Monthly Archives: October 2016

Mamtha Jaiswal CASE. Well educated wife CANT sit idle and milk husband !! 

////well qualified spouses desirous of remaining idle, not making efforts for the purpose of finding out a source of livelihood, have to be discouraged, if the society wants to progress. The spouses who are quarelling and coming to the Court in respect of matrimonial disputes, have to be guided for the purpose of amicable settlement as early as possible and, therefore, grant of luxurious, excessive facilities by way of pendente lite alimony and extra expenditure has to be discouraged/////

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Madhya Pradesh High Court
Smt. Mamta Jaiswal vs Rajesh Jaiswal on 24 March, 2000

Equivalent citations: II (2000) DMC 170

Author: J Chitre

Bench: J Chitre

ORDER J.G. Chitre, J.

  1. The petitioner Mamta Jaiswal has acquired qualification as MSc. M.C. M.Ed, and was working in Gulamnabi Azad. College of Education, Pusad, Distt. Yeotmal (MHS). The husband Rajesh Jaiswal is sub-engineer serving in Pimampur factory. The order which is under challenge by itself shows that Mamta Jaiswal, the wife was earning Rs. 4,000/- as salary when she was in service in the year 1994. The husband Rajesh Jaiswal is getting salary of Rs. 5,852/-. The Matrimonial Court awarded alimony of Rs. 800/- to Mamta Jaiswal per month as pendente lite alimony, Rs. 400/- per month has been awarded to their daughter Ku, Diksha Jaiswal. Expenses necessary for litigation has been awarded to the tune of Rs. 1,500/-. The Matrimonial Court has directed Rajesh Jaiswal to pay travelling expenses to Mamta Jaiswal whenever sheattends Court for hearing of them matrimorial petition pending between them. Matrimonial petition has been filed by husband Rajesh Jaiswal for getting divorce from Mamta Jaiswal on the ground of cruelty. This revision petition arises on account of rejection of the prayer made by Mamta Jaiswal when she prayed that she be awarded the travelling expenses of one adult attendant who is to come with her for attending Matrimonial Court.

  2. Mr. S.K. Nigam, pointed out that the petition is mixed natured because if at all it is touching provisions of Section 26 of Hindu Marriage Act, 1955 (hereinafter referred to as Act for convenience) then that has to be filed within a month. Mr. Mev clarified that it is a revision petition mainly meant for challenging pendente lite alimony payable by the husband in view of Section 24 of the Act. He pointed out the calculations of days in obtaining the certified copies of the impugned order. In view of that, it is hereby declared that this revision petition is within limitation, entertainable, keeping in view the spirit of the Act and Section 24 of it.

  3. A wife is entitled to get pendente lite alimony from the husband in view of provisions of Section 24 of the Act if she happens to be a person who has no independent income sufficient for her to support and to make necessary expenses of the proceedings. The present petitioner, the wife, Mamta Jaiswal has made a . prayer that she should be paid travelling expenses of one adult member of her family who would be coming to Matrimonial Court at Indore as her attendant. Therefore, the question arises firstly, whether a woman having such qualifications and once upon a time sufficient income is entitled to claim pendente lite alimony from her husband in a matrimonial petition which has been filed against her for divorce on the ground of cruelty. Secondly, whether such a woman is entitled to get the expenses reimbursed from her husband if she brings one adult attendant alongwith her for attending the Matrimonial Court from the place where she resides or a distant place. Http://Vinayak.wordpress.com

  4. In the present case there has been debate between the spouses about their respective income. The husband Rajesh has averred that Mamta is still serving and earning a salary which is sufficient enough to allow her to support herself. Wife Mamta is contending that she is not in service presently. Wife Mamta is contending that Rajesh, the husband is having salary of Rs. 5,852/- per month. Husband Rajesh is contending that Rs. 2,067/- out his salary, are deducted towards instalment of repayment of house loan. He has contended that Rs. 1,000/- are spent in his to and fro transport from Indore to Pithampur. He has also detailed by contending that Rs. 200/- are being spent for the medicines for his ailing father. And, lastly, he has contended that by taking into consideration these deductions as meagre amount remains available for his expenditure.

  5. It has been submitted that Mamta Jaiswal was getting Rs. 2,000/- as salary in the year 1994 and she has been removed from the job of lecturer. No further details are available at this stage. Thus, the point is in a arena of counter allegations of these fighting spouses who are eager to peck each other.

  6. In view of this, the question arises, as to in what way Section 24 of the Act has to be interpreted: Whether a spouse who has capacity of earning but chooses to remain idle, should be permitted to saddle other spouse with his or her expenditure ? Whether such spouse should be permitted to get pendente lite alimony at higher rate from other spouse in such condition ? According to me, Section 24 has been enacted for the purpose of providing a monetary assistance to such spouse who is incapable of supporting himself Or herself inspite of sincere efforts made by him or herself. A spouse who is well qualified to get the service immediately with less efforts is not expected to remain idle to squeeze out, to milk out the other spouse by relieving him of his or her own purse by a cut in the nature of pendente lite alimony. The law does not expect the increasing number of such idle persons who by remaining in the arena of legal battles, try to squeeze out the adversory by implementing the provisions of law suitable to their purpose. In the present case Mamta Jaiswal is a well qualified woman possessing qualification like M.Sc. M.C. M.Ed. Till 1994 she was serving in Gulamnabi Azad Education College. It impliedly means that she was possessing sufficient experience. How such a lady can remain without service ? It really puts a bug question which is to be answered by Mamta Jaiswal with sufficient congent and believable evidence by proving that in spite of sufficient efforts made by her, she was not able to get service and, therefore, she is unable to support herself. A lady who is fighting matrimonial petition filed for divorce, cannot be permitted to sit idle and to put her burden on the husband for demanding pendente lite alimony from him during pendency of such matrimonial petition. Section 24 is not meant for creating an army of such idle persons who would be sitting idle waiting for a ‘dole’ to be awarded by her husband who has got a grievance against her and who has gone to the Court for seeking a relief against her. The case may be vice verssa also. If a husband well qualified, sufficient enough to earn, site idle and puts his burden on the wife and waits for a ‘dole’ to be awarded by remaining entangled in litigation. That is also not permissible. The law does not help indolents as well idles so also does not want an army of self made lazy idles. Everyone has to earn for the purpose of maintenance of himself or herself, atleast, has to make sincere efforts in that direction. If this criteria is not applied, if this attitude is not adopted, there would be a tendency growing amongst such litigants to prolong such litigation and to milk out the adversory who happens to be a spouse, once dear but far away after an emerging of litigation. If such army is permitted to remain in existence, there would be no sincere efforts of amicable settlements because the lazy spouse would be very happy to fight and frustrate the efforts of amicable settlement because he would be reaping the money in the nature of pendente lite alimony, and would prefer to be happy in remaining idle and not bothering himself or herself for any activity to support and maintain himself or herself That cannot be treated to be aim, goal of Section 24. It is indirectly against healthyness of the society. It has enacted for needy persons who in spite of sincere efforts and sufficient effort are unable to support and maintain themselves and are required to fight out the litigation jeopardising their hard earned income by toiling working hours.

