IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL First Appeal No.115 of 2009 Smt. Santosh Giri, W/o Ravindra Giri R/o Chaw Mandi, C/o Ved Singh (Doctor) Sindhi Sweet Wali Gali, Roorkee District Haridwar. …..…Appellant Versus Ravindra Giri S/o Shri Badlu Giri R/o A-19, Subhash Nagar, Police Station Gang Nahar, Roorkee District Haridwar ……….Respondent Ms. Mamta Joshi, and Shri Dhramendra Barthwal, Advocates, present for the appellant. Shri Narain Dutt, Advocate, present for the respondent. Hon'ble Prafulla C. Pant, J. Hon'ble Sudhanshu Dhulia, J. Oral: Hon'ble Prafulla C. Pant,J. This appeal, preferred under section 19 of Family Courts Act, 1984, read with Section 28 of Hindu Marriage Act, 1955, is directed against judgment and order dated 01.08.2009, passed by Additional Judge, Family Court, Roorkee, Haridwar, 2 in suit no. 66 of 2007, whereby said court has allowed the petition under section 13 of Hindu Marriage Act, 1955, filed by the respondent Ravindra Giri (husband). 2. Heard learned counsel for the parties and perused the lower court record. 3. Brief facts of the case are that, respondent Ravindra Giri (husband) filed petition under section 13 of Hindu Marriage Act,1955, for a decree of divorce stating that he got married to appellant Santosh Giri in the month of November, 1989. Two sons namely Vineet Giri and Amit Giri born out of the wed-lock. It is alleged by the petitioner/respondent (Ravindra Giri) that the appellant (Santosh Giri) left his house on 26.10.1998, and did not join the company of her husband. It is pleaded that the appellant withdrew from the society of the respondent (husband) without any valid reason. It is further pleaded that the respondent Ravindra Giri instituted suit no. 279 of 2001, for a decree of restitution of conjugal rights which was decreed by the trial court on 13.12.2001. It is alleged that the wife filed a case before the court at Aligarh for maintenance. She also got instituted a criminal case under section 498A IPC at said place (Aligarh). It is pleaded that the decree of 3 restitution of conjugal rights had attained finality, and the petitioner is entitled to the decree of divorce. 4. The appellant (wife) contested the suit before the trial court, and filed her written statement in which she admitted having got married to Ravindra Giri (present respondent). She further admitted that two sons were born out of the wed-lock. However, she has denied the other allegations made by the writ petitioner but it is not disputed that the suit for restitution of conjugal rights was decreed against her. She simply pleaded that she had no knowledge of said suit.( But she did not say why she did not move get said decree set aside, after coming to know of said fact). 5. It is also alleged by the wife that she was ousted by her husband from her house. 6 On the basis of the pleadings of the parties, the trial court framed following issues:- (i) Whether the petitioner is entitled to decree of divorce on the ground mentioned in the petition under section 13 of Hindu Marriage Act, 1955. (ii) To what relief, if any, petitioner is entitled? 4 6. After recording evidence, and hearing the parties, the trial court gave a finding that appellant (wife) had left company of the petitioner and withdrawn herself from his society without any valid reason. The trial court further found that the decree of restitution of conjugal rights was not complied with , and as such, the petitioner (husband) is entitled to the decree of divorce. 7. Clause (ii) of Sub-section (1A) of Section 13 provides that either party to a marriage may present a petition for dissolution of marriage by a decree of divorce on the ground that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or more after passing of the decree of restitution of conjugal rights. The case of the respondent (husband) for a decree of divorce is covered on that ground. No doubt the wife has alleged that she had no knowledge of decree of restitution of conjugal rights passed in the year 2001,but she has nowhere stated as to what she had done to get said decree set-aside. Unless the decree passed under section 9 of Hindu Marriage Act, 1955, in suit no. 279 of 2001, is set aside. The decree remains operative. 8. From the evidence of the parties, it is evident 5 that they are not living together since 26.10.1998, as such, on 24.04.2007, the date of presentation of the petition, the respondent was not living with the petitioner for more than 8 years (from the date of decree of restitution of conjugal rights for a period of more than five years). That being so, the trial court has committed no error of law in decreeing in the suit of the husband for the divorce. 9. The case of the husband (present respondent) is supported by his son Vineet Giri (P.W.2) aged 18 years that his mother before she left company of her husband, used to leave her matrimonial house at 8:00 P.M., and come back by midnight. He has alleged that his mother (present appellant) had illicit relations with two constables who used to leave her in the midnight. However, we are not taking note of said fact as the divorce has not been sought on the ground of adultery. 10. For the reasons as discussed above, it is proved on the record that the wife (appellant) has not complied the decree of restitution of conjugal rights for a period of one year, and the petitioner (present respondent) is entitled to the decree of divorce. Therefore, this appeal is liable to be dismissed. 6 11. Accordingly, the appeal is dismissed . Costs easy. (Sudhanshu Dhulia,J.) (Prafulla C. Pant,J.) 18.11.2010 Parul