Daily Archives: June 24, 2018

Wife looses divorce u/s 13 HMA at Family court and quietly agrees for mutual consent at HC ! CHHATTISGARH HC

wife seems to have filed for divorce on grounds of cruelty but lost at the lower court. She appeals at HC but must have realized why she will NOT win and quietly comes for mutual consent !!

 

HIGH COURT OF CHHATTISGARH, BILASPUR

Reserved on 4-5-2018

Delivered on 19-6-2018

FAM No. 58 of 2017

(Arising out of the judgment and decree dated 29-11-2016 of the Judge, Family Court, Korba, in Civil Suit No. 18-A/2016)

Smt. Sunita Nankani W/o Shri Mahesh Nankani, R/o Near Sindhu Bhawan, Sani Road, Korba, Tahsil and District Korba, CG, at present R/o Flat No. 506, Muskan Plaza, Shatabdipuram, Jabalpur M.P. —- Appellant
Versus
Mahesh Nankani S/o Shri Kanhaiyya Lal Nankani, R/o House No. T/48, Hospital Line, Camp Madhav Nagar, Katni, Tahsil and District Katni, M.P. —- Respondent

For appellant : Shri Vipin Punjabi Advocate

For respondent : Shri Ratnesh Kumar Agrawal, Advocate

Hon’ble Shri Thottathil B. Radhakrishnan, Chief Justice

Hon’ble Shri Sharad Kumar Gupta, Judge

C.A.V. ORDER Per Sharad Kumar Gupta, Judge

1. In this appeal challenge is levied to the judgment and decree dated 29-11-2016 of the Judge, Family Court, Korba, in Civil Suit No. 18-A/2016 whereby and whereunder she dismissed the appellant’s-wife’s divorce petition filed under Section 13 of the Hindu Marriage Act, 1955 (in brevity ‘Act of 1955′) against the respondent-husband.

2. In brief, case of the appellant is that her marriage was solemnized with respondent on 24-2-1995 in accordance with Hindu religion and customary rites and rituals at Katni, Madhya Pradesh. In their wedlock two children have born namely Himanshu Nankani aged about 18 years and Kapil Nankani aged about 15 years who are living with her. After the marriage the respondent started harassing her.

3. The respondent remained exparte and did not file written statement.

4. After conclusion of the trial, the trial Court passed aforesaid judgment and decree. Being aggrieved, the appellant has preferred this appeal.

5. During pendency of this appeal, the case was referred to the High Court Mediation Centre where a settlement was arrived at between the parties and both the parties were agreed that they will file an application for divorce by mutual consent. In furtherance thereof, both the parties have filed an application for divorce by mutual consent on 27-4-2018.

6. It would be pertinent to mention the provisions of Section 13-B of the Act of 1955 which reads as under:- “13-B. Divorce by mutual consent.–(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved. (2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.

7. In the matter of Amardeep Singh -v- Harveen Kaur [(2017) 8 SCC 746], in para 19 and 20 the Hon’ble Apex Court held that :- “19. Applying the above to the present situation, we are of the view that where the court dealing with a matter is satisfied that a case is made out to waive the statutory period under Section 13-B(2), it can do so after considering the following: (i) the statutory period of six months specified in Section 13- B(2), in addition to the statutory period of one year under Section 13-B(1) of separation of parties is already over before the first motion itself; (ii) all efforts for mediation/conciliation including efforts in terms of Order 32-A Rule 3 CPC/Section 23(2) of the Act/ Section 9 of the Family Courts Act to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts; (iii) the parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties; (iv) the waiting period will only prolong their agony. The waiver application can be filed one week after the first motion giving reasons for the prayer for waiver. If the above conditions are satisfied, the waiver of the waiting period for the second motion will be in the discretion of the court concerned. 20. Since we are of the view that the period mentioned in Section 13-B(2) is not mandatory but directory, it will be open to the court to exercise its discretion in the facts and circumstances of each case where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation.”

8. From the above judicial precedent laid down in Amardeep Singh (supra), it is unequivocal that provisions of Section 13-B(2) of the Act of 1955 are directory in nature and Court may waive the six months’ statutory waiting period considering the circumstances as pointed out in above cited case law.

9. This Court has inquired both the parties. We are satisfied that both the parties have filed the application voluntarily, without any influence or pressure. They have been living separately for a period of one year or more. They have not been able to live together and they have mutually agreed that the marriage should be dissolved. All efforts for mediation/conciliation have failed in saving the marriage and there is no likelihood of success in that direction by any further efforts. Parties have genuinely settled their differences and have honestly and bonafidely decided to part. The waiting period will only prolong their agony. We see a strong case to waive the statutory period of six months under Section 13-B(2) of the Act of 1955. Thus, this Court waives the aforesaid waiting period of six months and orders that the aforesaid marriage solemnized between the appellant and the respondent is dissolved by the decree of divorce from today and the respondent-husband shall pay the allowance for maintenance at the rate of Rs. 10,000/- (Rs. Ten Thousand) per month to the minor child Kapil Nankani through his guardian – mother the appellant, till he attains majority from the date of filing of the application i.e. 27-4-2018.

