IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL First Appeal No. 38 of 2008 Smt. Savita Kamboj D/o Shri Mehar Chand Kamboj R/o 5, Tilak Road, Forest Colony Dehradun, District Dehradun. ……Defendant/appellant. Versus Yashpal Singh Kamboj S/o Shri Jiya Lal Kamboj R/o 33, Darshani Gate, Dehradun District Dehradun. .……….Plaintiff/opposite party. Shri V.P. Bahuguna, Advocate for the appellant. None present on behalf of the respondent. Coram:Hon’ble Prafulla C. Pant, J. Hon’ble Alok Singh, J. Oral:-Hon’ble Prafulla C. Pant, J. This appeal, preferred under Section 19 of Family Courts Act, 1984, is directed against the judgment and order dated 17.05.2008, passed by Principal Judge, Family Court, Dehradun, in suit No. 202 of 2002, whereby the petition of the husband (present respondent), for divorce is allowed, and decree of divorce has been passed. 2. Heard learned counsel for the appellant. None present on behalf of the respondent. 3. Brief facts of the case giving rise to this appeal are that respondent-Yashraj Singh 2 Kamboj, got married to appellant-Savita Kamboj, on 05.03.1995, according to Hindu rites. There is a son born out of the wedlock. The husband (Yashpal Singh Kamboj) filed a petition under Section 13 of Hindu Marriage Act, 1955, before the trial court, pleading that his wife (appellant) is in service with the Forest Department of the State and she lives in an official accommodation, allotted to her. She desired that the petitioner (husband) should leave his house and start living with her. It is further pleaded that the petitioner in compelling circumstances, agreed to stay with his wife in the official accommodation, allotted to her. But the appellant (wife) started treating the petitioner with cruelty. She used to insult him as he had earning by running a loading three wheeler. It is further pleaded by the petitioner in his petition that several times, appellant and her brothers have beaten him and since 1999, the two are living separately. It is further stated that when in January 1999, son out of the wedlock was born, the appellant did not inform the petitioner. On the ground of cruelty, the divorce was sought by the petitioner (present respondent). 4. The present appellant, who was respondent before the trial court contested the petition and filed her written statement in which she admitted her marriage with the petitioner and also admitted that a son was born out of the wedlock. However, rest of the 3 contents of the petition were denied and it is stated that it was the petitioner, who ill-treated the appellant. It is further pleaded that the petitioner used to drink liquor and quarrel with the appellant. It is admitted by the appellant in her written statement before the trial court that she is in service with the Forest Department, and lives in a quarter, allotted to her. However, it is stated that the petitioner not only runs three-wheeler but also runs a sweet shop. Lastly, it is stated that articles given in the marriage should be returned back to the appellant, else Rs. 75,000/- be directed to paid to her. 5. On the basis of the pleadings of the parties, following issues were framed by the trial court:- 1. Whether the petitioner is entitled to decree of divorce on the ground, claimed by him? 2. To what relief, if any, the plaintiff is entitled? 3. Whether the respondent (present appellant) is entitled to get back the ‘Stridhan’, given in the marriage? 6. After recording the evidence and hearing the parties, the trial court held that the petitioner has successfully proved that he was treated with cruelty by his wife (appellant). It is further found that no list of articles, given in the marriage, was enclosed. With these 4 findings, the petition for divorce was allowed and decree of divorce passed. Hence this appeal by the wife. 7. Learned counsel for the appellant argued that appellant was not given opportunity to cross examine the petitioner-Yashpal Singh Kamboj. The trial court has observed in the impugned judgment that as many as 26 dates were fixed for cross examination of the petitioner but the respondent did not cross examine him and finally the cross examination was closed. Said fact is also apparent from the order sheet on the lower court record. In the circumstances, it cannot be said that the trial court has not given opportunity to the present appellant to cross examine the petitioner (present respondent) during the trial. It appears that for more than three years, several dates were fixed but for one reason or the other, the wife (present appellant) continued to avoid cross examining the petitioner and lingered the proceedings of divorce. 8. Next point advanced on behalf of the appellant is that the trial court has not considered the evidence, adduced by D.W. 1 Savita Kamboj (appellant) and ignored the fact that her husband used to drink and beat his wife. We have carefully gone through the evidence on record and we find that the trial court has weighed the evidence, adduced from both the sides before coming to the conclusion 5 that the appellant has treated the petitioner with cruelty. The trial court has specifically mentioned the incident of 12.09.2002, which took place in the court premises during the pendency of the petition when the appellant’s brothers insulted the petitioner and told him that he would be made to clean their utensils and also utensils of their friends. Not only this, on said date, the petitioner was beaten and he got himself medically examined. Said fact was brought on record by filing affidavit along with the copy of the medical report. No cross examination was done to the petitioner on this point also. In the circumstances, we do not find any error of law or that of fact, committed by the trial court in coming to the conclusion that the wife has treated the husband with cruelty. 9. Shri V.P. Bahuguna, learned counsel for the appellant lastly argued that the trial court has erred in law in not directing return of stridhan to the appellant, while decreeing the suit for divorce. On going through the record of the trial court, we did not find any list of articles or the value of the articles, shown on the record. As such, the trial court had no option but to reject the prayer of the wife in this regard. 10. Admittedly, parties are living separately since 1999 till date. 6 11. Having considered submissions of learned counsel for the appellant and after going through the lower court record, we do not find any sufficient reason to interfere with the impugned judgment and order, passed by the trial court. Accordingly, this appeal is liable to be dismissed. The same is dismissed. (Alok Singh, J.) (Prafulla C. Pant, J.) Dt:28.10.2009 Sweta 7 8 9 10 11