IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL First Appeal No. 39 of 2008 Col. D.S. Godara S/o Shri Daulat Ram Godara R/o 76 Armoured Regiment C/o 56 A.P.O. Present address of Village and Post Office Muklan Hisar (Haryana). ……Petitioner/Appellant. Versus Smt. Rajeshwari Singh W/o Maj. D.S. Godara D/o Shri Rajeshwar Singh R/o Village Pursuhpura and Post Office Sewar Bharatpur (Rajasthan). .……….Respondent. ALONGWITH First Appeal No. 40 of 2008 Col. D.S. Godara S/o Shri Daulat Ram Godara R/o 76 Armoured Regiment C/o 56 A.P.O. Present address of Village and Post Office Muklan Hisar (Haryana). ……Petitioner/Appellant. Versus Smt. Rajeshwari Singh W/o Maj. D.S. Godara D/o Shri Rajeshwar Singh R/o Village Pursuhpura and Post Office Sewar Bharatpur (Rajasthan). .……….Respondent. Coram:Hon’ble Prafulla C. Pant, J. Hon’ble B.S. Verma, J. Shri S.K. Jain, Advocate for the appellant. Shri Parikshit Saini, Advocate for the respondent. 2 Oral:-Hon’ble Prafulla C. Pant, J. These two appeals, preferred under Section 19 of Family Courts Act, 1984, are directed against the judgment and order dated 13.03.2008, passed by Principal Judge, Family Court, Dehradun, in suit No. 30 of 2002 (Old No. 452 of 1992), whereby said court has dismissed the petition for divorce, moved by the husband, and decreed the counter claim for restitution of conjugal rights, made by the wife (respondent). 2. Heard learned counsel for the parties and perused the lower court record. 3. Brief facts, giving rise to these appeals, are that appellant Col. D.S. Godara, got married to respondent Rajeshwari Singh on 27.06.1985, according to Hindu rites, in Bharatpur, Rajasthan. After the marriage, couple lived together in Hisar (parental house of the husband). A male child was born out of the wedlock in the year 1989. Thereafter the couple lived together in Dehradun where the husband got posted. Meanwhile, relations between the husband and wife started souring and the wife left her husband’s house on 24.03.1990, and since then living in her parental house in Bharatpur. The appellant (husband) earlier filed suit No. 834 of 1990, for restitution of conjugal rights. However, the same was withdrawn on 20.07.1992. Thereafter, he instituted the petition for divorce, on 27.07.1992 3 which was initially registered as suit No. 452 of 1992, with the pleading that the respondent (wife) treated him with cruelty. It is stated by the husband that his wife used to quarrel with him and his life was made hell. It is further pleaded that respondent deserted the company of the petitioner on 24.03.1990, as she went to Bharatpur against his wishes. As such, on the grounds of cruelty and desertion, the divorce is sought by the husband. It appears that after creation of Family Court at Dehradun, the suit was transferred from the court of Civil Judge (Sr. Div.), Dehradun to Principal Judge, Family Court, Dehradun (where it was registered with New No. 30 of 2002). 4. Respondent (wife) contested the petition and filed her written statement. It is admitted to the respondent that the marriage took place on the date pleaded by the petitioner. It is also admitted that a male child was born out of the wedlock. As far as, leaving the matrimonial house on 24.03.1990, is concerned, even that fact is not disputed but it has been stated that the respondent was compelled to go and live in her parental house. As to the suit No. 834 of 1990, for restitution of conjugal rights, filed by the husband in 1990, it is stated in the written statement that said suit was filed on false ground and as such withdrawn by the petitioner. As to the pleas of cruelty, the same are denied in the written statement. It is further pleaded that the petitioner 4 used to treat the respondent with cruelty. It is also pleaded (without any details) that the petitioner had friendship with many girls. It is also pleaded that the petitioner asked for a Maruti car to attend marriage of brother of the respondent, and when he was obliged only thereafter he attended the marriage. It is further stated that on 24.03.1990, the petitioner in a drunken state, manhandled brother of the respondent, and broke the glasses of his car. With the written statement, the respondent has made a counter claim for restitution of conjugal rights. 5. On the basis of the pleadings of the parties, the trial court framed following issues:- 1. Whether the respondent treated the petitioner with cruelty? 2. Whether the respondent has deserted the petitioner without any sufficient cause? 3. To what relief, if any, the petitioner is entitled? 4. Whether the respondent was deserted by the petitioner, if so, is she entitled to restitution of conjugal rights? Parties led their evidence, whereafter the trial court heard them and found that the petitioner has failed to prove either the ground of cruelty or the ground of desertion. It further found that the respondent has been successful to prove her case for restitution of conjugal rights. With these findings, the petition 5 for divorce filed by the husband was dismissed and the counter claim made by the respondent for restitution of conjugal rights was decreed. Aggrieved by said judgment and order dated 13.03.2008, passed by the trial court (Principal Judge, Family Court, Dehradun), this appeal is preferred by the husband. 