervention of Police, the quarrel subsided. On 23.04.2003, the husband again assaulted and torn the clothes of respondent. It is alleged that on 16.07.2003, the appellant asked the respondent not to pick up the phone of her mother and gave a cut on her hand after she picked up the receiver. On 08.08.2003, he again tried to strangulate the respondent (wife). Had there been only one or two acts of cruelty of the year 2000 or 2001, it could have been said that since the parties lived together till 20th October 2003, as such, the wife had condoned the acts of cruelty committed by the husband. But, since the acts of cruelty are shown to have been continued, it cannot be said that the wife is not entitled to decree of divorce on the ground that she condoned acts of her husband. The testimony of P.W.1 Richa Chaddha are corroborated by the statement of her father P.W.2 Vinod Jauhar and P.W.3 Surya Prakash Pathak, a servant. In these circumstances, we do not find any error of law committed by the trial court in coming to the conclusion that the husband has treated the wife with cruelty. (9) Lastly, it is argued on behalf of the appellant (husband) that it was the wife who treated the husband and his parents with cruelty by lodging a false First Information Report against them and she got sent parents of the husband to jail. It is admitted to the parties that the matter relating to offence punishable under Section 498-A I.P.C., is sub judice, as such, it is not proper on our part to comment on the allegations made in it. But this much is evident from the record that in this case from the evidence adduced on behalf of respondent it was not found proved that there had been any demand of dowry from the side of the husband. From the evidence on record, it appears that both the parties are rich. It is also clear from the record that the parties to this case met for the first time in a Night Club and after there friendship developed, they got married and continued to go to the Night Clubs. (10) For the reasons as discussed above, this appeal has no force and the same is liable to be dismissed. The appeal is dismissed. The decree of divorce passed by the trial court is affirmed. However, no order as to costs. (B.S. Verma, J.) (Prafulla C. Pant, J.) 23.04.2009 NS