Daily Archives: April 3, 2017

Husband To Pay Permanent Alimony Even If His Ex-Wife Had Committed Matrimonial Offences

A husband will have to pay permanent alimony even if he has won the case for divorce against his wife for matrimonial offences she has committed.

The High Court has said that under the Indian Divorce Act 1869 under which Christians can seek divorce, alimony cannot be denied on grounds that the wife should constitute and win a suit for divorce.

The husband had filed the divorce case while the wife had contested it. Since both are Roman Catholic Christians, their marriage is governed by the Indian Divorce Act, 1869. They married in 1995. In 1999, the husband filed for divorce under the Act while the wife filed a case for restitution of conjugal rights. The two cases were clubbed. By an interim application, she sought interim maintenance.

The family court allowed the husband’s petition and rejected the prayer of the wife for restitution of conjugal rights. It also rejected her application for permanent alimony filed under Section 37 of the Act. Their marriage was dissolved by a family court in Mangaluru in August 2011. The wife approached the HC. Her counsel told the court that her claim in the appeal is restricted to seeking reasonable amount in lumpsum as permanent alimony as “she is a housewife having no other avocation or income and the husband being financially sound.”

The husband’s advocate argued that the husband had won the case in the lower court on the grounds of desertion and cruelty. His argument was that “only when a decree of dissolution of marriage is obtained by the wife, the court can order for alimony either in lump sum or periodically in favour of the wife.” It was further argued that “since the wife herself is guilty of matrimonial offence in this case, she is not entitled for any maintenance and the prayer of the wife cannot be entertained.”

In its judgment, the HC said, “The contention that the wife is not entitled for permanent alimony in a case where dissolution of marriage is granted in favour of the husband may not be the correct position.” The HC noted that Section 38 the Act “does not debar a wife who was respondent in divorce petition for permanent alimony.”

The lower court had rejected separate permanent alimony as she was enjoying maintenance amount of Rs 2,500 month by another order and she could seek enhancement.

(Originally published in The Times of India)



Unchaste wife not entitled for permanent alimony: Bombay High Court |

Unchaste wife not entitled for permanent alimony: Bombay High Court

An unchaste wife is not entitled for permanent alimony, ruled the Bombay High Court while setting aside an order of a family court granting Rs1,500 as permanent alimony to the wife to be paid by the husband while granting him divorce.

A division bench of justices Vasanti Naik and AS I Cheema — of the Nagpur bench of the High Court — while setting aside the family court order said: “It is apparent on reading of the provisions for maintenance under various enactments that an unchaste wife or a wife living in adultery would not be entitled to permanent alimony.”

The husband had approached the high court challenging the order of the family court which granted him divorce on the grounds that the woman, while the marriage was in subsistence, had sex with another person and had a child from him, directed the husband to pay a permanent alimony of Rs 1,500.

The couple had got married in the year 1981; they resided together till the year 2003. After that the woman started living with another person and thus deserted the husband. After going through the evidence and affidavits the family court in 2006 granted divorce to the husband. However, the court directed him to pay Rs 1,500 per month, as permanent alimony.

The high court after going through the provisions of section 25 of the Hindu Marriage Act noted that “After having recorded a finding that the wife had voluntary sexual intercourse with a person other than her husband during the subsistence of the marriage and had conceived a child through him, the Family Court was not justified in directing the appellant to pay permanent alimony.

Accordingly the court allowed the appeal filed by the husband and thus modified the order of the family court directing the husband to pay permanent alimony.


Tweet to Maneka leads to arrests of husband and his parent, Even though police refused initially

Though marriage is from 2007 and it is approximately 10 years now, and it is not covered by section 304B of IPC, and the police initially seem to have requested a proper medical report, once this man sent a tweet to the minister, and the minister interfere, the husband and his father seem to have been arrested, and the police is trying to nab other accused !!!

Tweet leads to arrest

Patna, March 28: A man from Uttar Pradesh seeking justice for his dead sister found help from Union minister Maneka Gandhi after he tweeted to the Prime Minister’s Office.

Khushpura village (in UP’s Balia district) resident Krishna Kumar’s sister Rani Kumari was allegedly set on fire by her in-laws at their home in Buxar district’s Sohanpatti on March 7. The 30-year-old woman received over 90 per cent burn injuries, and died in a Varanasi hospital – where her sister’s relatives, who also live in Buxar, had rushed her – on the night of March 11.

