Daily Archives: July 13, 2012

Father gets custody of MINOR daughter ….. in 2009 … The HIGH court judge clearly states that this is in the BEST interest of the MINOR child !!

Father gets custody of MINOR daughter ….. in 2009 …
 
The HIGH court judge clearly states that this is in the BEST interest of the MINOR child !!
 
There is hope …after all there is hope for father …..
 
Start early !!! don’t be like me …do NOT give up !!!!
 
========================================================
 
 
 
Madras High Court
S.Kannan, Aged 40 Years vs Mrs.Priya, Aged 30 Years on 18 March, 2009

DATED: 18.03.2009

CORAM

THE HONOURABLE MR.JUSTICE S.RAJESWARAN

C.R.P.(PD) No.2401 of 2008 and M.P.No.1 of 2008

S.Kannan, aged 40 years,

S/o Srinivasan,

Previously residing at

Room No.11, Door No.6

Chinnathambi Mudali Street,

Triplicane, Chennai 600 005.

Presently residing at

Vasan Complex,

No.60, Sannadhi Street,

Thiruvanaikaval,

Trichy – 5. … Petitioner

Vs

1. Mrs.Priya, aged 30 years,

D/o P.Ramadurai,

Ward No.6,

South jagannathapuram,

Pazhani Chettipatti Village and Post,

Theni 625 531.

2. S.Sakthivel, aged 33 years,

S/o Srinivasan,

C/o S.Manimegalai Vasan Complex,

Thiruvanaikaval,

Tiruchy  5. … Respondents

This Civil Revision Petition is filed under Article 227 of Constitution of India, challenging the Order dated 15.07.2008 made in I.A.No.44 of 2008 in H.M.O.P.No.239 of 2006 on the file of the Subordinate Court at Poonamallee. For Petitioner : Mr.Anantha Ramakrishnan

For Respondent : M/s.A.S.Kailasam Associates

for R1

*****

O R D E R

This Civil Revision Petition is filed against the Order dated 15.07.2008 made in I.A.No.44 of 2008 in H.M.O.P.No.239 of 2006 on the file of the Subordinate Court at Poonamallee.

2. The petitioner/husband in H.M.O.P.No.239 of 2006 is the revision petitioner before this court. He is aggrieved by the order of the trial court dated 15.7.2008 made in I.A.No.44 of 2008 by which custody of the minor female child Ovia was given to the first respondent/wife.

3. The petitioner herein filed H.M.O.P.No.239 of 2006 before the Subordinate Judge at Poonamallee under Sec.13(1)(i) and (i-a) & 26 of Hindu Marriage Act, 1955 praying for a decree of divorce dissolving the marriage between the petitioner and the first respondent which was solemnised on 26.03.1995. He also prayed for an order of permanent custody of the minor female child Ovia till she attains majority.

 

4. Pending H.M.O.P., the first respondent/wife filed an application in I.A.No.44 of 2008 to direct the petitioner/ husband to hand over the custody of the minor child to the first respondent/wife. In the affidavit filed in support of the application in I.A.No.44 of 2008, the first respondent/wife stated that after the marriage, they resided together at Trichy for a period of three years and thereafter, the petitioner/husband shifted the family to Chennai as he was involved in Cine film making like short film etc. Both of them lived in Chennai for seven years and thereafter she was forced to leave the matrimonial home along with her minor daughter to her parent house at Theni on 25.05.2005. The minor daughter was admitted by her in V Standard at Shanti Niketan Metriculation School at Muthuthevanpatti, Theni. As the petitioner/husband refused to maintain her and the child, she filed M.C.No.26 of 2006 before the Chief Judicial Magistrate Court at Theni, seeking maintenance. The elders of the family negotiated a settlement at that time and on that basis, she withdrew the maintenance case as the petitioner/husband promised that he would take both minor daughter and wife back to the residence at Chennai or Trichy. But he did not do so and in the meantime, the minor daughter completed one academic year and she also promoted to VI Standard. Thereafter, nothing happened. Now, the daughter is studying in VIII Standard in the same School. All the educational expenses of the minor daughter are borne by the first respondent/wife.

5. While so, she was surprised to receive summons from the Sub Court, Poonamallee in H.M.O.P.No.239 of 2006 filed by her husband for divorce. As she had to appear before the Sub Court, Poonamallee, she put her daughter temporarily in the hostel at the same school. But the petitioner/husband with the help of Vice Principal of the School at Theni, kidnapped the minor daughter Ovia on 5.4.2008 and she came to know about that on 12.04.2008. Immediately, the first respondent/wife lodged a complaint before the police and sent a telegram to Subordinate Judge, Poonamallee and also to the Principal of the School. After receiving the telegram, the Vice Principal of the School informed the first respondent/wife that the daughter had gone on an excursion and asked her to wait till her return. Hence, the first respondent/wife was waiting till 24.6.2008 and then only she realised that her daughter had been kidnapped by the petitioner/husband. Thereafter, she lodged another police complaint with All Women Police Station at Theni. She further stated that the petitioner/husband was residing in a room at a lodge and therefore, he could not bring up her daughter and hence she filed I.A.No.44 of 2008 for the aforesaid relief.

6. This application was resisted by the petitioner/ husband by filing a counter, wherein it was stated that after filing the petition for divorce (that time he was at Triplicane, Chennai) he now shifted his residence to Thiruvanaikaval, Trichy. He admitted that her daughter was initially residing with the first respondent/wife and during her stay with her mother, husband’s in-laws ill-treated the minor girl and treated her with cruelty. That apart, the first respondent/ wife left the daughter in the hostel and came to Chennai to work. His case is that on 5.4.2008, he received a call from the Head Mistress of Theni School asking him to meet the School authorities immediately. When he met the Head Mistress, she handed over a letter written by his minor daughter to the Vice Principal narrating the adulterous life of the first respondent/wife and ill-treatment meted out to her by her meternal uncle. His minor daughter is also did not want to live with her mother and requested the Vice Principal to hand her over to her father, the petitioner herein, so that she could go along with him to his place. When his daughter came to the Principal room, she clearly informed the Principal that she wanted to live with her father only and on that basis he took custody of the minor child. His daughter is now happily living with him and therefore, he prayed for dismissal of the petition filed by the first respondent/wife.

7. The trial court by order dated 15.7.2008 allowed the petition and directed the petitioner/husband to give custody of his daughter, the minor child, to the first respondent/ wife within 15 days. Aggrieved by the said order, the husband has filed the above Civil Revision petition under Article 227 of the Constitution of India.

