Author Archives: vinayak

About vinayak

Father of a lovely daughter, criminal in the eyes of a wife, son of an elderly mother, old timer who hasn't given up, Male, activist

wife who deserted husband in 1992 tries to contest divorce decree but looses completely !!

 

Marriage in 1992, Parties have stayed together hardly for a few months. Wife ridicules and ill treats husband as she is more qualified than him. She also leaves him and goes away to parental home. Husband wins divorce in lower court, but wife contests the case which comes up for decision in march 2017 !! Wife loses the case (in March 2017). It is NOT know if wife has gone on further appeal !!


IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR

 

FAMILY COURT APPEAL No.86 OF 2014

 

Vaishali w/o. Rajesh Barde,
Aged : Adult,
R/o. C/o. Shri Hiwarkar,
E.W.S. Colony, New Somwaripeth,
Nagpur. : APPELLANT

…VERSUS…

Rahesh s/o. Harihar Barde,
Aged 41 years,
Occupation : School Teacher,
R/o. C/o. Samajsewa Vidyalaya,
Wadhona, Tah. Nagbhid,
Distt. Chandrapur. : RESPONDENT

 


Ms. Muley, Advocate for the Petitioner.
Shri Dongre, Advocate for the Respondent.


CORAM : SMT. VASANTI A. NAIK AND V.M.DESHPANDE, JJ.
DATE : 1 st MARCH, 2017.

ORAL JUDGMENT : (PER : Smt. Vasanti A. Naik, J.)

By this family court appeal, the appellant challenges the judgment of the Family Court, dated 17.04.2008 allowing a petition filed by the respondent for a decree of divorce under Section 13 of the Hindu Marriage Act on the ground of cruelty and desertion.

The marriage of the parties was solemnized on 27.07.1992 at Nagpur as per Hindu rites and customs. The appellant and the respondent started residing at village Sawargaon where, the respondent- husband was working as a teacher. It is the case of the husband in the petition filed by him for a decree of divorce on the ground of cruelty and desertion that the appellant-wife was more qualified than him and, therefore, she always felt that the respondent-husband was not a proper match for her. It is pleaded by the husband in the petition that the wife did not have a desire to live with the husband in Sawargaon. It is pleaded that the wife used to pick up quarrel with the husband time and again and used to abuse him in filthy language. It is pleaded that the husband always tried to adjust and ensure that there was harmony in the house but, the wife always quarreled and tried to lower the image of the husband in the society. It is pleaded that the wife did not have any intention to perform the matrimonial duties and she used to leave the matrimonial home at odd times. It is stated that due to such behaviour of the wife, the husband had to suffer great mental agony. It is pleaded that in the first Diwali after the marriage, the wife left the house of the husband without informing him and returned to the house on the day of Laxmipujan. It is pleaded that the acts on the part of the wife amounted to cruelty and the husband is entitled to a decree of divorce on the ground of cruelty. The husband pleaded that he was also entitled to a decree of divorce on the ground of desertion. It is pleaded that the wife had left the matrimonial house sometime in May 1994 without any just or reasonable excuse and she was staying away from the husband for about 11 years, till the petition was filed. It is pleaded by the husband that the wife had flatly refused to come to Bramhapuri where his parents resided. It is pleaded that the husband took several steps to bring back the wife to the matrimonial home, but the wife did not oblige. It is pleaded that the wife and her parents had informed the husband that she was not ready to cohabit with the husband in the matrimonial home and the marriage between the parties should be dissolved. The husband sought a decree of divorce on the ground of cruelty and desertion.

The wife filed the written statement and denied the claim of the husband. The wife denied that she had treated the husband with cruelty. The wife denied that she illtreated the husband because she was highly educated. The wife denied that she had no desire to live with the parents at Bramhapuri. The wife denied that she had left the husband without any just or reasonable excuse. The wife also denied that she used to leave the matrimonial house time and again without any rhyme or reason without informing the husband. The wife denied all the adverse allegations that were levelled against her by the husband. In the specific pleadings, the wife pleaded that the allegations levelled against the wife by the husband only showed the normal wear and tear in the matrimonial home. It is pleaded that the allegations levelled by the husband against the wife, even if held to be proved could not amount to cruelty. It is pleaded that the husband was always suspecting the wife’s character and the said act on the part of the husband caused severe mental agony to the wife. The wife pleaded that an irretrievable break irretrievably brake down of a marriage is not a ground for granting a decree of divorce under the Hindu Marriage Act. The wife pleaded that the husband has not pointed out that the wife had a desire to live separately from the husband. The wife sought for the dismissal of the petition.

The wife had filed a separate petition against the husband under Section 18 of the Hindu Adoption and Maintenance Act for grant of maintenance. Both the petitions, the one filed by the husband for the decree of divorce and the other filed by the wife for maintenance were tried together by the Family Court and while partly allowing the petition filed by the wife for maintenance, the Family Court allowed the petition filed by the husband for a decree of divorce on the ground of cruelty and desertion. The judgment of the Family Court, so far as it grants a decree of divorce in favour of the husband is challenged by the wife in this family court appeal.