The next day, Rani’s family told cops at the Town police station in Buxar, around 140km west of Patna, that Rani’s in-laws – a business family – had been harassing her for dowry ever since she married Buxar town resident Ajay Kumar Patwa in 2007. Rani’s father Achchelal Patwa alleged that his daughter’s in-laws were harassing her for a new refrigerator.

The father requested the police officers at least four times to lodge a dowry death complaint but they didn’t, alleged Krishna (27), an MBA degree holder who works in Delhi.

“The Buxar Town police officials demanded a statement from the magistrate and medical report before lodging the complaint,” said Achchelal.

When there was still no progress in the case, Krishna tweeted on March 24, tagging the account of the Prime Minister’s Office: “@PMOIndia Sir! My sis has been burnt to death by her in laws for dowry. FIR is still not lodged. What should I do?”

Maneka, the Union women and child development minister, replied to the tweet: “Extremely sorry to hear about your loss, dear @Krishna60274940. Please DM me your contact number.”

DM stands for direct message on Twitter. A Twitter user can only DM someone who “follows” the user.

A call from a senior women and child development ministry official to the Buxar police chief enquiring about the incident led to the arrest of Rani’s husband Ajay (35) and her father-in-law Ram Prasad Patwa (50) yesterday.

“The local police not only failed to initiate any action against the accused but also refused to entertain the complaint which my father submitted to the police station a day after the incident,” Krishna (27) told The Telegraph over phone on Tuesday. “Our efforts to contact the Buxar superintendent of police (SP) Upendra Kumar Sharma also went in vain.”

Krishna alleged that the trauma for her sister started just 10 days after the wedding, and more recently she was beaten up for asking for milk her three-year-old daughter. “Had I lodged a complaint at the police station then, my sister would have been alive today,” he lamented.

He demanded that the police nab the three other accused – Manju Devi (mother-in-law) Poonam Patwa (sister-in-law) and Sonu Patwa (brother-in-law) – who are absconding.

Buxar police officials were tight-lipped about why the complaint was not lodged initially. District SP Sharma, however, admitted that his office had received a call from the Union ministry, and confirmed the arrest of Ajay and his father. “Efforts are on to nab other accused in the case,” the SP said.

Buxar Town police station house officer Raghav Dayal said the accused have been booked under sections 304B (dowry death) and 498A (cruelty to a married woman) of the IPC.

Krishna alleged that no politician from Bihar responded to his pleas.

“I had tweeted to chief minister Nitish Kumar, RJD chief Lalu Prasad and BJP leader Sushil Kumar Modi, seeking their intervention, but no help came,” Krishna said, adding that he had tweeted to new Uttar Pradesh chief minister Yogi Adityanath as well.


#False cases, #Incarceration, #Dishonour, All #cruelty. DIVORCE GRANTED. ALL HC. Narayan Prasad Saraswat vs Smt. Shaifali @ Muniya

not amounting to #cruelty
right to #conjugal #rights
conjugal rights
hindu #marriage
divorce petitions
hindu marriage act
marriage act
any other sufficient reason
dowry demand
Allahabad High Court

Narayan Prasad Saraswat vs Smt. Shaifali @ Muniya on 18 April, 2016

Bench: Pramod Kumar Srivastava



Court No. – 19

Case :- SECOND APPEAL No. – 844 of 2006

Appellant :- Narayan Prasad Saraswat

Respondent :- Smt. Shaifali @ Muniya

Counsel for Appellant :- M.K. Gupta, Pankaj Agarwal

Counsel for Respondent :- D.K. Dwivaedi

Hon’ble Pramod Kumar Srivastava, J.