  7. In the present case, wife Mamta Jaiswal, has been awarded Rs. 800/- per month as pendente lite alimony and has been awarded the relief of being reimbursed from husband whenever she makes a trip to Indore from Pusad, Distt. Yeotmal for attending Matrimonial Court for date of hearing. She is well qualified woman once upon time abviously serving as lecturer in Education College. How she can be equated with a gullible woman of village ? Needless to point out that a woman who is educated herself with Master’s degree in Science, Masters Degree in Education,. would not feel herself alone in travelling from Pusad to Indore, when atleast a bus service is available as mode of transport. The sumbission made on behalf of Mamta, the wife, is not palatable and digestable. This smells of oblique intention of putting extra financial burden on the husband. Such attempts are to be discouraged. https://vinayak.wordpress.com/

  8. In fact, well qualified spouses desirous of remaining idle, not making efforts for the purpose of finding out a source of livelihood, have to be discouraged, if the society wants to progress. The spouses who are quarelling and coming to the Court in respect of matrimonial disputes, have to be guided for the purpose of amicable settlement as early as possible and, therefore, grant of luxurious, excessive facilities by way of pendente lite alimony and extra expenditure has to be discouraged. Even then, if the spouses do not think of amicable settlement, the Matrimonial Courts should dispose of the matrimonial petitiorisas early as possible. The Matrimonial Courts have to keep it in mind that the quarells between the spouses create dangerous impact on minds of their offsprings of such wedlocks. The offsprings do not understand as to where they should see ? towards father or towards mother ? By seeing them both fighting, making allegations against each other, they get bewildered. Such bewilderedness and loss of affection of parents is likely to create a trauma on their minds and brains. This frustration amongst children of tender ages is likely to create complications which would ruin their future. They cannot be exposed to such danger on account of such fighting parents.

  9. In the present case the husband has not challenged the order. Therefore, no variation or modification in it is necessary though this revision petition stands dismissed. The Matrimonial Court is hereby directed to decide the matrimonial petition which is pending amongst these two spouses as early as possible. The Matrimonial Court is directed to submit monthwise report about the progress of the said matrimonial petition to this Court so as to secure a continuous, unobstructed progress of matrimonial petition. No order as to costs. The amount of pendente lite alimony payable to Mamta Jaiswal by husband Rajesh Jaiswal should be deposited by him within a month by counting the date from the date of order. The failure on this aspect would result in dismissal of his matrimonial petition. He should continue payment of Rs. 400/- per month to his daughter Ku. Diksha Jaiswal right from the date of presentation of application of her maintenance i.e. 14.5.1998. That has to be also deposited within a month. He may take out sufficient money for that from his savings or take a loan from some good concern or loan granting agencies. Failure in this aspect also would result in dismissal of his petition. C.C.

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Forget uniform civil code, forget equality between genders, can we at least have uniform judgements

Forget uniform civil code, forget equality between men and women, at least can we have uniformity in judicial pronouncements ?? Can we have simplified mumbo-jumbo? Can we have a simplified set of rules so that at least man can understand where they will be looted ? ….. Here is a honourable High Court that says wife can file both domestic violence and section 125 cases simultaneously … go figure …. I know, I know some one will come and say no you misunderstood the mumbo-jumbo… !!! I’m already for a reinterpretation… I just want to looting to stop ✋ 


IN THE HIGH COURT OF …..

                 ……. BENCH
ON THE …. DAY OF …., ….
                         BEFORE
      THE HON’BLE MR.JUSTICE …….
          CRIMINAL PETITION NO……../….
BETWEEN
SHRI.S. ….

S/O LATE …

AGE:… YEARS OCC:..

R/O:OPP:….,

.. VILLAGE

……..A,

…., …..

                                          … PETITIONER
(BY SRI. .. B ….., ADV.)
AND
1. SMT.S………

      W/O S … RAO

      (D/O LATE S.R….)

      AGE:36 YEARS OCC:AGRICULTURE & BUSINESS

      R/O:H………
2. KUMARI … S….

      D/O S … RAO

      AGE:8 YEARS OCC:STUDENT

      R/O:…….
3. KUMARI …. … S….

     D/O S … RAO

     AGE:8 YEARS OCC:STUDENT

     R/O:……
(BOTH THE RESPONDENT NOS.2 AND 3 BEING MINOR IS REP BY THEIR NATURAL MOTHER RESPONDENT NO.1)

                                              … RESPONDENTS

(BY SRI. … B ……, ADV. FOR R1)
THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C. SEEKING TO ALLOW THIS PETITION & THEREBY QUASH THE ENTIRE PROCEEDINGS INITIATED ON THE BASIS OF THE FALSE ALLEGATIONS FILED BY THE RESPONDENTS & THEREBY TAKING COGNIZATIONCE OF THE COMPLAINT/PETITION BY ISSUE OF SUMMONS WHICH IS ON THE FILE OF HON’BLE CIVIL JUDGE & JMFC, ….,

….. VIDE ANNEXURES – F & G, IN ITS CRIMINAL MISCELLANIOURS NO…../2014.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
                            ORDER
The petitioner seeks to quash the proceedings initiated against him under the provisions of Section 125 of Cr.P.C. where maintenance was awarded. The sole contention is that maintenance has been awarded in a separate proceeding initiated under the provisions of the Domestic Violence Act. The same is being paid. Therefore, the proceeding under Section 125 of Cr..P.C. requires to be quashed.
2. On the other hand, learned Advocate for the respondent disputes the same.
3. On hearing learned counsels, I’am of the considered view that there is no merit in this petition.
4. The two enactments have been created granting a special status to the women. There is no bar under law for initiating proceedings under Section 125 of Cr.P.C. as well as under the provisions of the Domestic Violence Act. Each one of the statues is different, giving a separate right to the wife. It is not the contention of the petitioner that both the proceedings are not maintainable. He accepts the fact that two proceedings are maintainable against him. Under these circumstances, the question of interfering in one of the proceedings only because relief has been granted in another proceedings would not arise for consideration. The right granted to the wife is coextensive with both enactments. Consequently, the petition being devoid of merit is dismissed.
Sd/-
JUDGE ……

I signed up 4 marriage & NEVER told my parents. But he’s earning less, so ….. (Annulment / Cal HC)

It’s tough to find out what really happened in this case
However the one view I have is as follows
* I (innocent abla nari) went to his house without telling my parents and also signed up for marriage before the marriage registrar….
* Later I filed an affidavit in 2013 where I did NOT raise the issue of financial or educational fraud !!
* However now I find that his salary is less than what he claimed, so I want annulment ….. !!
Of course readers are free to interpret this case as they wish !!

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Calcutta High Court (Appellete Side)
 
Sri Subhendu Paul vs Smt. Satarupa Das Majumdar on 21 August, 2015
 
Author: Rajiv Sharma
 
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
 
F.A.T. 325 of 2013
 
Sri Subhendu Paul
-Vs.–
Smt. Satarupa Das Majumdar
 
Coram : The Hon’ble Justice Rajiv Sharma
The Hon’ble Justice Shivakant Prasad
 
For the Appellant : Mr. Kallol Basu
Mr. Bratin Kumar Dey
 
For the Respondent : Mr. Gopal Chandra Ghosh
Ms. Jayeta Kaunda
 
Heard On : 14.7.2015 & 20.7.2015
Judgment On : 21.8.2015
 
SHIVAKANT PRASAD, J.
 
