IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL FIRST APPEAL NO. 84/2010 Manisha Sharma .…. Appellant Versus Mukesh Kumar Sharma .… Respondent April 28, 2011 Mr. Kurban Ali, Advocate, present for the appellant. Smt. Sheetal Arya, Advocate, present for the respondent. Coram : Hon’ble Prafulla C. Pant, J. Hon’ble Servesh Kumar Gupta, J. Per : Hon’ble Praffulla C. Pant, J. (Oral) This appeal preferred under Section 19 of Family Courts Act, 1984 is directed against the judgment and order dated 22.11.2010, passed by the Principal Judge, Family Court, Pauri Garhwal in Matrimonial Suit 10/2008, whereby said court has granted decree of divorce on the petition filed by the husband (present respondent) under Section 13 of Hindu Marriage Act, 1955. 2. Heard learned Counsel for the parties and perused the lower court record. 3. Brief facts of the case are that appellant Manisha Sharma got married to respondent Mukesh Kumar Sharma on 15.11.2002 following the Hindu rites in Kotdwar, District Pauri Garhwal. Out of the wedlock, one son (named Master Sujal Sharma @ Shubham) born after about two and half years of marriage. However, in the year 2006, relations between the parties to matrimony soured and appellant (wife) left the house of her husband and 2 started living separately in her parental house. It is pleaded by the husband in the petition filed under Section 13 of Hindu Marriage Act, 1955 that he was treated with cruelty by the appellant. It is alleged that the appellant (wife) used to quarrel with the husband unnecessarily, and misbehaved not only with the husband but also with his parents. It is also alleged that wife used to leave her husband’s house without notice to him due to which he had to report to the police about her conduct. It is also mentioned in the petition that since 25.11.2206, the parties to the matrimony are separately living and they were involved in litigation in Criminal Miscellaneous Application No. 85 of 2006, after the wife filed application for maintenance under Section 125 CrPC. It is mentioned in the petition that a compromise was entered in the said proceedings in terms of which the husband was directed to pay Rs. 1700/- per month as maintenance to his wife. With these pleadings, decree of divorce was sought on the ground of cruelty. 4. The wife contested the petition and filed her written statement. She admitted that she got married to the present respondent and a son Master Sujal Sharma born out of the wedlock. However, she has alleged that she was ousted from the house by her husband on 25.11.2006. It is also pleaded by her that she was subjected to cruelty for non-fulfillment of demand of dowry. As to the proceedings under Section 125 CrPC, she admitted that she did file the application, and getting Rs. 1700/- per month as maintenance, as agreed between the parties. 5. On the basis of the pleadings of the parties, the trial court framed following issues: 3 (i) Whether the respondent (wife) treated the petitioner (present respondent) with cruelty? If so, its effect? (ii) Whether the petitioner is entitled to decree of divorce? 6. After recording the evidence of the parties and hearing them, the trial court allowed the petition under Section 13 of the Hindu Marriage Act, 1955 holding that the petitioner is entitled to decree of divorce on the ground of cruelty. The trial court granted the decree of divorce vide impugned judgment and order dated 22.11.2010, passed in Matrimonial Suite No. 10 of 2008. Aggrieved by the said judgment, this appeal is filed by the wife. 7. We have considered the submissions of learned Counsel for the parties. Admittedly, appellant Manisha Sharma got married to Mukesh Kumar Sharma on 15.11.2002 and a male child (named Master Sujal Sharma) was born out of the wedlock. It is also admitted between the parties that they are living separately from 25.11.2006. 8. We have also gone through the statements of PW1 Mukesh Kumar Sharma and that of DW1 Manisha Sharma recorded by the trial court. PW1 Mukesh Kumar Sharma has stated that his wife treated him with cruelty as she used to quarrel with him. He has further stated that not only he but his parents were also insulted by her. He has further stated that to please his wife, he took a separate accommodation on rent away from his parents, but still there was no change in the behaviour of his wife. In para 7 of his affidavit, he states that many times he had to sleep without food in the house. He (Mukesh Kumar Sharma) was subjected to cross- examination and nothing has come out which creates 4 doubt in his testimony. On the other hand, Manisha Sharma, though has denied the allegations of cruelty and stated that she was subjected to cruelty for non-fulfillment of demand of dowry and ousted her from the house, but in the cross-examination she admitted that she did not want to live with her husband and she was living separately from him on her own volition. In the circumstances, in our opinion, the trial court has rightly believed the testimony of husband and granted the decree of divorce. 9. Learned Counsel for the appellant submitted that he has no objection if the decree of divorce is maintained, provided the appellant is given some reasonable amount in the form of one time alimony so that appellant may properly maintain herself. In reply to this, Smt. Sheetal Arya, Counsel for the respondent submitted that present respondent is already paying Rs. 1700/- per month to his wife as awarded in the proceedings under Section 125 CrPC, and son (Master Sujal Sharma) is also living with him. It is also pointed out that the respondent is a Teacher in a private school. Sri Kurban Ali, learned Counsel for the appellant submitted that the respondent jointly owns a house with his mother, and as such he is not dependent only on the salary he is getting from the school. 10. Having considered submissions of learned Counsel for the parties and after going through the papers on record, we are of the view that to do complete justice between the parties, while affirming the decree of divorce granted by the trial court, it is necessary to award the permanent alimony to the wife under Section 25 of the Hindu Marriage Act, 1955. In the circumstances of the case, we think it just and proper to award a lumpsum 5 permanent alimony of rupees two lakhs to be paid by the husband (present respondent) to the appellant. 11. Accordingly, this appeal is disposed of affirming the decree of divorce granted by the trial court on the condition that the present respondent shall pay rupees two lakhs as a lumpsum permanent alimony within a period of three months (from today), to the appellant or deposit the same in her favour before the trial court within said period. Costs made easy. (Servesh Kumar Gupta, J.) (Prafulla C. Pant, J.) 28.4.2011 28.4.2011 PRABODH