Ms. Muley, the learned counsel for the appellant-husband submitted that the Family Court could not have granted a decree of divorce in favour of the husband. It is stated that the Family Court was not justified in holding that the wife was not desirous of residing with the husband and she had consented for a decree of divorce by mutual consent, by accepting a sum of Rs.3/- lakhs. It is submitted that the allegations levelled by the husband against the wife would at the most be considered to be the acts showing the normal wear and tear in a matrimonial house and the said allegations, even if they are held to be proved, cannot result in holding that the wife had treated the husband with cruelty. It is submitted that a decree of divorce could not have been passed in favour of the husband on the ground of desertion, as there is evidence on record to show that after the wife left the matrimonial house in May 1994, she had tried to join the company of the husband by returning to the matrimonial home in July 1994. It is submitted that neither is the factum of desertion proved, nor is the factum of ‘animus deserendi’ proved in this case. The learned counsel submitted that the petition filed by the husband for a decree of divorce was liable to be dismissed.

Shri Dongre, the learned counsel for the respondent-husband has supported the judgment of the Family Court. It is submitted that the Family Court has considered the evidence of the parties in detail and has held that the wife had treated the husband with cruelty and that she had deserted him. It is submitted that there was ample evidence on record to show that the wife was having a superiority complex and she always used to quarrel with the husband, as she was more educated than him. It is submitted that the husband had clearly stated in his cross-examination on the suggestion made on behalf of the wife that the wife had pointed out a spelling mistake made by the husband and had admonished him that being educated he should not have committed such a mistake. It is stated that the husband had stated in his evidence, especially in his cross-examination that the wife used to taunt the husband because he was less educated than the wife. It is stated that the husband had stated in his cross-examination that he has stated in his affidavit about the behavior of the wife that lowered his image in the society. It is stated that the husband admitted that the wife had demanded divorce on payment of an amount. It is stated that the suggestion given on behalf of the wife to the husband in his cross-examination and the answers of the husband thereto would clearly prove that the wife was treating the husband with cruelty. It is submitted that the Family Court has rightly held that the wife had left the company of the husband without any just or reasonable excuse. It is submitted that the Family Court has rightly held that the wife had deserted the husband and the husband was not responsible for the separation. It is submitted that there is nothing on record to show that the husband had driven the wife out of the house and that he had not taken any steps for residing together. The learned J-fca86.14.odt 7/14 counsel sought for the dismissal of the Family Court Appeal.

It appears on a perusal of the original record and proceedings and on hearing the learned counsel for the parties, that the following points arise for determination in this family court appeal :

i) Whether the husband proves that the wife has treated him with cruelty ?

ii) Whether the husband proves that the wife has deserted him without any just or reasonable excuse ?

iii) Whether the husband is entitled to a decree of divorce ?

iv) What order ?

The pleadings of the parties are narrated in detail in the earlier part of the judgment. The husband had entered into the witness box and had reiterated the facts stated by him in his pleadings in regard to the nature of the wife. He had stated that she used to leave the house without any rhyme or reason without informing the husband. The husband had also stated in his evidence that the wife did not like to reside in Bramhapuri along with his parents and that on the first Diwali she had left the house without informing him and had returned on the day of Laxmipujan. It is stated by the husband that the wife always used to taunt him because she had secured the degrees of M.Com., M.A. and M. Phil. and the husband was not as educated as her. The husband stated that time and again the wife used to quarrel with the husband and sometimes the neighbours had to intervene and this conduct on the part J-fca86.14.odt 8/14 of the wife has lowered his image in the society. The husband narrated all the other facts pleaded by him in his petition in his examination in chief. The husband was cross-examined on behalf of the wife. The cross- examination of the husband is very material. In fact, the suggestions given on behalf of the wife to the husband proves the case of the husband that the wife had treated him with cruelty. The husband has admitted in his cross-examination that the wife was more qualified than him and that once she had pointed out a spelling mistake and had scolded him that he should not have committed such a mistake, being educated. The husband admitted in his cross-examination that there were certain instances which made him believe that the wife was not ready to live with him. The husband stated in his cross-examination that he had stated in his affidavit about the wife’s behavior which resulted in lowering his image in the society. The husband admitted in his cross- examination that Laxmipujan falls on 3rd or 4th day of Diwali festival and the wife had left the matrimonial home on Diwali without informing him and had returned on the day of Laxmipujan. The husband admitted in his cross-examination that he did not know where the wife had gone on the day of Diwali. The husband admitted that he had no knowledge about the plan of the wife to leave the matrimonial home in May 1994. The husband admitted that the wife had demanded divorce on payment of amount. The husband stated that he had stated about the fact in respect of demand of money by the wife in his affidavit.