8. This Civil Revision petition came up for admission on 24.7.2008 and on that day, considering the facts and circumstances of the case, I directed the petitioner/father to bring his minor child Ovia to my chamber and accordingly, she was brought by her father. I spoke to the child personally without the presence of her father to ascertain her mind. She spoke clearly and expressed her opinion that she would remain only with her father at Trichy and she did not like to go to Theni to stay with her mother. After hearing the child and ascertained her mental make-up, I ordered notice to the respondent and stayed the order of the trial court dated 15.2.2008 made in I.A.No.44 of 2008.

9. The first respondent entered appearance through her counsel and contested the matter. Heard the learned counsel for the petitioner/ husband and the learned counsel for the respondent/wife. I have also gone through the records filed in support of this petition.

10. In a matter of this nature where the minor’s interest is involved, what is paramount is the welfare of the minor child and nothing else. Though I am not happy with the way in which the petitioner/husband took custody of the minor child from the School at Theni, I find that the minor girl (the daughter) is strong in her conviction and categorical in her decision that she would stay only with her father at Trichy where she is at present happily living and studying in Vignesh Sri Renga Matriculation Higher Secondary School, Srirangam, Trichy and she would not go to Theni to live with her mother.

11. The minor daughter is very intelligent showing lot of maturity. She does not appear to have been tutored at all. She is bold and adamant that she would not go with her mother. Still, I asked her mother, who appeared in Court along with her counsel to persuade the minor child to go with her mother. But the minor categorically refused to do so. The learned counsel for the first respondent/wife was also present when the mother had personal talks with the minor child. I was given to understand by the learned counsel for the first respondent/wife that the minor girl has not shown any interest at all to go along with her mother.

12. Therefore, considering the interest and welfare of the minor child, I permit the petitioner/husband to have interim custody of the minor daughter. It is stated that Theni School authorities namely, Shanthi Nikethan Matriculation School at Muthudevanpatti, Theni where she studied last before joining Vignesh Sri Renga Matriculation Higher Secondary School, Srirangam, Trichy, are now refusing to issue Transfer Certificate (T.C.) to the minor daughter and without a valid T.C. the present School where she is studying namely, Vignesh Sri Renga Matriculation Higher Secondary School at Srirangam, Trichy are refusing to permit the minor child to sit for the ensuing Annual examination to be held in this month end. Hence, I direct Shanthi Nikethan Matriculation School authorities, Muthudevanpatti, Theni, to issue immediately the necessary Transfer Certificate to the minor child Ovia to enable her to appear for examination at the present School, namely, Vignesh Sri Renga Matriculation Higher Secondary School at Srirangam, Trichy. The School authorities may act on the production of a copy of this order from the petitioner/husband side.

13. It is also made clear that this interim custody given to the father is valid till the disposal of the main H.M.O.P.

14. Further, considering the nature and urgency of the case and considering the fact that both the parties are not residing at Chennai, I transfer the H.M.O.P.No.239 of 2006 suo motto, from the file of the Sub Court, Poonamallee to the file of the Principal District Judge, Theni, who, after receiving the case papers from the Sub Court, Poonamallee shall either take up the case by himself or transfer the same to any appropriate Court at Theni. On such transfer being made, the transferred court at Theni District, shall decide the main H.M.O.P.No.239 of 2006, on merits and in accordance with law within a period of three months from the date of receipt of the case papers. The Sub Court, Poonamallee is hereby directed to send the entire records pertaining to the H.M.O.P. No.239 of 2006 to the Principal District Court, Theni as expeditiously as possible to enable the Principal District Judge, Theni to do the needful, as above mentioned.

15. Before parting with the case, I would like to add that it is not explained by the petitioner/husband that some elderly women are staying with him at Trichy to take care of the minor female child, especially when the child attains puberty and goes through that biological and physiological changes for the first time in her life. Therefore, the petitioner/husband is hereby directed to ensure that some affectionate closely related elderly women are always available in that house, where the minor child is residing, to take care of the minor female child, failing which the first respondent/wife is permitted to approach the concerned Court at Theni District where the H.M.O.P. will be transferred and tried, to obtain appropriate orders on the basis of this order.

16. In the result, this Civil Revision petition is allowed. No costs. M.P.No.1 of 2008 is closed.

 

 

vaan

To

1. The Subordinate Judge, Poonamalle

2. The Principal District Judge,

Theni

 

 

 

Wife wants money !!! Husband’s take home is rs 21000 and odd !! So wife and co get 10000 !!!

Wife wants money !!!
Husband’s take home is rs 21000 and odd !!
So wife and co get 10000 !!!
The decision again proves what I keep saying … Are you a man ? You’ve got money ? You touched the female ?? Too bad then ….. Pay up 😦
As simple as that ….
No question about why they split ? Who is wrong ? Wy did they reach where they reached ??

===============================================================

Smt Prabhavathi vs Lakshmeesha M C
19 June, 2012

Author: N.K.Patil And S.N.Satyanarayana

IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 19TH DAY OF JUNE, 2012 PRESENT

THE HON’BLE MR. JUSTICE N.K.PATIL AND

THE HON’BLE MR.JUSTICE S.N.SATYANARAYANA Misc.Cvl.No.11860 of 2011

in M.F.A. No. 5099 of 2011(FC)

Between:

Smt. Prabhavathi,

W/o. Lakshmeesha

….Appellant

(By Sri. Hemanth Kumar,

for M/s. Pramila Associates)

And:

Lakshmeesha.M.C,

S/o. M.L.Channappa

……Respondent

(By Sri. S.B. Mukkannappa, Advocate) *****

This Misc.Cvl. is filed under Section 24 of the Hindu Marriage Act R/w. Section 151 of CPC, praying to pay an interim maintenance of `20,000/- to the appellant and educational expenses of her son, pending disposal of the above appeal, in the interest of justice and equity.

This Misc. Cvl coming on for Admission this day, N.K. PATIL J., made the following: :O R D E R:

This application is filed by the appellant -wife seeking direction, directing the respondent-husband to pay an interim maintenance of `20,000/- to her and educational expenses of her son, pending disposal of the appeal. We have heard the learned counsel for the appellant and learned counsel for respondent. Perused the statements made in the affidavit accompanying the application and the original records available on file, including the impugned judgment and decree.

On perusal of Ex.R1-salary certificate of the respondent-husband for the month of August 2010, bearing No.SE(MR)PR/53/10-11 issued by the Superintending Engineer (MR), Bruhat Bangalore Mahanagara Palike, which is very much available in the original records at red ink page No.109, it could be seen that, the gross salary of respondent-husband is `35,885/- per month and his take home salary is `21,927/- per month.. Therefore, taking into consideration the take home salary of the respondent- husband as referred above and since the appellant wants to live with honour and dignity along with other members and to meet out her day today expenses, taking the paramount consideration of the welfare of the son who is studying in Engineering course and also having regard to the escalation in prices of essential commodities, like, food, cloth and other incidental expenses, we are of the considered view that, this Misc. Cvl is liable to be allowed, granting `10,000/- per month as interim maintenance to the appellant-wife to meet out the day today expenses of herself and her son.

