IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL First Appeal No. 18 of 2010 Vimla Pathak W/o Mahesh Chandra Pathak D/o Amba Dutt Sati R/o Village Dhamola, Tehsil Kaladhungi, District Nainital. ...…………. Appellant Versus Mahesh Chandra Pathak S/o Teekaram Pathak R/o Shri Puranchandra Sanwal, C.M.T. Colony Dahariya, Haldwani, District Nainital. ...…………. Respondent Mr. Abhishek Verma, Advocate, holding brief of Mr. Sudhir Singh, Advocate, present for the appellant. Mr. J.C. Belwal, Advocate, present for the respondent. Coram : Hon’ble Prafulla C. Pant, J. Hon’ble Sudhanshu Dhulia, J. Hon. Prafulla C. Pant, J. (Oral) This appeal, preferred under Section 19 of the Family Courts Act, 1984, is directed against the judgment and decree dated 30th of March 2010, passed by Judge, Family Court, Nainital, in Suit No. 34 of 2004, whereby said court has granted decree of divorce in favour of the husband (respondent) on his petition under Section 13 of the Hindu Marriage Act, 1955. 2) Heard learned counsel for the parties and perused the lower court record. 3) Brief facts of the case are that petitioner / respondent Mahesh Chandra Pathak got married to appellant Vimla Pathak on 12.03.2000, according to Hindu rites, in village Dhamola, Tehsil Kaladhungi, District Nainital. The parties to the matrimony lived together for three months only, and since then, living separately. There is no issue born out of the wedlock. It is pleaded by the husband in his petition under Section 13 of the Hindu Marriage Act, 1955, that his wife (appellant) has deserted him, and withdrawn from his society without any sufficient cause. It is further pleaded that on 21.01.2002, she filed a false criminal case relating to offence punishable under Section 498-A of I.P.C., and one punishable under Section 3/4 of the Dowry Prohibition Act, 1961, in which police filed a final report. However, the proceedings of said case are pending after the protest petition was filed by the wife. The petitioner sought a decree of divorce not only on the ground of desertion, but also on the ground of cruelty. 4) The respondent (present appellant) contested the petition before the trial court and filed her written statement. She admitted the marriage with the respondent Mahesh Chandra Pathak, but denied the other allegations. She pleaded that she was subjected to cruelty for non-fulfillment of demand of dowry. It is also pleaded by her that she did not desert her husband, but she was ousted by him on 02.07.2002, and since then, living in her parental house. 5) On the basis of the pleadings of the parties, the trial court framed following issues:- i) Whether, the petitioner was treated with cruelty by the respondent (present appellant)? ii) Whether, the respondent (present appellant) has deserted the petitioner (present respondent)? iii) Whether, the respondent (present appellant) used to be accompanied by her husband at the time when she went to and came from her parental house? iv) To what relief, if any, the petitioner is entitled? 6) After recording the evidence and hearing the parties, the trial court gave a finding that the petitioner (present respondent / husband) has successfully proved that he was subjected to cruelty at the hands of his wife. The trial court further found that it is also proved on the record that the wife deserted the husband. With these findings, the trial court decreed the suit for divorce. Hence, this appeal by the wife. 7) Admittedly, parties got married to each other on 12.03.2000. It is also not disputed that there is no issue born out of the wedlock. On going through the evidence on record adduced by the parties, we find that P.W. 1 Mahesh Chandra Pathak and P.W. 2 Smt. Janki Pathak has sufficiently proved the allegations relating to cruelty and desertion, made in the petition. No evidence was adduced on behalf of the appellant before the trial court to controvert the evidence adduced from the side of the husband. In the circumstances, this court finds no error of law or that of fact in recording the finding in favour of the husband by the trial court, as such, the husband (present respondent) is entitled to the decree of divorce. 8) However, we are conscious of the fact that the wife (appellant) is not an earning member, and requires to be maintained by her husband. The husband is an auto rickshaw driver. Considering the facts and circumstances of the case and economic status of the parties, we are of the view that to do complete justice between the parties, a condition is required to be imposed before granting the decree of divorce. It is admitted by learned counsel for the parties that ` 1,500/- per month is being paid by the husband to the appellant under Section 125 of Cr.P.C. Considering all the facts we think it just and proper to direct the husband (present respondent) to pay a lump sum permanent alimony amounting to ` 2,50,000/-, as a condition precedent for the decree of divorce. 9) Accordingly, this appeal is disposed of modifying the impugned judgment and decree passed by the trial court directing that the marriage between the parties shall stand dissolved on payment of a permanent alimony amounting to ` 2,50,000/- (Rupees two lac and fifty thousand only) within a period of three months from today by the present respondent to the appellant, failing which this appeal shall stand allowed, and the petition for divorce shall stand dismissed. Costs easy. (Sudhanshu Dhulia) (Prafulla C. Pant, J.) Dt. December 9, 2010. H. Negi