It is apparent from the cross-examination of the husband that for a petty matter, where the husband committed a spelling mistake, the wife took the husband to task in the early days of marriage and told him that he should not have committed such a mistake, when he was educated. The parties had resided together for not more than four months. Within a short period of four months a normal wife may not even open up to tell her husband that he has committed a mistake and that he should never commit it again. It is apparent that within a short stay of about four months with the husband in the matrimonial home during which period, she had left him time and again and had gone to her parents, she had admonished the husband for a trifle spelling mistake. The husband had stated in his cross-examination that the wife used to taunt him because he was less educated. This suggestion should not have come from the side of the wife to the husband in his cross-examination. The husband had also stated in his cross-examination that the wife had tried to lower his image in the society and that she had left the house on the first day of Diwali without informing him and returned to the house on the day of Laxmipujan. The husband had stated in his cross-examination that he was not aware about the plan of the wife to leave the matrimonial house in May 1994. The husband also stated in his cross-examination that the wife had demanded divorce on payment of J-fca86.14.odt 10/14 amount. This fact is fortified by a consent divorce petition filed by the parties in the Family Court. The husband and the wife had agreed that the husband would pay a sum of Rs.3/- lakhs to the wife as full and final settlement and that the marriage between them would be dissolved. After filing the petition in the Court, the Family Court has noted that when the parties were called for recording the statement in respect of consent divorce, the wife had backed out. It is apparent from the cross- examination of the husband that the wife had demanded divorce from the husband on payment of amount and it appears that the wife was not ready to accept the amount of Rs.3/- lakhs as she desired some more amount when the matter was settled and a consent decree was to be passed by the Court. The husband had not only examined himself but had also examined his uncle Shri Keshav Mandavgade. This witness had clearly stated in his examination in chief that whenever the husband asked the wife to come along with him to his parents at Bramhapuri, she refused to accompany him. It is stated that without informing the husband, the wife used to go to Nagpur to her parental home from Sawargaon, when the husband was out of the house on his duties. Shri Keshav has stated in the examination in chief that when he had asked the wife not to behave in such a fashion, the wife said that the husband and his family members are not dignified people and they are not much educated. The witness stated in his evidence that the wife told him that she did not get a matrimonial house as per her desire and she had married the husband only with a view to please her parents. The witness stated that the wife had admitted that because she was not happy in the matrimonial home, she used to leave the house and go to her parental house at Nagpur. The witness also stated in his evidence that the wife told him that she was ready to sever the matrimonial relationship, but the amount spent by her father on the marriage should be returned to her. Though, this witness was cross-examined on behalf of the wife, there is no cross-examination on the aforesaid facts stated by him in his examination in chief. In the absence of any cross-examination on the material evidence tendered by Shri Keshav Mandavgade, the facts stated by him in his examination in chief remain unchallenged and the husband is successful in proving his case that the wife had treated him with cruelty on the basis of his evidence as also the evidence of Shri Keshav Mandavgade. It is also notable that though the wife had not pleaded in her written statement that she had found a photograph of a woman in a religious book and the husband had snatched the said photograph from her and that he had an affair with the said lady, the wife went on to make the aforesaid statements in her examination in chief. The Family Court rightly held that levelling serious allegations on the character of a party and failing to prove the same would tantamount to cruelty. The wife has stated in the evidence, though there are no pleadings in that regard, that when the wife had enquired about the photograph of a woman in a religious book of the husband, the husband had started torturing and beating her mercilessly. If the husband had filed the petition eleven years after the separation of the parties and if this incident had really occurred, the wife would have, in the first place pleaded these facts in her written statement. The wife, however, did not do so. Levelling serious allegations against the husband’s character without pleading and proving the same, if considered along with the other acts on the part of the wife would tantamount to cruelty. The Family Court held and rightly so that the wife had deserted the husband without any just or reasonable excuse. The parties were residing separately for more than eleven years before the husband filed the petition for a decree of divorce. The parties had resided together only for four months and there was a separation period of eleven years when the petition was filed. The Family Court, therefore, held on an appreciation of the evidence on record that the husband did not drive away the wife from the matrimonial home, as pleaded by her and the wife had left the company of the husband without any just or reasonable excuse. The Family Court held that it was apparent from the evidence of the parties that there was no intention on the part of the wife to join the company of the husband. The case of the wife that she returned to the matrimonial home with a view to reside with the husband cannot be believed.

Though the wife had issued a legal notice to the husband for claiming maintenance, the wife did not ask the husband to reside along with her. The wife had also not filed any proceedings for restitution of conjugal rights. If the wife really desired to live with the husband she would have surely filed a petition for restitution of conjugal rights while filing a petition for maintenance. The Family Court has rightly held that the wife started living separately from the husband on her own without any reasonable excuse and she was not ready to resume cohabitation. After having held that the husband had not driven the wife away from the house and that she was responsible for the separation, the Family Court held that the husband was entitled to a decree of divorce on the ground of desertion. We find that the Family Court has rightly appreciated the evidence of the parties to grant a decree of divorce in favour of the husband. We find that the wife was interested in securing money from the husband and was not interested in residing with the husband. The aforesaid position could be fortified by the consent terms that were signed by the parties and presented in the Family Court. The wife then refused to compromise the matter with a view to ensure that the husband pays some more amount. In the circumstances of the case, it cannot be said that the Family Court was not justified in granting a decree of divorce in favour of the husband.