For the foregoing reasons, this Misc.Cvl. is allowed, granting, `10,000/- per month as interim maintenance. The said amount shall be paid by the respondent-husband from the month of March 2011 until further orders. Further, we direct the appellant -wife to open S.B. A/C in the bank nearer to her residence and furnish the S.B. account number to the employer of the respondent i.e. the Superintending Engineer (MR), Bruhat Bangalore Mahanagara Palike, N.R. Square, Bangalore, within two weeks from the date of receipt of a copy of this order. The Superintending Engineer (MR), N.R. Square, Bruhat Bangalore Mahanagara Palike, Bangalore, is directed to deduct `10,000/- per month from the net salary of the respondent-husband- Sri. Lakshmeesha M.C. and re deposit the same to the S.B. account number to be furnished by the appellant-wife, on 10th of every month and pay the remaining salary to the respondent- husband until further orders.

Further the respondent-husband is directed to pay the admission fee, tuition fee and other incidental expenses incurred by his son to prosecute his studies in B.E. for the academic years 2011-12 and 2012-13 on production of receipts by the appellant and her son within two weeks to the respondent.

The respondent is directed to pay the said amount immediately thereafter by way of demand draft in the name of appellant.

With the above observations, this Misc.Cvl. stands disposed of.

SD/-

JUDGE

SD/-

” ……நீ ஆணா ? காசு வெச்சு இருக்கியா ? பொம்பளையை தொட்டுட இல்லை …. அப்ப குடுடா காசை ….”

” ……நீ ஆணா ? காசு வெச்சு இருக்கியா ? பொம்பளையை தொட்டுட இல்லை …. அப்ப குடுடா காசை ….”

===========================================

சட்டத்தை மதிக்கும் இந்திய குடிமகனுக்கு, உழைத்து சம்பாத்திக்கும் ஆண்களுக்கு, ஜீவனாம்சம் ஒரு ஒரு பெரும் பிரெச்சனையாகவே  இருக்கிறது

– யார் சரி ? யார் தவறு ?
– யார் திருமணத்தை உடைத்தது ?
– நாலு வருசம் சேர்ந்து வாழ்ந்திட்டால், பின் 14 வருஷம் என்ன 40 வருஷம் ஜீவனாம்ஸம் கொடுத்துக்கொண்டே இருக்க வேண்டுமா ?
– உழைக்கும் …சம்பாரிக்கும் மனைவிக்கும் ஜீவனாம்ஸம் உண்டா ?
– நாளை மனவியிடம் இருக்கும் குழந்தை தான் அமேரிக்காவில் தான் படிப்பேன் என்று சில்லிவிட்டால் அதற்காக லெட்சோப லெட்சம் கணவன் கொடுக்க வேண்டுமா ??? என்று எந்த கேள்வி முறையும் இல்லாமல், …..

” ……நீ ஆணா ? காசு வெச்சு இருகாயா ? பொம்பளையை தொட்டுட இல்லை …. அப்ப குடுடா காசை ….” என்ற கோணத்தில் இந்திய ஜீவனாம்ஸ வழகுகளும் தீர்ப்புகளும் அமைகின்றன

இல்லறம் என்ற அறம், பெண்கள் காசு பண்ணும் டெல்லர் மெசின் ஆகிக்கொண்டு இருக்கிறது

 

மேலும் விபரங்களுக்கு …. பின்வரும் சுட்டியில் படிக்கவும்

https://vinayak.wordpress.com/2012/07/13/wife-is-educated-and-earning-rs-12000-a-month-still-hubby-has-to-payd-rs-40000-p-m-as-he-is-earning-more/

Wife is educated and earning Rs 12000 a month. Still hubby has to pay Rs. 40000 p.m. as he is earning more !!!!

All citizens are equal ….but some are more equal !!! ; Also called …. maintenance industry … then and now !!! ; Husband has to maintain daughters EVEN if the daughter has become a major !!!

============================================================
Bombay High Court

Vijaykumar Jagdishrai Chawla vs Reeta Vijaykumar Chawla on 26 August, 2011

Bench: A.M. Khanwilkar, R.Y. Ganoo

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

FAMILY COURT APPEAL NO. 36 of 2011

WITH

FAMILY COURT APPEAL NO. 38 of 2011

WITH

CIVIL APPLICATION NO. 73 of 2011

IN

FAMILY COURT APPEAL NO. 38 OF 2011

Vijaykumar Jagdishrai Chawla;
Indian inhabitant, Hindu,
age: 53 years, Occ: Business,
residing at: Gate No. 477,
Naigaon, Kamshet, Bombay-Pune Road,
Taluka – Mahval,
Dist.Pune – 410 405 …Appellant (orig. Petitioner)

v/s.

Reeta Vijaykumar Chawla
Indian inhabitant, Hindu,
age 47 years, Occ: Service,
r/at: C/o. Chandra Rajkumar Deewan,
8/1/102, Kesar CHS Ltd.,
Charkop Market, Kandivali (west)
Mumbai – 400 067. ..Respondent (orig. Respondent)

Mr. S.I. Jayakar (Lalwani) for the appellant.

Ms. Veena Gowda for the respondent.

CORAM:- A.M. KHANWILKAR AND

R.Y. GANOO, JJ.

ORDER RESERVED ON: 12th August, 2011

ORDER PRONOUNCED ON : 26th August, 2011

ORDER (PER A.M. KHANWILKAR, J.)

The former appeal is directed against the impugned Judgment and decree passed by the Family Court, Mumbai in Petition No. A-2320/2007 whereby the prayer of the appellant-husband for dissolution of marriage under Section 13 of the Hindu Marriage Act, 1955 has been dismissed.

2. The other appeal is against the Judgment and decree passed by the Family Court, Mumbai in Petition No.C-87/2008 providing for maintenance to the respondent-wife at the rate of Rs. 40,000/- per month including accommodation charges payable from the date of the order and direction to the appellant-husband to repay the loan amount to the daughter which she had taken for pilot training. The companion civil application is filed for interim relief of stay of operation of the impugned judgment and decree which is subject matter of challenge in the latter appeal.

3. Both the appeals were listed for admission. Before the appeals were heard for admission, the matters were kept in Chambers to explore the possibility of settlement between the parties. Initially, it appeared that the parties may be able to amicably resolve their disputes but eventually the parties requested the Court to hear the appeals for admission on merits as settlement was not possible.

