Court:UTTARAKHAND HIGH COURT
Bench: JUSTICE Prafulla C. Pant & Sudhanshu Dhulia
NEELAM BISHT Vs. NARENDRA SINGH BISHT On 19 May 2011
Merely for the reason that wife is suffering from illness, no justification on part of wife for deserting her husband and live in adultry. Divorce on ground of desertion.
This appeal preferred under Section 28 of the Hindu Marriage Act, 1955 (wrongly mentioned under Section 19 of the Family Courts Act, 1984) is directed against the judgment and order dated 27.3.2010, passed by Civil Judge (Senior Division), Pithoragarh, whereby said Court has allowed the petition filed by the husband under Section 13 of the Hindu Marriage Act, 1955 against the appellant (wife) (in District Pithoragarh no Family Court is established).
2. Heard learned Counsel for the parties, and perused the lower Court record.
3. Brief facts of the case are that respondent Narendra Singh Bisht got married to Neelam Bisht (present appellant) on 10.2.1981 following the Hindu rites. Out of the wedlock, two daughters, namely, Mamta Bisht and Nabita Bisht and two sons, namely, Gaurav Bisht and Pankaj Bisht were born. Respondent Narendra Singh Bisht (husband) filed a divorce petition before the Trial Court alleging that in the year 1999, the appellant left the house of the respondent without any sufficient cause. It is also pleaded by the husband that appellant Neelam Bisht lives in adultery with Jogendra Ram @ Jogi Ram (respondent No. 2 before the Trial Court) in Dharchula. It is also stated by the petitioner (husband) that he got purchased a house for his wife in Nainital, but she sold the same and purchased a piece of land in Pithoragarh, whereafter the said property was also sold by her. It is also alleged in the petition that Neelam Bisht (wife) started making money by defrauding the unemployed youths promising them that she would provide them job. It is further alleged that a criminal case was registered against her, and she was arrested, and in the lockup, she came in contact with Jogendra Ram @ Jogi Ram (respondent No. 2 before the Trial Court) and after the two got released, they started living in Dharchula. Apart from the ground of adultery, the husband has further pleaded that the appellant had deserted him without any sufficient cause. On the said two grounds, divorce decree was prayed by the husband.
4. The appellant contested the petition of divorce before the Trial Court, and filed a written statement. She admitted that she got married to Narendra Singh Bisht. She also admitted that four children were born out of the wedlock. However, she pleaded that she has not deserted her husband, rather it is the husband who has left his wife by making allegations against her that she was mentally ill. Though it is admitted by her that a criminal case was registered against her, but she alleged the same to be false. Neelam Bisht (wife) admitted in her written statement that she was living with Jogendra Ram @ Jogi Ram in Dharchula, but denied that she has any illicit relations with him. Jogendra Ram @ Jogi Ram also filed a separate written statement before the Trial Court. He pleaded in his written statement that the relations between him and Neelam Bisht are that of landlord and tenant only. However, respondent No. 2 did not contest the petition further, and as against him suit proceeded ex parte. But the appellant (wife) continued to contest the suit till the end.
5. On the basis of the pleadings of the parties, following issues were framed by the Trial Court:
(1) Whether opposite party No. 1 Neelam Bisht was living adulterous life with opposite party No. 2 Jogendra Ram? If so, its effect?
(2) Whether opposite party No. 1 (wife) has deserted the petitioner (husband) since 2001? If so, its effect?
(3) To what relief, if any, the petitioner is entitled?
6. Both the parties led their oral evidence, and also filed documentary evidence. The Trial Court after considering the evidence on record, and after hearing the parties, decided both the issues in favour of the husband, holding that the wife was living in adultery, and she deserted her husband. Accordingly, vide impugned judgment and order dated 27.3.2010, the Trial Court (Civil Judge (Sr. Division), Pithoragarh) in Suit No. 41 of 2008, Trial Court decreed the suit for divorce and allowed the petition under Section 13 of the Hindu Marriage Act, 1955. Hence, this appeal.
7. Mr. D.S. Mehta, learned Counsel for the appellant submitted that the Trial Court has erred in law holding that the appellant was living in adultry. He contended that it was the husband, who ousted the appellant from his house, as such, it cannot be held that she deserted her husband. To appreciate the arguments advanced on behalf of the appellant, we went through the evidence on record.
8. D.W. 1 Neelam Bisht (present appellant) has admitted in her statement that she got married to Narendra Singh Bisht, and four children were born out of the wedlock. However, she has stated in her affidavit, filed before the Trial Court, that the allegations of leading life of adultery, and relating to desertion of her husband are wrong. But in her cross-examination, she admitted that she stood criminal trial in connection with Criminal Case No. 92 of 2003 relating to offences punishable under Sections 420, 467, 468 and 471, IPC, in which she remained in the judicial custody (later convicted). She has further admitted that while she was in lockup, she came in contact with Jogendra Ram @ Jogi Ram (respondent No. 2 before Trial Court), who is resident of Dharchula. She further admitted in her cross-examination that she lives in Dharchula in the house of Jogendra Ram. Not only this, she has further admitted that she is running shop of Jogendra Ram in Dharchula. In these circumstances, the Trial Court has believed the evidence adduced by P.W.1 Narendra Singh Bisht that his wife Neelam Bisht is living in adultery with Jogendra Ram. Having reassessed the evidence on record, we do not find that the Trial Court has committed any error of law in coming to the conclusion that the appellant was living in adultery with Jogendra Ram in Dharchula.
9. As to the desertion, P.W.1 Narendra Singh Bisht has stated that his wife Neelam Bisht (present appellant) withdrew her from his society without any sufficient cause. He has further stated that he purchased house for his wife in Nainital, which she sold, and thereafter purchased a piece of land in Pithoragarh and later the same was also disposed of by her. In his cross- examination P.W. 1 Narendra Singh Bisht has stated that after January, 2002 she never joined his company. He has further stated that the conjugal relations did not revive between the parties to matrimony after 26th of July, 1999, when for the first time, she left the company of her husband.
10. In reply to this, in the cross-examination of D.W.1, it has come that a house was purchased in her name but she says that to save his income from income tax, the husband purchased said house. She further stated that with the consent of her husband, she sold the property at Nainital, and purchased one at Pithoragarh. In her affidavit, D.W.1 Neelam Bisht has not disclosed on which date she was forcibly ousted by her husband from his house. In the circumstances, in our opinion, Trial Court has rightly believed the statement of the husband that his wife deserted him without any sufficient cause.
11. Mr. D.S. Mehta, learned Counsel for the appellant submitted that the wife was suffering from epilepsy and due to her illness, she cannot be held responsible for not joining the company of her husband. Epilepsy is a disease which has effect only during seizure, and after the patient comes out of it, he/she has no difficulty in understanding his responsibilities and duties. As such, merely for that reason, we do not see any justification on the part of the appellant for deserting her husband or living with Jogendra Ram @ Jogi Ram in Dharchula.
12. For the reasons as discussed above, we find no force in this appeal, which is liable to be dismissed. The appeal is dismissed. No order as to costs.
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