IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL First Appeal No. 98 of 2006 Arvind Kumar Sharma S/o Shri Ramesh Chandra Sharma R/o 81, Samanpuri, Adhoiwala, P.O. Karanpur, District Dehradun. ...…………. Plaintiff / Appellant Versus Smt. Beena Sharma D/o Shri Panna Lal R/o Quarter Q- 74 / 4, New Area Ordnance Factory State Raipur, District Dehradun. ...…………. Defendant / Respondent Mr. N.S. Pundir, learned counsel for the appellant. Mr. Arvind Vashistha, learned counsel for 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 17.08.2006, whereby the divorce petition filed by the husband under Section 13 of the Hindu Marriage Act, 1955, was dismissed and petition under Section 9 of said Act, filed by the wife for restitution of conjugal rights, is decreed by the Principal Judge, Family Court, Dehradun. 2 2) Heard learned counsel for the parties and perused the lower court record. Since, against common judgment and decrees passed in two cases, single appeal has been filed, as such having heard learned counsel for the parties, this appeal is treated to have been filed against the dismissal of petition of divorce in case No. 288 of 2002. 3) Brief facts of the case are that the appellant Arvind Kumar Sharma got married to respondent Beena Sharma on 22.02.1992, at Dehradun. Out of the wedlock a daughter named Sweta Sharma was born on 16.06.1993. For some time the parties to the matrimony lived peacefully. However, thereafter, it is pleaded in the petition filed for divorce by the husband that the wife started beating him and insulted his parents also. She threatened him and his parents of implicating in a false case of dowry. On his part the appellant took a rental accommodation to live separately with his wife. In 1994, the respondent (wife) got a job as a teacher in Guru Ram Rai School. It is alleged by the husband that on 08.03.1996, she made a false oral report to the police and the appellant had to go to the police station where he was insulted. It is further pleaded that on 19.08.2000, the respondent’s brother Anil Sharma and Ravinder Sharma came to the appellant and assaulted him badly. They further asked him that if he dared to come to respondent he would be killed by administering poison. The appellant has further pleaded in the divorce petition that all his belongings, including the clothes, are in the respondent’s possession who is living in the quarter allotted to him by his employer. It is further pleaded that he is 3 forced to live separately in the ancestral house of his parents. Hence, the divorce petition. 4) On the other hand, the wife (respondent) who contested the petition for divorce has pleaded in her written statement that the appellant and his parents used to harass her for non-fulfillment of demand of dowry. It is further pleaded that since the daughter to the parties to the matrimony was born, the respondent was treated with cruelty by the appellant. It is admitted that the respondent is living in the quarter allotted to her husband (appellant) and the appellant is living separately in his ancestral house. 5) On the pleadings of the parties, the trial court framed following issues, after connecting all cases between the parties including the one for divorce (by husband) and the one for restitution of conjugal rights (by wife): i) Whether, the petitioner is entitled to the decree of divorce, as pleaded by him? ii) Whether, the respondent is entitled to the restitution of conjugal rights, as pleaded by her? iii) To what relief, if any, the parties are entitled? 6) After recording the evidence of the parties and hearing them, the trial court dismissed the petition for divorce and decreed the suit for restitution of conjugal rights. Hence, this appeal by the husband. In respect of the 4 other two connected cases relating to the Guardians and Wards Act, no appeal is preferred. 7) Admittedly, the parties are married to each other on 22.02.1992, and out of the wedlock a daughter was born on 16.06.1993. It appears that thereafter the relations between the parties started souring. To prove the fact that the respondent had treated the appellant with cruelty, he got himself examined as P.W. 1 Arvind Kumar Sharma. It has been stated on oath by the husband (appellant) that the respondent treated him with cruelty by treating him like the servant. Not only this, it is stated that she threatened him of implicating in false cases. It is further stated that on 19.08.2000, at about 07:00 P.M., respondent’s brother Anil Sharma and Ravinder Sharma came to him and brutally beaten him and he was ousted from his house with only the clothes he had put on at the time of incident. It is further stated by the appellant in his statement before the trial court that the respondent gave a threat that if he (husband) dared to come to her, she will kill him by administering poison. 