As the judgment of the Family Court is just and proper, the family court appeal is dismissed with no order as to costs.

JUDGE JUDGE

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Hey MAN, Don’t file for #DIVORCE if you do NOT have a VERY strong case

In India MEN can’t get #divorce easily alleging #cruelty or desertion, unless you have cogent #proof and #witnesses. Also case should be fought throughly from the very start (meaning don’t miss key issues at the start). See this pathetic case where parties are separated for at least 7 years, there seems to be nothing left in the marriage, but the husband has LOST his divorce even at the HC … It’s better to remain single and NEVER approach courts for justice, IF you are NOT sure and NOT ready with tons of proof
 
 
/////7. In any case, the Family Court had come to a considered conclusion that the Appellant had not made out his case of cruelty under Section 13 (1) (i-a) of the said Act while dismissing the divorce petition. We find that the conclusions rendered by the Family Court 24 / 26 FCA. 89-09.sxw are based on correct appreciation of the evidence and material on record and none of the findings can be said to be perverse. An attempt was made on behalf of the Appellant to demonstrate that there was nothing left in the marriage with passage of time and that the Appellant was in no state of mind to take back the Respondent and the minor child to his home. We feel that this cannot be a factor to decide the fate of the divorce petition, filed by the Appellant. He came to the Court with a specific case of mental cruelty being inflicted by the Respondent on him. But he has failed to prove his case on the basis of evidence and material on record. We find from the record that between September 2009 to April 2010 the parties did stay together with the minor child under orders of this Court and even during this period it was recorded in the order dated 18.1.2010 that the Appellant could not make up is mind to take the Respondent and child to his home. The record shows that the Appellant was intensely desirous of having divorce, but he has failed to make out the case with which he has approached the Court.
 
28. A feeble attempt was made by the counsel appearing on behalf of the Appellant to claim that an adverse inference needs to be 25 / 26 FCA. 89-09.sxw drawn against the Respondent that there was no sincerity in her statement about her desire to cohabit with the Appellant and his parents even today, because she did not file any application under Section 9 of the said Act for restitution of conjugal rights. The said submission made on behalf of the Appellant is wholly without any substance because it cannot be held that the divorce decree as prayed for by the Appellant deserves to be granted only because the Respondent – wife failed to file an application for restitution of conjugal rights.
 
29. Thus, on considering the contentions raised on behalf of both the parties and on perusal of the record, we find that the judgment and order passed by the Family Court dismissing the divorce petition of the Appellant is justified and that there is no merit in the present appeal. Point No. 1 is therefore, answered in the affirmative. Accordingly, appeal is dismissed with no order as to costs.
 
30. In view of dismissal of the appeal, Civil Application No. 308 of 2015 filed therein does not survive and is therefore disposed of.
 
Sd/- Sd/-
[MANISH PITALE, J.] [A. A. SAYED, J.]
Vinayak Halemath
 
//////

HC says 60,000 p.m. while SC says 25000 P.M. is correct maintenace in VERY SAME CASE !!

Indian Men are forced to pay interim maintenance to estranged wife without ANY GUILT being proven! On top of this, there is a vide variation in what is granted by one court vs what is granted by another. In many cases Income Tax and other records are conveniently disbelieved. The claims of husbands that the wife are “employable” and have “capacity to earn” fall on deaf ears !!

And, needless to say, well educated “model” women keep earning maintenance, just because the husband and his family were successful in life !!

Sadly this husband has already deposited something like 22 Lakhs to the wife in addition to some monthly maintenance paid by him (pursuant to earlier orders)

Luckily, in this case, the Apex court DRASTICALLY REDUCED the maintenance. Please note that the husband and his family “…They are successful in their business. His mother belongs to a family of journalists and lawyers…….”


REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4615 OF 2017
(Arising out of SLP (C) No.7670 OF 2014)

 

