IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL First Appeal No. 102 of 2009 Sri Kharak Singh. …………Appellant. Versus Smt. Ummed Devi. ……..Respondent. Present: Sri M.C. Pandey, Advocate present for the appellant. Sri Yogesh Pandey, Advocate present for the respondent. Coram: Hon’ble Prafulla C. Pant, J. Hon’ble Nirmal Yadav, J. Oral: Hon’ble Prafulla C. Pant, J 1. This appeal, preferred under section 28 of the Hindu Marriage Act, 1955, is directed against the judgment and order dated 03.06.2009 passed by District Judge, Champawat, whereby the suit filed by the appellant Kharak Singh, for decree of divorce, has been dismissed. 2. Heard learned counsel for the parties and perused the lower court record. 3. Brief facts of the case are that plaintiff/appellant Kharak Singh got married to Ummedi Devi (respondent/wife) in the year 1988. It is pleaded by the appellant husband that his wife lived for couple of months with him, and thereafter, started going to parental house. Finally, she left the house of husband in the year 1997. Earlier, the husband filed a petition under section 9 of the Hindu Marriage Act, 1955, which was dismissed. It appears that wife, meanwhile, filed a criminal case in the year 2001 against her husband Kharak Singh relating to offences punishable under sections 498A, 504, 506 IPC, which was terminated in favour of the husband. Thereafter, Kharak Singh (husband) filed divorce petition under section 13 of the Hindu Marriage Act, 1955 on the ground of desertion. The said petition was registered as original suit no. 14 of 2007 by the District Judge, Champawat. (There is no family court established in District Champawat). 4. Respondent/wife (Ummedi Devi) contested the suit and filed her written statement before the trial court. She pleaded that it was she, who has been deserted by her husband (Kharak Singh). She further pleaded that petitioner/appellant Kharak Singh is living with another woman and he had two children from her. It is further pleaded by wife that she is an illiterate lady. It is also alleged that petitioner Kharak Singh is serving in Assam Rifles of Indian Army, and gets salary of Rs. 15,000/- per month. 5. Trial court on the basis of pleadings of the parties framed the following issues:- i. Whether the respondent has deserted the petitioner for a continuous period of two years or more and whether respondent has been living with her parents without any sufficient reason? ii. To what relief, if any, the petitioner is entitled? Both the parties led their evidence before the trial court. The trial court after hearing the parties, found that petitioner (present appellant) has failed to prove the factum of desertion and dismissed the suit. Hence, this appeal. 6. Admittedly, the parties got married to each other in the year 1988. It is also not disputed that there is no offspring born out of the wedlock of the parties. The entire dispute relates to the fact, whether the petitioner has been deserted by the respondent (wife) or not. Admittedly, since 1997 Ummedi Devi (wife) is living in her parental house. Now, more than 13 years have passed and still she is living with her parents. Petition for divorce was filed in the year 2007, as such, respondent was living in her parental house for ten years on the date when petition for divorce was filed. PW-1 Kharak Singh has stated that he made efforts to bring back his wife to his house but the respondent did not come. DW-1 Ummedi Devi on the other hand admits that she is living in her parental house since 1997 but states that since the petitioner (husband) is living with another woman and had two children with him, as such, it is the petitioner, who has deserted her. The trial court has discussed the evidence and found that wife could not disclose the name of the woman with whom the petitioner lives. It is relevant to mention here that petitioner (present appellant) is serving in the Indian Army. Simply this much has been stated by her that the woman with whom Kharak Singh (appellant) had illicit relations, lives in Pithoragarh. But no other particulars are mentioned. The factum of illicit relations with any woman or relating to second marriage are categorically denied by the petitioner. 7. Having reassessed the evidence on record, we are of the view that since admittedly wife is living in her parental house for the last more than 13 years. She has simply stated that she does not want to join the company of her husband alleging that he lives with another woman, but it is not proved on record that her husband had any relation with any other woman. As such, we are of the view that petitioner/appellant has sufficiently proved the ground of desertion for divorce. That being so, in our opinion, the suit should have been decreed for divorce. Apart from this, wife had already instituted criminal cases relating to her harassment due to non-fulfillment of demand of dowry and the parties are living separately, we find it to be a case of irretrievable break down of marriage where there is no scope of living together. However, we are cautious of the fact that respondent (wife) is an illiterate lady who has no means of livelihood. On the other hand, husband is serving in the Indian Army as Non-Commissioned Officer in Assam Rifles. Considering the economic status of the parties, we are of the view to do the complete justice between the parties, while decreeing the suit of divorce, we think it desirable to put a condition to make payment of Rs.3.5. lacs as lump sum amount as permanent almony to be paid to the wife. 8. Accordingly, the appeal is allowed. The impugned judgment and decree dated 03.06.2009 passed in suit No. 14 of 2007 by District Judge, Champawat is set aside. The suit for divorce is decreed. The marriage between appellant Kharak Singh and Ummedi Devi is dissolved on the condition that petitioner/appellant Kharak Singh shall make a payment of Rs. 3.50 lacs as one time permanent alimony, within a period of three months from today, to respondent Ummedi Devi or deposit in her favour before trial court within the said period. In case of default of payment of said amount, this appeal shall stand dismissed, and suit for divorce shall remained dismissed. No order as to costs. (Nirmal Yadav, J.) (Prafulla C. Pant, J.) 07.10.10 SKS