8) We are unable to understand how the trial court has ignored the statement of the petitioner / appellant and gave the finding that he is not treated with cruelty by his wife. We have also gone through the statements of D.W. 1 Beena Sharma, the respondent, who has nowhere stated in her statement that her brothers have not beaten her husband, nor it has been denied in her statement that she did not threaten, as alleged by the appellant. Though, it has been pleaded by the respondent (wife) that the divorce has been sought on the false allegations and it is the husband who 5 has left the house on his own volition, but it does not appear to be a natural conduct on the part of the husband to leave his wife in the quarter allotted to him in the manner he has stated without being treated with cruelty by his wife. It is pertinent to mention here that it is nobody’s case that the appellant is living in adultery or having any illicit relations with anyone. 9) The parties are present in person today before this Court along with their counsel. Though, the wife stated that she is ready to live with her husband, but the husband in clear words stated that he is apprehensive of danger to his life, if he is forced to live with the respondent. They are living separately for last more than eight years. 10) Mr. Arvind Vashishtha, learned counsel for the respondent argued that the appellant himself had been cruel to his wife as he did not go to see her when she delivered the child born out of the wedlock. We have gone through the evidence on record and found that P.W. 1. Arvind Kumar Sharma has stated that for the delivery of child, his wife had gone to her parental house. During pregnancy of his wife he went to see her thrice i.e. in January 1993, February 1993 and March 1993, but all the three times he was ousted and insulted in the parental house of his wife, and as such, did not go thereafter. The explanation given by the petitioner / appellant for not going to see his wife at the time of delivery, in the above circumstances, cannot be said to be a cruelty. 6 11) Learned counsel for the respondent pointed out that so long as decree of restitution of conjugal rights stands, decree of divorce cannot be granted. We are unable to agree with the contention of learned counsel for the respondent as the grounds of divorce are independent to the facts which are required to be seen in the case of restitution of conjugal rights. 12) Having heard learned counsel for the parties and after going through the evidence on record, which includes the letter (paper No. 107-C) of the appellant filed by the respondent herself, further shows that the incidents narrated by husband had taken place before filing of divorce petition. Having re-assessed the evidence, we are of the view that the trial court has erred in law by dismissing the petition for divorce filed by the husband, as a clear case of cruelty has been made out by the husband on the record, as against his wife. 13) We are conscious of the fact that though the wife is a teacher in a school, but the minor daughter of the parties is living with her and for doing complete justice between the parties, we feel it necessary that a one time lump sum reasonable amount of alimony should be paid by the husband to the respondent, which could be required for education and marriage of the daughter. Both the parties belong to Dehradun. Considering the economic status of the parties, as it has come on the record that the appellant (husband) is in a clerical job with the Ordnance Factory at Dehradun, we think Rs. 5,00,000/- (Rupees five lakh only) 7 is a just and proper as lump sum amount of permanent alimony, which should be paid by the appellant to the respondent. 14) For the reasons as discussed above, this appeal is allowed. The impugned order dated 17.08.2006, passed by the Principal Judge, Family Court, Dehradun, in Suit No. 288 of 2002, dismissing the divorce petition is set aside. The appeal and the petition for divorce filed by the husband (appellant) are decreed. The marriage between the parties is dissolved subject to the condition that the appellant shall pay to the respondent (wife) or deposit in her favour in the Family Court, Dehradun, as a one time lump sum alimony amounting to Rs. 5,00,000/- (Rupees five lakh only), within a period of 60 days, failing which the appeal and the divorce petition shall stand dismissed. No order as to costs. (B.S. Verma, J.) (Prafulla C. Pant, J.) Dt. September 18, 2008. H. Negi 8