IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL First Appeal No. 92 of 2007 Nabarun Banerjee S/o Sri A. Bandhopadhyay R/o 46, Ist Floor, Ashoka Enclave, Sector 34, Faridabad (Hariyana). ...…………. Defendant / Appellant Versus Smt. Preeti Banerjee D/o Sri J. Mukharjee R/o House No. 38, Hemkunj, Ballupur Road, Dehradun, District Dehradun. ...…………. Plaintiff / Respondent Mr. Pawan Mishra, learned counsel for the appellant. Mr. U.P.S. Negi, learned counsel for the respondent. Coram : Hon’ble Prafulla C. Pant, J. Hon’ble B. S. Verma , J. Prafulla C. Pant, J. (Oral) This appeal, preferred under Section 19 of the Family Courts Act, 1984, is directed against the judgment and order dated 22.11.2007, passed by the Principal Judge, Family Court, Dehradun, in Suit No. 290 of 2006, whereby the petition filed by the wife (present respondent) under Section 13 of the Hindu Marriage Act, 1955, is allowed, and the marriage between the parties got dissolved. 2 2) Heard learned counsel for the parties and perused the lower court record. 3) Brief facts of the case are that the appellant Nabarun Banerjee got married to respondent Preeti Banerjee on 26.11.2004, at Dehradun, following Hindu rites. The wife (Preeti Banerjee) filed a petition for divorce before the trial court with the pleading that she was treated with cruelty by her husband. She has further pleaded that she was treated with cruelty by her mother-in-law. It is further pleaded that the mother-in-law of the petitioner (present respondent) was not happy with the marriage of the appellant with her. It is further pleaded that the appellant and his relations harassed the petitioner (present respondent) for non- fulfillment of demand of dowry made by them. It is also stated that a first information report was lodged by the wife against her husband and in-laws relating to harassment for demand of dowry. The appellant also said to have filed a petition under Section 9 of the Hindu Marriage Act, 1955, for restitution of conjugal rights (which was decreed ex- parte). It is alleged by the wife that the appellant used to say that petitioner doesn’t know English and she is not fit person as a life partner for him and he repents on getting married to her. It is further stated that the petitioner had to suffer cruelty at the hands of her husband and in-laws as they were not happy with her even after their making best efforts to fulfill the demand of dowry made by the in-laws. 4) The appellant contested the petition before the trial court and filed his written statement in which he admitted having got married to the petitioner on 26.11.2004. It is 3 also not disputed that there is no issue out of the wedlock. However, rest of the contents of the petition are denied by the husband in which he has pleaded that the petitioner is living in her parental house at her own will against the wishes of the appellant and not discharging the obligations as a wife. Denying the fact that any demand of dowry was made by the husband, it is admitted that the petitioner (present respondent) did got lodged a report relating to offence punishable under Section 498-A of I.P.C. and one punishable under Section 3/4 of the Dowry Prohibition Act, 1961. In the additional pleas it is stated by the husband (appellant) that it was the respondent who was treated with cruelty by his wife, as he was not served with proper food and the petitioner frequently left to her parental house, leaving the appellant alone. It is stated that the appellant had to file a petition under Section 9 of the Hindu Marriage Act, 1955, for restitution of conjugal rights (which is decreed by the court ex-parte). It is further pleaded by the husband that the petitioner used to say that she did not wanted to marry the appellant and that she was interested to marry someone else. 5) On the basis of the pleadings of the parties, following two issues were framed by the trial court: i) Whether, the petitioner (present respondent) was treated with cruelty by the respondent (present appellant). If so, its effect? ii) To what relief, if any, the petitioner is entitled? 4 6) After recording the evidence and hearing the parties, the trial court gave a finding that the petitioner is treated with cruelty by her husband (present appellant) and a decree of divorce is granted in her favour. Aggrieved by said judgment and order dated 22.11.2007, passed by the Principal Judge, Family Court, Dehradun, in Suit No. 290 of 2006, this appeal is filed by the husband. 7) Admittedly, the parties got married to each other on 26.11.2004, at Dehradun, according to Hindu rites. It is also not disputed between the parties that there is no issue born out of the wedlock. The question before this Court is, whether, the trial court has rightly held that the petitioner was treated with cruelty by her husband (present appellant), or not? Perusal of the lower court record shows that the petitioner Preeti Banerjee not only filed affidavit in support of her case, but also got herself cross-examined before the trial court on 25.10.2007, 28.10.2007 and 29.10.2007, to prove her case. In support of the case of the petitioner, P.W.2 Jagdish Singh Rawat, a person known to the family of the petitioner, also filed affidavit and was cross- examined on behalf of the respondent (present appellant). P.W. 3 Shikha Mukherjee, mother of the petitioner, also corroborated the evidence of P.W. 1 Preeti Banerjee. The evidence on record adduced on behalf of the petitioner stood uncontroverted as the respondent (present appellant) did not dare to enter into the witness box to controvert the statements made by his wife. Nay, he did not even filed the affidavit in support of his case pleaded in the written statement. 5 8) Learned counsel for the appellant argued that the burden of proof that the petitioner was treated with cruelty was on the petitioner, and not on her husband. True, the burden of proof was on the petitioner to prove the fact that she was treated with cruelty by her husband, but once she discharged her burden not only by filing the affidavit, but also by getting herself cross-examined (as nothing adverse has come in her cross-examination which creates doubt in her testimony), the burden shifted on the respondent to show that what his wife has stated, is untrue. The same was not done. Not only this, the statement of the petitioner gets further corroboration from the statement of P.W. 2 Jagdish Singh Rawat and P.W. 3 Shikha Mukherjee (mother of the petitioner). 9) In the above circumstances, having re-assessed the evidence on record, we do not find any error of law committed by the trial court in coming to the conclusion that the petitioner was treated with cruelty by her husband and she was entitled to the decree of divorce on said ground. 10) Mr. Pawan Mishra, learned counsel for the appellant contended that the trial court has erred in law in ignoring the fact that a decree of restitution of conjugal rights was passed in favour of the appellant. We have gone through the impugned judgment and order passed by the trial court, and found that the trial court has discussed said evidence. We think it just and proper to mention here that a relevant issue in a case of restitution of conjugal rights is withdrawing from the society of the spouse without 6 reasonable excuse, while in a case of a divorce petition, the issue is whether one or more grounds mentioned in Section 13 of the Hindu Marriage Act, 1955, alleged in the divorce petition are made out, or not. In the present case, the issue relates to the fact that whether, the petitioner was treated with cruelty by her husband, or not? Said issue was to be decided independently on the basis of the evidence adduced in the case. Since, the respondent (present appellant) did not dare to enter into the witness box before the trial court, nor had he filed any affidavit in support of his case to controvert the evidence adduced by the petitioner, it cannot be said that the petitioner has not proved her case that she was treated with cruelty by her husband. 11) For the reasons as discussed above, we do not find any force in this appeal. The same is liable to be dismissed. The appeal is dismissed. No order as to costs. (B.S. Verma, J.) (Prafulla C. Pant, J.) [ Dt. September 11, 2008. H. Negi