Challenge in this appeal is against the judgment and decree dated 11.5.2013 passed by the learned Additional District Judge, 4th Court, Alipore, South 24-Parganas in Matrimonial Suit No. 1290 of 2009.
 
Brief facts leading to the instant appeal is that the present respondent as the petitioner filed an application under Section 25 of Special Marriage Act, 1954 with a prayer for annulment of the marriage by a Decree of nullity.
 
The petition8er contended that she is a a Computer Engineer employed as Student Councillor at Kriti Institute of Training and Development, Stephen House, BBD Bag, Kolkata from 12.7.2007 to 11.5.2008 where she became acquainted with the present appellant who was employed as part time Accounts Faculty. She had contact with him over telephone or mobile. The appellant had disclosed his educational qualification as having passed Inter C.A. and studying part time MBA from Joka who proposed to the present respondent to marry her and he gave out that he worked as Commercial Executive of Future Group at Food Bazar, Rajarhat. Her parents and sister did not agree to the proposal of the marriage.
 
On 10.12.2008 the present appellant took her to his house at Seoraphuli though she was unwilling to go there. She was surprised and astonished finding Marriage Registrar there. The appellant along with his mother and brother created pressure to put her signature and under compelling circumstances she put her signatures on some papers as the Marriage Registrar wanted her to sign. She came back to her house and was upset. Out of shame and fear she could not disclose the incident to her parents. According to the respondent herein she did not sign the papers at her own free will and volition and by the deceitful means present appellant made undue influence and misrepresentation to go to his house. Thus, he exercised fraud and coercion. He disclosed and claimed that his monthly salary was Rs. 17,000/- which was false rather she ascertained his salary to be only Rs. 9,500/- to Rs. 10,000/-. Accordingly, the present respondent as the petitioner of the Matrimonial Suit prayed for decree declaring the marriage as null and void.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick .
 
The present appellant as the respondent of the Mat. Suit contested the application by filing Written Statement and denied all material allegations made in the petition and contended, inter alia, that they had love affairs since November, 2007 and the marriage was registered under Special Marriage Act on 10.12.2008. The petitioner/respondent herein had disclosed that her parents could not accept such matrimonial relation between them. It is the contention of the present appellant that he tried to contact the present respondent in different manners even through Email as her parents had not allowed her to join service on and from 2009 and her mobiles were disconnected and her movement out of the house was restrained. Accordingly, the m appellant as respondent submitted that she was not entitled to get a decree of nullity of marriage.
 
The learned Trial Court on the basis of the above pleadings framed as many as five issues including the issues as to whether the marriage was solemnized by coercion and fraud and whether the marriage was consummated.
 
The learned Judge after taking evidence of both the parties was pleased to decree the suit on contest without costs by granting a decree for annulment for marriage by the Judgment dated 11.5.2013 which is the impugned Judgment under challenge before this Court on the grounds inter alia, that the learned Judge failed to apply the tests embodied in Section 25 of the Hindu Marriage Act, 1955 and that learned Judge ought to have considered that the marriage was registered by the Marriage Registrar according to law after due service of notice, which was corroborated by the testimony of D.W.-3 being the Marriage Officer.
 
It is urged on behalf of the appellant that the learned Judge should have considered the affidavit filed by the respondent on 18th January, 2013, wherein the ground of fraud in respect of financial and educational status of the appellant herein in obtaining consent was not pressed and as such there was no fraud played by the appellant.
 
It is contended that the certificate under Section 13 of the Special Marriage Act, 1954 itself is solemnization of marriage, which does not require further performance of ceremony and so the learned Judge ought to have considered that performance of essential ceremonies was not required as required in case of marriage under Hindu Marriage Act in view of Section 15(1) of the Special Marriage Act, 1954.
 
We are unable to agree with the contention of the appellant that the evidence of P.W.-1 suggests a wilful refusal to consummate the marriage is attributable to the plaintiff/respondent as this fact cannot be lost sight of that the present respondent has expressed her unwillingness to be in the company of the present appellant even for a moment and has emphatically submitted in the course of reconciliation before us that by practising misrepresentation the appellant took her to his place where she was compelled to put signatures on certain documents.
 
The learned Judge observed that the alleged marriage was solemnized on 10.12.2008 and the suit was filed on 30.6.2009 and the respondent alleged that the marriage was not consummated. The learned counsel for the respondent submitted that she has undergone virginity test and she was placed before the Medical Board and the medical report Exbt.-5 reflects that she was not showing any sign of defloration i.e. she is virgin and not experienced sexual intercourse in ordinary course of nature.
 
In our view fraud denotes that if the consent to the marriage contract was obtained by fraud, then there is ground for an annulment of marriage and that fraud would be construed simply for not telling the truth in order to induce the other party to enter into the marriage contract. It is true that whether the failure to tell the truth will be a ground for annulment depends of the facts of the case. Now, we find from the evidence on record that the learned Judge has categorically observed on evidence of P.W.-1 taking into consideration the Exbt.-2 that the defendant claimed himself as Inter C.A. passed and B. Com. (H) from I.I.T., Kanpur and also claimed that his salary was Rs. 17,000/- per month and 50 + lakhs per annum, but the present appellant neither submitted any such documents to prove his qualification nor pay slip to prove his salary at the rate of Rs. 17,000/- per month.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick .
 
The learned Judge has relied on the decision reported in AIR 2001 Patna, Page-110 which is a case under Hindu Marriage Act (25 of 1955) under Section 12(1)(c) for declaration of marriage null and void wherein the ground taken was that consent of wife was obtained by fraud. It was disclosed to wife that the groom was Computer Engineer. She ignored the fact that he was lesser in age, than that of her, since he was Computer Engineer she had consented to the marriage. After marriage it came to her knowledge that her husband had failed thrice in I. Sc. and was not Computer Engineer. It was also observed that knowledge of bride’s father about said fact would be immaterial.
 
In the above set of facts the Hon’ble Court held the marriage liable to be declared as null and void. We are of the opinion that ratio of decision is well nigh within the facts and circumstances of the instant case and analogy has been rightly drawn by the learned Trial Court in coming to the finding that there has been a fraud perpetrated by the appellant upon the respondent in the matter of taking her to his house and to obtain signature document purported to be marriage certificate under Special Marriage Act.
 
It has been observed in a case reported in AIR 1993 M.P. 54 that mere certificate of registration under Section 15 of a Special Marriage Act would not validate the marriage in view of Section 24 (2) of the Act.
 
In the context above, we are of the considered opinion and hold that there is no ground to interfere into the impugned Judgment as there is no illegality or infirmity in the Judgment impugned.
 
Accordingly, the appeal is hereby dismissed, however, without any order as to costs.
 
Urgent certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.
 
RAJIV SHARMA, J.
 
I agree.
 
RAJIV SHARMA, J.
 
