The main legal point established is that mental cruelty, as defined by the Evidence Act, and voluntary deprivation of conjugal rights can constitute grounds for divorce under the Hindu Marriage Act.

JUDGMENT :

Narayan Singh Dhanik, J.

Both the above-titled appeals have been preferred against the judgment and order dated 16.9.2013 passed by the Principal Judge, Family Court, Dehradun, whereby the suit of the plaintiff/appellant (husband) for divorce under Section 13 of the Hindu Marriage Act, 1955 has been dismissed and the counter-claim of the defendant/respondent (wife) for right of residence has been decreed. First Appeal No. 140 of 2013 is preferred against the dismissal of suit for divorce, while the First Appeal No. 147 of 2018 is preferred against the decree of counter-claim of the defendant/respondent for the residence right.

2. Facts of the case are that the plaintiff/appellant married the defendant/respondent on 9.5.1997. Admittedly, it was the second marriage of both plaintiff and respondent. From the first marriage, the appellant have three daughters and a son, while the respondent (wife) has a daughter from her earlier marriage. After the marriage, matrimonial discord occurred between the parties and the appellant (husband) ultimately filed suit for divorce on the ground of cruelty. The respondent/wife filed her written statement. The Court below, on the pleadings of the parties, framed following points for determination:

(i) Whether the behaviour of the defendant had been cruel towards the plaintiff? If yes, its effect?

(ii) Whether the plaintiff is entitled to take advantage of his acts? If yes, its effect?

(iii) Relief?

(iv) Whether the respondent has right to reside in the residence of the plaintiff and whether, in lieu thereof, she is entitled to get the decree for residence right in the disputed property where she is residing?

(v) Whether the defendant has right of residence in the property C18, Turner Road, Claimant Towan, Dehradun, as is averred in paragraph 43 and 44 of the counter-claim?

(vi) Whether the defendant is entitled for the relief sought in the counter-claim?

3. Both the parties adduced their evidence. Plaintiff examined himself as PW1, while the defendant examined herself as DW1. The Court below, after examining the evidence, dismissed the suit for divorce and decreed the counter-claim of the respondent/wife for right of residence.

4. The Court below has dismissed the petition of the plaintiff on the ground that the acts alleged by the plaintiff against his wife do not come under the category of cruelty and allegations made against the defendant (wife) are general in nature and the plaintiff failed to prove the same.

5. At this stage, we may note here that during pendency of these appeals, efforts were made for settlement between the parties on 16.4.2019, though it could not be finalised. In terms of this compromise, the appellant/plaintiff had to pay an amount of rupees seventeen lakhs and fifty thousand, as permanent alimony, to the defendant/respondent and after the payment of the said amount, the defendant/respondent agreed to vacate the residence in question and both the parties agreed for dissolution of their marriage, with appropriate petition to be filed later before the Family Court. The respondent Ms. Meera Kaintura, however, now has a second thought about the matter. According to her seventy lakh is not enough to get her a decent accommodation in Dehradun.

6. Coming now therefore to the merits of the case and having perused the evidence adduced before the Court below, we are of the opinion that the reasons given by the Court below for dismissing the suit for dissolution of marriage are not sustainable and the finding of the Court below that there is no cruelty on the part of the defendant/respondent is perverse. The evidence was placed before the trial court and scrutinized. The plaintiff/appellant in his deposition has said that the defendant/respondent often used to quarrel with his daughter. Defendant/respondent started then living in a separate room in the same house and stopped talking to any of the member of the family. She used to cook food only for herself, and that too separately. S