MANISH JAIN …Appellant

Versus

AKANKSHA JAIN …Respondent

O R D E R

R. Banumathi, J.

  1. Leave granted.
  2. The present appeal has been filed by the appellant-husband against the order dated 21.02.2014 passed by the High Court of Delhi at New Delhi in C.M.(M) No.910 of 2010. In the said judgment, the High Court while setting aside the order dated 15.03.2010 passed by the Additional District Judge-II (West), Tis Hazari, Delhi who declined to award maintenance pendente lite to the respondent-wife under Section 24 of the Hindu Marriage Act, 1955 has granted interim maintenance to the respondent-wife at the rate of Rs.60,000/- per month to be paid by the appellant-husband Manish Jain with effect from 1st February, 2012 till the disposal of divorce petition. The said amount was fixed in addition to Rs.10,000/- which the appellant-husband has already been paying by way of interim maintenance as per the order passed in Criminal Appeal No.65 of 2008 under Section 23(2) of the Protection of Women from Domestic Violence Act, 2005 [for short ‘the D.V. Act’].
  3. This is a case of marital discord which has a chequered history. Brief facts leading to this appeal by way of special leave are as under:- Both the appellant and the respondent got married on 16.02.2005 and they were living at V-38, Green Park, New Delhi. The couple shifted to an accommodation at 303, SFS Apartment, Hauz Khas, New Delhi on 15.04.2007. In or about July, 2007 relationship between the parties got strained. In September, 2007 the appellant-husband filed a divorce petition HMA No.553/2007 under the Hindu Marriage Act, 1955 [for short ‘the HM Act’] seeking divorce on the grounds of cruelty.
  4. In November, 2007 the respondent-wife filed a petition under the D.V. Act along with interim relief i.e., maintenance. She also filed a complaint on 23.11.2007 under Section 498-A and Section 406 IPC with CAW Cell, Amar Colony, Nanakpura, New Delhi against the appellant-husband and his family members which was later on registered as FIR bearing No.190 of 2008, Police Station, Friends Colony, New Delhi on 04.03.2008. In December, 2007, respondent filed yet another Complaint Case No.381 of 2008 under Section 125 Cr.P.C. before the Mahila Court, Patiala House, New Delhi. Her interim application seeking maintenance amongst other reliefs under Section 23(2) of the D.V. Act was dismissed by the Metropolitan Magistrate, Patiala House, New Delhi by order dated 23.04.2008 on the ground that the respondent was employed and was getting a stable income and that no document was placed on record by the respondent to show that respondent had again become jobless as the publication of the Magazine FNL had been stopped. Against the dismissal of application for maintenance, the respondent had filed appeal before Additional Sessions Judge, Patiala House in Criminal Appeal No.65 of 2008. In the said appeal and in Criminal Revision No.66 of 2008, Additional Sessions Judge, Patiala House by an order dated 01.09.2009 granted maintenance of Rs.10,000/- per month to the respondent-wife.
  5. The appellant-husband filed an application under Section 438 Cr.P.C. on 22.04.2008 for grant of bail in anticipation of his likely arrest. The High Court granted anticipatory bail to the appellant-husband subject to return of Toyota Corolla and dowry/jewellery articles to the respondent-wife within a week from the date of order till the next date of hearing which is said to have been complied with. Order was also passed directing the respondent to deposit Rs.12,00,000/- towards alleged return of dowry articles.
  6. The respondent-wife filed application under Section 24 of the HM Act claiming interim maintenance pendente lite of Rs.4,00,000/- per month and also a sum of Rs.80,000/- to meet litigation expenses during the pendency of the divorce petition. In the said application, the respondent- wife pleaded that she was having no source of income to maintain herself and that she is dependent upon others for her day to day needs and requirements. The said application was resisted by the appellant-husband contending that the respondent-wife is an educated lady and that she had completed her one year course of Fashion Designing from J.D. Institute, Hauz Khas, New Delhi and that she is capable of earning monthly salary of Rs.50,000/. The application filed under Section 24 of the HM Act was dismissed by Additional District Judge-II, Tis Hazari, Delhi by order dated 15.03.2010. Being aggrieved, the respondent-wife filed Crl. M.A. No.17724 of 2012 before the High Court, Delhi. The High Court in its order dated 08.11.2011 in C.M.(M) No.910 of 2010 filed by the wife against the order dated 15.03.2010 directed both the parties to file an affidavit truthfully disclosing their correct income. Both the husband and the wife filed an affidavit as to their income in compliance of the aforesaid order. After so directing the parties to file affidavit regarding their income and after referring to the income of appellant-husband and the properties which the appellant and his family are owning and also the standard of living of the respondent-wife which she is required to maintain, the High Court by the impugned order directed the appellant-husband to pay interim maintenance of Rs.60,000/- per month in addition to Rs.10,000/- which was directed to be paid to the respondent-wife in the proceedings under the D.V. Act.
  7. Aggrieved by the order of the High Court, the appellant-husband came in appeal before this Court by way of special leave. After giving opportunity to the parties to work out a settlement which ultimately failed, the same was dismissed on 15.04.2014. Being aggrieved by the dismissal of the above petition, a review petition was filed on 13.05.2014 in which notice was issued by this Court on 06.08.2014 and on 03.02.2016 the same was allowed and the Special Leave Petition was restored to its original number which is the subject matter before us.
  8. Learned counsel for the appellant-husband submitted that the respondent-wife has concealed her employment and independent source of income on several occasions throughout the matrimonial proceedings before the courts below and also that the High Court has committed a grave error in interfering with the well-reasoned order of the trial Court under Section 24 of the HM Act. The learned counsel for the appellant-husband submitted that the trial court after analyzing the evidence that the wife was educated, professionally qualified in the Fashion industry and had sufficient independent income rejected the application of the wife seeking maintenance under Section 24 of the HM Act. It was submitted that the High Court without proper appreciation of the income of the parties had wrongly set aside the order of the trial Court and fixed an abnormal amount of Rs.60,000/- as maintenance to the respondent-wife under Section 24 of the Hindu Marriage Act. Learned counsel further submitted that in Criminal Appeal No.65 of 2008 under Section 23(2) of the D.V. Act, the appellant- husband is paying an interim maintenance of Rs.10,000/- per month to the respondent-wife and the appellant-husband has so far made a total payment of Rs.7,50,000/- in the proceedings under D.V. Act, apart from returning a Toyota Corolla car worth Rs.13,00,000/- besides depositing a sum of Rs.12,00,000/- and a sum of Rs.2,75,000/– towards untraced admitted dowry articles in compliance with the order passed by the Court. It was further submitted that the appellant-husband’s firms/companies have been either shut down due to heavy loss and/or under the stage of winding up and the appellant-husband is not in a position to pay the exorbitant amount of Rs.60,000/- per month as maintenance pendente lite to the respondent-wife.
