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CASE NO.:

Appeal (civil) 20-21 of 1999

PETITIONER:

SAVITRI PANDEY

Vs.

RESPONDENT:

PREM CHANDRA PANDEY

DATE OF JUDGMENT: 08/01/2002

BENCH:

R.P. Sethi & Y.K. Sabharwal

JUDGMENT:

SETHI,J.

Alleging cruelty and desertion against the husband, the appellant-

wife approached the Matrimonial Court under Section 13 of the Hindu

Marriage Act (hereinafter referred to as "the Act") praying for

dissolution of her marriage with the respondent by a decree of divorce.

She also prayed for direction to the respondent to return her ornaments

given to him at the time of marriage. The Family Judge allowed the

petition and dissolved the marriage of the parties on the ground of

desertion by the husband. The appellant was also granted a decree of

Rs.12,000/- towards the price of the scooter, allegedly given at the

time of the marriage and payment of Rs.500/- per month as permanent

alimony. Both the husband and the wife preferred appeals against the

order of the Family Court as the wife was not satisfied with the part of

the order refusing to grant a decree in her favour in respect of

properties claimed by her and the husband was aggrieved by the order of

dissolution of the marriage by a decree of divorce. Both the appeals

were disposed of by the impugned order holding that the appellant-wife

herself was a defaulting party and neither the allegations of cruelty

nor of desertion were proved. The order passed under Section 27 of the

Hindu Marriage Act and for permanent alimony was also set aside. The

grievance of the appellant-wife is that the High Court was not justified

in setting aside the findings of fact arrived at by the Family Court and

that she had proved the existence of cruelty and desertion against the

respondent. It is contended that as the appellant-wife was proved to

have been living separately, it was to be presumed that the respondent

had deserted her.

The facts of the case giving rise to the filing of the present

appeals are that marriage between the parties was solemnised on

6.5.1987. The appellant-wife lived with the respondent-husband till 21st

June, 1987 and according to her the marriage between the parties was

never consummated. After 21st June, 1987 the parties started living

separately. The appellant alleged that her parents spent more than

Rs.80,000/- with respect to the ceremonies of the marriage and also gave

several articles in the form of ornaments, valuables, cash and kind as

per demand of the respondent. The respondent and his family members

allegedly made further demands of Colour TV, Refrigerator and some

other ornaments besides hard cash of Rs.10,000/-. The father of the

appellant obliged the respondent by giving him Rs.10,000/- in the first

week of June, 1987 but could not fulfil the other demands of his

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parents. The respondent and his family members were alleged to have

started torturing the appellants on false pretexts. Aggrieved by the

attitude of the respondent and his family members, the appellant states

to have filed a petition under Section 13 of the Act seeking dissolution

of marriage by a decree of divorce along with prayer for the return of

the property and grant of permanent alimony. The respondent also filed

a petition seeking divorce and grant of other reliefs. However, on

14.5.1996 the respondent filed an application for withdrawal of his

matrimonial case which was allowed on 19.5.1996. The appellant had

alleged that the respondent was having illicit relations with a lady

residing in Gaya at Bihar with whom he was stated to have solemnised the

marriage. The allegations made in the petition were denied by the

respondent and it was stated that in fact the appellant-wife was taking

advantage of her own wrongs.

On the basis of the pleadings of the parties, the following issues

were framed:

"1. Whether the defendant has treated the petitioner