LALIT MOHAN SHARMA Vs. POONAM SHARMA

JUDGEMENT

(1.) This is plaintiff's appeal under Section 19 of Family Court's Act, 1984 (hereinafter referred to as 'Act, 1984') arising from judgment and decree dated 02.12.2009 passed by Sri N.A. Zaidi, Principal Judge, Family Court, Meerut in Matrimonial Petition No. 1002 of 2008 filed by plaintiff-appellant/husband under Section 13 of Hindu Marriage Act, 1955 (hereinafter referred to as 'Act, 1955') seeking divorce on the ground of cruelty and desertion which has been dismissed by Court below.

(2.) Appellant Lalit Mohan Sharma instituted matrimonial petition under Section 13 of Act, 1955 stating that he and his wife Smt. Poonam Sharma, defendant-respondent, both are Hindu by religion and were married according to the Hindu rituals on 02.03.2000 at Garhmukteshwar , District Ghaziabad. The plaintiff is educated upto 12th class while defendant possess qualification of M.A. Both knew each other even before marriage and they married out of their own choice with consent of their parents, without any dowry. Couple gave birth to a baby girl Km. Sonalika @ Khushboo on 29.12.2000. Defendant's father advanced Rs. 38,000/- through bank-draft of Cooperative Society, Haridwar for purchasing motorcycle but plaintiff returned the same to defendant's father. The plaintiff could not get employment elsewhere, hence started serving with his elder brother, who was having a medical store, at a monthly salary of Rs. 1,200/-. Since marriage, parties were residing at 111, New Prabhat Nagar, Meerut, the place of plaintiff's parents, where his elder brother Krishna Kant Kaushik and his family are also residing. Defendant's father Sri Mohan Chandra Sharma was residing alone at 94, Bhatwara, Meerut while her mother was residing at Garhmukteshwar, District Ghaziabad and her two brothers were getting education at Meerut and at the time of filing suit, were employed. Defendant was pressurizing plaintiff either to stay at Garhmukteshwar or at some other place by taking a house on rent so that she may have convenience of going to her father's residence. Since plaintiff was not earning enough so as to live at a separate rented accommodation, hence could not agree with the request of respondent. The defendant used to go to her father's residence frequently, almost every 2nd and 3rd day. Income of plaintiff was very limited and, therefore, household expenses of parties were almost met by plaintiff's parents. The defendant, when failed to persuade plaintiff to stay away in a rented accommodation, started cruel behaviour by misbehaving with family members and threatening of taking divorce. Whenever plaintiff's friends come, she used to misbehave before them also, instead of offering tea etc. and show better hospitality to them. A similar treatment was shown to the plaintiff's friend on 28th April, 2003. Instances of cruelty have been mentioned in para 17, 18 and 19 of the plaint which read as under:-

(3.) On 26th May, 2003, defendant called her younger brother Sonu and despite persuasion of plaintiff, did not agree and left to stay with her parent's residence along with her brother. On 28th May, 2003, plaintiff went to Garhmukteshwar to take her back but she refused. The plaintiff ultimately filed a petition for Restitution of Conjugal Rights under Section 9 registered as Petition No. 361 of 2003 in Family Court, Meerut but the defendant did not come back and for the last 5 years she is staying with her parents without any lawful reason. The defendant contested the suit wherein marriage, educational qualification etc. were admitted and it was also admitted that her father gave a draft of Rs. 38,000/- which was returned by the plaintiff. The allegations of cruelty and desertion are denied. It is said that draft was obtained by plaintiff stating that he would purchase a motorcycle from Government Employee Canteen but since motorcycle was not available thereat, therefore, it was returned. Defendant's father spent about Rs. 3,00,000/- in the marriage. The suit for Restitution was filed maliciously in as much as defendant along with her daughter is residing at plaintiff's residence since 29th May, 2003 and she has never thought of seeking divorce being a Hindu women. The allegations of cruelty levelled in the plaint were all false. It was the plaintiff himself who took away defendant in July, 2003 and left her at her mother's place with the assurance that he would come back after 3-4 days. Defendant's father got Panchayat of respectable persons for settlement but plaintiff was not ready to keep defendant with him. Trial Court formulated following issues:-