6. Admittedly, the parties got married to each other on 27.06.1985, according to Hindu rites in Bharatpur. From the record, it appears that at the time of marriage, the petitioner was Captain in the Army. It is also admitted between the parties that after the marriage, couple lived for sometime in Hisar. It is also admitted between the parties that a son was born out of the wedlock in the year 1989. It is also not disputed between the parties that earlier suit No. 834 of 1990, was instituted by the husband for restitution of conjugal rights after his wife left on 24.03.1990, and started living in her parental house in Bharatpur. From the record it appears that between 1990-92, appellant/petitioner was posted in Dehradun, and it was that place where the wife left the company of her husband and went to her parental house. Suit for restitution of conjugal rights, filed in the year 1990, by the husband was admittedly withdrawn on 20.07.1992. It is only thereafter the petitioner (husband) instituted suit for divorce by filing a petition under Section 13 of Hindu Marriage Act, 1955, on the grounds of cruelty 6 and desertion. We have gone through the evidence on record, adduced on behalf of the parties, before the trial court, and we agree with said court to the extent that the petitioner has failed to prove the allegations of cruelty on the part of the wife, against him. As far as the desertion is concerned, the petitioner’s case is that his wife has left the matrimonial home without any sufficient cause, on the other hand, the wife has alleged that she is forced to live in her parental house in Bharatpur. In this connection, certain letters, which are written by the husband to his wife and filed by the wife, are significant to show the conduct of the parties. A letter (paper No. 88B proved on the record) written on 31.12.1988, by the petitioner to his wife is being reproduced below:- “izk.kysok dqdq] vxj vkidks ijs’kkuh T;knk gS rks MkDVj ls dg dj ihNk NqM+ok yks] D;ksafd eq>s lUrku dh t:jr ugha gS] [kkldj rqEgkjs lsA rqe D;k le>rh gks fd eSa bl lc ls cny tkÅWxkA vkSj lquks vHkh ge bZlkbZ /keZ Lohdkj djus tk jgs gSA Lord Chirst esa gekjk fo’okl gSA ;g eSa flQZ rqEgkjs fy;s fy[k jgk gWw uk fd fdlh rhljs ds fy;sA gekjh ftUnxh bl tUe esa lkFk ugha xqtj ldrhA eq>s vius thou dh dksbZ ijokg ugha gSA T;knk ijs’kku gksus ij lk/kq Hkh cu ldrk gWwA Bksdj ekjus esa eq>s dksbZ fgpd ugh gS-A ;g lc rqEgkjs fy;s gSA eSa Qkyrq ifjokj dks bl esa ugha ?klhVuk pkgrkA D;k rqe eq>s esjh vktknh okfil ns ldrs gks] vxj ugha] rks eq>s bl ftUnxh ls NqVdkjk ikdj gh pSu feysxkA vki geasa flQZ vius fny dh ckr dk tokc nsuk&D;k iwjh ftUnxh ?kqV&?kqV dj gh fcrsxhA tgkW rd esjk loky gS esjh rjQ ls vki vktkn gks&pkgs tks Hkh djksA ysfdu esjs fcukA gkW! iSls 7 dk lgkjk t:j ns ldrk gWw&D;ksa u dkxth dk;Zokgh dj nh tk;sA ;g i= flQZ rqEgkjs fy;s gSA eq>s flQZ rqEgkjk bjknk vkSj [;ky pkfg;sA rqEgkjk /keZflag” 7. Another letter (paper No. 89B proved on record) dated 10.02.1989, written by the petitioner to his wife is reproduced below:- “Dear Rajeshwari, Love of my lifetime to you because after this I am not going to write to you anymore neither I want to have any association with you. See I cannot give anything what a husband must give to a wife neither I visualize anything coming from you with mine and your limitations, and add to what each of us want in life. You want to secure restricted life but I cannot stay restricted and bound to nonsense. However hard I may try but I wont be able to put up with you nor you will be able to do so from your side. You have already seen, heard and experienced with me so why should you insist on being binding on me or try and impose yourself on me. As far as you are concerned you have not been able to influence me nor have left any impression on me so I consider you as a vegetable, though I have to say with pain but that’s what it is. Therefore it is all the more reason not to push each other and best way out is to forget each other. As far as your looking after is concerned I am ready to pay for your maintenance and upkeep. It is my moral duty I suppose. But I am not ready to share moments with you. 8 You have to take a decision if you can take one about me like I have taken one about you. I do not want you in my life so why should you? I do not think all this is coming as a surprise to you because you have known it all along. As far as child is concerned I presume it is not mine! So I would still appreciate that a mutual agreement is arrived at without rousing sentiments of people around. There is still time for you to restart your life so do not get too late. In case I do not hear from you by Feb and then please be ready to present yourself in the court for the hearings. For your information and others around I do not want anybody appreciating me lest they meet a treatment which they may not like. I do not want any mediators. It is between me and you as we can sign some required papers without any troubles for your people –your younger brother and sisters etc etc. If it is not agreed upon then perforce I am going to the courts for a divorce from you. Hope I have emphasised on the point quite a bit and have left no doubts- IT IS QUITS –BYE BYE. Dharam Hope to hear from you in positive manner Or See you in the courts, No more compromises anymore.” 