IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL First Appeal No.116 of 2009 Seema Mehta @ Shweta Mehta W/o Gajesh Dutt Mehta D/o Bansi Lal Sharma R/o Wing No. 3, Barrack no. 15/5 Prem Nagar, District Dehradun ….…..…Appellant Versus Gajesh Dutt Mehta S/o Shri Sundar Singh Mehta R/o Kalshi, District Dehradun ..……….Respondent Shri R.P. Nautiyal, Advocate, present for the appellant. Mrs. Prabha Naithani, 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 31.07.2009, passed by Principal Judge, Family Court, Dehradun, in suit no. 204 of 2007, whereby said court has decreed the suit for divorce on petition under section 13 of Hindu 2 Marriage Act, 1955, filed by the respondent Gajesh Dutt Mehta (husband). 2. Heard learned counsel for the parties and perused the lower court record. 3. In brief, factual matrix of the case is that appellant Seema Mehta @ Shweta Mehta got married to the respondent Gajesh Dutt Mehta on 13.07.2001 at Dehradun. There is no issue born out of the wed-lock. From 13.05.2002, the parties are living separately. Respondent Gajesh Dutt Mehta (husband) filed a petition under section 13 of Hindu Marriage Act, 1955, for divorce on the grounds of desertion and cruelty, in the year 2007. It is pleaded by him that the appellant was of independent nature and wanted a free life. Respondent (husband) is serving in Indian Army. His wife wanted that the respondent should purchase a house in Dehradun to run a computer center and for that purpose she demanded ` 6,00,000/- (Rupees six lac). When the husband could not fulfill the condition she left his house on 13.05.2002. Alleging desertion for a period of more than five years, and also that the behavior of the wife was cruel to the husband, relief of divorce was sought from the trial court. 3 4. The appellant (wife) contested the petition for divorce, and filed her written statement in which she admitted having got married to the respondent but denied the allegations of desertion and cruelty. Rather she alleged that the respondent is a drunkard, and hurls abuses, and assaults the appellant. However, this much is admitted by her that she left house of her husband on 13.05.2002. It is also not denied that there is no issue born out of the wed-lock. 5. On the basis of the pleadings of the parties,the trial court framed the following two issues:- (i) Whether the appellant treated the respondent with cruelty, if so, its effect. (ii) To what relief, if any, petitioner is entitled? 6. Though no issue on the point of desertion was separately framed by the trial court but the trial court accepted the evidence adduced by both the parties on the point of desertion as such, no prejudice was caused in the trial. After recording evidence, and hearing the parties, the trial court decreed the suit contesting both the issues in favour of the respondent (husband). Aggrieved by said judgment and decree dated 31.07.2009, passed in suit no. 204 of 2007, this 4 appeal is filed by the wife challenging the decree of divorce passed by the trial court. 7. Admittedly, parties to this appeal got married to each other on 13.07.2001, according to Hindu Rites at Dehradun. It is also admitted to the parties that there is no issue born out of the wed-lock. It is also not disputed that appellant is living separately from 13.05.2002, from her husband. She has pleaded that she was forced to leave her husband's house but the respondent had pleaded that his wife deserted him without sufficient cause. By the time, petition under section 13 of Hindu Marriage Act, 1955, was filed before the trial court, five years had passed. P.W.1 Gajesh Dutt Mehta has specifically pleaded that his wife left his company without any sufficient reason after he failed to fulfill the demand of his wife for construction of a house at Dehradun, and so that she could run a computer center . He has also specifically stated that ` 6,00,000/- (Rupees six lac) were demanded by the wife which he could not pay to her. D.W.1 Seema Mehta @ Shweta Mehta in her cross-examination admits that she left her husband's house after living there for 10-11 months. She further admits in her cross-examination that she did not care to file any petition under section 9 of Hindu Marriage Act, 1955, seek relief of restitution of 5 conjugal rights against her husband. Though she has made allegations in the written statement that she was subjected to cruelty for non fulfillment of demand of dowry but she did not made any complaint against her husband till date. Lastly, she admitted that she filed a criminal case against her husband relating to offence punishable under section 406 IPC (indicating that now she wants her streedhan back from the house of her husband). Having reassessed the entire evidence on record, we find that the husband has made out a case for divorce on the grounds of desertion as well as cruelty. As such, we do not find any error of law committed by the trial court in granting decree of divorce. 8. However, we are conscious of the fact that the respondent (husband) is serving in the Indian Army as Non-Commissioned Officer, and the wife is not earning member. That being so, to do complete justice between the parties, we think it just and proper after considering economic status of the parties that the husband (respondent) be directed to pay a lump-sum permanent alimony of ` 5,00,000/- (Rupees five lac) to his wife within a period of three months, which shall be condition precedent for the divorce. 6 9. Accordingly, the appeal is disposed of with the modification in the impugned decree that the decree of divorce granted to the respondent under section 13 of Hindu Marriage Act, 1955, shall be subject to the condition that the respondent (husband) shall pay to his wife (present appellant) ` 5,00,000/- (Rupees five lac) as a one time lump-sum permanent alimony or deposit in her favour in the trial court, within a period of three months from today, failing which the petition for divorce shall stand dismissed, and this appeal shall stand allowed. If the condition is fulfilled as directed above, the decree of divorce shall stand affirmed. Costs easy. (Sudhanshu Dhulia,J.) (Prafulla C. Pant,J.) 25.11.2010 Parul