10. The appeal is accordingly disposed of.

11.Parties shall bear their own costs.

12. A decree be drawn up accordingly.

 

Sd/-                                                                  Sd/-
(Thottathil B. Radhakrishnan)                  (Sharad Kumar Gupta)

Chief Justice                                                   Judge

 

 

pathak

I am back at work after visiting court, police station, mediation cell, Lawyer office and paying alimony – Honest Husband

I am back at work after visiting court, police station, mediation cell, Lawyer office and paying alimony

Yours sincerely

Honest Husband

Screenshot - 6_24_2018 , 10_05_09 AM

Men running to marry please note…. Wife gets away with 1/3rd of husbands salary. Elderly mother’s costs NOT considered on par with alimony

In this judgement the husband tries to argue that the lower court made a conjuncture of his “other income” and did NOT consider his liability to maintain his elderly mother etc

The Hon High court does NOT consider the liability to the mother as equal to that of the wife. Some explanation that the mother is earning is also brought in

Considering the husband’s salary as INR 45000 p.m., the wife is awarded INR 15,000 p.m.

Time and again it is proven that the wife can get 1/3rd of the husband’s salary as #alimony / #maintenance

also , in this case, wife has obtained husband’s pay slip USING #RTI !!

All in all bad scene for the husbands who fall into the trap without thinking twice


Calcutta High Court (Appellete Side)
Sougata Mukherjee vs Paromita Mukherjee on 21 June, 2018

June 21, 2018.

C. O. No. 1635 of 2018 Sougata Mukherjee Vs. Paromita Mukherjee

Mr. Suddhasatwa Banerjee, Ms. Sreyanshi Majumdar …for the petitioner.

Ms. Pampa (Dey) Dhabal …for the opposite party.

The present challenge is at the instance of the plaintiff-husband in a divorce suit against an order, whereby the petitioner was directed to pay alimony at the rate of Rs. 18,000/- (Rupees eighteen thousand) only per month and litigation costs of Rs.10,000/- (Rupees ten thousand) only to the opposite party-wife.

Learned counsel for the petitioner argues that the trial court resorted purely to conjecture to factor in the alleged income of the petitioner-husband from private tuition.

It is evident from the impugned order, he submits, that there is absolutely no basis of such conjecture and as such, the assessment of income of the husband in the impugned order suffers from infirmity on that score.

This apart, the husband has to bear some liability towards his mother in lieu of her medical expenses and other necessary expenses. Such expenses were not given due credit while assessing the income of the husband.

It is submitted further, if the Form-16 of the husband is seen in the context of the income tax payment of the husband, it will be seen that the actual income of the husband, after statutory deductions, would be much less than as has been shown in the salary slip of the husband.

Learned counsel for the petitioner cites an unreported judgment rendered by a co- ordinate Bench of this Court on March 29, 2011, in the matter of Soumen Bhattacharjee Vs. Paramita Bhattacharjee (Ganguly) (C. O. No. 128 of 2011) in support of the proposition that the amount paid by the husband for maintenance of his parents is to be considered while assessing the alimony payable to the wife.

Learned counsel for the petitioner also cites a judgement reported at II (1997) DMC 447, to bolster his argument as to the rate at which alimony is to be granted, being a standard 1/5th of the husband’s average net income.

He, further, cites a judgment reported at (1994) 2 CALLT 97 HC (Smt. Rina Sen Vs. Aloke Kumar Sen), to substantiate the proposition that ordinarily 1/5th of the net income of the husband is granted as alimony.

Learned counsel for the opposite party-wife, while controverting the arguments advanced on behalf of the petitioner, submits that in the impugned order itself, it was recorded by the trial court that the trial court was not inclined to hold that the husband has any other source of income or the wife has any other income.

By relying on such recording, learned counsel seeks to establish that, although in previous portion of the impugned order the court proceeded on a presumption that the husband has income from private tuition, in the latter portion, while assessing the income of the husband, earning from private tuition might not have been considered.

Learned counsel for the opposite party also places reliance on the pay slip of the husband, which the opposite party obtained by taking out a query under the Right to Information Act, from which it is evident that the gross income of the husband was Rs. 52,620/- (Rupees fifty two thousand six hundred and twenty) only per month and the net income was Rs. 45,847/- (Rupees forty five thousand eight hundred forty seven) only, at least for the month of February, 2018.

Thus, it is submitted on behalf of the opposite party, that the trial court was absolutely justified in passing alimony at the rate of Rs. 18,000/- (Rupees eighteen thousand) only per month and litigation costs of Rs.10,000/- (Rupees ten thousand) only.

