IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL First Appeal No. 10 of 2008 Smt. Akbinder Kaur W/o Amit Gill D/o late Balvendra Singh R/o Village Barkhera Rajpur P.O. Kashipur, District Udham Singh Nagar. ………………. Plaintiff / Appellant Versus Amit Gill S/o Sukhvir Singh R/o Village Salkhana P.O. and Tehsil Sambhal District Moradabad. ……………. Defendant / Respondent Mr. Sudhir Kumar Chudhary, learned counsel for the appellant. Mr. Mohinder Singh Bisht, Advocate for the respondent. Coram : Hon’ble Prafulla C. Pant, J. Hon’ble Dharam Veer, J. Hon. Prafulla C. Pant, J. (Oral) This appeal, preferred under Section 19(1) of the Family Courts Act, 1984, is directed against the judgment and order dated 13.02.2008, passed by learned Judge, Family Court, Udham Singh Nagar (Camp Kashiput), in Civil Suit No. 100 of 2007, whereby the petition of the appellant (wife) for divorce was dismissed by said court. 2) Heard learned counsel for the parties and perused the lower court record. 3) Brief facts of the case are that plaintiff / appellant Akbinder Kaur got married with defendant / respondent Amit Gill, on 11.01.2004, at Kashipur. It is pleaded by her that she lived in her matrimonial house but after marriage she come to know that her husband is drunkard and drug addict. He used to beat his wife. So much so that the parties to the matrimony could not establish sexual relations. Lastly it is pleaded by the plaintiff / appellant that she was compelled to leave her matrimonial house by the respondent and for three years she is living in her parental house. 4) The defendant / respondent Amit Gill admitted the factum of marriage with the plaintiff / appellant. However, he denied the reset of the contents of the divorce petition. The trial court framed following two issed: i) Whether, the plaintiff is entitled to decree of divorce on the ground alleged in the petition, if so, its effect? ii) To what relief, if any, is she entitled? 5) It appears that the trial court took evidence in the form of affidavits, as permissible under the amended Code of Civil Procedure. However, it dismissed the petition on the ground that there appears to be collusion between the parties. On examination of the record, we failed to find the reasons on which the learned trial court has concluded that the parties are in collusion. Perusal of the lower court record shows that the affidavits filed by them before the trial court are on the lines of the pleadings they have taken before said court. Merely for the reason that at the end of the affidavit the husband has stated that he has no objection if the divorce petition is allowed, does not show that he is in collusion with his wife. We would like to quote here the last three paragraphs of the written statement i.e. Paras No. 20, 21 and 22. The same are being reproduced hereunder: 20) ;g fd vkifRRkdrkZ @ izfroknh vius lkFk oknuh dks j[kus ds fy, rS;kj gS vkSj Hkfo"; esa Hkh okfnuh dks vius lkFk j[kus dks rS;kj gSA okfnuh dks vius ikl jgus dks fdlh Hkh fLFkfr esa fdlh izdkj dh dksbZ ijs’kkuh ugh gksus nsxk vkSj mldh lEkLr vko’;drkvks dh iwfrZ viuh gSfl;ruqlkj djsxkA 21) ;g fd okfnuh }kjk izLrqr nkok feF;k ,oa eux<+r rF;kas ij vk/kkfjr gS tks fd [kf.Mr gksus ;ksX; gSA 22½ ;g fd okfnuh fdlh Hkh rjg dk dksbZ vuqrks"k ikus dh vf/kdkfj.kh ugha gS rFkk mijksDr dkj.kks dks n`f"Vxr j[krs gq, okfnuh dk okn lO;; [kf.Mr Qjek;k tk;sA 6) Having gone through the pleadings taken, and evidence adduced by the parties, we find that the trial court has erred in law in holding that the parties are in collusion, the plaintiff / appellant is not entitled to decree of divorce. The said finding is liable to be set aside. 7) As to the fact whether the ground for divorce has been made out or not, we have examined the evidence on record. The plaintiff Akbinder Kaur has pleaded and proved that her husband has treated her with cruelty as he is drunkard and drug addict. She has further pleaded and proved that her husband beats her and ousted her from his house. She further pleads that for last three years she is made to live in the house of her parents. She has proved these pleadings by filing an affidavit before the trial court, as permissible under the amended Code of Civil Procedure. Though, the respondent husband has denied the allegations, but this factum is admitted to the respondent that the plaintiff / appellant is not living with him. In the written argument submitted before the lower court, which are also part of the record show that the respondent has disclosed that actually the plaintiff and the defendant were in love before marriage when they were students of Kashuipur Degree College. However, he has admitted that he had no physical relationship with his wife for last several years. He is denied that he is a drunkard. 8) After weighing the evidence on oath adduced from both the sides, we are of the view that the circumstances in which the plaintiff had to leave house of her husband, make us believe that the statement on oath given by the wife cannot be discarded and the acts on the part of the respondent does amount to cruelty, which is one of the grounds mentioned in Section 13 of the Hindu Marriage Act, 1955. 9) For the reasons as discussed above, we are satisfied that the plaintiff had proved her case for entitlement of divorce on the ground of cruelty against her husband. Therefore, we hold on issue No. 1 framed by the trial court that the respondent husband has committed cruelty against his wife and, as such, she is entitled to the decree of divorce. 10) Therefore, the appeal is allowed. The judgment and order dated 13.02.2008, passed by Judge, Family Court, Udham Singh Nagar (Camp Kashipur), in Civil Suit No. 100 of 2007, is set aside. The said suit is decreed for decree of divorce, as prayed by the plaintiff. The marriage between parties stands dissolved. However, no order as to costs. (Dharam Veer, J.) (Prafulla C. Pant, J.) Dt. March 18, 2008 H. Negi