Wife making serious unverified allegations on husband in writing is mental cruelty –Husband entitled to divorce

AIR 2009 Bombay 160 (Aurangabad Bench) Shobha Mhatardev Lomte V/s Mhatardev Tukaram Lomte . Hindu Marriage Act . S 13 ,– Divorce — Cruelty — can be physical and mental –mental cruelty can be more damaging than physical cruelty– wife making serious allegation against husband in her reply to notice and in her written statement — wife admitting in her cross examination that before making allegation of illicit relations of husband with other ladies she did not make any inquiry and nobody gave her information about the same–making serious allegation against opponent in writing itself amounts to mental cruelty –Husband entitled to divorce (para 8 ;9; 10)

////// 10. It is clear that making serious allegations against opponent in writing itself amount to a mental cruelty. Even Apex Court in another matter of G.V.N. Kameswara Rao v. G. Jabilli reported in : (2002) 2 SCC 296 : AIR 2002 SC 576, held that false police complaint and consequent loss of reputation and standing in society at the instance of one’s spouse, held, would amount to cruelty. Not only that, with the help of police in criminal complaint, she arrested the respondent for recovery of her maintenance. Whereas, it is the case of respondent that he used to pay her maintenance within time and in spite of that, the appellant with mala fide intention filed criminal complaint and harassed the respondent. //////

In the High Court of judicature at Mumbai 

S.A. No. 135 of 2009

Judge K.K. Tated, J.

Shobha Mhatardev Lomte

Vs

Mhatardev Tukaram Lomte

 Y.S. Choudhari, Adv. For appellant 

L.B. Palod, Adv. For respondent 

Judgment:

K.K. Tated, J.
1. Heard learned Counsel for the parties.
2. Present Second Appeal is preferred by the original plaintiff against the judgment and decree dated 24-08-2006 passed by the 4th Ad hoc Additional District Judge, Ahmednagar R.C.A. No. 217/2001 arising out of the judgment and decree dated 28-03-2001 passed by 3rd Joint Civil Judge, S.D. Ahmednagar in H.M.P. No. 140/1997.
3. The appellant, the original plaintiff and the respondent, original, defend ant married on 20-11-1987 at Rahuri as per Hindu religious rites and custom. After the marriage, the appellant had been to the respondent for cohabitation and for a few days, she was treated well by the respondent. Thereafter, as the respondent is Professor, he insisted the appellant to Have further education and insisted the appellant in the year 1988 to go to Aurangabad for completing her M.A. It is the case of the appellant that as Aurangabad was inconvenient place for the appellant for completion of her M.A., she requested the respondent to allow her.-to complete M.A. at Ahmednagar, as it was convenient for her. Because of her said suggestion, the respondent got annoyed. All along the respondent insisted that the appellant should go to Aurangabad only for further studies. She started residing with the respondent but the respondent started harassing her and used to beat and ill treat her on flimsy grounds. The respondent suspected her character. It is the case of the appellant that on flimsy grounds, the respondent refused to cohabit with the appellant. In the month of July 1994, brother of the appellant along-with other relatives went to the house of the respondent to remove the differences between the appellant and the respondent, as that they might lead happy married life but the respondent flatly refused to cohabit with the appellant. Thereafter, the appellant waited for some time in the hope that the respondent might allow her to cohabit with him. But, on 6-8-1994 the respondent issued a false and frivolous notice to the appellant and same was replied by the appellant on 16-08-1994. In the said reply, the appellant had specifically informed the respondent that she was ready and willing to cohabit with him, but the respondent did not turn to Rahuri factory to take her to the matrimonial home. Thereafter, the appellant sincerely made efforts through her brother and relatives but all efforts of the appellant, her brother and relatives failed.
4. It is the case of the appellant that with mala fide intention and just to harass the appellant, the respondent filed H.M.P. No. 86/1994 in the Court of the Civil Judge, Senior Division, Malegaon under Section 9 of the Hindu Marriage Act for restitution of conjugal rights. In the said petition, the appellant filed her say wherein the appellant specifically submitted that she was ready and willing to cohabit with him and also filed application under Section 24 of the said Act for interim alimony wherein the Court was pleased to grant Rs. 1200/- per month to the petitioner including her son Vishwambhar. Thereafter, the respondent filed a pursis on 14-11-1995 in Malegaon Court and withdrew the petition filed by him for restitution of conjugal Fights. Therefore, the appellant was constrained to file present H.M.P. No. 140/1997 under Section 9 of the Hindu Marriage Act in the Court of the Civil Judge, Senior Division, Ahmednagar on 14-07-1997 for restitution of conjugal rights. In the said petition, the respondent filed his written statement cum counter claim dated 17-03-1998. The respondent preferred counter claim for decree of dissolution of marriage. To the said counter claim the appellant filed her written statement dated 01-03-2000 and denied all allegations. It is the case of the appellant that the respondent filed counter claim for divorce on the ground of desertion and cruelty. After hearing both the sides, the trial Court by judgment and decree dated 28-03-2001 dismissed the appellant’s application under Section 9 of the Hindu Marriage Act and allowed the respondent’s counter claim for divorce. Being aggrieved by the said judgment and decree dated 28-03-2001 passed by 3rd Joint Civil Judge, S.D. Ahmednagar, the appellant preferred RCA. No. 217/2001 in the Court of the District Judge, Ahmednagar on the ground that the lower Court has failed to consider the fact that the appellant had completed her education as per say of the respondent and when she was ready to complete her education, the place was not material. The appellant further challenged the said judgment and decree passed by the trial Court on the ground that the lower Court ought to have considered that if at all respondent was ready and willing to cohabit with the appellant, he would not have withdrawn H.M.P. which he had filed at Malegaon but this material aspect has been totally overlooked by the lower Court. Considering these objections and other grounds and hearing the respondent, the Appellate Court, by judgment and decree dated 24-08-2006 dismissed the appeal with costs. Being aggrieved by the judgment and decree dated 24-08-2006 passed by the 4th Additional District Judge, Ahmednagar in R.C.A. No. 217/2001, the appellant preferred present Second Appeal on the ground that both the Courts ought to have held that it cannot be said that the respondent had not established that the appellant had treated him with such cruelty as to entitle him to the decree for dissolution of marriage and moreover the Courts failed to consider that the said aspect had not been established by adducing independent convincing evidence. The appellant further submitted that the Courts below are not justified in allowing counter claim of the respondent especially when the respondent failed to adduce independent evidence to substantiate the claim for the decree of divorce. He only relied upon his own deposition. On the basis of these submissions, the learned Counsel appearing on behalf of the appellant contended that the appellant made out substantial question of law in the present Second Appeal and Second Appeal deserved to be allowed.
5. Record and proceedings of the trial Court was called by this Court as per order dated 19-3-2009. The learned Counsel appearing on behalf of the respondent submitted that both the Courts below categorically held that the appellant herself deserted the respondent without any reason and also treated respondent with cruelty. He further submitted that there was no substantial question of law involved in the present Second Appeal. Both the Courts concurrently held that the respondent was entitled to a decree for divorce on the ground of desertion and cruelty. He further submitted that for formulation of substantial question of law, question of law must be of such a character that it would pertain to gray area in which law is not settled and that the Apex Court in several decisions decided what was meant by cruelty. In view of these facts, learned Counsel appearing on behalf of the respondent submitted that Second Appeal deserved to be dismissed summarily with costs.
6. The learned Counsel for the appellant submitted that both the Courts below erred in coming to the conclusion that the respondent was entitled to the decree for divorce on the ground of desertion and cruelty. He further submitted that the respondent failed to bring cogent evidence on record to show that the appellant on her own deserted the respondent. Learned Counsel appearing on behalf of the appellant further submitted that both the Courts erred in coming to the conclusion that the respondent was entitled to the decree for divorce on the ground of cruelty-He further submitted that as on today also in the interest of male child, she was ready and willing to reside with the respondent.
7. On the other hand, learned Counsel appearing on behalf of the respondent submitted that both the Courts categorically held that the appellant in her written statement filed in H.M.P. No. 86/1994 made several wild allegations against the respondent. Those allegations themselves amounted to cruelty. He further relied on Exhibits 45,46 and 49 for supporting both the judgments passed by the Courts below that the respondent was entitled for decree of divorce on the ground of cruelty.
8. Along with the Counsel for the parties, I have gone through the deposition of the appellant. In cross examination, the appellant admitted that before making allegations about illicit relations of the respondent with other ladies, she did not make any inquiry and nobody gave her information about the same. The appellant in her reply to the notice made serious allegations against the respondent. According to him, it amounted to cruelty on the basis of which divorce sought by the respondent could be granted. Learned Counsel appearing on behalf of the respondent submitted that both the parties were residing separately since 1994. He further pointed out that the letter Exhibit-45, the appellant while addressing the respondent used the word ‘Lomtya’ when the surname of the respondent is ‘Lomte’. He submitted that this improper word used by the appellant goes to show that she had no respect at all for the respondent. From the evidence adduced by the appellant, there is reason to believe that fault lay with the appellant. It is clear from the record that the appellant’s brother sent letter to Chief Minister and Guardian Minister on 30-12-1996 and made wild and baseless allegations against the respondent in the said letter. This itself amounts to a cruelty. Cruelty can be of both kinds, physical and mental. It is physical when the body is injured and it is mental when feelings and sentiments are wounded. It causes mental pain, agony, emotional stress, frustration, suffering or fear of such a magnitude that it severs the bond of love and affection between the wife and the husband as a result of which it becomes impossible, for the party, which has suffered, to live with the other party. In other words, the party who has committed the wrong, is considered by the other party as not worthy of living with. Mental cruelty may be far more damaging than the physical cruelty.
9. In the present case, it is crystal clear from the evidence on record that the appellant treated the. respondent with cruelty. Learned Counsel appearing on behalf of the respondent relied on the judgment in the matter of Naveen Kohli v. Neelu Kohli reported in : 2006 (4) Mh. LJ 242 : AIR 2006 SC 1675. The Apex Court in this authority held that the cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions and their culture and human values to which they attach importance. Learned Counsel appearing on behalf of the respondent mainly relied on para 35 of the said judgment, which reads as under.

