IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL First Appeal No. 19 of 2007 Smt. Shalini Gupta, W/o Sri Sunil Gupta, At present R/o 39-Sewak Ashram Road, Dehradun, District Dehradun. …………Appellant. Versus Sunil Kumar Gupta, S/o Sri D.D. Gupta, At present R/o 16-Chakrata Road, Dehradun, District Dehradun. ………Respondent. Sri Rakesh Thapliyal, Advocate for the Appellant. Sri Arvind Vashistha, Advocate for the Respondent. Hon’ble Prafulla C. Pant, J. Hon’ble Dharam Veer, J. (Oral- Hon’ble Prafulla C. Pant, J.) This appeal, preferred under Section 19 of Family Court’s Act, 1984, is directed against the judgment and decree dated 16.04.2007, passed by Principal Judge, Family Court, Dehradun, in Suit No. 587 of 2002, whereby the petition of the appellant under Section 9 of Hindu Marriage Act, 1955, is dismissed and counter claim filed by the husband (respondent) seeking divorce under Section 13 of said Act is decreed. (2) Heard learned counsel for the parties and perused the lower court record. 2 (3) Brief facts of the case are that the appellant Shalini Gupta got married to the respondent Sunil Kumar Gupta on 18.11.1986 according to Hindu rites at Sandila, District Hardoi. After their marriage, they lived together at Dehradun. Two children, namely, Ankita Gupta and Mridul Gupta born out of the wedlock. It is alleged by the appellant in her petition under Section 9 of Hindu Marriage Act, 1955, that in the year 1991, the respondent developed illicit relations with one Shashi Shrestha and started living with her in House No. 302, Rajendra Nagar, Dehradun. The wife (appellant) lived in 4 Dilaram Bazar, Dehradun, with her children. Allegation of the wife against her husband is that he stopped coming to her and did not discharge the restitutional obligations. It is further alleged in the petition filed by the wife before the trial court that in 1991 the respondent’s father himself lodged a First Information Report with the Police that his son is missing. Not only this, father of Shashi Shrestha also lodged a report that his daughter has been eloped by the respondent. It is further alleged in the petition filed by the wife that earlier the respondent instituted Suit No. 241 of 1995, seeking divorce from his wife (present appellant) but later he got the same dismissed. With these allegations the wife sought decree of restitution of conjugal rights. (4) The respondent filed written statement before the trial court and contested the suit. He admitted having got married to the petitioner (appellant) and the fact that the two children were born out of the wedlock. However, 3 there are counter allegations made by the respondent against his wife that it was the wife who lives in adultery. It is further alleged that the petitioner treated the respondent with cruelty. It is pleaded by the respondent before the trial court, in the written statement, that the petitioner not only insulted the respondent but also his old parents. She also gave threat to commit suicide and get implicated respondent. A counter claim is also made with the written statement seeking divorce under Section 13 of Hindu Marriage Act, 1955, against the petitioner on the ground of mental cruelty. It is further stated in the written statement by the respondent that he was compelled due to excessive cruel treatment of his wife to live separately from her. As to his relations with Shashi Shrestha, this much is admitted to the respondent that she was his business partner. (5) In reply to the counter claim, the petitioner filed her written statement stating that due to continuance of alleged illicit relations with Shashi Shrestha, of the respondent, it may affect the character of the growing children. Petitioner has further stated that if the respondent leaves Shashi Shrestha, she (wife) had no problem with her husband. (6) On the basis of the pleadings of the parties, the trial court framed following issues:- 4 (i) Whether the petitioner is entitled to the decree of restitution of conjugal rights against the respondent? (ii) Whether the respondent is entitled to decree of divorce under Section 13 of Hindu Marriage Act, as prayed in the counter claim? (iii) Whether the petitioner has treated the respondent with cruelty? If so, its effect? (iv) Whether the respondent is entitled to the custody of his children Mridul Gupta and Ankita Gupta? (v) Whether the respondent is entitled to the property enlisted by him with the counter claim? (vi) Whether the suit filed by the petitioner is barred by time? (vii) To what relief, if any, the parties are entitled? (viii) Whether the respondent is entitled to the decree of divorce against the petitioner? (7) The trial court after recording the evidence of the parties and hearing them dismissed the suit of the petitioner / appellant for restitution of conjugal rights and decreed the counter claim for divorce sought by the husband on the ground that the marriage between the parties have irrevocably broken down. As to custody of children it observed that during pendency of suit they have already become major. 