SHIVAKANT PRASAD, J.
============================*disclaimer==================================
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.
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Hiding wife’s mental illness ground for annulling marriage. Bombay HC

Wife hides mental illness b4 marriage & unable to continue in marriage. Lower court annuls marriage. Bombay HC affirms the same. Even though wife claims (in her WS) that she has disclosed her entire medical file to the husband before marriage, the HC refuses to buy that argument

Sections referred :

Section 12(1)(c) in The Hindu Marriage Act, 1955
Section 25 in The Hindu Marriage Act, 1955
Section 12 in The Hindu Marriage Act, 1955
Section 5(ii)(c) in The Hindu Marriage Act, 1955
Section 5 in The Hindu Marriage Act, 1955


Bombay High Court

Vandana J. Kasliwal vs Jitendra N. Kasliwal on 28 September, 2006

Equivalent citations: AIR 2007 Bom 115, II (2007) DMC 227

Author: P Borkar
Bench: N Dabholkar, P Borkar

JUDGMENT P.R. Borkar, J.

 

  1. 1. This is an appeal, preferred by a wife, whose marriage with the respondent was annulled by the decree passed on 31-3-2004, by the learned Principal Judge, Family Court, Aurangabad, in Petition No. 73 of 2003.
  2. 2. Brief facts leading to the decision may be stated as follows. It is no more disputed that marriage of the appellant and the respondent was solemnized on 5-1-2003 at Aurangabad. The marriage was performed as per the custom in the Digambar Sect of Jainism. The respondent/husband was a graduate and doing service as an accountant. The respondent/husband filed petition for annulment of marriage with averments that as per the custom in the community, the bride wears Parda at the time of marriage. The behaviour of the appellant bride was not normal. However, it was staled that she was sleepless and, therefore, the abnormal behaviour might be a temporary phase.
  3. 3. It is averred that at the time of MuhDekhi ceremony, the bridegroom is supposed to offer some gifts in the form of gold ornament to the bride and when the respondent/husband offered a gold chain to the appellant, she refused to accept the same and behaved in abnormal way. She even refused to give any response to the advances made by the respondent/husband and unbolted the bed-room and joined the sisters of the respondent/husband, which was even a rude shock to the sisters. They pushed the appellant into the bed room again. On the next day, attempts for consummation of marriage made also went in vain. There was a ceremony called “Churma”. She was staring at a fixed point keeping pallu of the sari loose and it was not as per the custom. Her behaviour showed that some thing was being concealed. After three days, the father and sister of the appellant/wife came to take the appellant away. They were informed about the abnormal behaviour of the appellant/wife and to have medical advise. On 8-1-2003, which was the fourth day after the marriage, the respondent/husband and the appellant’s father and sister had taken the appellant to Dr. Barhale. At that time Dr. Barhale asked the father of the appellant/ wife what was new problem and Dr. Barhale also disclosed that already the appellant/ wife was his patient since June, 1997 and the medication was continued. From Dr. Barhale, the respondent/husband and his family came to know that the appellant was suffering from acute schizophrenia which was incurable and categorized as, “acexcerbation.” http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick
  4. 4. It was alleged by the respondent/husband, who was original petitioner in the trial Court that the appellant/wife was suffering from Schizophrenia which was incurable. The said fact was suppressed by the appellant’s family. It is also alleged that the marriage was not consummated. With these averments, the petition for annulment of marriage was filed in the Family Court at Aurangabad.
  5. 5. The appellant/wife filed the written statement denying the allegations that the marriage was not consummated or that there was any concealment. It is denied that the appellant was suffering from any mental disease or schizophrenia which is incurable. It is alleged that it was a settled marriage. The appellant/wife was meritorious student throughout her career in school and college. However, due to some mishap in the final year examination of graduation, she failed in one subject and there was some mental stress and, therefore, medical aid was provided to the appellant/wife. But even thereafter, the appellant/wife was serving in private sector in different departments and was getting income and that itself showed that the behaviour of the appellant/wife was very much right and she was not having any mental disorder.
  6. 6. It is further stated in the written statement that the parents of the appellant had given complete understanding about the treatment and illness of the appellant before settling the marriage. They had handed over the entire file of the prescriptions advised by doctors and thereafter only the present respondent/husband had consented for the marriage. It is further contended that on the next day of the marriage itself, the cousin brother of the appellant/ wife had talked with her on telephone and from that time, the respondent/husband and members of his family started making heinous allegations raising doubts about her character and, therefore, the appellant was disturbed, but she still tolerated all the acts and the conduct. She was treated with cruelty and she was forcibly brought to the house of her father. It is because of lust for money and due to doubts regarding character of the appellant/wife, the false petition was filed.
  7. 7. The learned Principal Judge, Family Court, Aurangabad considered the evidence on record, particularly those of two doctors examined and the circumstances of the case and passed the decree of nullity.
  8. 8. The case of the appellant is covered by Section 12(l)(c) of the Hindu Marriage Act, 1955 (for short, “the Act of 1955”). Section 12(1) of the Act of 1955 reads thus: 12. Voidable marriages :– (1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely: (a) that the marriage has not been consummated owing to the impotence of the respondent; or (b) that the marriage is in contravention of the condition specified in Clause (ii) of Section 5; or (c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner [was required under Section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978 (2 of 1978)] the consent of such guardian was obtained by force [or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent]. (Emphasis supplied) At the time of the arguments before us, the learned Advocate for the respondent has specifically stated that the case of the respondent is covered by Section 12(1)(c) of the Act of 1955, quoted above.
  9. 9. The learned Advocate for the respondent argued that if we consider the written statement filed by the appellant/wife, it is in three parts. In the first part, mental illness was denied and it is stated that it was a case of temporary mental stress. In the second part, again it is stated that due to failure in the last year examination of graduation, there was mental stress and, therefore, medical aid was given, and that before the marriage, entire file of prescriptions was handed over to the party of bridegroom and, thereafter, consent for the marriage was given. In the last part of the written statement, it is alleged that the reason for filing the petition was the telephonic talk of the appellant/wife with her maternal cousin which gave rise to suspicion and it is added that the lust for money was one of the reasons for giving rise to the petition. We have to consider whether this version can be accepted.
  10. 10. It is worth noting that the marriage was solemnized on 5-1-2003. On 8-1-2003 i.e. on the fourth day, the appellant/wife was taken to Dr. Barhale and she was under treatment for couple of days. So, this short period of 3 to 4 days rules out any possibility for petition being filed out of lust for money. In the written statement, it is stated that for the marriage, the father of the appellant/wife had spent about Rs. 3 to 3.30 lac. So, it is improbable that within such a short period there will be any lust for money and that the money could be the reason for filing the petition. Moreover, it is nowhere stated that any particular sum was demanded or any dissatisfaction was expressed for non-fulfilment of any demand.
  11. 11. It is also argued before us that sofar as the so called suspicion and torture because of the talk of the appellant/wife with her cousin brother on telephone is concerned, it will have to be considered whether it was a plausible and reasonable explanation.
