IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL First Appeal No. 76 of 2005 Puran Ram S/O Sri Kishan Ram, R/O Village Pokhari, Post- Deonai, Tehsil Garur, District Bageshwar. …… Appellant. Versus Smt. Radha Devi W/O Puran Ram, at present Village-Vimola, Tehsil Garur, District Bageshwar. … Respondent. Sri R.C.Upadhyay, learned counsel for the appellant. Sri R.S.Bisht, holding brief of Sri M.C.Bhatt, learned counsel for the respondent. Date August 04, 2008. Hon’ble B.S.Verma, J. This appeal is directed against the judgment and decree dated 1-7-2005 passed by the District Judge, Bageshwar, in Civil Suit No. 3 of 2005, Puran Ram Vs. Smt. Radha Devi, whereby the marriage between the parties was dissolved by a decree of divorce. The appellant-petitioner was directed to pay a sum of Rs. 1,00,000/- to the respondent within a period of three months. Out of the said amount, a sum of Rs. 40,000/- and Rs. 30,000/- were ordered to be kept in the nationalized bank or post office in the names of younger and elder daughters of the parties till their majority and the remaining sum of Rs. 30,000/- was ordered to be kept in some cumulative deposit scheme for a period of ten years as mentioned in the order. Brief facts, giving rise to the present appeal, are that the appellant Puran Ram filed a petition under Section 13(1)(i) of the Hindu Marriage, Act, 1955 for dissolution of marriage by a decree of divorce against the respondent alleging therein that the marriage between the parties was solemnized in village Vimola, Patwari Circle Naugaon, Patti Vichala Katyur, Tehsil Garur, District Bageshwar according to Hindu rites and customs with “Saptpadi” on 2-5-1998. Both the parties are Hindu by religion and 2 they were unmarried before their marriage. After their marriage, both the parties started to live as husband and wife until 22-7-2004. It has been alleged by the petitioner that he is working at Chandigarh in a private job and he used to come to his house on short leave. According to the petitioner-appellant, his wife used to live in adultery with one Mohan Ram S/O Shri Khim Ram of village Pokhari and with the union of respondent and Mohan Ram, one illegitimate child was born from his wife on 22-7-2004. The petitioner-appellant was called from Chandigarh on phone. A Panchayat was held in the village, where both the respondent and said Mohan Ram confessed their guilt of adultery and cohabitation. Thereafter the petitioner made a complaint to S.D.M. Bageshwar on 3-12-2004. Ultimately, the petition for dissolution of marriage by a decree of divorce was filed before the Civil Judge (Senior Division) Bageshwar on 2-2-2005. The respondent contested the petition by filing her written statement. The allegation of adultery has been denied by the respondent. It has been stated in the additional pleas that the petitioner came on leave for one month on 9-11-2003 and cohabited with the respondent with the result the second female child was born to her on 22-7-2004. It has also been stated that since two daughters are born to the respondent, the petitioner became annoyed with the respondent and he intended to part with the respondent. According to the respondent, the petitioner had obtained her signatures on blank papers and he had left the respondent at her Mayaka on 7-8-2004 along with the children. The respondent has denied her adulterous relations with Mohan Ram. The petition was transferred to the court of the District Judge Bageshwar by order dated 19-11-2004. 3 The following issues were framed in the case on 11-4- 2005:- ISSUES 1. Whether the marriage between the parties is liable to be dissolved by a decree of divorce? 2. To what other relief, is the petitioner is entitled? In support of this case, the petitioner-appellant Puran Ram has filed his own affidavit (P.W.1) and the affidavits of Bharat Ram, the Gram Pradhan of the village ( P.W.2) and Bhupal Singh, one of the villagers, (P.W. 3). Appellant has also examined in oral evidence Kundan Singh, as P.W.4. In documentary evidence, the petitioner has filed photocopy of the statement of respondent and photocopy of the information given to the Sub Divisional Magistrate, Bageshwar and extract of family register. On the other hand, the respondent-wife has examined herself as D.W. 1 Radha Devi and Bhawan Ram as D.W.2. After hearing both the parties and perusing the evidence led by them, the learned District Judge took issue nos 1 and 2 together for decision. The learned District Judge ultimately came to the conclusion