IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL First Appeal No. 12 of 2007 Smt. Radha Singh Dobhal W/o Dr. Pramod Singh Dobhal D/o Sri Heera Singh Kaira R/o 47, Vijay Colony, New Cantt. Road, Dehradun, District Dehradun. ...…………. Appellant Versus Dr. Pramod Singh Dobhal S/o Sri Thakur Singh Dobhal R/o Village Fabya, P.O. Ganai Gangoli, P.S. Berinag, District Pithoragarh Presently R/o House No. 402, Pushpi Apartment, Sharda Nagar, Kanpur, C/o Principal Virendra Swaroop Sanatan Dharma Degree College, Kanpur. U.P. ...…………. Respondent Mr. Chandramauli Shah, learned counsel for the appellant. Mr. Rajendra Dobhal and Geeta Parihar, Advocates 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 decree dated 07.11.2006, passed by Principal Judge, Family Court, Dehradun, in Suit No. 391 of 2004, whereby the petition of the wife under Section 09 of the Hindu Marriage Act, 1955, is dismissed and the counter claim of the 2 respondent under Section 13 of the said Act is decreed, and marriage between the parties is dissolved with the further direction that the respondent shall pay lump sum alimony to the tune of Rs. 3,00,000/- to the petitioner / appellant. 2) Heard learned counsel for the parties and perused the lower court record. 3) Brief facts of the case are that petitioner / appellant Radha Singh, resident of Dehradun, got married to the respondent Dr. Pramod Singh Dobhal on 08.12.2002, at Almora. She moved a petition under Section 09 of the Hindu Marriage Act, 1955, for restitution of conjugal rights with the allegation that she was ill treated by her husband (respondent) and her other relatives and she was forced to leave her matrimonial home in October 2003. It is also stated that the respondent is employed as a Lecturer in Virendra Swaroop Sanatan Dharam Degree College, Kanpur. It is also pleaded by the petitioner that she was harassed by respondent and his relations for non-fulfillment of demand of dowry, made by them. Lastly, it is pleaded that the respondent has illicit relations with some other woman. 4) The respondent (husband) contested the petition and filed his written statement. He admitted the factum of marriage but denied all other allegations. It is pleaded in the written statement that on 30th of April 2004, parties moved a joint petition under Section 13-B of Hindu Marriage Act, 1955, before Family Court at Kanpur. However, later on they withdrew it. It is further pleaded by the husband that it was he who was treated with cruelty by 3 his wife as she did not permit him to consummate the marriage. It is further pleaded by the respondent (husband) that the petitioner (present appellant) made attempt to commit suicide by cutting veins of her hand to falsely implicate the respondent and his relatives. It is also pleaded by the respondent that the petitioner’s mother is President of Dehradun unit of Uttarakhand Kranti Dal and an influential person. She and petitioner had threatened the respondent to falsely implicate him in the criminal cases. It is also pleaded that by moving an application before the Chief Judicial Magistrate, the petitioner has already got registered a criminal case against the respondent and his relatives under Section 498-A of I.P.C. With these allegations decree of divorce is sought in the counter claim. 5) The allegations in the counter claim are denied by the petitioner by filing the written statement to the counter claim. 6) On the basis of the pleadings of the parties, the trial court framed following issues, in the suit: i) Whether, the respondent has withdrawn himself from the society of the petitioner, without any sufficient cause? ii) To what relief, if any, the petitioner or the respondent, is entitled ? 7) The trial court, after recording the evidence and hearing the parties, gave a finding that it is the wife (petitioner / appellant) who has committed cruelty against her husband. It further held that the respondent has not 4 deserted his wife without any sufficient reason. The trial court further observed after hearing the parties that the marriage between the parties has irrevocably broken down. With these findings the trial court dismissed the petition under Section 09 of the Hindu Marriage Act, 1955, and allowed the counter claim for decree of divorce. As to the alimony, the trial court directed that the respondent shall pay Rs. 3,00,000/- to the petitioner, within a period of two months from the date of dissolution of marriage i.e. 07.11.2006. Though, the trial court should have framed issue on the ground of divorce on the basis of counter claim, but since the parties have led their evidence on that point and they were heard as such the irregularity does not appear material. The petitioner / appellant herself in her affidavit had stated that she does not want to press her petition under Section 09 of the Hindu Marriage Act, if the divorce is granted. 