HC: Though cruelt by wife against husband is proved but Judges are giving suggestion to wife to file CrPC 127 for more maintenance !!!
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL FIRST APPEAL NO. 29/2011
W/o Sri Raj Bahadur Rayakwad,
D/o Late Sri Sompal Singh
R/o Quarter No. 219, Type-3, Sector I,
BHEL, Ranipur, Haridwar,
Tehsil & District Haridwar.
Raja Bahadur Rayakwad
S/o Sri Bihari Lal,
R/o Quarter No. 219 Type-3, Sector-1,
BHEL, Ranipur, Haridwar,
Tehsil & District Haridwar.
Mr. D.S. Mehta, Advocate, present for the appellant.
July 21, 2011
Coram :Hon’ble Prafulla C. Pant, J.
Hon’ble Servesh Kuar Gupta, J.
PRAFULLA C. PANT, J. (Oral)
This appeal, preferred under Section 19 of the Family Courts Act, 1984, is directed against the judgment and order dated 24.3.2011, passed by the Judge, Family Court, Haridwar in Suit No. 204 of 2005, whereby said Court has decreed the suit for divorce instituted by the respondent (husband) by moving petition under Section 13 of the Hindu Marriage Act, 1955.
2. Heard learned Counsel for the appellant and perused the lower court record. None turned up on behalf of respondent even after service of notice.
3. Brief facts of the case are that appellant Sneh Lata got married to respondent Raja Bahadur Rayakwad on 6.3.1972, following Hindu rites. Two daughters, namely, Gitanjali and Varsha, were born out of the wedlock in the 2
year 1974 and 1975 respectively. Out of the two daughters, Varsha is already married and she lives in Germany with her husband. Another daughter Gitanjali was doing MCA when the said petition was filed. In the divorce petition, filed by the respondent Raja Bahadur Rayakwad, who was aged 59 years at the time of filing the petition, pleaded that for more than 10 years, appellant (wife) was not discharging her matrimonial obligations and continuously treated him with cruelty. It is further pleaded by the husband that at the time of marriage, appellant was not well educated, and he got her educated thereafter. He also pleaded that he is looking after both the daughters. As to the cruelty, committed by his wife, it is pleaded by the husband in the petition for divorce that neither the wife cooks food for him nor allows him to enter in the kitchen so that he may cook food for himself. This has made the life of the husband miserable. He is left to go to hotels to have his every meal. It is also pleaded by the husband that a case under Section 125 of CrPC was filed by the wife, though she was living with her husband in his house, in which, vide order dated 21.9.2004, he was directed to pay maintenance @ ` 3,000/- per month, which he is paying to her. It is also alleged by the husband in the petition for divorce that his wife threatens him that if his ailing mother dared to enter in his house, she would sprinkle the kerosene oil and set herself on fire. The extreme allegation in the petition for divorce made by the husband is that his wife has gone to the extent of alleging that the respondent (husband) had illicit relations with her own sister. With these allegations, the decree of divorce was sought.
4. Appellant, who was respondent before the trial court, filed written statement in which she admitted that she was married to the present respondent and two daughters 3
were born out of the said wedlock. However, she denied the allegations of cruelty. She pleaded that her husband is a man of loose character. It is also alleged by her that after the retirement, the present respondent wants to withdraw his provident fund, etc. and deprive the appellant from the same. She has also pleaded that though she is living in the quarter of BHEL allotted to her husband, but she has no other house to go.
5. On the basis of the pleadings of the parties, the trial court framed following issues:
(i) Whether the opposite party treated the petitioner with cruelty, as alleged in the petition? If so, its effect?
(ii) Whether the petitioner has illicit relations with other women? If so, its effect?
(iii) To what relief, if any, the petitioner is entitled to?
6. The petitioners (present respondent in this appeal) got himself examined as PW1 Raja Bahadur Rayakwad, in support of his case. Wife also got her affidavit filed, but she did not produce herself for cross-examination even after being given several dates, and ultimately, her evidence was closed. In the circumstances, the trial court heard the learned Counsel for the parties and found that the husband has made out a case for divorce on the ground of cruelty committed by his wife.
7. Shri D.S. Mehta, learned Counsel for the appellant, argued before us that the appellant has no house to go, and at the old age, the respondent has neglected her. However, we are of the view that real issue before the trial 4
court was whether the wife treated her husband with cruelty or not. We find that it is proved by the husband, by adducing evidence, that the wife treated the husband with so much of cruelty that his life became miserable. Neither any food was given to him nor he was allowed to enter in the kitchen to cook for himself (He had to go to hotels for his every meal). Not only this, making allegation against the husband that he is in illicit relationship with his real sister, is a grave case of mental cruelty. It is also brought on record that appellant told her husband that if he dared to invite his ailing mother in the house, she would set herself on fire. All these instances, proved on the record, show nothing but cruelty on the part of the appellant against her husband. As such, we are in agreement with the trial court that the husband has proved that he was subjected to cruelty by his wife, and entitled to decree of divorce. In the circumstances, we do not find any scope of interference, in this appeal, with the findings recorded by the trial court and the decree of divorce passed by it.
8. As far as the maintenance is concerned, it is also proved on the record that under Section 125 of CrPC, the appellant is already getting ` 3,000/- per month as maintenance. In case, said amount is insufficient, as more than six years have gone by since the order was passed, the appellant (wife) may move an application under Section 127 CrPC for enhancement of the maintenance.
9. For the reasons as discussed above, this appeal has no force and the same is dismissed. No order as to costs.
(Servesh Kumar Gupta, J.) (Prafulla C. Pant, J.) 21.7.2011