35. The petition for divorce was filed primarily on the ground of cruelty. It may be pertinent to note that, prior to the 1976 amendment in the Hindu Marriage Act 1955 cruelty was not a ground for claiming divorce under the Hindu Marriage Act. It was only a ground for claiming judicial separation under section 10 of the Act. By 1976 amendment, the cruelty was made ground for divorce and the words which have been incorporated are ‘as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other parry’. Therefore, it is not necessary for a party claiming divorce to prove that the cruelty treatment is of such a nature as to cause an apprehension – a reasonable apprehension – that it will be harmful or injurious for him or her to live with the other party.


10. It is clear that making serious allegations against opponent in writing itself amount to a mental cruelty. Even Apex Court in another matter of G.V.N. Kameswara Rao v. G. Jabilli reported in : (2002) 2 SCC 296 : AIR 2002 SC 576, held that false police complaint and consequent loss of reputation and standing in society at the instance of one’s spouse, held, would amount to cruelty. Not only that, with the help of police in criminal complaint, she arrested the respondent for recovery of her maintenance. Whereas, it is the case of respondent that he used to pay her maintenance within time and in spite of that, the appellant with mala fide intention filed criminal complaint and harassed the respondent. Learned Counsel appearing on behalf of the respondent submitted that after decree of divorce, the respondent married with another lady and he is residing with another lady for last several years and therefore, nothing will come out from the present litigation.
11. On the basis of the above mentioned submissions and findings, both the Courts below concurrently held in favour of the respondent and I see no reason to differ. Hence the Second Appeal is dismissed with no order as to costs and the Civil Application stands rejected.
Source 

https://www.legalcrystal.com/case/367721/shobha-mhatardev-lomte-vs-tukaram

No maintenance to wife who refused to join husband after restitution decree 

IN THE HIGH COURT OF JUDICATURE AT BOMBA

                                                   

                      FAMILY COURT APPEAL NO.20 OF 2005

                                                  

    Smt.Manju Kamal Mehra

    aged about 35 years, occ. Housewife,

    Religion Hindu, resident of C/o G.K.

    Chawla, G-1/23,Vijay Nagar, Marol-Maroshi                        

    Road, Andheri (E), Mumbai-400 059. ….Appellant

                V/s.            

    Mr.Kamal Pushkar Mehra,

    aged about 40 years, occ.business,

    Religion Hindu, residing of 107,

    Janak Apartment, Samarth Ramdas Nagar,

    Navghar Vasai (East), District.Thane ….Respondent

    Mr.P.M. Havnur for the Appellant.