  9. Learned counsel for the respondent-wife at the outset submitted that the principle of providing maintenance is to ensure the living conditions of respondent-wife similar to that of appellant-husband whereas in the present case the respondent-wife is yet to receive any money.
  10. We have heard the matter at considerable length. Parties are entangled in several rounds of litigation making allegations and counter allegations against each other. Since various proceedings are pending between the parties, we are not inclined to go into the merits of the rival contentions advanced by the parties. The only question falling for consideration is whether the respondent-wife is entitled to maintenance pendente lite and whether the amount of Rs.60,000/- awarded by the High Court is on the higher side.
  11. The Court exercises a wide discretion in the matter of granting alimony pendente lite but the discretion is judicial and neither arbitrary nor capricious. It is to be guided, on sound principles of matrimonial law and to be exercised within the ambit of the provisions of the Act and having regard to the object of the Act. The Court would not be in a position to judge the merits of the rival contentions of the parties when deciding an application for interim alimony and would not allow its discretion to be fettered by the nature of the allegations made by them and would not examine the merits of the case. Section 24 of the HM Act lays down that in arriving at the quantum of interim maintenance to be paid by one spouse to another, the Court must have regard to the appellant’s own income and the income of the respondent.
  12. At the time of filing application under Section 24 of the HM Act in December, 2007, the respondent-wife was doing her internship in fashion designing in J.D. Institute of Fashion Technology and just completed the course and was not employed at that time. Only in the month of May, 2008, she became a trainee and joined FNL Magazine of Images Group as Junior Fashion Stylist and was earning an approximate/stipend income of Rs.21,315/- per month and due to recession, the same is said to have been reduced to Rs.16,315/- for three months that is July, August and September in the year 2009. It is stated that thereafter the respondent-wife has become jobless and associated with Cosmopolitan Magazine and according to the respondent- wife, she was working as a Stylist and is paid nominal amount of Rs.4,500/- per shoot and the said amount is inclusive of expenses like travelling etc. On a perusal of the judgment of the High Court and also the affidavit of the respondent-wife, it is clear that the respondent-wife has no permanent source of employment and no permanent source of income.
  13. Appellant-husband is stated to be a partner in the firms of his family business. It is also stated that the appellant-husband and his family own several valuable properties and has flourishing business. Insofar as the properties/income of appellant-husband, the High Court has made the following observations:-“38. From the pleading of the respondent before other Courts, it has come on record that the respondent’s family is having successful and flourishing business of electrical and non-ferrous metals for the last 22 years. They are successful in their business. His mother belongs to a family of journalists and lawyers….39. From the material placed on record by the petitioner, prima facie it appears to the Court that even the respondent has not made full disclosure about his income and correct status of the family in the affidavits filed by him. The statements made by him are contrary to the statement made in the bail application. Prima facie, it appears to the Court that the respondent is hiding his income by trying to show himself as a pauper, however, the documents placed on record speak differently. At the same time the family members have a reasonably flourishing business and many properties as admitted by him. It has now become a matter of routine that as and when an application for maintenance is filed, the non-applicant becomes poor displaying that he is not residing with the family members if they have a good business and movable and immovable properties in order to avoid payment of maintenance. Courts cannot under these circumstances close their eyes when tricks are being played in a clever manner.” 
  14. Section 24 of the HM Act empowers the Court in any proceeding under the Act, if it appears to the Court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of any one of them order the other party to pay to the petitioner the expenses of the proceeding and monthly maintenance as may seem to be reasonable during the proceeding, having regard to also the income of both the applicant and the respondent. Heading of Section 24 of the Act is “Maintenance pendente lite and expenses of proceedings”. The Section, however, does not use the word “maintenance”; but the word “support” can be interpreted to mean as Section 24 is intended to provide for maintenance pendente lite.
  15. An order for maintenance pendente lite or for costs of the proceedings is conditional on the circumstance that the wife or husband who makes a claim for the same has no independent income sufficient for her or his support or to meet the necessary expenses of the proceeding. It is no answer to a claim of maintenance that the wife is educated and could support herself. Likewise, the financial position of the wife’s parents is also immaterial. The Court must take into consideration the status of the parties and the capacity of the spouse to pay maintenance and whether the applicant has any independent income sufficient for her or his support. Maintenance is always dependent upon factual situation; the Court should, therefore, mould the claim for maintenance determining the quantum based on various factors brought before the Court.
  16. In the present case, at the time of claiming maintenance pendente lite when the respondent-wife had no sufficient income capable of supporting herself, the High Court was justified in ordering maintenance. However, in our view, the maintenance amount of Rs.60,000/- ordered by the High Court (in addition to Rs.10,000/- paid under the proceedings of the D.V. Act) appears to be on the higher side and in the interest of justice, the same is reduced to Rs.25,000/- per month. The maintenance pendente lite of Rs.25,000/- is to be paid to the respondent-wife by the appellant- husband (in addition to Rs.10,000/- paid under the proceedings of the D.V. Act).
  17. The order impugned herein is set aside and the appeal is allowed. The amount of Rs.60,000/- awarded as maintenance pendente lite is reduced to Rs.25,000/- per month which is in addition to Rs.10,000/- paid under the proceedings of the D.V. Act. The appellant-husband is directed to pay the arrears w.e.f. 01.02.2012 till the disposal of the divorce petition, within four weeks from today. The appellant-husband shall continue to pay Rs.25,000/- per month in addition to Rs.10,000/- paid under the proceedings of the D.V. Act on or before 10th of every English calendar month till the disposal of the divorce petition. If the appellant-husband has paid or deposited any amount of maintenance pursuant to the order of the High Court dated 21.02.2014, the same shall be set-off against the arrears to be paid by the appellant-husband. The respondent-wife is at liberty to withdraw the amount, if any, deposited by the appellant-husband pursuant to the order dated 21.02.2014. We make it clear that we have not expressed any opinion on the merits of the matter. In case the appellant-husband does not comply with the order, as above, including for payment of arrears, he would be visited with all consequences including action for contempt of Court.