  12. 12. In the trial Court, the respondent/ husband is examined on oath at Exh. 14 and he stated that it was an arranged marriage. One Mr. Gangwal was the mediator. There is nothing on the record to show that the families knew each other prior to the marriage, though both families were residing at Aurangabad at the time of the marriage. The native place of the family of the respondent/husband was Waradi, Tq. Sangamner; whereas the family of the appellant/wife is native of Maliwadgaon. It has also come in the cross-examination that 7 years before the deposition on 2-1-2004, the respondent/husband came to reside at Aurangabad. It is denied that Mr. Gangwal had given any information. It was disclosed that before the marriage, the appellant/wife was serving for 2 to 3 years in some departmental stores. The respondent/husband deposed that no lady member was with them when the respondent’s side had gone to see the appellant/wife. It is also stated that for the first time the respondent/husband saw the appellant on 31-12-2002 and on 5-1-2003 there was marriage. So, within five days the marriage was solemnized. This is relevant while considering fraud by concealment of material fact or circumstance concerning the appellant/wife, within the meaning of Section 12(1)(c) of the Act of 1955.
  13. 13. The parties mainly deposed as per their pleadings. As per the respondent/husband, when they had taken the appellant/ wife to the hospital, at that time the doctor gave him original file. It is denied that prior to the marriage the file of the prescriptions was given to the husband’s sides and that with full knowledge the marriage had taken place. Whereas it is stated by the father of the appellant/wife examined at Exh. 40 that he had handed over the original papers of prescriptions of Dr. Barhale to the father of the respondent and thereafter the proposal for the marriage was accepted. It is argued before us that the name of the doctor was not disclosed prior to filing of the petition. Even, name of Dr. Barhale was not disclosed and that is why, we find, a question put to the appellant Vandana in paragraph 11 of her cross-examination as to whether she was taking treatment of Dr. Patil and she stated that she was not taking treatment of Dr. Patil. This has a relevance to contents of the reply sent which is produced at Exh. 15.
  14. 14. We may consider the evidence of the doctors first. Dr. Anil Kale is examined at Exh, 22. He is specialist in Psychiatry. He stated that the appellant Vandana had come to him for treatment and he gave prescription Exh. 23. He has given treatment for psychosis which is a mental illness. There was change in behaviour and thus before coming to his hospital the appellant Vandana had taken treatment of Dr. Barhale and he had also seen papers of said treatment. Dr. Kale stated that her illness might be due to biological, psychological or environmental causes. He further stated that only once the appellant Vandana had approached his hospital and that he had come to such a conclusion as per the history given by the patient and on her examination. Therefore, we can say that Dr. Anand Kale had no opportunity to examine and observe the behaviour of the appellant Vandana except once. On the other hand, the appellant Vandana had visited Dr. Barhale several times and for long periods.
  15. 15. Dr. Kale has stated in cross-examination that Schizophrenia comes under psychosis and if proper treatment is given, the patient may give response to it. He further stated that if recovery is there, patient is in a position to give marital happiness and/or perform matrimonial obligations. So, this opinion of Dr. Kale is based on one time examination and what is stated is a general proposition that if a patient responds to the treatment and recovers, the patient is in a position to give marital happiness and to perform all matrimonial obligations. Dr. Kale even admitted that when he interviewed, the appellant was under influence of previous medication. This is material when we consider the opinion of doctors, and we find, the evidence of Dr. Barhale more reliable, as Dr. Barhale had several occasions to examine the appellant, observe her behaviour, give her treatment and see the effect of medication prescribed by him. Though, Dr. Kale has stated that torture of a newly married girl, by allegation that she is of a loose character comes under environmental cause, it is still a general proposition, not necessarily applicable to the appellant. It is not the say of Dr. Kale that in the history given to him, the appellant had made out a case of torture and /or of allegations of loose character by her inlaws. It is worth noting that only for three days the appellant lived with the respondent and on the fourth day after marriage she was taken to Dr. Barhale for treatment and this conduct fortifies that there must be abnormal behaviour which led the respondent and the members of his family to take the appellant to a Psychiatrist. It is worth noting that while taking the appellant to Dr. Barhale, the father and the sister of the appellant had accompanied her. Dr. Kale also admitted that the appellant patient was not in a position to giye interview because she was under influence of medication. Therefore, the evidence of Dr. Kale is not much helpful. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick
  16. 16. On the other hand, Dr. Vinay Barhale; examined at Exh. 27, has stated that from 30-6-2002, as per the available record, the appellant was under his treatment. It can be said that even before that, the appellant had visited his hospital. The appellant was suffering from Schizophrenia. She was in hospital from 30-6-2002 to 20-7-2002. Dr. Barhale stated that she was admitted; in the hospital due to irritability, uncooperativeness and hostility. He gave medicines and electro convulsive therapy. Dr. Barhale further stated that probably before 5 to 6 years, the appellant had come to him for treatment. Dr. Barhale was shown the discharge card and the prescriptions which were proved at Exhs. 28 to 30. Dr. Barhale has stated that those were the prescriptions for schizophrenia disease and that due to the medicines the symptoms were controlled. He also stated that schizophrenia is a treatable disease. When the appellant approached him from time to time, she was recovered 90 per cent or more and that she could lead the marital life. However, at the same time he stated that Schizophrenia is a continuous disease, which can be kept under control with the help of continuous medicines. So, in that sense, Schizophrenia is incurable disease. Dr. Barhale has specifically stated that schizophrenia is not a curable disease. He further stated that mental distress may be one of the causes for schizophrenia.
  17. 17. The respondent/husband examined his sister Manisha at Exh. 32 to support his case. Manisha has stated that the behaviour of the appellant was not normal. On the 1st night after the marriage when all guests went to sleep and when she, her sister and others were chitchatting in the hall, the appellant had come out of the room and sat with them in the hall. Manisha stated that her sister reached the appellant back to the room.
  18. 18. Appellant Vandana did state in her statement that on fourth day after marriage, there was phone call from her cousin brother. He was making enquiries regarding her and she talked with him for 10 to 15 minutes. The respondent made inquiries with her and then the respondent started suspecting her character. The fourth day was 8-1-2003 after the marriage. It was the day, on which the appellant was taken to Dr. Barhale. So, the story of suspicion due to telephonic talk and the allegations of torture appears to be concocted and false.
  19. 19. In the cross-examination, appellant Vandana has stated that 7 to 8 years prior to recording of her deposition on 21 -2-2004, she was taking treatment of Dr. Barhale and two years before the marriage she was taking treatment for mental illness. Her parents financial condition was weak, so she wanted to do service. As she was not getting good service, she was having mental tension. This falsifies the allegation that false petition was filed by the respondent due to lust of money. The appellant Vandana further stated that she did service for three years, but it was not to her liking and, therefore, she had mental tension. She also admitted that for 8 days she was admitted in the hospital as indoor patient.