4. Accordingly, both the appeals were listed for admission on 12th August, 2011. The Counsel argued the respective appeals for admission. Insofar as Family Court Appeal No. 36/2011 is concerned, we indicated to the parties that the same may have to be admitted and heard finally after the appeal becomes ready for hearing. As regards the latter appeal filed by the husband being FCA No. 38/2011, since the matter in issue was only with regard to the question of maintenance amount awarded by the Family Court, we heard both the parties at length. That appeal, we propose to dispose of finally by this order by consent.

5. Briefly stated, the appellant and respondent got married as per Hindu Vedic Rites on 12th November, 1986. Out of the said wedlock daughter Shraddha was born on 15th August, 1987. Later on son Siddhesh was born on 26th April, 1990. The parties, however, started staying separately due to their differences from 1999. The appellant, therefore, filed petition under Section 9 of the Hindu Marriage Act for decree of restitution of conjugal rights being Petition No. A-680/2001. The appellant, however, later on withdrew the said petition as he had reason to believe that the respondent was not willing to join him. He thereafter filed Petition No. A-2320/2007 on 13th September, 2007 for dissolution of marriage solemnized between the appellant and the respondent on the ground of cruelty and desertion. The Respondent on the other hand filed Petition No. C-87/2008 seeking maintenance for herself and her daughter and other consequential reliefs. This petition came to be filed by the respondent-wife on 23rd April, 2008.

6. With regard to the issue of maintenance, the Family Court analyzed the evidence adduced by both the parties and found as of fact that the respondent-wife was employed and getting salary of around Rs. 12,000/- per month. The Court also found that the daughter Shraddha was residing with her mother i.e. respondent-wife. Further, the respondent-wife alone was maintaining daughter Shraddha who had become major and also taking care of all her educational expenses. The son admittedly started staying with appellant-father. The Family Court has also found as of fact that daughter Shraddha who was staying with the respondent was pursuing Pilot Training Programme. For that, she had obtained loan of substantial amount to pay fees therefor. The respondent-wife was not in a position to take the burden of the said education expenditure of Shraddha nor was in a position to pay the loan installments. The respondent was being helped by her mother and brother financially. The Court found that the respondent was not able to maintain herself with the limited salary drawn by her. The Family Court found that on the other hand the appellant-husband was well placed in life. His income was substantial. He was engaged in business of Restaurant/Dhaba. The Family Court has adverted to the properties owned and possessed by the appellant.

7 The appellant in his cross-examination amongst others in paras 78-80 of his evidence has stated thus:-

| “78. …. I came to know about obtaining loan by my
| daughter for her course during pending proceeding. I
| am ready to repay the loan amount which my daughter
| obtained. I am having my Bungalow and Hotel on the
| area ad measuring 2.1 R. The area of Bungalow is 1500
| sq. fts and have 3 BHK. It is true to say that I am
| having 3 acres of land at Kanha Phata in 1994. I am
| not having any flat at Kharghar. I am having a flat at
| Lonavla ad measuring 750 sq. fts for Rs. 3,40,000/- in
| 2004. I have obtained the loan. I am not having any
| other property except the above property. I am not
| having 7 acres of land at Lonavla High Way. I am
| having property at Mawal in district Pune. It is 11
| acres 8 gunthas.

79. I have showed my all properties in my Income Tax Returns. It is not true to say that I have not disclosed my entire properties in my Income Tax Returns. Copy of Income Tax Returns is shown to the witness. Hence, Ex. 37 is given to it. I have booked a flat at Thane. Presently I am having SCODA car. I purchased it before two years for Rs. 13,98, 687/- after giving my HONDA CITI Car. I am filing zerox copy of the bill on record. It is at Ex.38. The witness volunteers that the Car was taken after obtaining loan of Rs. 9 lacs.

80. I am having income from the agricultural land and Restaurant and Dhaba. I was working as a Commission Agent of Sai Dutta Shipping Agency. The witness volunteers that I closed it before two years. I purchased 10,000 sq. fts land in the name of my son at Dahivali village before one year. My sister is residing in a flat. It is not true to say that I am getting Rs. 5 lacs per month from the Restaurant. I went two times to Dubai and one time to Singapore in my entire life to attend the marriage. It is not true to say that I am going to abroad regularly. I can file copy of passport on record.” ( emphasis supplied )

8. Adverting to the evidence on record the Family Court proceeded to conclude that the appellant has substantial income. On the other hand, the respondent had meager income and was not in a position to maintain herself as well as her daughter Shraddha. On that finding, both the petitions have been disposed of by common judgment and decree which is impugned in the present appeals. The same reads thus:

| “: O R D E R :
|
| PETITION NO. A-2320/2007
|
| The petition is dismissed with costs.
|
| Decree be drawn up accordingly.
|
| PETITION NO. C-87/2008
|
| The petition is partly allowed.
|
| The respondent shall pay maintenance to her at the
| rate of Rs. 40,000/- per month including accommodation
| charges payable from the date of this order.
|
| So far as her claim for maintenance of the son is
| concerned, it is rejected.
|
| He shall repay the loan amount of the daughter which
| she has taken for pilot training.
|
| So far as her claim for maintaining of the daughter
| is concerned, it is rejected.
|
| Decree be drawn up accordingly.
|
| Sd/-
|
| 24/12/10
|
| (Kum. V.J. Lohiya)
|
| Judge,
|
| Dated:- 24-12-2010 Family Court No.2, Mumbai”
|

9. By the latter appeal the appellant has assailed the order of the Family Court requiring the appellant to pay maintenance to the respondent-wife at the rate of Rs. 40,000/- per month including for accommodation charges payable from the date of the order. The appellant has also challenged the direction issued by the Family Court requiring him to pay the loan amount obtained by his daughter Shraddha for undergoing Pilot Training Programme.

10. After hearing Counsel for the appellant for sometime on instructions of the appellant who was present in Court, Learned Counsel submitted that the appellant would not press the appeal qua the impugned order of the Family Court requiring him to pay maintenance to the respondent-wife at the rate of Rs. 40,000/- per month including for accommodation charges payable from the date of the order of Family Court dated 24th December, 2010. He submitted that the appellant would press the latter appeal only to the extent of the second direction issued by the Family Court requiring the appellant to repay the loan amount of the daughter Shraddha which she had taken for Pilot Training. Thus, the hearing of the latter appeal is confined to this limited ground. Therefore, we proceeded to hear the Counsel appearing for the parties on the said question for final disposal of appeal by consent.

11. The sole ground urged by the Counsel for the appellant, is that, the respondent had no locus to file application for maintenance for and on behalf of her daughter Shraddha who had already become major in August 2005. Now let us consider this ground of challenge. The fact that daughter Shraddha has joined the Pilot Training Programme for which she had to incur substantial expenditure and, therefore, had to take loan is not in dispute. It is also indisputable that the appellant in his evidence before the Family Court plainly conceded that he was ready to repay the loan amount which his daughter Shraddha had obtained. Nonetheless, the appellant has challenged the direction issued by the Family Court requiring him to repay the loan amount obtained by his daughter Shraddha for undergoing Pilot Training Programme, purely on the legal argument that the respondent wife has had no locus to file petition for maintenance amount to be paid to daughter Shraddha, by whatever name called, who has already become major.

