HIGH COURT OF UTTARAKHAND AT NAINITAL

First Appeal No. 36 of 2025

Kanchan Setiya ......Appellant

Versus

Nitin Setiya ..….Respondent

Present:

Mr. Shailabh Pandey, Advocate for the appellant.

Mr. M.K. Ray, Advocate for the respondent.

JUDGMENT

Coram: Hon’ble Ravindra Maithani, J

Hon’ble Alok Mahra, J.

Hon’ble Ravindra Maithani, J. (Oral)

Instant appeal is preferred against the judgment and

order dated 23.12.2024, passed in Original Suit No. 131 of 2022, Kanchan Setiya Vs. Nitin Setiya, by the court of Additional Principal Judge (Additional Charge), Family Court, Udham Singh Nagar. By which, the petition filed by the appellant under Section 13 (1) (i-a) of the Hindu Marriage Act, 1955 (“the Act”) seeking divorce has been

rejected.

2. The appellant sought divorce inter alia on the ground that she and the respondent were married on 01.02.2013. But after marriage, she was harassed and tortured for and in connection with the demand of dowry. The respondent would pick quarrels on small issues and assault the appellant with shoes and slippers. The appellant continued bearing it. On 13.05.2016, she gave birth to a

baby boy, but the acts of cruelty perpetrated by the respondent persisted even thereafter. But, it is also one of the grounds for divorce that the respondent alleged that he is not the biological father of the child delivered by the appellant. Finally, according to the appellant, the respondent expelled her from her matrimonial house.

3. The respondent did file his objections and denied all the allegations of cruelty and harassment for any reason whatsoever. According to him, after delivering the baby boy, on 13.05.2016, the appellant started insisting that she wanted to stay in her parental house; she does not want to stay in her matrimonial house. Thereafter, according to the respondent, the conduct of the appellant became cruel. But, the respondent continued bearing all these cruel treatment that was meted out to him. According to the respondent, after giving birth to the baby boy, the appellant became too weak. She was treated for it also. It is the claim of the respondent that he has taken all care of the appellant. He had also purchased a plot in the name of the appellant, on which he constructed a house after taking a housing loan.

4. In order to prove its case, the appellant examined herself as PW1 Kanchan Setiya, PW2 Bheemsen and PW3 Kalyan Das Chabbra.

5. On behalf of the respondent, he himself was examined as DW1 Nitin Setiya, DW2 Harcharan Setiya, who is the father of the respondent, had filed affidavit in his examination in chief. But, he did not appear for cross examination. His evidence has rightly not read into evidence by the court.

6. After hearing the parties, by the impugned judgment and order dated 23.12.2024, the petition filed by the appellant was dismissed.

7. Heard learned counsel for the parties and perused the record.

8. Learned counsel for the appellant would submit that it is a case of cruelty. He has raised following points in his submission:-

(i) The respondent has always neglected the appellant in terms of not maintaining her.

(ii) The respondent had committed maarpeet and harassment towards the appellant.

(iii) The respondent had taken a loan on the property owned by the appellant. The respondent did not repay the loan. Therefore, the appellant had to sell the property to repay the loan. It is argued that it also amounts to cruelty.

(iv) The respondent had levelled false allegation of infidelity alleging that the child delivered by the appellant is not the child of the respondent. It per se amounts to cruelty. Learned counsel has also argued that, in fact, the appellant has stated about it in her examination in chief affidavit, but she has not been cross examined on this fact, which amounts to admission of the allegations levelled on the appellant.

9. On the other hand, learned counsel for the respondent argued that nothing has been proved by the appellant to entitle her to a decree of divorce. He submits that, in fact