           

    Mrs.B.P. Jakhade for the Respondent.

        

                                        WITH

                      

FAMILY COURT APPEAL NO.44 OF 2005

    Mr.Kamal Pushkar Mehra,

    aged about 40 years, occ.business,

    Religion Hindu, residing of 107,

    Janak Apartment, Samarth Ramdas Nagar,

    Navghar Vasai (East), District.Thane ….Appellant
               V/s.
    Smt.Manju Kamal Mehra

    aged about 35 years, occ. Housewife,

    Religion Hindu, resident of C/o G.K.

    Chawla, G-1/23,Vijay Nagar, Marol-Maroshi

    Road, Andheri (E), Mumbai-400 059. ….Respondent

                                                                                      

    Mrs.B.P. Jakhade for the Appellant.
    Mr.P.M. Havnur for the Respondent.

                                                              

                         

   CORAM : B.H. MARLAPALLE &

                 S.J. VAZIFDAR, JJ.
DATE : 18TH JULY, 2009.

ORAL JUDGMENT ( PER B.H. MARLAPALLE, J.) :-

  1. Both these appeals filed by the respective spouses arise from a common judgment and order dated 31.12.2004 passed by the Family Court at Pune in Petition No.A-978 of 2002 and hence they are being decided by this common judgment.

  2. The parties were married at Mumbai on 12.7.1994 as per Hindu rites and they co-habitated at Dahisar where a daughter by name Aishwarya was born to the couple on 21.12.1995. As per the husband, the wife did not return to the matrimonial home after the daughter was borne. The husband claims that the wife abandoned the matrimonial home, whereas it is the case of the wife that she was thrown out of the matrimonial home before the birth of the child that is some time in September, 1995. In July, 1996, the wife’s younger sister Anju was married and the husband along with his family member attended the said marriage. The couple stayed together from 22 nd to 26th July, 1996 in the house of the wife’s parents but after 26th July, 1996, the wife did not return to the matrimonial home. It appears that the wife was working with M/s.R.G. Stone Hospital and she claimed that she left the said job from 4.5.1998. The husband issued a legal notice on 30.4.2001 (Exhibit-23, which was reply on 10.5.2001, Exhibit-24). Second legal notice was issued on 8.6.2001 (Exhibit-25, which was replied on 15.6.2001, Exhibit-26). Third legal notice was issued on 12.6.2001 (Exhibit-27) and consequently a joint meeting between the two parties on 6.5.2002 to resolve matrimonial dispute was held. It was decided in the said meeting that both the parties should forget the past and start staying together. The wife conveyed that she was ready and willing to co-habit with the Petitioner and her father also supported the same plea and stated that his daughter must return to the matrimonial home at Dahisar. Despite the settlement, there was no cohabitation between the parties and therefore, Petition No.A-978 of 2002 was moved by the husband to seek a decree of restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955. The said Petition was opposed by the wife. The following issues were framed by the Family Court and answered accordingly in the impugned judgment :- ISSUES FINDINGS  1) Does the Petitioner proves that the Respondent  has without any reasonable excuse withdrawn from his society ? Yes 2) Whether the Petitioner is entitled to a decree of restitution of conjugal rights ? Yes 3) Whether the Petitioner is entitled for maintenance Yes @ Rs. from the Petitioner for herself or the child ? Yes  4) If yes, what should be the quantum ? 2500/- per month for herself & @ Rs.3000/- p.m. for the minor daughter. 4-A) Whether the Respondent is entitled to Does not return of her streedhan from the Petitioner ? survive.  5. What order and decree ? As per final order.                                                       

  3. However, it appears that when Petition No.A-978 of 2002 was decided by the earlier judgment dated 30.4.2004, the Family Court had not recorded its findings on issue Nos.1 and 4-A. The said judgment was the subject matter of challenge in Family Court Appeal Nos. 94 of 2004 and 95 of 2004 and by a common judgment dated 18.8.2004, the Appeals were disposed off and the Petition filed by the husband was remanded to the Family Court to record its findings on issue Nos.1 and 4-A.

  4. The husband examined himself and Kiran R.Vishvira, who is the partner of a firm by name M/s.Manav Mandir Builders. The wife examined herself and her father Gopal Kishan Chawla. She also examined Ajay Gulabchand Malpani, Treasurer of the Housing Society at Vasai and Dr.Manish Bansal, the Managing Director of R.G. Stone Hospital. Written arguments were submitted before the Family Court and the Petition filed by the husband came to be allowed in terms of the following order :- “The Respondent is directed to restore conjugal rights with the Petitioner forthwith. The Petitioner is directed to pay Rs.2500/- per month towards maintenance of the respondent and Rs.3000/- per month towards maintenance of the minor daughter Aishwarya, in aggregate Rs.5500/- per month from the date of order till the Respondent restitutes his conjugal rights.

  5. The husband has challenged the directions to pay the maintenance to the wife despite the fact that the decree under Section 9 of the said Act has been passed in his favour. Whereas the wife has challenged the decree passed under Section 9 of the said Act and claimed that the Family Court did not consider the harassment and ill-treatment given to her in the matrimonial home and consequently she was justified in staying away from the husband.

  6. Mrs.Jakhade, the learned counsel for the husband submitted that in Petition No.A-978 of 2002, the wife did not file any application for any maintenance either under Section 18 of the Hindu Adoptions and Maintenance Act, 1956 or under Section 24 of the Act for maintenance pendant-lite. She also pointed out that the decree of restitution of conjugal rights was passed against the wife and surprisingly and equally shocking the Family Court directed the husband to pay maintenance to the wife and as per Mrs.Jakhade, this order itself is self-contradictory and the decree for restitution of conjugal rights became a nullity as the wife continued to stay away from the husband and the husband was required to deposit the maintenance amount every month. Mr.Havnur, the learned counsel for the wife on the other hand submitted that the decree for restitution of conjugal rights was grossly erroneous and the Family Court was not justified, in the facts of this case, to record its findings in the affirmative on issue No.1 framed by it. He also submitted that as the wife was thrown out of her matrimonial home along with her daughter much before the daughter was born and she had to maintain herself and the daughter, the Family Court was justified in granting maintenance by the impugned order. We are, therefore, required to examine :- i) Whether the decree of conjugal rights passed under Section 9 of the Act in favour of the husband is sustainable and ; ii) Whether the Family Court was right in law to direct the husband to pay maintenance to the wife after it had passed a decree under Section 9 of the Act in favour of the husband and directed the wife to join the husband in the matrimonial home.