that the marriage between the parties is liable to dissolved by a decree of divorce with the condition that the petitioner shall pay a sum of Rs. One lac to the respondent. Both the issues were decided accordingly and the decree has been passed by order dated 1-7-2005. I have heard learned counsel for the parties and perused the record. At the outset, it may be mentioned that by the impugned judgment and decree, the divorce petition/O.S.No. 3 of 2005, Puran Ram Vs. Smt. Radha Devi, was allowed by the learned 4 District Judge Bageshwar thereby the marriage between the parties has been dissolved by a decree of divorce. The respondent Smt. Radha Devi, against whom the order has been passed has not preferred any appeal against the impugned judgment and decree. The appellant is aggrieved by the conditional order passed by the trial court whereby he has been directed to pay a sum of Rs. 1,00,000/- to the respondent, as mentioned earlier. The main ground of challenge raised by the appellant is that no issue was framed by the trial court on the point of adultery. It has also been contended by the appellant that the evidence led by the parties was not at all considered and the case has been decided on extraneous manner. So far as the contention of the appellant that no issue was framed on the point of adultery is concerned, the contention cannot be accepted at all for the simple reason because the Issues were framed in the case as far back as 11-4-2005 and the petition was decided finally on 1-7-2005. The appellant fully participated in the case and led his evidence, but he never chose to file any application for framing additional issues in the case. No prayer to that effect was ever made. Moreover, the petitioner-appellant never challenged the order dated 11-4-2005 whereby issues were framed in the case. In such circumstances, it is not open to the appellant to say that no issue was framed on the point of adultery. Moreover, the appellant has not even arrayed Mohan Ram as a respondent, with whose union the appellant has alleged that the second daughter was born to the respondent Radha Devi. Unless and until Mohan Ram was not arrayed as respondent to the petition, no finding of adultery could have been recorded against him without being heard in the matter, therefore, the contention of the appellant that no finding has been recorded by the learned trial court on the point of adultery is not tenable. However, the Trial Court while deciding the issues has observed this much that on the basis of the evidence 5 led by the petitioner, the second daughter born to the respondent is not of the petitioner. Considering the fact that the appellant- petitioner had not arrayed the person concerned as respondent no.2, it does not lie in the mouth of the appellant that no finding on the issue of adultery was recorded by the learned trial court. The trial court has found as per allegations levelled by the parties against each other, it is not possible that both the parties would live together to lead a normal life. The Trial Court while allowing the divorce petition has rightly saddled the petitioner with a direction to pay a sum of Rs. One lac towards the maintenance to the respondent and minor daughter. In the affidavit of the petitioner-appellant it was stated that the marriage between appellant and respondent was solemnized on 22-5-1998 according to Hindu rites and customs. It was also stated that in the year 2000, one daughter Km. Arti was born out of their wedlock. The appellant is engaged in private job in Chandigarh. He came on leave for 20 days in the last week of February 2003 and thereafter he came for ten days leave in March 2004 and he found that the abdomen of his wife had been protruded. He asked about it, but his wife said that due to cold and gas, her abdomen had swollen and that she was ill. The appellant had returned to Chandigarh without cohabitation. On 22-7-2004, he received telephonic message from his home that his wife had given birth to one female child. He enquired about the child from his wife, who told that the child had been born out of her union with Mohan Ram S/O Khim Ram R/O village Vimola (the village of his in-laws) and his wife confessed her illicit relations with said Mohan Ram. A report was made to Up Zila Adhikari, Garur/Bageshwar in that regard and a Panchayat was called in the village. The respondent and Mohan Ram agreed to live together. P.W. 1 Puran Ram was put to cross-examination, but in the cross- examination, he could not