8. Third letter (paper No. 90B proved on the record) dated 12.02.1989, written by the petitioner to his wife is reproduced below:- 9 “Dear Kuku, How is life? Hope you are fine. I write this to you to know what I asked for in my last letter. I expect you to reply this one. Kindly let me know if you are agreed for a separation or not. Lets not delay it too much. There is a long life ahead. Earlier the better so that in case you want to settle down happily you have all the chances and it will be good for you. As far as I am concerned I am a written off case and may go even worse if you are still around. You want a gone case then you are most welcome but do not blame later on. I have no ambition in life. What is the point of living unnecessarily. I will appreciate it if you could send some papers across so that we are legally separated. You want maintenance etc I am ready to give as long as I can give. But do not persist to share your life with me. I cannot give what a husband must give to his wife. There is no chance. So far I could be made persuaded but now I am 100% (200%) sure that I want to lead a loner’s life. You find no place besides me and neither I want to keep guessing. Take your own decision. Right now people might back you but what happens after two-three years is anybody’s guess. As far as I am concerned I am very sure about seeking a separation from you. Think about it. Only thing left for me after this is to file a case in the courts. I do not think you or anybody in your family would like that. Only thing I am likely to lose is money which I am ready to pay as it is. Do write back or else in Mar I move to the courts. I do not want you to suffer alongwith me anymore. 10 Yours was Dharam.” 7. The contents of the aforesaid letters make it clear that the petitioner did not like to live with the respondent and expressly made through aforesaid three letters that he is not ready to live with his wife. That being so, it cannot be said that the petitioner is ready and willing to perform his matrimonial obligations with his wife. In the circumstances, we find that there are sufficient reasons with the wife (respondent) to go to her parental house and live there. It has also come on the record that the respondent is receiving maintenance from her husband. Learned counsel for the parties conceded that during the pendency of the petition for divorce, the son of the parties has attained age of majority. In these circumstances, learned counsel for the appellant, submitted that since the parties are living separately for more than 19 years, the marriage between the appellant and the respondent has irretrievably broken down. 8. On behalf of the appellant, our attention is drawn to the case of Naveen Kohli Vs. Neelu Kohli 2006 (2) AWC 1057 (SC), in which the three judges bench of the Apex Court granted decree of divorce on the ground that the marriage between the parties had irretrievably broken down and there was no scope of parties to live together. In the present case also, having considered the facts and circumstances 11 of the case, we are of the view that the marriage between the parties has irretrievably broken down and there is no hope of their living together. Therefore, even though the grounds of cruelty and divorce are not sufficiently proved by the petitioner, we think it just and proper to dissolve the marriage between the parties on the ground that the marriage between them has irretrievably broken down. However, considering the facts and circumstances of the case, and economic status of the parties, we think it just to pass the decree of divorce only on the condition that the petitioner/appellant makes payment of one time lump sum permanent alimony amounting Rs. 10,00,000/- (Rupees Ten Lakh only) to the respondent within a period of three months. 9. For the reasons as discussed above, both the appeals are allowed, and impugned judgment and decree dated 13.03.2008, passed by Principal Judge, Family Court, Dehradun, in suit No. 30 of 2002, is hereby set aside. The petition for divorce is allowed on the condition that the petitioner/appellant Col. D.S. Godara, shall pay to respondent or deposit in her favour in the trial court Rs. 10,00,000/- (Rupees Ten Lakh only) as one time permanent alimony, within a period of three months, failing which the appeal shall stand dismissed and the impugned judgment and order, passed by the trial court shall stand affirmed. In the case the alimony is paid, as directed above, the decree of restitution of conjugal 12 rights (passed on counter claim), directed by the trial court shall also stand dismissed. Costs easy. (B.S. Verma, J.) (Prafulla C. Pant, J.) Dt:01.07.2009 Sweta 13 14 15 16 17