  7. So far as the first issue is concerned, the Family Court has referred to the oral depositions of the husband, wife and her father. As is required in law, both the parties were referred to the Marriage Counsellor who submitted her first report on 17.10.2002 (at Exhibit-3). The said report indicated that both the parties had expressed their wish for reconciliation and for resumption of co-habitation, but the second report of the Marriage Counsellor dated 17.3.2003 (at Exhibit-14) was negative and it stated that reconciliation between the parties was not possible and they were agreeable for divorce but there was a dispute regarding the quantum of alimony. A joint meeting between them on 6.5.2002 with the intervention of a common family friend by name Mr.Jain and the reconciliation therein was not disputed between the parties and the wife had shown her willingness to live and co-habit with the husband. The father of the wife in his depositions before the Family Court also stated that he wished that his daughter could return to her matrimonial home at Dahisar. The deposition of the wife also went to show that despite various allegations made by her against the husband and his family members about cruelty and ill-treatment, she wanted to go and stay at Dahisar and she was keen to save her marriage. She had categorically stated in the pleadings as well as in her depositions that she was ready and willing to co-habit with the Petitioner and she also reiterated about the compromise and to bury the past. The husband had also assured the parents of the wife that he take her care. The Family Court therefore, held that the wife had condoned the acts of the alleged cruelty and ill-treatment. In paragraph 31 of the impugned judgment, the Family Court recorded its surprise about the wife in the following words :- “…31. It is very peculiar that the petitioner has filed this petition for restitution of conjugal rights and the respondent in her pleadings as well as in her evidence has deposed that she is also ready and willing to co-habit with the petitioner. The father of the respondent in his evidence has also deposed that he desires that the respondent co-habits with the petitioner. It is also an admitted fact that meeting of the family members was held with the common friend Mr.Jain house and it was agreed that they would live together. The father of the respondent has admitted in his cross- examination that a compromise was arrived at for the petitioner and the respondent to stay together. He also admitted that the petitioner does not own any property at Dahisar. During the pendency of the proceedings various attempts were made for the parties to resume their co- habitation in view of the desires of both the parties, but failed because the petitioner wants that the respondent should resume his conjugal rights at Vasai where he owns his ownership flat, and the respondent wants to return and stay at Dahisar, where she was living from the day after her marriage till she left the house.”

  8. The Family Court recorded the finding that the wife was not justified and she had no good reason to stay away from her husband and she had withdrawn from the society of the husband without any reasonable excuse. Having referred to the evidence placed before the Family Court by the respective parties, we are satisfied that these findings recorded by the Family Court cannot be faulted with and the decree of restitution of conjugal rights under Section 9 of the said Act was rightly passed in favour of the husband. We are informed that till this date, the wife has not submitted to the said decree and she continues to stay with her parents. In fact the husband could have been justified in asking for dissolution of the marriage under Section 13(1-A) of the said Act on the ground that there was no resumption of co-habitation between the parties for one year or thereafter, after the decree under Section 9 of the said Act was passed, but he has not done so and the leaned counsel for the husband stated before us that the husband is keen to continue with the marriage and desires that his wife along with daughter Aishwarya to join the matrimonial home. We are also informed and it was the same case before the Family Court as well that the husband is willing to stay away from other family members in his ownership flat at Vasai. However, the wife insists that he should shift to a place in Andheri which is close to her parent’s house and also to the daughter’s school. Consequently the decree passed under Section 9 of the said Act has remained on paper.

  9. So far as, issue No.1 – maintenance is concerned, pending the proceedings before the Family Court at the behest of either of the parties, wife was entitled to apply for interim maintenance either under Section 18 of the Hindu Adoptions and Maintenance Act, 1956 or under Section 24 of the Act. She did not submit any such application nor did she file a counter claim in the Petition filed by the husband. The Family Court in its second round of the judgment, held that the wife was not justified in staying away from her husband and directed her to submit to the decree under Section 9 of the Act. However while doing so, it proceeded to consider the expenditure incurred by the wife while she was staying away from her husband. The Court noted that the wife had no employment since May, 1998 on the basis of the evidence of Dr.Bansal, the Managing Director of R.G. Stone, Urological Research Institute, corroborated by the evidence of her father and thus she was without any source of income. The Court further observed as under :- “…….. It can therefore be held that the Respondent has no source of income and hence the Respondent is entitled to claim maintenance for herself. As regards the daughter, it is moral, social and legal obligation of the Petitioner – father to maintain her. The Petitioner has no where in his pleadings stated as to what he is doing and what is his income. But in reply to the interim application it is observed that it is an admitted fact that the Petitioner is dealing in shares. He has stated that his average income is Rs.7000/- per month………… Hence considering the status of the parties and needs of the Petitioner for herself and the minor daughter, and that the Petitioner has no other dependents upon him, the cost of living, it can be held that he is capable and able to pay Rs. 2500/- per month towards the maintenance for the wife and Rs.3000/- per month towards the maintenance for minor daughter, in aggregate Rs.5500/- per month from the date of order till the Respondent restitutes to his conjugal rights.”

