Tag Archives: desertion

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

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

IN THE HIGH COURT OF JUDICATURE FOR
RAJASTHAN AT JODHPUR

:JUDGMENT:

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

APPELLANT :

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

Versus

RESPONDENT :

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

Date of Judgment :: 17.10.2016

PRESENT

HON’BLE MR. JUSTICE ARUN BHANSALI

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


BY THE COURT:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

No order as to costs.

(ARUN BHANSALI), J.

rm/-

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Divorce 42 years after marriage. Wife seeks 1.5crore from 75 yr old hubby while she has crores. Bangalore HC

Divorce granted 42 years after marriage. Wife seeks 1.5crore from 75 yr old hubby while she has crores in shares and property. Classic Bangalore HC divorce case which husband WINS on grounds of cruelty and desertion by wife !!

In this sad case, a 75 year old man in his advanced age is fighting against his wife’s appeal (at HC) seeking 1.5 crores as permanent alimony. There are claims and counter claims, but it is on record that (a) wife has filed (MC) cases alleging that husband had illicit relations with his own employee and (b) she has made a suicide attempt and had to be hospitalised after consuming huge dose of sleeping tablets. Husband also alleges that she was the cause of his business failure. Wife cross-alleges husband sold his ancestral house and took away part of the proceeds, but the wife is not convincing in her cross examination replies as well, leading the Hon HC to doubt her claims of living under one roof with this husband (i.e.) thus accepting husband’s claim of desertion. Finally the Hon Bangalore HC confirms the divorce and directs her to approach lower court for maintenance

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 17TH DAY OF FEBRUARY 2016

PRESENT

      THE HON’BLE MR.JUSTICE N K PATIL
AND
      THE HON’BLE MRS.JUSTICE S SUJATHA

MFA No.10709/2011 (FC)

BETWEEN

Rupa Mahajan
W/o Satish Mahajan
Aged 57 years
Presenty Residing at
No.011, ‘B’ Block
Sterling park Apartments
Kodigehalli Main Road
Sanjeevinagar
Bangalore-560 092.                     ….Appellant
(By Sri.S.S.Ramdas, Senior Advocate for M/s. Sundara swamy & Ramdas Associates)

AND

Satish Mahajan
S/o Late D.R.Mahajan
Aged 67 years
Residing at
No.603 B St Johns Woods Apartments
80St John Cross Road
Bangalore-560 029.                …Respondent
(By Sri.J.Kanikaraj, Advocate)

This Appeal is filed under Section 19(1) of Family Courts Act, against the Judgment and Decree dated 30.06.2011 passed in M.C.No.1933/2008 on the file of 4th Additional Principal Judge Family Court, Bangalore, allowing the petition filed under Section 13(1) (ia) (ib) of Hindu Marriage Act for divorce and rejecting the prayer filed under Section 3.

This Appeal having been heard and reserved for Judgment on 05th February 2016, coming on for pronouncement of Judgment this day, S.Sujatha J., delivered the following