  1. At the time of hearing only counsel for the appellant was present. None was present on behalf of respondent even in cause list was revised. This appeal had already been admitted, but at that time substantial question of law was not framed. Heard arguments of learned counsel for the appellant.
  2. Original suit Matrimonial Petition no. 397/2002 (Narayan Prasad Saraswat v. Smt. Shaifali @ Muniya) was initially filed for the relief of restitution of conjugal rights. After it some criminal case was instituted by opposite-party (wife Smt. Shaifali @ Muniya). Then plaint was amended for the relief of divorce on ground of desertion, adultery and cruelty.
  3. In written-statement filed in trial court, O.P.- Smt. Shaifali @ Muniya had admitted her marriage with petitioner and pleaded that petitioner and his family members had been treating her with physical and mental cruelty. She had not committed any cruelty. The petitioner had tortured her by beating her and by demanding dowry. So she is not ready to live with her husband-petitioner. The petitioner had evicted her from his house and had filed suit on incorrect facts; therefore petition is liable to be dismissed.
  4. After framing issues and accepting evidences of the parties, the Civil Judge, S.D. (/J.S.C.C.), Aligarh had dismissed the divorce petition. The trial court had given finding that although it is admitted that criminal case was initiated by O.P. against the petitioner and his family members, who had been released on bail, but said criminal cases did not amount to desertion or cruelty. Trial court had found that in written-statement the O.P. had pleaded that she is not willing to reside with husband-petitioner, and although several attempts of mediation and reconciliation between parties had failed, but learned Civil Judge has also given finding that petitioner had failed to prove the grounds of desertion, adultery or cruelty, therefore divorce petition is dismissed.
  5. Aggrieved by the judgment of trial court, Civil Appeal no. 41/2006 (Narayan Prasad Saraswat v. Smt. Shaifali @ Muniya) was preferred which was heard and dismissed by the judgment dated 14.08.2006 of Additional District Judge, Court No.-2, Aligarh. Lower appellate court had held in this judgment that during evidence O.P.-wife had file affidavit to the effect that she is willing to continue her matrimonial relationship with her husband, and the petitioner-appellant had failed to prove that irretrievably broken. With these findings, first appellate court had confirmed the finding of trial court and dismissed the first appeal.
  6. Aggrieved by the judgment of trial court, as well as of the first appellate court, present second appeal has been preferred by petitioner of the original case.
  7. Present appeal has been admitted but at that time substantial question of law was not framed, which is framed as under:
    “Whether the marriage of the parties had irretrievably broken due to desertion, adultery and cruelty; and otherwise finding of the lower courts are erroneous and perverse ? If so its effect ?”
  8. Learned counsel for the petitioner-appellant contended that in her written-statement she is not ready to live with her husband-petitioner, and several proceedings of mediation and reconciliation between parties, and attempts of courts in this regard had failed. Respondent had committed cruelty by lodging several false criminal cases against the appellant and his family members and by leveling false allegations in her pleading, parties are living separately for last about 15 years and there is no chance of their compromise or living together; therefore appeal should be allowed for the decree of divorce.
  9. In present matter petitioner-appellant had filed suit for the relief of restitution of conjugal rights with O.P.-respondent on 01-05-2002, but when summons of this case was served then O.P.-wife had filed several criminal cases for cruelty due to dowry demand and manhandling for offences u/s 498-A, 323 IPC & section ¾ Dowry Prohibition Act, case of maintenance u/s 125 CrPC, criminal complaint case u/s 406, 109 IPC. The burden of proving the fact of expelling wife-O.P. by petitioner without any sufficient reason is on wife- O.P. (complainant) because negative facts cannot be proved. It is the respondent-wife who has been alleging such facts, therefore the burden of proving these facts were on her, and in absence of any such evidence, the plea of desertion and living separately by her without sufficient reasons should have been accepted by lower courts.
  10. The petition of divorce was filed on three grounds. The first was desertion and second was cruelty. So far as the first point of desertion is concerned, it is admitted fact that petitioner-appellant had filed original suit no. 397/2002 against his wife-respondent u/s 9 of the Hindu Marriages Act for restitution of conjugal rights. During pendency of said proceedings, he amended the original suit for divorce under Section 13 of the Hindu Marriage Act. There has been no finding of any of the lower court that during pendency of original suit, the parties were willing to live together together. On the contrary it was found that initially petitioner-appellant was willing to live with respondent-wife, but when she started filing several criminal cases then he amended the suit for the relief of divorce. It is pertinent to mention that in her written-statement O.P.-respondent had specifically declined to live with husband-appellant. The differences between the parties from the beginning and their living separately for more than 14 years is admitted fact, but there is no evidence that respondent was expelled from house of appellant or that she is residing separately for any sufficient reason. This proves the ground of desertion as required u/s 13 of Hindu Marriage Act.