  10. In the case of Chand Bhawan v. Jawaharlal Dhawan, (1993) 3 SCC 406, on the rights of the wife to receive any maintenance either under Section 18 of Hindu Adoptions and Maintenance Act or under Section 24 of the said Act, the Supreme Court stated as under :- “…23. The preamble to the Hindu Marriage Act suggests that it is an Act to amend and codify the law relating to marriage among Hindus. Though it speaks only of the law relating to marriage, yet the Act itself lays down rules relating to the solemnization and requirements of a valid Hindu marriage as well as restitution of conjugal rights, judicial separation, nullity of marriage, divorce, legitimacy of children and other allied matters. Where the statute expressly codifies the law, the court as a general rule, is not at liberty to go outside the law so created, just on the basis that before its enactment another law prevailed. Now the other law in the context which prevailed prior to that was the uncodified Hindu law on the subject. Prior to the year 1955 or 1956 maintenance could be claimed by a Hindu wife through court intervention and with the aid of the case-law developed. Now with effect from December 21, 1956, the Hindu Adoptions and Maintenance Act is in force and that too in a codified form. Its preamble too suggests that it is an Act to amend and codify the law relating to adoptions and maintenance among Hindus. Section 18(1) of the Hindu Adoptions and Maintenance Act, 1956 entitles a Hindu wife to claim maintenance from her husband during her lifetime. Sub-section (2) of Section 18 grants her the right to live separately, without forfeiting her claim to maintenance, if he is guilty of any of the misbehaviours enumerated therein or on account of his being in one of objectionable conditions as mentioned therein. So while sustaining her marriage and preserving her marital status, the wife is entitled to claim maintenance from her husband. On the other hand, under the Hindu Marriage Act, in contrast, her claim for maintenance pendente lite is durated (sic) on the pendency of a litigation of the kind envisaged under Sections 9 to 14 of the Hindu Marriage Act, and her claim to permanent maintenance or alimony is based on the supposition that either her marital status has been strained or affected by passing a decree for restitution of conjugal rights or judicial separation in favour or against her, or her marriage stands dissolved by a decree of nullity or divorce, with or without her consent. Thus when her marital status is to be affected or disrupted the court does so by passing a decree for or against her. On or at the time of the happening of that event, the court being seisin of the matter, invokes its ancillary or incidental power to grant permanent alimony. Not only that, the court retains the jurisdiction at subsequent stages to fulfil this incidental or ancillary obligation when moved by an application on that behalf by a party entitled to relief. The court further retains the power to change or alter the order in view of the changed circumstances. Thus the whole exercise is within the gammit (sic gamut) of a diseased or a broken marriage. And in order to avoid conflict of perceptions the legislature while codifying the Hindu Marriage Act preserved the right of permanent maintenance in favour of the husband or the wife, as the case may be, dependent on the court passing a decree of the kind as envisaged under Sections 9 to 14 of the Act. In other words without the marital status being affected or disrupted by the matrimonial court under the Hindu Marriage Act the claim of permanent alimony was not to be valid as ancillary or incidental to such affectation or disruption. The wife’s claim to maintenance necessarily has then to be agitated under the Hindu Adoptions and Maintenance Act, 1956 which is a legislative measure later in point of time than the Hindu Marriage Act, 1955, though part of the same socio-legal scheme revolutionizing the law applicable to Hindus.”

  11. In the case B.P. Achala Anand v. S. Appi Reddy and another, AIR 2005, SC 986, a three Judge Bench held that Section 18 of the Hindu Adoptions and Maintenance Act confers a right on a wife to be maintained by her husband during her lifetime and such a right for maintenance is an incident of the status or estate of matrimony and a Hindu is under a legal obligation to maintain his wife. Section 25 of the Act enables the Court to pass an order for providing alimony and maintenance in favour of the divorced wife. The Court further observed that on the status of the wife being terminated by a decree for divorce under the Act, rights of divorced wife seem to be cribbed, confined and cabined by the provisions of and to the rights available Sections 25 and 27 of the said Act.

  12. When the husband has succeeded in obtaining a decree of restitution of conjugal rights against the wife, it is implied that the wife was required to join the company of the husband at her matrimonial home and therefore, there is no question of maintenance at least from the date of the said order. If the wife is directed to be paid maintenance despite the said decree, reluctance of the wife to join the husband would be further strengthened and she would be encouraged to stay away from the husband despite the decree passed by the Court. The decree for restitution of conjugal rights would be rendered inoperative and for such an act of the wife, the husband would be penalized to pay the maintenance to the wife, who does not subject to the decree passed by the Court. Such a direction would be incentive to frustrate the decree passed under Section 9 of the Act. It is well settled that if such a decree is passed at the instance of the wife and against the husband, the Court would be justified in directing the husband to pay maintenance to the wife till he resumes cohabitation with her or calls upon her to join him at the matrimonial home pursuant to the decree passed by the Court in her favour. Such is not a case before us. We are, therefore, satisfied that the Family Court acted without jurisdiction in directing the husband to pay maintenance at least from the date when the impugned order was passed and therefore, the impugned order to that extent is required to be set aside. However, we are not inclined to interfere in the maintenance granted to the daughter.

  13. In the premises, Family Court Appeal No.20 of 2005 fails and the same is hereby dismissed. Family Court Appeal No.44 of 2005 succeeds partly and the directions to pay an amount of Rs.2500/- per month by way of the maintenance to the wife are hereby quashed and set-aside. Undoubtedly till the wife resumes cohabitation with the husband, the order for access passed by this Court dated 20.10.2006 shall continue to operate.

  14. The parties to bear their own costs.
        (S.J.VAZIFDAR, J.) (B.H.MARLAPALLE, J.)

No maintenance to wife who refuses to join husband after decree of restitution !! Bombay HC

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Cites 13 docs – [View All]
The Essential Services Maintenance Act, 1968
Section 9 in The Hindu Adoptions and Maintenance Act, 1956
Section 9 in The Hindu Marriage Act, 1955
The Hindu Marriage Act, 1955
Section 18 in The Hindu Adoptions and Maintenance Act, 1956

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Bombay High Court
Road vs Mr.Kamal Pushkar Mehra on 18 July, 2009
Bench: B.H. Marlapalle, S.J. Vazifdar
1

           IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                    CIVIL APPELLATE JURISDICTION





                  FAMILY COURT APPEAL NO.20 OF 2005





Smt.Manju Kamal Mehra
aged about 35 years, occ. Housewife,
Religion Hindu, resident of C/o G.K.
Chawla, G-1/23,Vijay Nagar, Marol-Maroshi





Road, Andheri (E), Mumbai-400 059.                  ....Appellant
            V/s.            
Mr.Kamal Pushkar Mehra,
aged about 40 years, occ.business,
Religion Hindu, residing of 107,

Janak Apartment, Samarth Ramdas Nagar,
Navghar Vasai (East), District.Thane               ....Respondent



Mr.P.M. Havnur for the Appellant.



Mrs.B.P. Jakhade for the Respondent.




                                    WITH





                  FAMILY COURT APPEAL NO.44 OF 2005


Mr.Kamal Pushkar Mehra,
aged about 40 years, occ.business,
Religion Hindu, residing of 107,





Janak Apartment, Samarth Ramdas Nagar,
Navghar Vasai (East), District.Thane               ....Appellant

           V/s.