  20. 20. The appellant Vandana further stated that one Tarachand Gangwal, who was the mediator, was a friend of her father. She alleged that it was Tarachand Gangwal who had dragged and reached her at the house of her father. She also stated that she had told the respondent regarding the telephonic talk between herself and her brother Pradeep. Then she has specifically admitted that the respondent has not made allegations that she had illicit relations with Pradeep and that (he had not promised that) he would not disclose the same if her father gave more money. This statement made by the appellant clearly falsifies the defence of alleged suspicion and ill-treatment. She has also specifically stated that the respondent or has father did not demand money and that there was no dispute over money.
  21. 21. Taking into consideration all the circumstances, it is very clear that the mental illness, which requires continuous medication and due to which there was irritability, unco-operativeness and hostility on the part of the appellant/wife and which is incurable, is something which is a material fact or the circumstance concurring the present appellant. In the clinical history given at Exh. 31, it was mentioned that the appellant had come to the hospital of Dr. Barhale as she was overtalkative, abusive, irritable, angry, biting to any one, not mixing with people, talking on one topic, crying, shouting, trying to run away, biting to mother, laughing to herself, not working at home. If these were the symptoms of the mental illness, we cannot say that the mental illness of the appellant was a fact, which need not have been disclosed or which was not material. Therefore, concealment of such thing is definitely a fraud within the meaning of Section 12(l)(c) of the Act of 1955. Such bahaviour materially affects the marital life, so also tranquillity and happiness in the home.
  22. 22. The learned Counsel for the respondent cited the case of Smt. Kiran Bala Ashthana v. Bhaire Prasad Shrivastava . In that case, it Is observed that: If it is shown that the facts and circumstances about one of the parties were such that the other party could not have readily consented to marry the other, and there was an element of deception or misrepresentation in bringing about the marriage at the instance of a party, such as to amount to fraud, a Hindu marriage could surely be annulled under Section 12(1)(a) of Hindu Marriage Act, notwithstanding its sacramental character. We agree with the said observations in para 11 in the above case.
  23. 23. In this case, the respondent, who is a normal young man, graduate working as an accountant and earning, would not have consented to marry a girl having background of such mental illness, had he known about the said fact before the marriage. No special reason was disclosed. We are more inclined to believe the words of the respondent/husband that the papers regarding prescriptions and discharge card were handed over to him by Dr. Barhale, rather than by the father of the appellant/wife prior to the marriage. In our opinion, the said theory put forward by the appellant was unnatural and improbable.
  24. 24. Section 12(1)(b) r/w Section 5(ii)(c) of the Act of 1955 was also argued by the learned Counsel for the appellant, but the learned Counsel for the respondent has chosen to restrict his case to Section 12(1)(c) of the Act of 1955, as stated earlier. From the evidence of the appellant Vandana, we can also say that the present case falls under Section 5(ii)(c) r/w Section 12(l)(b) of the Act of 1955, as there were recurring attacks of insanity and the appellant had taken treatment of Dr. Barhale prior to and after the marriage and she was also indoor patient. In this case, the other conditions as laid down in Section 12(2) of the Act of 1955 are satisfied sofar as ground under Section 12(1)(c) of the Act of 1955 is concerned. The petition for annulment was filed on 17-2-2003 and the marriage had taken place on 5-1 -2003. Thus, the petition was filed within one and half months’ of the marriage. This is not a case where the respondent has with his full consent lived with the appellant after the fraud had been discovered.
  25. 25. The case of Raghunath Gopal Daftardar v. Sau Vijaya Raghunath Daftardar is relied upon by the learned Counsel for the appellant. In that case, it is observed that: Mere non-disclosure prior to marriage or concealment of curable epilepsy disease of girl and false representation that she was healthy does not amount to fraud within the meaning of that word used in Section 12(1)(c). It is also observed that: Section 17 of the Indian Contract Act, 1872 does not apply to a case of fraud under Section 12(1)(c) of the Hindu Marriage Act, 1955. In our considered opinion, though marriage is sacrosanct, it requires consent of both spouses or their guardians, if spouses are not capable of giving consent, and it must be a free consent and in that sense, we have to consider whether the consent was given voluntarily. Here aid of definition of fraud, even from the Indian Contract Act, 1872 need not be overlooked and we, therefore, respectfully differ from the view taken by the single Judge in the case of Raghunath Gopal (supra), that mere non-disclosure prior to the marriage or concealment of curable epilepsy disease of girl and false representation that she was healthy does not amount to fraud within the meaning of the word used in Section 12(1)(c) of Hindu Marriage Act, 1955. If regard be had to Section 12(1)(c) of the Act of 1955, it is clear that if a fact or circumstance is so material as to affect decision of giving consent to marriage and if there is fraud regarding the same, may be by express words or even by concealment, then, marriage could be annulled. However, we hasten to make it clear that it is not every fact or circumstance which would be covered by the provision, but it must be substantially something which goes to the root of the matter, which definitely would weigh with any prudent person to change his mind. It must not be easily detectable. The Court would be very circumspect, cautious and pragmatic in identifying such fact or circumstance. In this case, the first part of the written statement itself shows that when query regarding abnormal behaviour of the appellant was made during marriage ceremony, it was stated that it might be because of mental stress due to failure in the examination and for want of sleep. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick
  26. 26. We may also refer to a Division Bench judgment of this Court in the case of Chandrakala alias Vandana Subhash Gaokhandkar v. Subhash Dhondiba Gaokhandkar 1994 (2) Mh LR 490. In that case, the wife was suffering from leprosy since prior to marriage, though not virulent and incurable. The said fact was not brought to the notice of the husband before marriage. It was held that there was fraud committed by wife upon the husband and that declaration of annulment of marriage between the husband and the wife under Section 12(1)(c) of Hindu Marriage Act, 1955 was justified. The case, as para 4 discloses, is one of fraud by non-disclosure of material fact, So, in the circumstances of the case, we hold that this is not a case where interference in appeal is called for.
  27. 27. It is argued before us that alimony may be awarded under Section 25 of the Act of 1955. No doubt, the Court while exercising Jurisdiction under Hindu Marriage Act, 1955, may, at the time of passing any decree or at any time subsequent thereto, on application made to it, order maintenance – any such gross sum or such monthly or periodical sum as permanent alimony or maintenance. However, while considering such application, regard has to be made to the respondent’s own income, other property, the income and property of the applicant, the conduct of the parties and other circumstances of the case. In this case, the learned Counsel for the appellant has argued that this Court can pass an order under Section 25 of the Act of 1955. Reliance was placed on the case of Smt. Rajeshbai v. Smt. Shantabai . It is pointed out by the learned Counsel for the respondent that no application for permanent alimony or maintenance was made in the trial Court or in this Court. There was no such issue and, therefore, the parties, particularly the respondent had no opportunity to bring on record the necessary evidence as contemplated by Section 25 of the Act of 1955. The evidence on record does not disclose the income and the abilities of the husband. Therefore, in the absence of necessary evidence and material on record, we give liberty to the appellant to make separate application under Section 25 of the Act of 1955, if so advised. In view of the above circumstances, the appeal must fall.
  28. 28. In the result, appeal is dismissed. The parties are directed to bear their own costs.