JUDGMENT

  1. This appeal is directed against the judgment and decree dated 30.06.2011 passed by the 4th Addl. Principal Judge, Family Court, Bangalore in M.C.No.1933/2008, allowing the petition filed by the respondent for dissolution of marriage.
  2. The facts in brief are:- that the marriage between the appellant and respondent was solemnized as per Hindu Rites on 18.01.1974 at Chennai. It transpires that after their marriage, the respondent and appellant lived at No.58, Cunningham Road, Bangalore happily for a period of 16 years upto 1990. Their marriage was consummated and the couple were blessed with twins (sons) named Gaurav and Vaibhav in the year 1980. It is stated that both the appellant and respondent jointly purchased a land situated at No.328, 5th Main, 1st Block, Koramangala in the year 1990 and after constructing a house on the said land, they shifted their residence to the newly built house in 1990 and were residing therein. When the relationship between the parties was amicable, respondent along with his brother for the purpose of running a business, floated a company in the name of M/s Garments International Pvt. Ltd. Respondent along with his brother were the directors of the said company. However, subsequently, appellant, Gaurav and Vaibhav (sons) were inducted as Directors in the years 1990, 1998 and 2000 respectively. Due to the differences that developed between the appellant and respondent, the respondent filed M.C.No.1933/2008 before the 4th Addl. Principal Judge, Family Court seeking a decree of divorce under Section 13(1) (1a) and 13(1b) and (iii) of the Hindu Marriage Act, 1955 (the ‘Act’ for short). Appellant contested the matter. After considering the evidence placed by the parties, the Family Court allowed the petition under Section 13(1)(ia) and (ib) of the Act and rejected the petition under Section 13(1)(iii) of the Act. Being aggrieved by the said judgment and decree passed by the Family Court, the appellant is before this Court.
  3. Heard Learned Senior Counsel Sri. Ramdas for appellant as well as Sri.Kanikraj for respondent. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
  4. The learned counsel for appearing for the appellant would contend that the Family Court failed to consider the evidence on record in a right perspective. Appellant herein had placed Exhibits R.1 to R.17 but the Family Court, ignoring the said documentary evidence has wrongly held that no appropriate evidence was placed by the appellant herein to discard the evidence of the respondent. The Family Court has not appreciated the true nature of cruelty and desertion alleged by the respondent to claim the decree of divorce under Section 13(1)(ia) and (ib) of the Act. Though the ground of mental disorder is held to be not proved, granting the decree of divorce to a marriage which subsisted for more than 33 years is totally unjustifiable and contrary to the well established principles of law enunciated by the Apex Court.
  5. It is submitted that the petition filed by the appellant seeking decree of divorce against the respondent in M.C.No.1325/1999, was only with an intention to draw the attention of the respondent towards her, in view of the assurances made by the respondent to take good care of her, the petition was unconditionally withdrawn in the year 2000 and pursuant to which both the parties lived together as husband and wife. The subsequent events which transpired pursuant to withdrawal of the petition MC.No.1325/1999 having been completely overlooked by the Family Court, proceeded to hold that the act of the appellant in filing M.C.No.1325/1999 against the respondent seeking decree of divorce, amounted to cruelty.
  6. It is further submitted that though initially, the company M/s Garments International Pvt. Ltd. was floated by the respondent for the purpose of running a business in exporting garments, the appellant and children were inducted as directors in the company who held their proportionate share in the company. The respondent without any reason borrowed huge amounts from banks, financial institutions and also from private parties which resulted in financial instability affecting the entire family. In order to have a hold in the financial transactions of the company, the appellant along with her children was constrained to interfere with the company’s financial affairs. Such action of the appellants was indeed in the interest of the family and to safeguard and protect the company’s interest which cannot be termed as mental cruelty against the respondent. The trial Court overlooking the rationale behind such acts, wrongly held such acts of the appellant has caused mental agony to the respondent.
  7. It is further submitted that the submission of the respondent that the parties lived separately since November 1999 is totally against the documents placed on record by the appellant. The appellant having led a happy marital life with the respondent for more than 33 years, had no intention to desert the respondent. Exhibits R1 to R17 placed on record proves that the appellant resided with the respondent. The respondent has not taken any interest in the family. The appellant alone out of her savings performed the marriage of their sons and the respondent had no courtesy even to participate in the marriage ceremonial functions. It is in fact, the respondent who has deserted the appellant and the family and not the appellant. The matrimonial house at Koramangala, Bangalore which was owned jointly by the parties was sold in the year 2007 for a consideration of