Smt.Manju Kamal Mehra
aged about 35 years, occ. Housewife,
Religion Hindu, resident of C/o G.K.
Chawla, G-1/23,Vijay Nagar, Marol-Maroshi
Road, Andheri (E), Mumbai-400 





Mrs.B.P. Jakhade for the Appellant.

Mr.P.M. Havnur for the Respondent.

CORAM : B.H. MARLAPALLE &
S.J. VAZIFDAR, JJ.

DATE : 18TH JULY, 2009.

ORAL JUDGMENT ( PER B.H. MARLAPALLE, J.) :-

  1. Both these appeals filed by the respective spouses arise from a common judgment and order dated 31.12.2004 passed by the Family Court at Pune in Petition No.A-978 of 2002 and hence they are being decided by this common judgment.
  2. The parties were married at Mumbai on 12.7.1994 as per Hindu rites and they co-habitated at Dahisar where a daughter by name Aishwarya was born to the couple on 21.12.1995. As per the husband, the wife did not return to the matrimonial home after the daughter was borne. The husband claims that the wife abandoned the matrimonial home, whereas it is the case of the wife that she was thrown out of the matrimonial home before the birth of the child that is some time in September, 1995. In July, 1996, the wife’s younger sister Anju was married and the husband along with his family member attended the said marriage. The couple stayed together from 22 nd to 26th July, 1996 in the house of the wife’s parents but after 26th July, 1996, the wife did not return to the matrimonial home. It appears that the wife was working with M/s.R.G. Stone Hospital and she claimed that she left the said job from 4.5.1998. The husband issued a legal notice on 30.4.2001 (Exhibit-23, which was reply on 10.5.2001, Exhibit-24). Second legal notice was issued on 8.6.2001 (Exhibit-25, which was replied on 15.6.2001, Exhibit-26). Third legal notice was issued on 12.6.2001 (Exhibit-27) and consequently a joint meeting between the two parties on 6.5.2002 to resolve matrimonial dispute was held. It was decided in the said meeting that both the parties should forget the past and start staying together. The wife conveyed that she was ready and willing to co-habit with the Petitioner and her father also supported the same plea and stated that his daughter must return to the matrimonial home at Dahisar. Despite the settlement, there was no cohabitation between the parties and therefore, Petition No.A-978 of 2002 was moved by the husband to seek a decree of restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955. The said Petition was opposed by the wife. The following issues were framed by the Family Court and answered accordingly in the impugned judgment :-
    ISSUES FINDINGS

    1) Does the Petitioner proves that the Respondent
    has without any reasonable excuse withdrawn
    from his society ? Yes

    2) Whether the Petitioner is entitled to a decree
    of restitution of conjugal rights ? Yes

    3) Whether the Petitioner is entitled for maintenance Yes @ Rs.
    from the Petitioner for herself or the child ? 2500/- per

                                                                    month for
    

    4) If yes, what should be the quantum ? herself & @
    Rs.3000/-
    p.m. for the
    minor
    daughter.

    4-A) Whether the Respondent is entitled to Does not
    return of her streedhan from the Petitioner ? survive.

    1. What order and decree ? As per final
      order.
  3. However, it appears that when Petition No.A-978 of 2002 was decided by the earlier judgment dated 30.4.2004, the Family Court had not recorded its findings on issue Nos.1 and 4-A. The said judgment was the subject matter of challenge in Family Court Appeal Nos. 94 of 2004 and 95 of 2004 and by a common judgment dated 18.8.2004, the Appeals were disposed off and the Petition filed by the husband was remanded to the Family Court to record its findings on issue Nos.1 and 4-A.

