The main legal point established is that instances of cruelty as defined under section 13 of the Hindu Marriage Act, 1955 can justify the grant of divorce.

Prafulla C. Pant, J.:-

This appeal preferred under section 19 of Fam­ily Court Act, 1984 is directed against judgment and order dated 31.10.2009 passed by Additional Judge, Family Court, Rishikesh, Dehradun in suit No.35 of 2007, whereby the said court has dismissed the petition moved by the peti­tioner (husband) under section 13 of the Hindu Marriage Act, 1955.

2. Heard learned counsel for the par­ties and perused the lower court record. (We also made efforts for reconciliation but failed).

3. Brief facts of the case are that the appellant/petitioner Rishi Mohan Nautiyal got married to respondent Shashibala on 15.01.2005 at Moradabad according to the Hindu rites. Out of wedlock one daughter named Bhumika was born on 14.04.2006. The petitioner (husband) filed a petition under section 13 of Hindu Marriage Act, 1955 against respondent seeking divorce on the ground of cruelty. It is pleaded by him in the petition that the behaviour of the respondent with the petitioner was cruel. He has pleaded that she (respondent) used to abuse the peti­tioner. It is also alleged that she used to assault him. It is also stated in the peti­tion that on 10.06.2007, the respondent crossed all the limits and poured kerosene oil on the petitioner. Petitioner (husband) has further pleaded that on that day po­lice was called (by the husband). It is al­leged by the writ petitioner that respond­ent (wife) left her matrimonial house on.22.06.2007, and since then she is living in her parental house.

4. Respondent contested the divorce petition before the trial court and filed her written statement in which she admitted having got married with petitioner Rishi Mohan Nautiyal. She also admitted that a female child was born out of wedlock. However, rest of the allegations were de­nied by her. She pleaded in the written statement that the petitioner and his mother used to demand of dowry from the respondent, and on non-fulfillment of de­mand of dowry she was not allowed to live with the petitioner. She further pleaded that the petitioner was a divorcee at the time of marriage with the respondent. Lastly it is pleaded in the written state­ment that she was ousted on 22.06.2007 by the petitioner, and since then she is living with her mother.

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

(i) Whether the respondent treated the petitioner with cruelty and subjected him to mental cruelty?

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

Both the parties led their oral and documentary evidence before the trial court. The trial court after hearing the parties gave a finding that minor incident of quarrel can­not be said to be cruelty, and decided issue no. (i) against the petitioner, and dismissed the petition. Hence this appeal.

6. Perusal of the evidence on record shows that the petitioner has specifically stated in paragraphs-11 and 12 of his af­fidavit filed in evidence before the trial court that on 09.06.2007 the respondent broke the mobile phone of the petitioner and on 10.06.2007 she poured kerosene oil not only upon the petitioner but also on the daughter BhumikavWhen the pe­titioner got threatened oi being setting ablazeu he informed at the police out post. The petitioner has further stated on oath that the two police constables came in the.house. As to the incident dated 22.06.2007 when the wife left her hus­band's house, it is stated in the affidavit of the husband that she left after quarreling with the petitioner. Though the fact is denied by wife in her affidavit filed before the trial court in evidence, but be­fore this Court (at the time of reconcilia­tion, efforts was made) she admitted that the police did come in the house on that day i.e. 10.06.2007.

7. Learned counsel for the appellant submitted that after the divorce petition was filed, the respondent lodged false first information report relating to demand of dowry and the petitioner was arrested by the police. This fact is admitted, at the time

Click Here to Read the rest of this document