5 (8) Admittedly, the parties got married to each other on 18.11.1986. It is also not disputed between the parties that out of the wedlock two children Ankita Gupta (Daughter) and Mridul Gupta (Son) were born. At the time of the institution of the suit, in the year 2002, Ankita Gupta was aged 15 years and Mridul Gupta was aged 14 years. It is also not disputed between the parties that the two children are living with their mother in Dehradun. The dispute between the parties is whether the respondent has failed to discharge restitutional obligations with his wife and the second dispute relates to the fact whether the petitioner / appellant treated her husband with cruelty, as alleged in the counter claim and is he entitled to decree of divorce or not. (9) A preliminary objection is raised on behalf of respondent that a single appeal is not maintainable against the impugned judgment and decree passed by the trial court in which the petition under Section 9 of Hindu Marriage Act, 1955, as well as the counter claim are disposed of. On this, learned counsel for the appellant was asked to opt as to which of the two decrees passed by the common judgment he wants to challenge by this appeal. Sri Rakesh Thapliyal, learned counsel for the appellant chose and stated that this appeal may be treated filed against the allowing of the counter claim of the respondent. We accordingly accept the option taking that this appeal is against the decree of divorce passed by the trial court on the counter claim made by the respondent. 6 (10) On behalf of learned counsel for the appellant the impugned decree is challenged firstly on the ground that the earlier suit instituted by the respondent for divorce which was registered as Suit No. 241 of 1995 was got dismissed by the respondent on 09.06.1998, as such the counter claim for the divorce is barred under Sub-rule (3) of Rule 1 of Order XXIII of Code of Civil Procedure, 1908. It is not disputed by the respondent that the earlier suit was filed by him in the year 1995, and it was dismissed on 09.06.1998. However, as far as the withdrawal of suit is concerned, it is not specifically mentioned in the order dated 09.06.1998, passed by Ist Additional Civil Judge (Senior Division), Dehradun, with whom the said suit was pending, that it was withdrawn. The said order reads as under:- “The plaintiff Sunil Gupta is present in person and has himself moved the application that he does not want to proceed with the case. Perused the application. The court has proceeded the case as per law and it is a matter of record. However, the plaintiff does not want to proceed with the case, the suit is hereby dismissed as prayed. The record be consigned.” (11) We have perused the application dated 09.06.1998, moved by the respondent (plaintiff of Suit No. 241 of 7 1995) in which he has alleged that after getting harassed at the hands of his wife he is being harassed at the hands of the court as unnecessary dates are being fixed and he is made to pay the maintenance for no reasons. In these circumstances, it is not clear whether the suit is withdrawn by the respondent in the spirit of the Rule 1 of Order XXIII of the Code or not. (12) The next submission made on behalf of the appellant is that the respondent has admitted relationship with Shashi Shrestha though as a partner in his business, as such the trial court has erred in law in holding that the respondent was not living in adultery with Shashi Shrestha. We have examined the entire evidence on record and we are of the view that from the record it appears that respondent had business relationship with Shashi Shrestha, who was his business partner. It is also evident from the record that both of them did purchase some property jointly. However, it is difficult to say whether they were living in adultery or not. It cannot be said that said fact stands proved. (13) Considering the fact that the parties to the suit in question are not living together now for more than 15 years and meanwhile the children have also become adult and that there are allegations and counter allegations made by both the parties against the character of each other, the marriage between them have irrevocably broken down. We agree with the finding of the trial court on this point. In view of the principle of law 8 laid down in Parveen Mehta Vs. Inderjit Mehta (2002) 5 Supreme Court Cases 706, we are of the opinion that decree of divorce granted by the trial court on the counter claim filed by the respondent on the ground that the marriage between the parties has irrevocably broken down need not to be disturbed. However, we are of the view that the trial court has erred in law by not granting any alimony to the wife who was living with the children born out of the wedlock. One of the two children is daughter of the marriageable age. We heard parties on the point of alimony also and considered the economic status of the parties. Having heard learned counsel for the parties, on the facts and in the circumstances of the case, considering the economic status of the parties and the fact that the daughter of marriageable age is living with the appellant, we think it just and proper to direct the respondent to pay a lump sum permanent alimony amounting Rs.15 lac as a condition precedent for the decree of divorce. (14) Accordingly, the appeal is disposed of with the direction that if the respondent pays to the appellant or deposits in her favour before the trial court Rs.15 lac as one time lump sum amount of permanent alimony within a period of 45 days, the appeal filed by the appellant (wife) shall stand dismissed and the decree of divorce passed by the trial court affirmed. However, if the said condition is not fulfilled this appeal shall stand allowed. The decree of divorce passed by the trial court on counter 9 claim shall stand set aside, and the counter claim shall stand dismissed. (Dharam Veer, J.) (Prafulla C. Pant, J.) 28.08.2008 NS