  11. Apart from it, in matrimonial disputes propriety of the things should also be specially considered. In present matter, according to the petitioner the parties are living separately from 19-08-2001, and according to respondent-wife they are living separately since 2002. Thus, admittedly parties are living separately for many years. Admittedly during this period, respondent had not only levelled wild allegations of cruelty etc. but had also initiated criminal proceedings due to which petitioner and his family members had to be released on bail in criminal cases. Admittedly, said criminal proceedings are still continuing and being prosecuted by respondent. In written-statrment the respondent had declined to live with husband, and several mediation and reconciliation proceedings between parties has also failed. These facts make it explicitly clear that there appears no chance of reconciliation between the parties who have developed feelings of ill will, hatred, antagonism and animosity; and the respondent is prosecuting the criminal case for conviction and incarceration of appellant and his family members.
  12. So far as another plea of cruelty in present matter is concerned, it has been not proved till now that petitioner had treated the respondent-wife with cruelty or had committed unnatural sexual activities with her as pleaded in written-statement. The burden of proving such facts lies on the person who has asserted these facts, that is, respondent-wife, but these facts could not be proved till now. Leveling wild allegation and prosecuting proceedings for conviction of husband as well in-laws for sending them in jail amounts to cruelty.
  13. The word ”cruelty’ has not been defined anywhere in the Act. The word appears to have been used in the Section 13 of Hindu Marriage Act in context of human behaviour in relation to or in respect of matrimonial obligations or duties. Cruelty can be termed as behaviour or conduct of one spouse which adversely affects the other. Thus broadly speaking ”cruelty’ as a ground for the purpose of divorce under Section 13(1)(i-a) can be taken as a behaviour of one spouse towards the other which causes reasonable apprehension in his or her mind that it is not safe to continue the matrimonial relationship. Cruelty can be physical or mental or even intentional or unintentional. The mental cruelty is difficult to establish by direct evidence. It is a matter of inference to be drawn from facts and circumstances of the case. A feeling of anguish and frustration in one spouse caused by the conduct of other can be appreciated on the assessment of facts and circumstances in which the two of them have been living. The inference has to be drawn from overall facts and circumstances considered cumulatively. The allegation of criminal mis-appropriation of stridhan, dowry demand and physical torture made by the respondent-wife against the appellant husband in her written statement, is nothing but mental cruelty of such a nature that appellant husband cannot be reasonably asked to live with the wife. The allegation of serious nature, and as stated above, constitutes grave assault on the character, honour and reputation of husband. Such allegations amount to cruelty entitling the petitioner to a decree of divorce. It cannot be doubted that the appellant-husband must have suffered traumatic experience because of the criminal proceedings against his father, mother and himself. The arrest and getting bailed out for criminal offences must have resulted in the loss of reputation and prestige of the husband and his family in the society. The mental agony of being arrested and detention in a criminal case resulting into loss of reputation and prestige in the society would also amount to cruelty.
  14. In V. Bhagat v. D. Bhagat, (1994) 1 SCC 337 the Apex Court had held:
    “Mental cruelty in Section 13(1)(i-a) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made.”
  15. In Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate, (2003) 6 SCC 334 the Apex Court had held as under:
    “7. The question that requires to be answered first is as to whether the averments, accusations and character assassination of the wife by the appellant husband in the written statement constitutes mental cruelty for sustaining the claim for divorce under Section 13(1)(i-a) of the Act. The position of law in this regard has come to be well settled and declared that levelling disgusting accusations of unchastity and indecent familiarity with a person outside wedlock and allegations of extramarital relationship is a grave assault on the character, honour, reputation, status as well as the health of the wife. Such aspersions of perfidiousness attributed to the wife, viewed in the context of an educated Indian wife and judged by Indian conditions and standards would amount to worst form of insult and cruelty, sufficient by itself to substantiate cruelty in law, warranting the claim of the wife being allowed. That such allegations made in the written statement or suggested in the course of examination and by way of cross-examination satisfy the requirement of law has also come to be firmly laid down by this Court. – – –
  16. The allegations made in this case do not appear to have been the result of any sudden outburst. On the other hand, such injurious reproaches, accusations and taunts as were found to have been made in this case lend credence to the fact that the husband was persisting in them for sufficiently a long time humiliating and wounding the feelings of the wife to such an extent as to make it insufferable for the wife to live in matrimonial home any longer with the husband. – – – –
