Misc. Case No. 4 of 2009 · Uttarakhand High Court · 2010

Judgment

1. This appeal, preferred under Section 19 of the Family Courts Act, 1984, read with Section 28 of the Hindu Marriage Act, 1955, is directed against judgment and decree dated

25.2.2010 passed by Judge, Family Court, Nainital in Suit No. 89

of 2007 and Misc. Case No. 4 of 2009. In said Suit Smt. Neeru Joshi (appellant/wife) sought decree of divorce against her husband under Section 13 of the Hindu Marriage Act, 1955. In Misc. Case No. 4 of 2009, the appellant sought alimony under Section 25 of said Act.

2. Heard learned counsel for the parties, and perused the lower court record.

3. Brief facts of the case are that the appellant/wife moved a petition under Section 13 of the Hindu Marriage Act, 1955, stating that she got married to respondent Dileep Chandra Joshi on 3.12.1997 at Haldwani (district Nainital). It is pleaded that after her marriage, she joined company of her husband in Mumbai, and started living there. It is further pleaded that out of the wedlock, one son named Vivek Joshi, born on 19th April,

1999. It is alleged by the wife that she was treated with cruelty by her husband in Mumbai. She was beaten in 1998 and she 2 suffered silently. In the year 2001, she was so much physically assaulted by her husband that her nose-bridge got fractured. She has pleaded that when the behaviour of the respondent became intolerable, in 2005 she called her brother and came back to her parental house in Haldwani, and is living there since then. The son, born out of the wedlock, continued to live with his father in Mumbai. It is also pleaded by the wife that her husband has neither cared, nor bothered as to how she is living in Haldwani without any means to maintain herself.

2. In the application filed under Section 25 of the Hindu Marriage Act, 1955, similar allegations are made, and it is pleaded that the husband, who serves in a multinational company in Mumbai as an Accountant, has means to pay the maintenance and alimony to the wife, to which she is entitled.

3. In the written statement filed on behalf of the respondent, the factum of marriage with the petitioner/appellant, and the fact that son named Vivek Joshi born out of the wedlock are admitted, however, rest of the allegations are not admitted to the respondent (husband). It is pleaded by him that the respondent treated the petitioner with love and affection. It is further pleaded by him that his wife is of an independent nature and wants to live a free-life. It is further pleaded that the petitioner/appellant is living at her own will in Haldwani. As to the application moved for alimony, it is admitted that the respondent is serving in a private company, but his earnings is hardly enough to maintain himself and his son living with him.

4. The trial court, on the basis of the pleadings of the parties, framed the following issues:-

1. Whether the respondent treated the petitioner with cruelty and harassed her, and had deserted the petitioner for last two years, as alleged? 3

2. Whether the respondent is ready to keep his wife and willing to live with her? if so, its effect. 3. To what relief, if any, the petitioner is entitled?

5. The trial court, after recording all the evidence of the parties, found that the wife is living in her parental house in Haldwani at her own will, and the ground of divorce is not made out. Accordingly, the suit, and the application for alimony were dismissed. Aggrieved by said judgment and order, this appeal is preferred.

6. Admittedly, appellant Neeru Joshi is married respondent Dileep Chandra Joshi. They got married on 3.12.1997. It is also admitted that out of the wedlock, a son named Vivek Joshi was born on 19.4.1999. It is also evident from the record that the parties to the matrimony lived together for almost seven years, before the wife started living in Haldwani in her parental house. The question before us is, whether the petitioner/appellant was subjected to cruelty by her husband and compelled to leave her husband(cid:146)s house or not? From the statement of PW1 Neeru Joshi, it appears that she was beaten by her husband in the year 1998. Again in the year 2001, she was physically assaulted so much that she suffered a fracture in her nose-bridge. She has stated on oath that at a times she was assaulted by her husband in the presence of the public. DW1 Dileep Chandra Joshi though denies that he treated his wife with cruelty, but he has not specifically denied the specific incidents brought on record by the wife. Merely for the reason that the wife did not lodge FIR, or did not make any complaint earlier, the aforesaid incidents cannot be brushed aside. In our opinion, the trial court has erred in law in appreciating the evidence adduced on behalf of the petitioner/appellant.

7. No doubt, we do find it and concur with the trial Court that the petitioner /appellant Neeru Joshi is living in her 4 parental house in Haldwani on her own volition since 2005, as such no case for divorce on the ground of desertion is made out. But as far as entitlement of decree of divorce on the ground of cruelty is concerned, we do not agree with the finding recorded by the trial court, and on re-appreciating the evidence on record, we find that the wife has proved the case that she was subjected with cruelty by her husband, and as such, entitled to the decree of divorce.

8. As to the alimony, what is required is the economic status of the parties and the liabilities with them. No doubt, admittedly the respondent is serving in some private company and has means to pay the maintenance. On the other hand, the wife is unable to maintain herself as she is jobless. We have also to keep in mind that the son of the parties is living with the father. Considering all the facts and circumstances of the case, we find it to be a fit case to direct the husband to pay a lump sum amount of permanent alimony amounting to ‘ 5,00,000/- (Five Lacs) to his wife (appellant).

9. Accordingly, the appeal is allowed. Impugned judgment and decree dated 25.2.2010 passed by Judge, Family Court, Nainital in Suit No. 89 of 2007 and Misc. Case No. 4 of 2009 is set aside. The petition under Section 13 of the Hindu Marriage Act, 1955, moved by the wife stands allowed. Marriage between the parties is dissolved. The application under Section 25 of Hindu Marriage Act, 1955 for permanent alimony is allowed and the respondent is directed to pay ‘ 5,00,000/- (Five Lacs) as a lump sum amount of permanent alimony to his wife (appellant Neeru Joshi) within a period of three months. (Sudhanshu Dhulia, J.) (Prafulla C. Pant, J.)

18.11.2010 Rathour