12. The Counsel for the respondent-wife would contend that as the appellant-husband was not disputing the factum of daughter Shraddha having obtained loan of substantial amount for undergoing the Pilot Training Programme; and in his evidence having admitted that he was ready to repay the loan amount so obtained by his daughter, it is not open to him to now resile from the said commitment. It is argued on behalf of respondent that even if the daughter was major on the date of filing of the maintenance petition, that would not preclude the mother from filing petition for maintenance for herself and her daughter, who was admittedly staying with her and was being looked after and maintained by her. According to respondent, the argument advanced by the appellant before this Court for the first time is nothing but a hyper technical plea. She submits that even if the appellant was right in said argument, it would be a mere formality for the daughter to file a fresh petition before the Family Court for the relief already granted in her favour in the concluded proceedings. That would result in multiplicity of proceedings. Relying on the exposition in the case of Madhavi Ramesh Dudani v/s. Ramesh K. Dudani {1(2006) DMC 386 (DB)} it is argued by the Counsel for the respondent that no interference by this Court is warranted in respect of the impugned directions against the appellant issued by the Family Court to repay the loan amount of the daughter Shraddha which was essentially founded on the admission of the appellant himself.

13. Having considered the rival submissions on the above contention, we are of the considered opinion that the argument of the appellant though appears to be attractive at the first blush is devoid of merits and deserves to be stated to be rejected. The moot question is; whether the wife can seek relief of maintenance for and on behalf of her major daughter/son. Admittedly, the petition filed by the respondent before the Family Court was one under Section 18 read with Section 20 of The Hindu Adoptions and Maintenance Act, 1956. Section 18 governs the scheme for providing maintenance to the wife. Section 20, on the other hand, deals with the regime of providing maintenance of children and aged parents. Indeed, sub-section (1) obligates the father as well as the mother to maintain legitimate or illegitimate children. Sub-section (2) of Section 20 postulates that legitimate or illegitimate child can claim maintenance from his/her father or mother so long as the child is minor. Sub-section (3) of Section 20, however, is in the nature of exception which provides for the obligation of a person to maintain his or her daughter who is unmarried and is unable to maintain herself out of her own earnings or other property.

14. In the present case, it is not in dispute that daughter Shraddha is residing with her mother. She is admittedly unmarried. Her mother has no own earnings or other property except the income by way of meager salary earned by her. She is thus not in a position to take the burden of education expenditure of her daughter Shraddha which is quite substantial for undergoing the professional course. We may usefully refer to Section 21 of the Act of 1956 which defines the term ‘Dependants’. Clause (v) of Section 21 encompasses unmarried daughter as Dependant. Having regard to the relevant provisions therefore, there can be nodoubt that the unmarried daughter is entitled to receive maintenance amount from her father or mother, as the case may be, so long as she is unable to maintain herself out of her own earnings or other property. Admittedly, Shraddha has no earning of her own and is pursuing her further education. She has no property of her own from which she can derive income. As has been noticed earlier, the income of the respondent-wife from her salary is very meager. For that reason, Shraddha would be entitled to maintenance amount and her education expenses from her father (appellant). Rather the father would be obliged to pay the amount towards maintenance of her daughter and for education expenditure, in law.

15. In the case of Madhavi Dudani (supra) the wife had filed petition for judicial separation and also for permanent maintenance for herself and for the minor daughters. When the matter came up to this Court by way of appeal, the daughters had become major. The father resisted the relief of maintenance amount payable to the daughters who had become major, even though they were unmarried. The Division Bench of this Court negatived the said objection in the following words:-

| ” We have however to note that she is looking after
| her two daughters. The daughters are treated as
| “dependants” until they get married under section
| 21(v) of the Hindu Adoption and Maintenance Act, 1956.
| They are entitled to get their maintenance from their
| father. Considering the fact that the appellant has
| been looking after these two daughters and she will be
| continuing to look after them hereafter until they get
| married. In our view, that is a “circumstance” which
| has got to be considered when one decides the
| permanent alimony to be paid to the appellant wife.
| Section 25 of the Hindu Marriage Act provides that a
| court exercising jurisdiction under the Act at the
| time of passing of the decree may direct the
| respondent to pay the applicant for her maintenance
| and support such gross sum or such monthly or
| periodical sum, having regard to the respondent’s own
| income and other property, if any, the income and
| other property of the applicant, the conduct of the
| parties and other circumstances of the case, it may
| seem to the Court to be just. The Court is empowered
| that such payment may be secured by a charge on the
| immovable property of the respondent. In the
| circumstances of the case, we have to note that the
| appellant is looking after the two daughters. They
| have completed their education. They have become
| graduates in engineering and management respectively.
| They intend to further prosecute their studies and
| then get married. They do not have any income of their
| own. The appellant is undoubtedly spending for their
| education and will spend on their marriage. It will
| not be proper to drive the daughters to file an
| application under the Hindu Adoption and Maintenance
| Act, 1956. In our view, the phrase “other
| circumstances of the case” appearing in section 25 of
| the Hindu Marriage Act is quite elastic and while
| passing an order under that section, the necessary
| provision can be appropriately made if the
| circumstances so justify.
|
| 30. The respondent has been made to make such payment
| from time to time and Mr. Thakkar has stated that he
| has been making additional payment for education of
| her daughters on his own. The fact however remains
| that the burden has been on the appellant all
| throughout. The burden for further education and
| thereafter marriage is much more.
|
| They are daughters of an industrialist who are being
| looked after by the mother. In the circumstances,
| though we may not provide separately for the
| appellant, considering these circumstances, we deem it
| just that separate provision should be made for the
| two daughters along with the appellant. The provision
| of such an amount will take care of their future
| education and marriage. In our view, it will be just
| and appropriate that an amount of Rs. 10,00,000/- is
| provided for each of the daughters. Such an amount
| shall be kept in RBI Bonds and the interest would be
| payable to the daughters concerned. At the present
| rate of 6% interest (tax free), each of them will get
| annually an amount of about Rs. 60,000/- which will be
| quite proper considering the cost of living and their
| status as daughters of an industrialist. In the
| circumstances, we direct the respondent to invest an
| amount of Rs. 10,00,000/-in the name of each of the
| daughters. That will reduce the burden on the
| appellant hereafter. That will be a contribution which
| is expected of the respondent as a father. He is an
| industrialist and quite well of. He had divorced his
| earlier wife. His daughter from the earlier marriage
| is already married and his son is an adult and is in
| business. He does not have any major liability. He
| should provide for these two daughters for their
| future education and marriage. Thus, though we are
| passing this order under section 25 of the Act,
| essentially we are making provision for the two
| daughters whose liability is otherwise on the
| appellant but is being shared by the respondent. This
| is to reduce her liability for the daughters and to
| make the respondent share his burden of the
| responsibility. That takes care of the requirement for
| a separate accommodation and alimony. The respondent
| is directed to make these deposits also within 3
| months hereafter. In view of the above provision, we
| are not passing any order for marriage expenses though
| we expect the respondent to act as a good father and
| share in the burden as and when the occasion arises.”
|
| ( emphasis supplied )
|
|