  4. The husband examined himself and Kiran R.Vishvira, who is the partner of a firm by name M/s.Manav Mandir Builders. The wife examined herself and her father Gopal Kishan Chawla. She also examined Ajay Gulabchand Malpani, Treasurer of the Housing Society at Vasai and Dr.Manish Bansal, the Managing Director of R.G. Stone Hospital. Written arguments were submitted before the Family Court and the Petition filed by the husband came to be allowed in terms of the following order :-
    “The Respondent is directed to restore conjugal rights with the Petitioner forthwith.
    The Petitioner is directed to pay Rs.2500/- per month towards maintenance of the respondent and Rs.3000/- per month towards maintenance of the minor daughter Aishwarya, in aggregate Rs.5500/- per month from the date of order till the Respondent restitutes his conjugal rights.
  5. The husband has challenged the directions to pay the maintenance to the wife despite the fact that the decree under Section 9 of the said Act has been passed in his favour. Whereas the wife has challenged the decree passed under Section 9 of the said Act and claimed that the Family Court did not consider the harassment and ill-treatment given to her in the matrimonial home and consequently she was justified in staying away from the husband.
  6. Mrs.Jakhade, the learned counsel for the husband submitted that in Petition No.A-978 of 2002, the wife did not file any application for any maintenance either under Section 18 of the Hindu Adoptions and Maintenance Act, 1956 or under Section 24 of the Act for maintenance pendant-lite. She also pointed out that the decree of restitution of conjugal rights was passed against the wife and surprisingly and equally shocking the Family Court directed the husband to pay maintenance to the wife and as per Mrs.Jakhade, this order itself is self-contradictory and the decree for restitution of conjugal rights became a nullity as the wife continued to stay away from the husband and the husband was required to deposit the maintenance amount every month. Mr.Havnur, the learned counsel for the wife on the other hand submitted that the decree for restitution of conjugal rights was grossly erroneous and the Family Court was not justified, in the facts of this case, to record its findings in the affirmative on issue No.1 framed by it. He also submitted that as the wife was thrown out of her matrimonial home along with her daughter much before the daughter was born and she had to maintain herself and the daughter, the Family Court was justified in granting maintenance by the impugned order. We are, therefore, required to examine :-
    i) Whether the decree of conjugal rights passed under Section 9 of the Act in favour of the husband is sustainable and ;
    ii) Whether the Family Court was right in law to direct the husband to pay maintenance to the wife after it had passed a decree under Section 9 of the Act in favour of the husband and directed the wife to join the husband in the matrimonial home.
  7. So far as the first issue is concerned, the Family Court has referred to the oral depositions of the husband, wife and her father. As is required in law, both the parties were referred to the Marriage Counsellor who submitted her first report on 17.10.2002 (at Exhibit-3). The said report indicated that both the parties had expressed their wish for reconciliation and for resumption of co-habitation, but the second report of the Marriage Counsellor dated 17.3.2003 (at Exhibit-14) was negative and it stated that reconciliation between the parties was not possible and they were agreeable for divorce but there was a dispute regarding the quantum of alimony. A joint meeting between them on 6.5.2002 with the intervention of a common family friend by name Mr.Jain and the reconciliation therein was not disputed between the parties and the wife had shown her willingness to live and co-
    habit with the husband. The father of the wife in his depositions before the Family Court also stated that he wished that his daughter could return to her matrimonial home at Dahisar. The deposition of the wife also went to show that despite various allegations made by her against the husband and his family members about cruelty and ill-treatment, she wanted to go and stay at Dahisar and she was keen to save her marriage. She had categorically stated in the pleadings as well as in her depositions that she was ready and willing to co-habit with the Petitioner and she also reiterated about the compromise and to bury the past. The husband had also assured the parents of the wife that he take her care. The Family Court therefore, held that the wife had condoned the acts of the alleged cruelty and ill-treatment. In paragraph 31 of the impugned judgment, the Family Court recorded its surprise about the wife in the following words :-
    “31. It is very peculiar that the petitioner has filed this petition for restitution of conjugal rights and the respondent in her pleadings as well as in her evidence has deposed that she is also ready and willing to co-habit with the petitioner. The father of the respondent in his evidence has also deposed that he desires that the respondent co-habits with the petitioner. It is also an admitted fact that meeting of the family members was held with the common friend Mr.Jain house and it was agreed that they would live together. The father of the respondent has admitted in his cross- examination that a compromise was arrived at for the petitioner and the respondent to stay together. He also admitted that the petitioner does not own any property at Dahisar. During the pendency of the proceedings various attempts were made for the parties to resume their co- habitation in view of the desires of both the parties, but failed because the petitioner wants that the respondent should resume his conjugal rights at Vasai where he owns his ownership flat, and the respondent wants to return and stay at Dahisar, where she was living from the day after her marriage till she left the house.”
  8. The Family Court recorded the finding that the wife was not justified and she had no good reason to stay away from her husband and she had withdrawn from the society of the husband without any reasonable excuse. Having referred to the evidence placed before the Family Court by the respective parties, we are satisfied that these findings recorded by the Family Court cannot be faulted with and the decree of restitution of conjugal rights under Section 9 of the said Act was rightly passed in favour of the husband. We are informed that till this date, the wife has not submitted to the said decree and she continues to stay with her parents. In fact the husband could have been justified in asking for dissolution of the marriage under Section 13(1-A) of the said Act on the ground that there was no resumption of co-habitation between the parties for one year or thereafter, after the decree under Section 9 of the said Act was passed, but he has not done so and the leaned counsel for the husband stated before us that the husband is keen to continue with the marriage and desires that his wife along with daughter Aishwarya to join the matrimonial home. We are also informed and it was the same case before the Family Court as well that the husband is willing to stay away from other family members in his ownership flat at Vasai.
    However, the wife insists that he should shift to a place in Andheri which is close to her parent’s house and also to the daughter’s school. Consequently the decree passed under Section 9 of the said Act has remained on paper.
  9. So far as, issue No.1 – maintenance is concerned, pending the proceedings before the Family Court at the behest of either of the parties, wife was entitled to apply for interim maintenance either under Section 18 of the Hindu Adoptions and Maintenance Act, 1956 or under Section 24 of the Act. She did not submit any such application nor did she file a counter claim in the Petition filed by the husband. The Family Court in its second round of the judgment, held that the wife was not justified in staying away from her husband and directed her to submit to the decree under Section 9 of the Act.
    However while doing so, it proceeded to consider the expenditure incurred by the wife while she was staying away from her husband. The Court noted that the wife had no employment since May, 1998 on the basis of the evidence of Dr.Bansal, the Managing Director of R.G. Stone, Urological Research Institute, corroborated by the evidence of her father and thus she was without any source of income. The Court further observed as under :-
    “…….. It can therefore be held that the Respondent has no source of income and hence the Respondent is entitled to claim maintenance for herself. As regards the daughter, it is moral, social and legal obligation of the Petitioner – father to maintain her. The Petitioner has no where in his pleadings stated as to what he is doing and what is his income. But in reply to the interim application it is observed that it is an admitted fact that the Petitioner is dealing in shares. He has stated that his average income is Rs.7000/- per month………… Hence considering the status of the parties and needs of the Petitioner for herself and the minor daughter, and that the Petitioner has no other dependents upon him, the cost of living, it can be held that he is capable and able to pay Rs. 2500/- per month towards the maintenance for the wife and Rs.3000/- per month towards the maintenance for minor daughter, in aggregate Rs.5500/- per month from the date of order till the Respondent restitutes to his conjugal rights.”
  10. In the case of Chand Bhawan v. Jawaharlal Dhawan, (1993) 3 SCC 406, on the rights of the wife to receive any maintenance either under Section 18 of Hindu Adoptions and Maintenance Act or under Section 24 of the said Act, the Supreme Court stated as under :-
    “23. The preamble to the Hindu Marriage Act suggests that it is an Act to amend and codify the law relating to marriage among Hindus. Though it speaks only of the law relating to marriage, yet the Act itself lays down rules relating to the solemnization and requirements of a valid Hindu marriage as well as restitution of conjugal rights, judicial separation, nullity of marriage, divorce, legitimacy of children and other allied matters. Where the statute expressly codifies the law, the court as a general rule, is not at liberty to go outside the law so created, just on the basis that before its enactment another law prevailed. Now the other law in the context which prevailed prior to that was the uncodified Hindu law on the subject. Prior to the year 1955 or 1956 maintenance could be claimed by a Hindu wife through court intervention and with the aid of the case-law developed. Now with effect from December 21, 1956, the Hindu Adoptions and Maintenance Act is in force and that too in a codified form. Its preamble too suggests that it is an Act to amend and codify the law relating to adoptions and maintenance among Hindus. Section 18(1) of the Hindu Adoptions and Maintenance Act, 1956 entitles a Hindu wife to claim maintenance from her husband during her lifetime.
    Sub-section (2) of Section 18 grants her the right to live separately, without forfeiting her claim to maintenance, if he is guilty of any of the misbehaviours enumerated therein or on account of his being in one of objectionable conditions as mentioned therein. So while sustaining her marriage and preserving her marital status, the wife is entitled to claim maintenance from her husband. On the other hand, under the Hindu Marriage Act, in contrast, her claim for maintenance pendente lite is durated (sic) on the pendency of a litigation of the kind envisaged under Sections 9 to 14 of the Hindu Marriage Act, and her claim to permanent maintenance or alimony is based on the supposition that either her marital status has been strained or affected by passing a decree for restitution of conjugal rights or judicial separation in favour or against her, or her marriage stands dissolved by a decree of nullity or divorce, with or without her consent. Thus when her marital status is to be affected or disrupted the court does so by passing a decree for or against her. On or at the time of the happening of that event, the court being seisin of the matter, invokes its ancillary or incidental power to grant permanent alimony. Not only that, the court retains the jurisdiction at subsequent stages to fulfil this incidental or ancillary obligation when moved by an application on that behalf by a party entitled to relief. The court further retains the power to change or alter the order in view of the changed circumstances. Thus the whole exercise is within the gammit (sic gamut) of a diseased or a broken marriage. And in order to avoid conflict of perceptions the legislature while codifying the Hindu Marriage Act preserved the right of permanent maintenance in favour of the husband or the wife, as the case may be, dependent on the court passing a decree of the kind as envisaged under Sections 9 to 14 of the Act. In other words without the marital status being affected or disrupted by the matrimonial court under the Hindu Marriage Act the claim of permanent alimony was not to be valid as ancillary or incidental to such affectation or disruption. The wife’s claim to maintenance necessarily has then to be agitated under the Hindu Adoptions and Maintenance Act, 1956 which is a legislative measure later in point of time than the Hindu Marriage Act, 1955, though part of the same socio-legal scheme revolutionizing the law applicable to Hindus.”
  11. In the case B.P. Achala Anand v. S. Appi Reddy and another, AIR 2005, SC 986, a three Judge Bench held that Section 18 of the Hindu Adoptions and Maintenance Act confers a right on a wife to be maintained by her husband during her lifetime and such a right for maintenance is an incident of the status or estate of matrimony and a Hindu is under a legal obligation to maintain his wife. Section 25 of the Act enables the Court to pass an order for providing alimony and maintenance in favour of the divorced wife. The Court further observed that on the status of the wife being terminated by a decree for divorce under the Act, rights of divorced wife seem to be cribbed, confined and cabined by the provisions of and to the rights available Sections 25 and 27 of the said Act.
  12. When the husband has succeeded in obtaining a decree of restitution of conjugal rights against the wife, it is implied that the wife was required to join the company of the husband at her matrimonial home and therefore, there is no question of maintenance at least from the date of the said order. If the wife is directed to be paid maintenance despite the said decree, reluctance of the wife to join the husband would be further strengthened and she would be encouraged to stay away from the husband despite the decree passed by the Court. The decree for restitution of conjugal rights would be rendered inoperative and for such an act of the wife, the husband would be penalized to pay the maintenance to the wife, who does not subject to the decree passed by the Court. Such a direction would be incentive to frustrate the decree passed under Section 9 of the Act. It is well settled that if such a decree is passed at the instance of the wife and against the husband, the Court would be justified in directing the husband to pay maintenance to the wife till he resumes cohabitation with her or calls upon her to join him at the matrimonial home pursuant to the decree passed by the Court in her favour. Such is not a case before us. We are, therefore, satisfied that the Family Court acted without jurisdiction in directing the husband to pay maintenance at least from the date when the impugned order was passed and therefore, the impugned order to that extent is required to be set aside. However, we are not inclined to interfere in the maintenance granted to the daughter.
  13. In the premises, Family Court Appeal No.20 of 2005 fails and the same is hereby dismissed. Family Court Appeal No.44 of 2005 succeeds partly and the directions to pay an amount of Rs.2500/- per month by way of the maintenance to the wife are hereby quashed and set-aside. Undoubtedly till the wife resumes cohabitation with the husband, the order for access passed by this Court dated 20.10.2006 shall continue to operate.
  14. The parties to bear their own costs.
    (S.J.VAZIFDAR, J.) (B.H.MARLAPALLE, J.)