substantiate his allegations of adultery to the hilt against Mohan Ram. He has admitted that he did not get medical/clinical examination of his wife and the daughter 6 conducted to find out whether the daughter was born to the wife out of their union or not. The appellant has also admitted in the cross- examination that the proceedings of the Panchayat were not reduced in writing. It does not stand to reason that when a serious charge of adultery was made against the wife and the Panchayat in the village was allegedly convened, then why the minutes of Panchatyat were not reduced in writing. P.W.2 Bharat Ram in his affidavit has stated that he is Gram Pradhan of Gram Sabha Pokhari. In July 2004, Kishan Ram came to him and said that his daughter in law had given birth to a female child. When enquired, she told that offspring took place with the illegal relationship with Mohan Ram. A Pancyayat was convened in the village and Mohan Ram was also present in that Panchayat and he confessed his illegal relations with Smt. Radha Devi. In the Panchayat, Radha Devi owned that she would go with Mohan Ram, who has spoiled her life. This witness also admitted that the proceedings of Panchayat were not reduced in writing. P.W.3 Bhupal Singh is one of the witness of Panchayat which was convened in the village regarding the birth of female child of daughter in law of Kishan Ram (Radha Devi). In the affidavit, Bhupal Singh has not at all stated that Mohan Ram was also present in the Panchayat. P.W.4 Patwari Kundan Singh has supported the version of the appellant that Panchayat was convened in the village and in the Panchayat, Smt. Radha Devi gave her statement, which was recorded by him. He stated the document to be in his own handwriting. To controvert the evidence of appellant, respondent Radha Devi, D.W.1, has stated in her affidavit that the daughter was born to her out of the union of the appellant and not due to her union with Mohan Ram. She also stated that that her signatures 7 were obtained under pressure of Patwari, peon and members of family on blank papers. She has denied involvement of Mohan Ram in the matter. In the cross-examination, she has admitted her signatures on paper no. 6Ka/2 but has denied her illicit relation with Mohan Ram. It is pertinent to note that in the evidence of D.W.1 Radha Devi there is no whisper that she has any willingness worth the name to live with the appellant Puran Ram. It appears that the affidavit has been filed by the respondent just to save the skin of Mohan Ram, against whom allegation of illicit union with Radha Devi had been levelled. She has not even said a single word in her affidavit that she is ready to perform her marital obligations with appellant Puran Ram. D.W.2 Bhawan Ram, in his affidavit has stated that Puran Ram used to be annoyed with his wife Radha Devi because of birth of two daughters and he intended to desert her. He denied the illicit relation of Mohan Ram with Radha Devi. In the cross- examination, this witness admitted that he is real brother of Mohan Ram. It is true that the learned trial court has not discussed the evidence of the witnesses produced by both the parties in detail, but it comes out that the evidence was duly considered by the court below and it has been rightly held by the court below that there are allegation and counter allegation against each other and it is not possible for both the parties to lead a normal life. It cannot be held that the evidence was not properly assessed and analyzed by the court below while passing the decree of divorce in favour of the appellant. Considering the fact that respondent Radha Devi has not shown her willingness to live and to perform her marital obligations with her husband Puran Ram, the divorce petition has been rightly allowed. Having considered the evidence led by both the parties coupled with the peculiar facts and circumstances of the case, to my 8 mind, there is no material on record to disturb the findings of the trial court. The appellant was fully under legal obligation to maintain the divorced wife and their minor daughters and he has been rightly ordered to pay a sum of Rs. One lac for the maintenance of the respondent-wife and her two minor children. There is no force in this appeal, which is liable to be dismissed outright. The appeal is dismissed. The impugned judgment and decree dated 1-7-2005 are upheld. In the circumstances of the case, no order as to costs. All pending applications stand disposed of. ( B.S.Verma, J. ) RCP 9 10