  17. That apart, in our view, even the fact that the application for amendment seeking for deletion of the accusations made in the written statement was ordered and amendments carried out subsequently does not absolve the husband in this case, from being held liable for having treated the wife with cruelty by making earlier such injurious reproaches and statements, due to their impact when made and continued to remain on record. – – – – A conscious and deliberate statement levelled with pungency and that too placed on record, through the written statement, cannot so lightly be ignored or brushed aside, to be of no consequence merely because it came to be removed from the record only. The allegations levelled and the incidents enumerated in the case on hand, apart from they being per se cruel in nature, on their own also constitute an admission of the fact that for quite some time past the husband had been persistently indulging in them, unrelented and unmindful of its impact. That the husband in this case has treated the wife with intense cruelty is a fact, which became a fait accompli the day they were made in the written statement.”
  18. Mental cruelty and its effect cannot be stated with arithmetical accuracy. It varies from individual to individual, from society to society and also depends on the status of the persons. What would be mental cruelty in the life of two individuals belonging to a particular stratum of the society may not amount to mental cruelty in respect of another couple belonging to a different stratum of society. The agonized feeling or for that matter a sense of disappointment can take place by certain acts causing a grievous dent at the mental level. The inference has to be drawn from the attending circumstances.
  19. In present matter living separately of the parties for long time, prosecution and incarceration in criminal case of appellant, the agony and humiliation suffered, charging him with serious allegations and others family members and still facing prosecution for conviction and apprehension of incarceration amounts to cruelty to appellant.
  20. The third ground for divorce taken by petitioner-appellant was that of adultery. Section 497 IPC reads- “whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery”. In this regard trial court had given finding that when Smt. Kamlesh saw her husband during physical relationship with respondent (Smt. Shaifali @ Muniya) then she (respondent) was not married. So at the relevant time respondent was un-married, therefore this allegation of involvement in adultery after marriage of respondent was rightly held not proved by lower courts.
  21. On the basis of above discussion and considering the facts and circumstances of this matter, it appears that relationship of parties had been deteriorated to the extent that there is no possibility of any reconciliation. Their relationship have reached to the point from where there appears no possibility of any harmonious conjugal relations or their being living together as husband and wife and discharging matrimonial duties.
  22. It would mean that apart from other problems that had come in their way, the main problem is the failure of matrimonial life. It would be seen that the appellant had not immediately rushed to sever his marital relations with the respondent. He had sufficiently waited for long time to see whether there would be any improvement in the relations with respondent and for the same reason he had filed petition u/s 9 of Hindu Marriage for restitution of conjugal rights. Having found no hope, he chose to file suit for divorce. In her pleading respondent refused to live with appellant. Even the mediation proceedings between the parties have failed. Therefore, it could safely be concluded that the appellant having tried all means to sustain the marital relations but having found that it was impossible for the respondent to gain such relationship, he had chosen to live apart from the respondent by moving petition for divorce. Therefore, there was sufficient ground for the husband-appellant to get relief of divorce.
  23. In addition to legal errors as discussed above, the two lower courts have not considered these important material points at the time of deciding the matrimonial disputes, which amounts to infirmity and perversity in their judgments. Considering past experiences I am convinced that any further attempt at reconciliation will be futile and it would be in the interest of both the parties to sever the matrimonial ties since the marriage has broken down irretrievably. In light guidelines laid down by Apex court in Satish Sitole v. Ganga, (2008) 7 SCC 734 I am of the view that since the marriage between the parties is dead for all practical purposes and there is no chance of it being retrieved, the continuance of such marriage would itself amount to cruelty. This contention of appellant’s side is not unacceptable that the appellant’s marriage with the respondent had completely broken down with no hope of revival and compelling them to live together would be very harsh, insensitive and unjust. Therefore said impugned judgments being erroneous and perverse are liable to be set aside.
  24. Considering these facts, circumstances, the factum of living separately for many years and no possibility of any reconciliation, harmonious conjugal relations or future congenial matrimonial relations, it appears appropriate that when it is not possible for the parties to live together and to discharge their marital obligations towards each other, then there is no reason to continue their agony. Therefore on the basis of the forgoing discussion, the decree for dissolution of marriage should be granted on the ground of desertion and mental cruelty. The above substantial question of law is decided accordingly.
  25. Accordingly the appeal is allowed. The impugned judgments dated 24.04.2006 and 24.08.2006 of the lower courts are set aside and matrimonial original suit no. 397/2002 (Narayan Prasad Saraswat v. Smt. Shaifali @ Muniya) for the divorce is decreed. The decree of divorce is granted, and it is directed that the marriage between the parties shall stand dissolved.
    Order Date :- 18.04.2016 SR