Man freed in #FALSErape case due to foetus’ DNA not matching – The Times of India 

Man freed in rape case due to foetus’ DNA not matching

PTI

NEW DELHI: A man, accused of raping a minor girl who became pregnant, was acquitted by a Delhi court due to lack of medical and forensic evidence as his DNA did not match with that of the foetus. 
Additional Sessions Judge Seema Maini also noted that the girl, who was 17-year-old at the time of the incident in 2015, and her mother did not support the prosecution case and they deposed that she had established physical relations with a man other than the accused. 
“The forensic science laboratory (FSL) result… gives the conclusion that the DNA of the accused does not match with that of the foetus in the womb of the prosecutrix, and that accused is not the father of the child/ foetus, which was in her womb. 
“Hence, there is no medical or forensic evidence also brought forth to establish any sexual assault on prosecutrix by the accused,” the court said. 
The girl denied in the court that she had ever identified the man as the culprit or that it was he who had established sexual relations with her twice and was responsible for her pregnancy. 
The court said the allegations against the man could not be proved and the forensic report concluded that he was not the biological father of the foetus. 
An FIR was lodged in July 2015 at Jahangir Puri police station in north west Delhi on girl’s complaint alleging that she came in contact with the man who claimed to be in love with her and wanted to marry her. 
The girl alleged that on the pretext of marriage, the man established physical relations with her without her consent after which she became pregnant. When her mother came to know about her pregnancy, she lodged a complaint with the police.
http://m.timesofindia.com/city/delhi/man-freed-in-rape-case-due-to-foetus-dna-not-matching/amp_articleshow/59161844.cms

Indian male rat race just for a married life 😞😞 is this the nirvana everyone is running for

Indian MALE To-Do : You need to study hard to get a job, work harder to get a better job, get a good job to get married, get married to have respect / recognition, work even harder to raise a family, work much more harder for a long time to buy a house so that the family can live that, work much much more harder till almost you retire to send your son to a costly school, and, and, and, ……. f@cking hell when will I LIVE my own life without this rat race ??? 

And is this the nirvana 99% of the Indian men are running behind?