………………………….J. [KURIAN JOSEPH]

.………………………..J. [R. BANUMATHI]

New Delhi;

March 30, 2017

ORIGINAL electronic evidence may be submitted WITHOUT 65B certificate !!

Pinhole camera hard disk and the DVDs showing wife’s extramarital affairs accepted by both the family court and High Court!. Wife cannot escape using legal loopholes !!

“…..I am of the considered view that Section 65B of the Act of 1872 only deals with the secondary evidence qua electronic records. It does not at all deal with the original electronic records, as in the instant case, where the pinhole camera, with a hard disk memory on which the recording was done has been submitted before the Family Court. The Apex Court in the case of Anvar P.V. Vs. P.K. Basheer [(2014)10 SCC 473] has held that if an electronic record is produced as a primary evidence under Section 62 of the Evidence Act, the same is admissible in evidence without compliance with the conditions of Section 65B of the Act of 1872. That evidence would take the colour of primary evidence, subject no doubt to its credibility based on forensic examination and cross examination……”

Rajasthan High Court

Preeti Jain vs Kunal Jain &Anr; on 27 May, 2016

AT JAIPUR BENCH

(S.B. Civil Writ Petition No.224/2016)

Citation:AIR 2016 Raj 153

Challenge has been made to the order dated 18-12-2015 passed by the Family Court Kekri, District Ajmer (hereinafter the Family Court) dismissing the petitioner-wife-non-applicants (hereinafterthe non applicant) application praying that as the evidence of the respondent-husband-non-applicant (hereinafter `the applicant) placed in the course of a divorce petition, on record of the Family court i.e. one pinhole camera, hard disk memory, 3 CD/ DVDs video recording, mobile messages, CD/ DVD of bio-data photos along with the affidavit in evidence was in the nature of electronic records without requisite certification under under Section 65B read with 122 of the Evidence Act, 1872 (hereinafter the Act of 1872′) and in the cross hair of Section 122 thereof, not be taken on record and read in evidence.

The facts relevant are that the applicant husband filed an application for dissolution of the marriage under Section 13 of the Family Court Act, 1984 (hereinafter `the Act of 1984′) against the the non applicant wife praying that their marriage solemnized on 10-12-2013 be dissolved on the grounds of cruelty and adultery. It was alleged that the applicant had in his possession a video clipping recorded through a pin hole camera establishing the non applicants extra-martial relationship. The divorce petition was resisted by denial. It was stated that the electronic record referred to as the foundation of the divorce petition was fabricated and the petition was liable to be dismissed.

Pleadings being complete and issues framed, the applicant filed his affidavit in evidence in support of the divorce petition and relied upon the video clippings alleged to be recorded by him establishing the extra marital affair of the respondent wife and certain other electronic record. Following the affidavit in evidence, the non applicant moved an application under Section 65Bread with 122 of the Act of 1872 stating that the electronic record placed on record by the applicant with his affidavit in evidence did not satisfy the preconditions of Section 65B of the Act of 1872 and was therefore inadmissible. Protection of Section 122 of the Act of 1872 was also invoked, stating that the electronic record was inter alia constituted of privileged communication between the husband and the wife, and hence could not be read in evidence without the consent of wife, which was absent. It was submitted that the electronic record to the extent constituted of such communication was also not admissible.