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18 lakhs alimony in spite of 25 years desertion !! Rajastan HC

  • checkered history of fights between spouses
  • husband claims that wife was a widow from her earlier marriage and it was hidden from him
  • he claims that she was also cantankerous
  • after initial spats etc, wife finally leaves in 1991
  • after numerous cases, matter finally reaches Rajastan HC. HC Also sees desertion / decrees desertion
  • However, IN the INTEREST of justice, HC says pay her 6 lakhs in addition to the 12 lakhs already paid !!
    …..and that is EVEN after an 18 year desertion !! …..

IN THE HIGH COURT OF JUDICATURE FOR
RAJASTHAN AT JODHPUR

:JUDGMENT:

S.B. CIVIL MISC. APPEAL NO.99/1996

APPELLANT :

Smt. Raj Kumari @ Chandrakala w/o Shri Nandlal D/o
Shri Badri Singh, by caste Mali Kachhawaha, resident
of Sardarshahar at present Bikaner.

Versus

RESPONDENT :

Nandlal son of Late Shri Dalchand Ji, By caste Mali,
Sangodiya, resident of Sardarshahar Churu.

Date of Judgment :: 17.10.2016

PRESENT

HON’BLE MR. JUSTICE ARUN BHANSALI

Mr. Salil Trivedi, for the appellant/s.
Mr. Rajesh Parihar ) for the respondent/s.
Mr. Vinit Sanadhya)


BY THE COURT:

This appeal under Section 28 of the Hindu Marriage Act, 1955 (‘the Act’) is directed against the judgment and decree dated 5.10.1995 passed by the District Judge, Churu, whereby the petition filed by the respondent under Section 13 of the Act has been accepted and marriage between the parties has been dissolved.

The dispute between the parties has a checkered history. The petition for dissolution of marriage was filed by the respondent-husband under Sections 12 & 13 of the Act, inter-alia, with the averments that the marriage was solemnized between the parties on 20.11.1989 at Bikaner at the residence of Dr. Durga Gehlot; a daughter was borne out of the wedlock on 5.9.1990. It was alleged that the family members of the wife at the time of marriage wrongly indicated her name as Rajkumari and her age at 21 years, in fact, her real name was Chandrakala and her age as per the school certificate was much more and she was widow of Dr. Anil Kumar Gehlot, whereas it was informed that she was unmarried. It was alleged that marriage was solemnized by committing fraud, the said fact came to the notice of the husband during the posting at Bikaner and FIR No.197 dated 25.10.1993 was lodged, which is being investigated. It was alleged that the wife was of cantankerous nature and behaved cruelly with the husband and family members. It was alleged that while behaving in the offending manner, the wife continued to move between her matrimonial home and parental home and on 7.12.1991, uncle (mama) of the wife, without permission took her with him. Whereafter, she did not turn up till 25.10.1993 and continued to refuse to live with the husband. Before 25.10.1993, several efforts were made for bringing her back, however, the parents and aunty of the wife intimated that if the husband wants to come and live with her, he can come and live, the wife was not prepared to go and live with him. It was also alleged that despite repeated efforts made between 7.12.1991 to 25.10.1993, the wife did not return back and has deserted the husband. Based on the said allegation of cruelty and desertion, the petition was filed.

The appellant herein was served with the notice of the petition, she appeared through counsel before the trial court, however, on 26.8.1995, her counsel pleaded no instructions and therefore, ex-parte proceedings were initiated.

On behalf of the husband, four witnesses were examined and documents were exhibited.

After hearing counsel for the husband, the trial court came to the conclusion that desertion was proved, cruelty was also proved, however, it was held that in so far as fraud and declaring the marriage as void was concerned, the same was not proved and consequently, passed decree on 5.10.1995 for dissolution of marriage.

Feeling aggrieved, the appellant filed an appeal before this Court. When initially, the appeal came up before this Court for hearing, by judgment dated 13.12.2001, the appeal was dismissed on merits.

Feeling aggrieved, the appellant approached the Division Bench by filing D.B. Civil Special Appeal (Civil) No.8/2002. The Division Bench by its order dated 15.10.2009, set-aside the finding recorded by the trial court as well as learned Single Judge regarding curelty. However, qua the ground of desertion, it was noticed that the learned Single Judge has not given his own finding on said aspect and question as to whether ground of desertion was made or not is required to be probed into thread bare by the learned Single Judge and in those circumstances, the matter was sent back to the learned Single Judge for deciding the question of desertion afresh.

During the pendency of the present appeal, post remand, efforts were made for resolving the dispute amicably; on 19.8.2015, it was noticed by this Court in the order-sheet that the appellant wanted the ex-parte decree granted in favour of the respondent-husband Nandlal to be set-aside as she wanted to press for restoration of status as married wife of Nandlal. It was also noticed that the respondent-husband has since remarried with another woman namely Ambika in November, 1997 and out of second marriage, a child named Aditya was born and was aged 15 years and that there was no possibility for restoration of matrimonial home with the appellant. However, readiness and willingness to pay permanent alimony was expressed, the court directed deposited Rs.12,00,000/- towards part payment of amount of permanent alimony and it was directed that the said payment would remain subject to final decision of the present appeal, which amount of Rs.12,00,000/- was deposited by the respondent as noticed by order-sheet dated 5.1.2016.

It is submitted by learned counsel for the appellant that the trial court committed error in granting the decree on the ground of desertion, inasmuch as, the respondent had failed to plead and prove the necessary ingredients for proving the ground of desertion. It was submitted that irrespective of the fact that matter was proceeding ex-parte against the appellant, it was incumbent for the trial court to objectively assess the evidence available on record, which clearly indicates that no ground is made out as envisaged by provisions of Section 13(1)(ib) of the Act.

Reference was made to the second explanation to Section 13 and it was submitted that there was reasonable cause for the appellant to leave the matrimonial home, inasmuch as, circumstances were created forcing her to leave the matrimonial home. It was submitted that the very fact that FIR was lodged by the respondent alleging fraud on 25.10.1993, necessarily means that before 7.12.1991, on account of allegations made, atmosphere was created which resulted in the appellant leaving the matrimonial home and therefore, the necessary ingredients for providing desertion are not available and consequently, the finding of the trial court in this regard deserves to be set-aside. It was prayed that the appeal be allowed and the judgment impugned be set-aside.

Vehemently, opposing the submissions, it was submitted by learned counsel for the respondent that from the material available on record, it was apparent that the appellant has deserted the respondent for a continuous period of two years immediately preceding the presentation of the petition and had no cause for doing so; the submissions made by learned counsel for the appellant seeking to allege that there was reasonable cause on account of the fact that the respondent lodged an FIR on 25.10.1993 alleging fraud against the petitioner is, in fact, seeking premium on the wrongs committed by her. It as further submitted that from the evidence available on record, the desertion is proved, inasmuch as, the appellant chose not to contest the petition after putting an appearance before the trial court; even after passing of the impugned judgment, application under Order IX, Rule 13 CPC filed by the appellant was also dismissed by the trial court on 19.1.1996 and therefore, the appellant has no cause.

It was submitted that the desertion is also proved from the very fact that the appellant did not take any steps for restitution of conjugal right, if she had any interest in restoration of the matrimonial home.

Further submissions were made that present is a typical case of irretrievable break down of marriage, inasmuch as, admittedly parties are living separately since 7.12.1991 i.e. over 25 years now and after passing of the ex-parte decree and dismissal of application under Order IX, Rule 13 CPC and before the respondent was served with a notices in the present appeal, the respondent had contracted another marriage and has a child from the said wedlock. It was prayed that the judgment passed by the trial court is justified and same does not call for any interference.

Further submissions were made that under the directions of this Court the respondent had already paid a huge sum of Rs.12,00,000/- towards permanent alimony and is prepared to pay further reasonable sum in this regard and therefore, the appeal filed by the appellant deserves to be dismissed.

Reliance was placed on Sujata Uday Patil v. Uday Madhukar Patil : (2006)13 SCC 272.

I have considered the submissions made by learned counsel for the parties and have perused the material available on record.