16. Going by the above exposition, the mother is competent to pursue relief of maintenance for the daughters even if they have become major, if the said daughters were staying with her and she was taking responsibility of their maintenance and education. In addition, it will be useful to refer to the decision of the Apex Court in the case of Jagdish Jugtawat v/s. Manju Lata & ors. {(2002) 5 Supreme Court Cases 422}. In that case the wife had filed application for maintenance for herself as well as her minor daughter under Section 125 of the Criminal Procedure Code. The same was granted by the Family Court by providing amount of Rs. 500/- per month each. The husband filed revision before the High Court assailing the order of the Family Court on the ground that the daughter was entitled to maintenance only till she attained majority and not thereafter within the meaning of Section 125 of the Code. This argument was negatived by the High Court. When the matter went before the Apex Court, the Apex Court upheld the view taken by the High Court and held that the learned Single Judge was right in taking the view that “with a view to avoid multiplicity of proceedings”, no interference with the decision of the Family Court was warranted. The High Court had observed that even though Section 125 limits the entitlement of the daughter for maintenance till she attains majority, by virtue of Section 20(3) of the said Act of 1956, the daughter is entitled to receive maintenance from her mother or father till her marriage.

17. Applying the principle underlying the above dictum, we have no hesitation in negating the objection of the appellant. Instead, we hold that the respondent is justified in criticizing the objection of the appellant being a hyper technical plea. Inasmuch as, even if the appellant were to succeed in the present appeal, that would not extricate him from the liability to maintain his unmarried daughter who is staying with his estranged wife. The appellant in law would be bound to not only maintain his unmarried daughter but is also responsible for her education including higher education until her marriage.

18. We may also refer to the decision of the Calcutta High Court in the case of Anwor Ali Halder v/s. Sakina Bibi {(2005) 3 CHN 649}. Even in that case, the wife had filed application for maintenance under Section 125 of the Court for awarding maintenance in her favour as also her daughter. The Court allowed the said application. After lapse of sometime, the wife filed application for enhancement of maintenance amount under Section 127 of the Code. By that time, however, the daughter had attained majority. The husband resisted the application under Section 127 on the ground that daughter had attained majority and would not be entitled to get maintenance. The Court while adverting to the decision of the Apex Court in Noor Saba Khatoon {(1997) 6 SCC 233} held that even if the daughter had become major, she was entitled to get maintenance from her father till she gets married. Even in that case the application for maintenance was filed by the wife for herself and her daughter. In another case, decided by the Calcutta High Court reported in the case of Amit Roy v/s. Mira Roy {(1998) 4 ICC 348 (Cal)} and in the case of Shri Krishna Kanta Bhattacharya v/s. Smt. Shyamali Bhattacharya & anr.{C.R.R. No. 4115/2008 decided on 21st April, 2009} similar view has been reiterated. Even in this unreported decision when the application under Section 127 of the Code for enhancement of maintenance amount was filed by the wife alone for awarding maintenance amount to her as well as her daughter, by that time daughter had already become major. The Court awarded enhanced maintenance amount in favour of the daughter who had become major, to avoid multiplicity of proceedings as otherwise she would be forced to file another petition under Section 20(3) of the Act of 1956 for maintenance.

19. Thus understood, the argument of the appellant that the respondent- wife would have no locus to ask for relief as granted by the Family Court in directing the appellant to repay the loan amount obtained by the daughter Shraddha for undergoing Pilot Training Programme cannot be countenanced. The same will have to be negatived. As a result, the appeal filed by the appellant which has been pressed only for this limited purpose would fail. The appellant would, therefore, be liable to repay the loan amount obtained by daughter Shraddha for pursuing her Pilot Training Programme forthwith.

20. We may place on record that before we proceeded to hear these matters, the parties explored possibility of settlement. In that process the appellant has paid amount in two installments which is around Rs. 8,00,000/- . That payment was made and accepted without prejudice to the rights and contentions of the parties in the pending proceedings. The payment so made by the appellant has been invested in fixed deposit scheme in the name of Shraddha. As the settlement negotiations have failed and matter has been heard on merits, the parties would not be bound by the commitment made by them as recorded in the interim orders which were obviously without prejudice to the rights and contentions of the parties in the pending appeal. The appellant would, therefore, be obliged to repay the remaining loan amount to his daughter after excluding the amount already paid by him during the pendency of the appeal.

21. For the above said reasons, we proceed to pass the following order:-

(A.) (i) Family Court Appeal No. 36/2011 is admitted.

(ii) Respondent waives notice through Counsel. Printing of appeal paper-book is dispensed with. The parties are free to file additional paper-book consisting of the documents/evidence which was before the Family Court. That be done within three months from today.

(B.) (i) As regards Family Court Appeal No. 38/2011, the same is dismissed with costs quantified at Rs. 15,000/- to be paid to the respondent, forthwith.

(ii) The accompanying Civil Application No. 73/2001 in Family Court Appeal No. 38/2011 is also dismissed.

(iii) The appellant shall pay directly to the respondent- wife, entire arrears of maintenance amount at the rate of Rs. 40,000/- per month including accommodation charges w.e.f 24th December, 2010, not later than 10th October, 2011.

(iv) In addition, the appellant shall pay future maintenance amount directly in the designated bank account of the respondent wife at the rate of Rs. 40,000/- per month including accommodation charges regularly on month to month basis on or before 10th of every English calender month hereafter.

(v) The appellant may also repay the entire loan amount upfront obtained by his daughter Shraddha, including the E.M.Is. alredy paid by her on or before 10th October, 2011, after deducting the amount of Rs.8,00,000/- already paid to Shraddha during the pendency of this appeal. In that case, the amount invested by Shradha in fixed deposit scheme being sum of Rs. 8,00,000/- can be encashed by her prematurely for closing the loan account by paying requisite interest or charges therefor.