A perusal of the impugned order shows that, although in one place the trial court held that the opposite party-husband had no other source of income, apparently such “other source of income” was meant to be those other than the salary as well as income from private tuition of the husband.

In fact, the subsequent sentence to that in which it was recorded that the husband had no other source of income, the court below proceeded on the premise that the husband used to earn Rs. 50,000/- to 55,000/- per month from his salary and by way of private tuition.

It is clear from the impugned order that the trial court proceeded on conjecture alone in arriving at the finding that the husband had annual income of Rs. 6,00,000/- (Rupees six lakh) only, on the arbitrary presumption that he has income from private tuition, which is not borne out in the petition.

However, this Court is unable to accept the contention of the learned counsel for the petitioner-husband, that deductions in the Form-16 have to be considered in preference over pay slip of the husband, produced by the wife, to correctly assess the income of the husband. The pay slip of the husband clearly shows that net income of the husband was to Rs.45,847/- (Rupees forty five thousand eight hundred forty seven) only at least for the month of February, 2018 which indicated his monthly income.

The argument, that the expenses by the husband for his ailing mother have to be factored in, cannot be accepted. Although such credit was given to expenses for parents in the unreported judgment cited by learned counsel for the petitioner, such finding in the said judgement could not be said to have laid down a general ratio in that regard. In every case of alimony, assessment has to be made on the facts of the case and there cannot be any hard and fast rule as to the exact fraction of the income at which alimony is to be granted.

In fact, in the present case, the mother of the husband herself earns Rs. 10,000/- (Rupees ten thousand) only per month as pension and it cannot be said that she is dependent entirely on the petitioner.

Moreover, the liability of husband to pay alimony to the wife is irrespective and independent of his other liabilities. Although a pragmatic approach has to be taken in granting alimony, a judicial exercise of discretion on proper yardsticks ought not to be interfered with under Article 227 of the Constitution at the drop of a hat.

In the instant case, the only erroneous yardstick applied by the trial court was to resort to conjecture in arriving at a finding that the husband had income from private tuition, which had no basis whatsoever.

Even if income from private tuition is overlooked, the net salary of the husband is more than Rs. 45,000/- per month, as is evident from the pay slip of the husband, produced by the opposite party-wife.

Taking the rule of thumb of granting alimony to be 1/5th to 1/3rd of the net income of the husband, as is the general approach adopted by courts, 1/3rd of the said amount comes to a little more than Rs. 15,000/- per month.

Hence, it may be said that the amount of Rs.18,000/- of alimony was a bit on the exorbitant side, at least by Rs. 3,000/- per month.

Accordingly, C. O. 1635 of 2018 is disposed of by modifying the impugned order to the extent that the present petitioner-husband will pay to the opposite party-wife Rs.15,000/- (Rupees fifteen thousand) only per month as alimony from the date of the application, as directed by the trial court. The arrears amount will have to be paid by the petitioner-husband to the opposite party-wife within six months from this date. The quantum of litigation costs, that is, Rs. 10,000/- (Rupees ten thousand) only is not interfered with and will have to be paid by the husband within the time as stipulated by the court below.

The current alimony will commence with Rs. 15,000/- (Rupees fifteen thousand) only per month from June, 2018, payable within July 7, 2018. The petitioner-husband will go on paying current alimony thereafter within the seventh day of each succeeding month for each English calendar month.

There will be, however, no order as to costs.

Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.

(Sabyasachi Bhattacharyya, J.)

Woman pours kerosine & burns husband alive as he objected to phone calls. Woman escapes, police trying to trace her !

Stopped From Talking On Phone, Woman Burns Husband Alive

According to a police officer, the man had objected to his wife talking on the mobile phone, which triggered a verbal altercation.

Stopped From Talking On Phone, Woman Burns Husband Alive

Nanke didn’t allow his wife Pooja to talk on the phone after which she set him on fire (Representational)

Balrampur:  A minor argument between a man and his wife took an ugly turn as the women allegedly poured kerosene on her husband and set him afire, Uttar Pradesh police said.

According to a police officer, the man had objected to his wife talking on the mobile phone, which triggered a verbal altercation.

The incident took place on February 7, when Nanke, 35, had an argument with his wife Pooja, the officer said. The incident occurred in Balrampur district, around 200 kilometres from state capital, Lucknow.

“Pooja was angry, as she was not allowed to speak. When Nanke went to sleep after having meal, Pooja sprinkled kerosene on him and burnt him alive,” the police officer said.

Hearing Nanke’s cries, his family members rushed him to a hospital, from where he was referred to Lucknow. Nanke succumbed to his injuries yesterday, the officer said.

The woman, meanwhile, fled the spot, police said.

Superintendent of Police Pramod Kumar said, “We have registered a case against the accused woman based on the complaint filed by the deceased’s brother. Efforts are being made to trace the woman and arrest her,” he said.

source