During the pendency of the appeal, an application under Order XLI, Rule 27 CPC was filed by the appellant inter-alia for placing on record the copy of judgment dated 11.6.2008 passed by the Additional Sessions Judge No.2, Bikaner in Cr. Appeal No.2/2007 (State of Rajasthan v. Nandlal) and copy of the statement dated 18.10.2001 recorded in the criminal trial before the Court of Additional Civil Judge (Jr.Div.)-cum- Judicial Magistrate, Ist Class, No.2, Bikaner. In the said application, except for indicating that the documents came into existence during the pendency of the appeal, nothing has been indicated as to how the documents were relevant for the proper adjudication of the present appeal and even during the course of submissions in the present appeal, no reference was made to either the application and / or the documents annexed with the application. In view thereof, besides the fact that no submissions were made qua the application and documents, even otherwise, there is no substance in the application, the same is, therefore, dismissed.

The essential condition for proving the ground of desertion are (i) – factum of separation and (ii)- intention to bring cohabitation permanently to an end (animus deserendi). Similarly, two elements are essential so far as deserted spouse is concerned, (i)- absence of consent and (ii)- absence of conduct giving reasonable cause to spouse leaving matrimonial home to form necessary intention aforesaid. In the present case, the husband, in the petition seeking divorce alleged that on 7.12.1991 uncle of the appellant without permission took the appellant to Bikaner from Sardarshahar and whereafter, she did not return back to the matrimonial home till 25.10.1993 and continued to deny to live with the respondent at Sardarshahar. Efforts were made by the respondent and his close relatives before 25.10.1993 for bringing her back which was responded by counter proposal to the respondent to go and live with the wife at her parental home. It was also alleged that besides not returning back to the matrimonial home at Sardarshahar, the appellant did not visit the place where the respondent was serving, however, all the efforts made in this regard failed and it was apparent that the wife has deserted him. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

As already noticed herein-before, after service though the appellant put in appearance, whereafter as the counsel pleaded no instructions, the matter proceed ex-parte against the appellant and on behalf of the respondent, 04 witnesses were examined.

The respondent appeared as AW-1 and reiterated the contents of the petition. Further assertions were made that despite several efforts being made by the respondent and people of the Society, the appellant did not return back to the matrimonial home.

AW-2 Bharat Bhushan Arya, a lawyer by profession and Secretary of Mali Samaj, Bikaner and Vice President of Rajasthan Mali Samaj appeared in the witness-box and stated that despite efforts being made by the respondent, the father, uncle and aunty of the appellant did not send the appellant back to the matrimonial home. He tried to convince the appellant / parties to go back to the matrimonial home, which was rejected and it was suggested that the respondent should go and live with them.

AW-3 Banwari Lal, elder brother of the respondent also stated that uncle of the appellant took her to Bikaner from Sardarshahar and stated that the respondent can come and live with them, efforts were made to bring the appellant with them, the uncle of the appellant refused, efforts were made through Mali Samaj, however, that also did not succeed. AW-4 Rajendra, a neighbour of the respondent was examined, who also stated similar facts regarding uncle of the appellant taking her back to parental home and stated that the respondent can come and live with them.

From the material available on record as well as the submissions made by counsel for the parties, it is apparent that the appellant had left the matrimonial home on 7.12.1991 and despite the efforts made by the respondent, his family members and people of Mali Samaj, the appellant did not return back to the matrimonial home, on the other hand, it was insisted that in case, the respondent wants, he can come and live at the parental home of the appellant.

No submissions were made by counsel for the appellant to indicate that any efforts were made by the appellant to get back into the matrimonial home including filing of petition under Section 9 of the Act for restitution of conjugal rights.

So far as the submissions made by learned counsel for the appellant seeking to make out a case of reasonable cause in terms of second explanation to Section 13 is concerned, the said explanation reads as under:- “Explanation.- In this sub-section, the expression “desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.”

The submission made on behalf of the appellant is that from the dates indicated in the petition, whereby the appellant left the matrimonial home on 7.12.1991 and a FIR was lodged by the respondent alleging fraud on 25.10.1993 against the appellant, necessarily means that the atmosphere in the matrimonial home was such that it forced the appellant to leave the matrimonial home and therefore, she had a reasonable cause and therefore, the necessary ingredients as indicated in the explanation has not been fulfilled.

Besides the fact that no such plea was available before the trial court and consequently, there is no material available on record regarding the alleged reasonable cause for the appellant to leave the matrimonial home, it was the specific case of the respondent that as soon as he came to know of the fraud having been committed by the appellant, he lodged the FIR on 25.10.1993, this is not the case of the appellant that after the FIR was lodged that she left the matrimonial home and / or that the respondent came to know about the facts, which led to filing of the FIR even long prior to 7.12.1991 and the atmosphere was so poisoned that she have no option but to leave the matrimonial home. As the respondent has clearly indicated that the FIR was lodged on 25.10.1993 immediately on coming to know of the fraud on 25.10.1993, that cannot be a reasonable cause on 7.12.1991 for the appellant to leave the matrimonial home and therefore, the submissions made by learned counsel for the appellant seeking to plead reasonable cause for the appellant to leave the matrimonial home has no basis.

The ingredients of desertion as noticed hereinbefore i.e. factum of separation and intention to bring cohabitation permanently to an end are both proved and the defence as sought to be now projected in the appeal based on the available material having been found to be non-existent, the trial court was justified in coming to the conclusion that the appellant has deserted the respondent without any reasonable cause and was further justified in granting decree for dissolution of marriage between the parties. So far as irretrievable break down of marriage between the parties is concerned, the facts as noticed hereinbefore, are apparent wherein the parties are living separately for over 25 years now, after the decree for dissolution of marriage was granted by the trial court and the application for setting aside ex-parte decree was also rejected and before the notices of the present appeal were served on respondent, he had contracted marriage way-back in the year 1997 and therefore, the test laid down by the Hon’ble Supreme Court in this regard as to whether the marriage can be saved in the circumstances, the answer to the said aspect would be a big ‘No’.

So far as grant of permanent alimony is concerned, in the submissions made before the Court, though no submissions were made by learned counsel for the appellant, learned counsel for the respondent offered to pay reasonable sum towards permanent alimony to the appellant and also prayed that the fact that a sum of Rs.12,00,000/- has already been paid under the interim directions of this Court, direction can be given. Looking to the over all circumstances of the case, though apparently, no material is available on record for determination of amount of permanent alimony, in view of the fact that the respondent was working as C.I. In the Police Department as noticed in the order-sheet dated 19.8.2015 (supra), in the opinion of this Court ends of justice would meet in case, the respondent is directed to make payment of a further sum of Rs.6,00,000/- by way of permanent alimony besides the sum of Rs.12,00,000/- already paid by the appellant under the directions of this Court dated 19.8.2015 (supra). The amount be paid within a period of three months from the date of this judgment.

In view of the above discussions, the appeal filed by the appellant has no substance, the same is, therefore, dismissed.

However, the respondent is directed to make further payment of a sum of Rs.6,00,000/- to the appellant by way of permanent alimony within a period of three months and the order dated 19.8.2015 (supra) passed by this Court directing payment of a sum of Rs.12,00,000/- by way of part payment of permanent alimony is made absolute.

No order as to costs.

(ARUN BHANSALI), J.

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