(vi) In case the appellant does not want to repay the entire loan amount upfront, obtained by Shraddha for pursuing her further studies, shall pay the amount towards equal monthly installments already paid, by and on behalf of Shraddha, in the loan account, after deducting the amount of Rs. 8,00,000/- already paid by the appellant during the pendency of this appeal to Shraddha. That amount shall be paid on or before 10th October, 2011. Further, the appellant shall also pay the future equal monthly installments of the loan account directly in the designated Bank on or before the specified date of every English calender month by instructing his Bankers to pay the EMI through ECS process until Shraddha starts earning and becomes capable of paying the EMI amount herself or gets married, whichever is earlier.

(vii) Ordered accordingly.

(R.Y. GANOO, J.) (A.M.KHANWILKAR, J.)

Meena Rani vs Madan Lal on 30 March, 1995

Wife contended that she took loan before her marriage for arranging dowry but she has failed to prove this fact.

Wife did not even know that her mother-in-law suffered a heart attack in the year 1987,

Wifes father has died before marriage. Her brother got the job about a year or two years earlier to marriage. Her younger sister aged 22 years is still unmarried. So with a view to render financial help to her family, she is living at village Kharar and she does not want to come back to the matrimonial home.

When she lived with the respondent her behaviour was not proper and she deprived him of all the pleasures of married life. Thus she treated him with cruelty and deserted him permanently.

No doubt, during trial the appellant has stated that she is willing to go to her matrimonial home this is nothing but simply a ritual to frustrate the husband’s attempt to obtain a decree of divorce. Husband has honestly stated that now he cannot accept his wife and live with her in the matrimonial home.

On these counts, the trial court has granted the impugned decree in his favour.

The impugned judgment and decree do not suffer from any infirmity or irregularity.

High court confirms the same

====================================================================

Punjab-Haryana High Court

Meena Rani vs Madan Lal on 30 March, 1995

Equivalent citations: (1995) 110 PLR 610
Author: S Saksena
Bench: S Saksena
JUDGMENT

Sarojnei Saksena, J.

1. Appellant-wife has filed this appeal against the decree of divorce, dated 29.11.1991, under Section 28 of the Hindu Marriage Act, 1955 (in short Act.) passed in favour of husband-respondent under Section 13(i)(ia)(ib) of the Act.

2. Uncontroverted facts are that the parties were married on 14.04.1986. Thereafter, they lived together upto May 1987, according to the husband and upto 26.02.1988 according to the wife. Since then they are living separately.

3. The respondent-husband in the petition alleged that since May 1987, the respondent is living in her parental house at Kharar. She is working in Land Mortgage Corporative Bank at Kharar. After marriage till May, 1987, the appellant-wife used to go to her place of employment daily from Chandigarh. Some times she used to Stay back at her parental home and used to return after 3/4 days. After one month of the marriage she went to her parental house for two days but she did not come back. This continued upto August, 1986. The respondent went to her parental home many a times. In August, 1986, she came back to the matrimonial home but left the house for ever in May, 1987 with an intention to permanently desert the respondent. The respondent always behaved with her properly but her behaviour towards him and the members of his family was not proper. She always used to force him to live separately or to live as a resident son-in-law at her parental home. He never acceded to her desire. She never gave her pay to the respondent and whenever he asked her about her salary she always replied that she is repaying the loan taken by her. The details of the loan were never disclosed by her. He convened a panchayat also to bring her back to the matrimonial home but she, her mother and brother declined. On 13.9.1988 her brother-in-law named Roop Lal came to his office and asked him to start residing at Kharar. He assaulted him also but thereafter he lodged a false complaint against him in Sector 17, Chandigarh, where he was called by the police and was made to sit upto 10 P.M. This was all done at the instance of the appellant-wife. She has withdrawn from his society with effect from 16.05.1987 without any reasonable cause or excuse, without his consent and against his will. Her arrogant and insolent behaviour has caused mental cruelty to him. Thus he prays for a decree of divorce on the grounds of cruelty and desertion.

4. The appellant-wife resisted the petition and raised a preliminary objection about the maintainability of the petition on the count that she resided with the petitioner-respondent in the matrimonial home upto 26.2.1988 and since the petition is field on 7.8.1989 it is pre-mature. She interalia denied all the allegations of cruelty and desertion. According to her, husband his parents, brother and sister always taunted and tortured her for bringing less dowry. They started demanding Rs. 60,000/- more on account of dowry and on that count she was turned out of the matrimonial home on 13.5.1986. On 23.5.1986, the respondent came to her parental home at Kharar and again insisted for the payment of Rs. 60,000/-. After great deal of pursuation on several meetings he agreed to rehabilitate her and ultimately she went to her matrimonial home on 31.7.1987. But again on 26.2.1988 she was beaten by her husband and in-laws and was turned out of the house for not bringing Rs. 60,000/-. All her dowry articles were retained by them. Even before marriage they demanded handsome dowry and suggested that she can raise loan for this purpose and can repay it from her salary after the marriage. Thus she took a loan and has repaid it within the knowledge of respondent-husband. She disowned that Roop Lal’s incident took place at her instance. She also denied that her behaviour was insulting or harassing towards him or towards his relations, rather, she was tortured by them. Thus both the grounds of divorce are denied by her.

5. Husband filed replication. The trial court framed issues on the basis of pleadings of the parties. The parties adduced evidence in support of their pleading. On a minute scanning and appraisal of the evidence on record, the trial Court came to the conclusion that the respondent-husband has proved that the appellant-wife treated him with cruelty and she has deserted him. Thus, decree of divorce was passed.

6. The appellant’s learned counsel pointed out that the appellant lived with the respondent upto 26.2.1988 while this petition was filed on 7.8.1989. Thus on the ground of desertion, the petition is premature as being filed within two years of 26.2.1988. He further stressed that from the parties evidence it is also evident that the respondent knew very well that the appellant has taken a loan before marriage to meet the expenses of the marriage. Since, she was required to repay it she was unable to hand over her salary to her husband. On that count, it cannot be said that she had treated him with cruelty, rather, she was always taunted and tortured by her husband and his relations. Twice she was beaten and turned out of the matrimonial home No doubt, since 26.2.1988 she is living separately from her husband but on that count alone divorce decree cannot be granted in favour of the respondent. From his own statement it is evident that he does not want to live with her though she has expressed her willingness to come back to the matrimonial home. These facts show that the husband is guilty of constructive desertion and of treating her with cruelty. She has admitted that she asked her husband to shift or to live separately from the members of his family but this admission is not unqualified. She has further stated that her mother-in-law and sister-in-law were mal-treating her, hence she expressed the desire that her husband should live separately. Relying on Amarjit Kaur v. Babu Sing, (1988-1) 93 P.L.R. 131 appellant’s learned counsel argued that merely because the parties are living separately for 7/8 years, this fact itself is not sufficient to grant a decree of divorce unless the husband further proves that the wife has no intention to live with him. He further contended that the respondent husband has not given any cogent explanation as to why the appellant does not want to live with him conversely he has clearly stated that he does not want to live with the appellant. It is evident that fault lie with him and not with her. He also pointed out that the trial Court has simply held that the case of the husband is more probable, and on that count divorce decree has been granted in his favour. On all these counts he has prayed for the reversal of the impugned decree.

