Judgement - Section 28 - Cruelty - Decree of Divorce

Court:Uttarakhand High Court

Bench: Nirmal Yadav & Prafulla C. Pant

Godambari Devi Vs. Devi Prasad & Ors. On 16 September 2010

Law Point:
Hindu Marriage Act, 1955 — Section 28 — Appeal against grant of decree of divorce — Appellant treated husband with cruelty and deserted him in May 1996 without any sufficient cause — Appellant has no means to maintain herself while her husband is in Government job working as pharmacist — Decree of divorce confirmed subject to one time lumpsum alimony amounting to Rs. 5 lacs to wife.

JUDGEMENT

1. This appeal, preferred under Section 28 of the Hindu Marriage Act, 1955, is directed against the judgment and decree dated 3.6.2009 passed by District Judge, Tehri Garhwal, in suit No. 12 of 2006 whereby the said Court has granted decree of divorce on the petition filed by respondent No. 1 (Devi Prasad), against the appellant Godambari Devi.

2. Heard learned Counsel for the parties and perused the lower Court record.

3. Brief facts of the case are that appellant Godambari Devi got married to respondent No. 1 Devi Prasad in the intervening night of 17-18 May, 1995 according to Hindu rites. A son (Suraj) was born out of wedlock in the month of March, 1996. Respondent No. 1 Devi Prasad (Husband) filed a divorce petition under Section 13 of the Hindu Marriage Act, 1955 against his wife Godambari Devi in the year 2006 before District Judge, Tehri Garhwal (There is no Family Court established in the District of Tehri Garhwal). It is pleaded in the said petition that Godambari Devi was a woman of independent nature and she was not ready to live in the joint family. It is alleged that after marriage, she started misbehaving with the old parents of the petitioner (present respondent No. 1). It is also pleaded that on her insistence, the property of the family of the petitioner was partitioned, even this did not satisfy the appellant and the respondent No. 1 Devi Prasad had to take separate rental accommodation for himself and his wife. Thereafter, the aforesaid son was born out of the wedlock. But the wife continued to treat her husband with cruelty, and deserted him on 25.5.1996 without sufficient reason. She went to her parental house along with son. In the petition, the husband has made allegation that his wife is living in adultery with respondent No. 2 Shivraj and respondent No. 3 Dinesh Purwal. It is also alleged that a female child was born due to relations between Dinesh Purwal and Godambari Devi. With these allegations petitioner Devi Prasad sought decree of divorce.

4. Appellant Godambari Devi filed written statement before the Trial Court and contested the suit. However, she admitted having married to Devi Prasad and it is also admitted that a son was born out of the wedlock. Rest of the allegations made in the petition were denied. In paragraph 6 of the written statement, it is stated that the appellant got lodged a dowry harassment case against her husband, who remained in jail in connection with offence punishable under Section 498A, IPC. In the additional pleas, it was pleaded by her that the husband (Devi Prasad) has not cared to maintain her (appellant Godambari Devi). It is also alleged by her that he (Devi Prasad) lives with another woman. She has pleaded that it was she, who was subjected to cruelty by her husband. This fact is not denied by her that she lived with Devi Prasad only till May, 1996. She has further pleaded that Devi Prasad is living in Dhanaura (State of U.P.) where he is posted as Pharmacist, and is in the Government service. It is alleged that there, he has kept another woman with him and there are two children born through her.

5. Respondent No. 2 Shivraj did not contest the petition. Respondent No. 3 Dinesh Purwal filed written statement but did not contest the suit nor entered in the witness box.

6. The Trial Court on the basis of the pleadings of the parties framed following issues:

(i) Whether the respondent No. 1 has treated the petitioner with cruelty as alleged in the petition?

(ii) Whether the respondent No. 1 has been living in adultery with respondent Nos. 2 and 3 as alleged in the petition?

(iii) Whether the respondent No. 1 has deserted the petitioner since 25.5.1996 as alleged in the petition?

(iv) To what relief, if any, is the petitioner entitled?

After recording the evidence and hearing the parties, the Trial Court found that the petitioner (present respondent No. 1) failed to prove charge of adultery against the appellant, but he has successfully proved the ground of cruelty and that of desertion for his entitlement to the decree of divorce. Accordingly, vide impugned judgment and decree dated 3.6.2009 passed by learned District Judge, Tehri Garhwal, in suit No. 12 of 2006, decree of divorce was granted.

7. We have gone through the statements of PW1 Indramani (on the fact adultery between appellant and respondent No. 3), PW2 Devi Prasad (husband), PW3 Ramesh Dutt (landlord) and DW1 Godambari Devi (appellant), and also perused the documentary evidence. Having reassessed the evidence on record, we are in agreement with the Trial Court that plea of adultery is not proved on the record though ground of cruelty and that of desertion are sufficiently proved.

8. Admittedly, the marriage between Godambari Devi (appellant) and Devi Prasad (respondent No. 1) was solemnized in the intervening night of 17-18 May, 1995. Also, it is admitted between parties that a son was born out of the wedlock in the month of March, 1996. It is not disputed, rather admitted, that appellant Godambari Devi and her husband are separately living since May, 1996. PW2 Devi Prasad has narrated the acts of cruelty allegedly committed by his wife. He has stated that not only his wife misbehaved with his parents but also got partitioned the family property. After this, she wished the couple lived in separate rental accommodation. Even this did not satisfy her. It is further stated by PW2 Devi Prasad that in that separate accommodation also he was subjected to cruelty by his wife. He has specifically stated that on 2.8.1995 he was given threat to his life by his wife Godambari Devi. PW2 Devi Prasad has further stated that his wife (Godambari Devi) has left his house without any sufficient reason on 25.5.1996 and did not return even after he made several efforts to bring her back. Statement of PW2 Devi Prasad gets corroborated from the statement of PW3 Ramesh Dutt (landlord). In reply to this, DW1 Godambari Devi though has controverted the evidence adduced by her husband but the testimony adduced by husband is not only corroborated by PW3 Ramesh Dutt but also from the documentary evidence.

9. In the circumstances, the Trial Court has rightly believed the fact that appellant Godambari Devi subjected har husband Devi Prasad with cruelty and deserted him in the month of May, 1996 without any sufficient cause.

10. However, we are of the view that Trial Court has erred in ignoring the fact that appellant Godambari Devi has no means to maintain herself while her husband is in Government job working as pharmacist. To do the complete justice between the parties, we are of the view that Trial Court should have directed the husband to pay proper alimony to the wife. Having heard learned Counsel for the parties, after considering the facts and circumstance of the case, economic condition and status of the parties, we are of the view that decree of divorce should be affirmed, only if respondent No. 1 Devi Prasad (husband) pays one time lumpsum alimony amounting to rupees five lakh to his wife within a period of three months.

11. Accordingly, this appeal is disposed of with a direction that if respondent No. 1 (Devi Prasad) pays five lakh to the appellant (Godambari Devi) or deposits in her favour before the Trial Court Rs. five lakh, as one time permanent alimony within a period of three months, the decree passed by the Trial Court granting the divorce shall stand affirmed. If the condition is not fulfilled as directed above, the appeal shall stand allowed and petition for divorce shall stand dismissed.

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