8) The grounds of appeal show that the decree of divorce has not been challenged and it is only the quantum of alimony which is alleged to be insufficient. Mr. Chandramauli Shah, learned counsel for the appellant also conceded that the grievance of the appellant is only in respect of the quantum of alimony and not against the decree of divorce granted by the trial court. For assessing the quantum of alimony, Court is required to see the status and economic condition of the parties, along with other relevant factors. Respondent Dr. Pramod Singh Dobhal is a Lecturer in Virendra Swaroop Sanatan Dharam Degree College, Kanpur. From the copy of judgment and order dated 21.11.2005, passed in Regular Misc. Case No. 29 of 5 2005, by Principal Judge, Family Court, Dehradun, it is apparent that in a petition under Section 24 of the Hindu Marriage Act, 1955, it has come on record that the respondent is drawing Rs. 16,585/- as salary and his total emoluments are Rs. 25,000/- per month. By that order the trial court has directed the petitioner to pay Rs. 4,000/- per month, as maintenance, during the pendency of petition under Section 09 of the Hindu Marriage Act, 1955. Considering said fact the trial court has assessed that in ten years at that rate the petitioner / appellant would have got Rs. 4,80,000/-. Learned counsel for the appellant argued that even after fixation of said amount of permanent alimony at Rs. 3,00,000/- the same is insufficient and unjust. It is contended on behalf of the appellant that at least Rs. 6,00,000/- would be granted as alimony, in the present case. It is further submitted by learned counsel for the appellant that the appellant has yet not remarried. On the other hand, Mr. Rajendra Dobhal, learned counsel for the respondent argued that the petitioner / appellant has accepted Rs. 3,00,000/- as an amount of maintenance and decree of divorce has become effective, as such, it is not open for the petitioner / appellant to question the sufficiency of the amount. We are unable to accept the contention of learned counsel for the respondent for the reason that the petitioner / appellant cannot be left to starve on the road, and as such, it cannot be said that only if she refused to accept Rs. 3,00,000/- she could have challenged the amount. The decree passed by the trial court is not a consented one and the petitioner has every right to maintain appeal against the part of decree with which she is not satisfied. It is further contended on behalf of the respondent that the petitioner / appellant is earning Rs. 10,000/- per month from doing teaching / tuition work. Even if the 6 petitioner is earning by doing teaching / tuition work that does not lessen the responsibility of the respondent to pay the appropriate amount of alimony to the petitioner / appellant. Though, said fact is pleaded in the written statement, but no question has been put in the cross-examination to the petitioner when she was cross-examined before the trial court, as such, the same cannot be said to have been proved. 9) Having considered the status of parties, their economic condition and other relevant factors, this Court is of the view that amount of Rs. 3,00,000/- (rupees three lacs only) as alimony is insufficient and the same requires to be enhanced to Rs. 5,00,000/- (rupees five lacs only). 10) Accordingly, the appeal is partly allowed, modifying the impugned judgment and order passed by the trial court (Principal Judge, Family Court, Dehradun) in Suit No. 391 of 2004, directing the respondent (husband) to pay further Rs. 2,00,000/- (rupees two lacs only) towards alimony within a period of three months, from today. As far as the decree of divorce passed by the trial court, and dismissal of the petition for restitution of conjugal rights are concerned, the same are affirmed. No order as to the costs of the appeal. (Dharam Veer, J.) (Prafulla C. Pant, J.) Dt. April 10, 2008. H. Negi 7