7. The respondent-husband’s learned counsel contended that in reply to para 4 to 8 of his petition, the appellant-wife has pleaded that on 26.02.1988 she was turned out of the matrimonial home and thus she had to take shelter at her parental house. Before the marriage, on the suggestion of the respondent and his relations she took loan to give more dowry to respondent. Hence that fact of loan is within the knowledge of the respondent. After the marriage he and his relations started demanding Rs. 60,000/- and on that count she was turned out of the matrimonial house on 13.05.1985. Again she was taken to they matrimonial home on 31.07.1987 but again on the point of demand of dowry she was maltreated by the husband and his relations and ultimately she was turned out of the house on 26.02.1988 but by adducing evidence she could not prove these allegations. He submitted that she has admitted that before the marriage her husband and his parents were told that her father has expired without leaving any property or cash, therefore, they are unable to give handsome dowry. In this scenario her allegation appears to be palpably false that after the marriage respondent or his relations started demanding Rs. 60,000/- as dowry on that count she was beaten and turned out of the matrimonial home.

8. He further pointed out that she has pleaded that on the suggestion of the respondent and his parents she took loan before her marriage for arranging dowry but she has failed to prove this fact. She has not filed any document to prove as to how much loan she has taken and from where she has taken. She has stated that now as she has repaid the full loan amount, the documents are destroyed. This answer is hardly believable. According to him she does not even know that her mother-in-law suffered a heart attack in the year 1987, She never tried to come back to the matrimonial home after 16.05.1987. All though she was insisting that the respondent should either live as resident son-in-law at her parental home at Kharar or should live separately at Kharar but since the respondent is living with his parents, sisters and brothers he was unable to take a separate residence. He further, contended that the appellant has admitted that her father has died before marriage. Her brother got the job about a year or two years earlier to my marriage. Her younger sister aged 22 years is still unmarried. So with a view to render financial help to her family, she is living at village Kharar and she does not want to come back to the matrimonial home. When she lived with the respondent her behaviour was not proper and she deprived him of all the pleasures of married life. Thus she treated him with cruelty and deserted him permanently. On these counts, the trial court has granted the impugned decree in his favour. The impugned judgment and decree do not suffer from any infirmity or irregularity.

9. From the record it is evident that the parties were married on 14.4.1986. Madan Lal, P.W.I, has stated that after marriage, the appellant was daily going to Kharar to attend her office but many a time she used to stay back at Kharar. She wanted him also to shift to Kharar and to start residing in her parental home, but as he refused, she finally left the matrimonial home in May, 1987. He has further stated that in June, 1987 his mother suffered a heart attach but she never came to see her. He has clearly stated that now he is not prepared to accept his wife. Even during reconciliation proceedings he refused to take her back but according to him for his this denial the reasons are obvious. His wife is more interested in her parental home. She is rendering them all the financial help. She does not disclose as to how much loan she has taken and from where it was taken and when it is repaid. She never offered her pay to him. Her behaviour with him and with the members of his family was not good. He has stated that once her brother-in-law Roop Lal came to his office and misbehaved with him and later on filed a false complaint against him. He is corroborated by Harnek Singh, P.W.2.

10. Appellant Meena Devi has stated that in her marriage, dowry was given by her parents according to their capacity but the husband and his family members were not satisfied with the dowry given. After the marriage they started demanding Rs. 60,000/- and on that count she was turned out of the matrimonial home. This reason assigned by her for her withdrawal from the matrimonial home does not stand to reason. She has admitted that before marriage her husband was told that her father had already expired. Her brother is employed only recently; her mother and younger sister do not earn anything therefore, handsome dowry cannot be given in her marriage. The respondent and his family members accepted this condition. Therefore, it is unbelievable that after the marriage the respondent and his relations started demanding Rs. 60,000/- from the appellant to be brought from her parental home as a dowry. There is no explanation given by her for her not joining the respondent in the matrimonial home. She has stated that on 31.7.1987 she was again brought back to the matrimonial home. She lived there for 5/6 months but again she was beaten, tortured and turned out of the matrimonial home on 26.2.1988. The respondent-husband has not admitted this fact. It is evident from her own statement that her father died in the year 1976; her brother got employment only few months before her marriage. She is employed in Cooperative bank at Kharar. Thus in these circumstances, the respondent’s learned counsel’s argument appears to be more probable and believable that the appellant is more interested in living with her parents so that she may render financial assistance to her family members. She has not chosen to disclose the details of the alleged loan. No documentary evidence is adduced to corroborate her on that point. She has admitted that she wanted her husband to live separately and the reason assigned is maltreatment. But merely saving that she was maltreated by his relations will not absolve her from the responsibility of withdrawing herself from the husband’s society without any reasonable and probable cause. She has examined Amrik Singh, R.W.2 to corroborate her but he is a witness who has not seen any incident. He only over heard certain talks from the house of the respondent-husband. He is not on visiting terms with the respondent though he is a nephew of Charan Singh, who got this marriage settled. The trial Court has rightly disbelieved the statement of this witness.

11. No doubt, during trial the appellant has stated that she is willing to go to her matrimonial home this is nothing but simply a ritual to frustrate the husband’s attempt to obtain a decree of divorce. Husband has honestly stated that now he cannot accept his wife and live with her in the matrimonial home.

12. The facts of Amarjit Raw’s case (Supra) are quite distinguishable, in matrimonial cases each case is to be decided on the facts of that case only. The appellant-wife could not prove any reasonable or probable cause for her leaving the matrimonial home. For the last so many years they are living separately. During this period wife herself never made any attempt to rejoin him. Her intention is obvious. She is more interested in supporting her mother, brother and sister who are still unmarried. She does not want to give pay to her husband nor is interested in disclosing as to what happens to her pay. I am told that Kharar is not far away from Chandigarh. If she really wanted to continue her job and to lead a happy married life, she could have lived with the respondent and could have gone to her office daily from Chandigarh instead of continuously residing with her parents at Kharar. By withdrawing herself from the society of the husband she has treated him with cruelty as marriage without sex is an anathema.

13. From the parties evidence on record it is evident that the marriage is totally broken emotionally as well as factually. On the basis of this evidence, the Trial Court has rightly held that the appellant has, deserted the husband. Both the parameters of desertion are hereby proved.

14. Accordingly, I find that the appeal is meritless. It is hereby dismissed. No order as to costs.