The applicant’s response to the non-applicant’s case was that the original electronic recordings having been placed on record of the family court, section 65B of the Act of 1872, which relates to secondary evidence of electronic record, did not attract. It was further submitted that Section 122of the Act of 1872 was also not applicable to the electronic record placed before the family court in support of the divorce petition. Inasmuch as all of it was not a communication between the husband and the wife and even if it were, it was not hit by the plain language of the Section 122of the Act of 1872 and saved by the exception inbuilt in the aforesaid section. Section 14 of the Family Court Act, 1984 was also invoked as an exception to issues of relevance and admissibility arising under the Evidence Act, 1872. The family court by the impugned order dated 18-12-2015 dismissed the non applicants application. Hence this petition.

Counsel for the non applicant has reagitated the case as set up before the family court. It was submitted that the electronic record placed before the family court did not satisfy the mandate ofSection 65B (4) of the Act of 1872, which requires a certificate (signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities, whichever was appropriate, through which the material was electronically recorded) stating that the contents of the electronic recordings were true to the best of his knowledge and belief. Such a certificate had not been filed, submitted counsel, and consequently the electronic record produced by the applicant along with his affidavit in evidence in support of the divorce petition was not admissible in evidence. It was submitted that yet the non-applicant’s substantial case had been casually and without good cause overlooked by the family court. It was further submitted that the electronic record also was, in part, privileged communication between the husband and the wife, which under Section122 of the Act of 1872 was not admissible. Counsel emphatically submitted that unauthorized recordings and communications between the husband and the wife were wholly unconstitutional, violative of the non applicants right to privacy, and therefore, could not be considered in evidence by the family court. It was submitted that the leverage conferred on the Family Court under Section 14 of the Act of 1984 could not be construed to entitle it to admit evidence in the course of adjudication of matrimonial disputes before it, contrary to the mandate of the Act of 1872, particularly Sections 65B and 122 thereof, as in the instant case or for that matter in a manner eclipsing the non-applicant’s right to privacy under Article 21 of the Constitution of India. Therefore the impugned order dated 18-12-2015 dismissing the non applicants application objecting the admissibility of the electronic record placed by the applicant with his affidavit in evidence in support of his divorce petition is wholly illegal and liable to be quashed and set aside, submitted Mr. Peush Nag

Mr. Nitin Jain, counsel for the applicant husband has supported the impugned order dated 18-12-2015 passed by the Family Court.

Heard. Considered.

Section14 of the Family Court Act, 1984 provides that a family court may receive any evidence, report, statement, documents, information or matter which in its opinion will facilitate the effective adjudication of the disputes before it, whether or not the same would be otherwise relevant or admissible under the Indian Evidence Act, 1872. The aforesaid section therefore makes it pellucid that the issues of relevance and admissibility of evidence which regulate a regular trial do not burden proceedings before the family courts. It is the discretion of the family court to receive or not to receive the evidence, report, statement, documents, informations etc. placed before it on the test whether it does or does not facilitate an effective adjudication of the disputes before it. Aside of the aforesaid, I am of the considered view that Section 65B of the Act of 1872 only deals with the secondary evidence qua electronic records. It does not at all deal with the original electronic records, as in the instant case, where the pinhole camera, with a hard disk memory on which the recording was done has been submitted before the Family Court. The Apex Court in the case of Anvar P.V. Vs. P.K. Basheer [(2014)10 SCC 473] has held that if an electronic record is produced as a primary evidence under Section 62 of the Evidence Act, the same is admissible in evidence without compliance with the conditions of Section 65B of the Act of 1872. That evidence would take the colour of primary evidence, subject no doubt to its credibility based on forensic examination and cross examination. Further, I am of the considered view that the privilege in respect of the husband and the wife’s communication under section 122of the Act of 1872 would also not attract, as Section 14 of the Family Court Act eclipses Section 122 of the Evidence Act in proceedings before the Family Court. Section 14 aforesaid is a special law, so to say, as against the general law, which Section 122 of the Act of 1872 encapsulates vis-a-vis privileged communications between husband and wife.

Consequently, I am of the considered view that the application filed by the non applicant underSection 65B read with Section122 of the Act of 1872 against the admissibility of the electronic record filed by the applicant husband along with the affidavit in evidence in support of the divorce petition was rightly rejected by the family court, inter alia with reference to the Family Court’s wide discretion under Section 14 of the Act of 1984. Nothing either for the reason of excess of jurisdiction, nor for reason of perversity or patent illegality vitiates the impugned order dated 18-12-2015 passed by the Family Court.

Consequently the petition is liable to be dismissed.

Dismissed.

(Alok Sharma), J.