Rs.3,52,00,000/- out of which only a meager sum of Rs.50,00,000/- was paid to the appellant and Rs.11,00,000/- to each of their children. No cogent evidence is placed on record by the respondent to establish the factum of desertion as claimed. The allegations made against the appellant that she is suffering from mental disorder is an act of the respondent to bring the institution of marriage to an end and to ruin the entire life of the appellant. Such a false allegation of mental disorder made by the respondent ipso facto proves the cruelty made by the husband towards the wife. No appeal is filed by the respondent on the dismissal of the petition under this ground. No desertion as required under the Act is proved by the respondent. In such circumstances, the Family Court allowing the petition filed by the respondent and granting a decree of divorce is totally unsustainable and seeks to set- aside the said judgment and decree of the Family Court.
  8. Learned counsel appearing for the appellant/wife has filed an application I.A.I/2015 seeking for maintenance in a sum of Rs.60,000/- per month from January 2007 till date and for future periods during the appellant’s life time or in the alternative to direct the respondent to pay the appellant permanent alimony in a sum of Rs.1.50 crores in the interest of justice. Placing arguments on this application filed under Section 25 of the Act, learned counsel would submit that during 2005 the mother-in-law of the appellant Smt.Leela Mahajan gifted her late husband’s house bearing No,58, Cunningham Road to the respondent. Immediately after receiving the gift the respondent negotiated to sell the said house and sold for about 2.25 crores. Thereafter, respondent had formed a private trust by name Satish Mahajan Family Welfare Trust, purchased an apartment in Prestige St.John’s wood Koramangala. A sum of Rs.60,00,000/- was paid for the purchase of the said apartment from out of the said sale proceeds of Cunningham Cross Road house. The balance of nearly Rs.1.65 crores is unaccounted and untraceable. The respondent though floated Satish Mahajan Family Welfare Trust for the benefit of the sons of the parties, till date no benefit has been extended despite the trust having money and securities in multiple crores, in ING Vysya Bank now known as Kotak Mahendra Bank, Koramangala, Bangalore. The respondent being a prudent businessman hailing from a business family, being in business for nearly 45 years and being a promoter/partner in Mahajan Borewell Company – a renowned borewell drilling Company in Karnataka, cannot now plead that he has married the second wife who is a doctor at St.John’s Hospital at Koramangala and is living on her money. The respondent has failed to discharge the responsibilities of a husband and as a father to his children. He has also not participated in any manner in the marriages of their sons Vaibhav’s in 2007 and Gaurav’s in 2013. The respondent has the benefit of nearly Rs.4.45crores being the balance from the sale of two houses, right form 2005 to 2007, till date. The respondent has earned interest and income from the said money for all these years.
  9. It is further submitted that the appellant is completely dependent on her dividend income accruing from the shares and securities amounting to Rs.12.00 lakhs as evident from the income tax returns and she has no other source of income. It is also submitted that with all the hope of getting re- united with the respondent, no maintenance application was filed during the petition proceedings. It is only after realizing that the respondent has contracted second marriage the application is filed in appeal proceedings. Accordingly, seeks to allow the application and to direct the respondent to make the payment towards the maintenance as claimed.
  10. In support of his contentions, learned counsel has placed reliance on the following Judgments: (1) Naveen Kohli vs. Neelu Kohli ((2006) 4 SCC 558) (2) A.Jayachandra vs Aneel Kaur ((2005) 2 SCC (3) Savitri Pandey vs.Prem Chandra Pandey (AIR 2002 SC 591) (4) Samar Ghosh vs. Jaya Ghosh ((2007) 4 SCC 511)
  11. Learned counsel appearing for the respondent justifies the judgment and decree passed by the Family Court and contends that the appellant filing M.C.No.1325/1999, seeking for divorce against the respondent making false allegations that the respondent had an affair with Smt.Geetha Srinivasan, an employee of M/s Garments International Company, had lowered the status of the respondent in the society besides causing mental trauma and agony. Such wild allegations made against the respondent were baseless.
  12. Further, the appellant interfering with the financial matters of the company, fabricating a resolution and freezing the bank accounts has caused financial instability to the business as well as to the family. The respondent was mainly engaged in the export business, due to the inconvenience caused by the appellant in sabotaging the business, in order to honour the agreements/contracts entered into between the foreign buyers within the time frame, the consignments were air-lifted. Such an action has caused huge loss in his business. The entire family properties came to be sold to make the payment of loan raised towards the business commitments. The indifferent attitude of the appellant, in ruining the respondent mentally and financially amounts to cruelty which has been rightly considered by the Family Court. The appellant has left the matrimonial home in November 1999. She returned back in the year 2000 and stayed with the respondent only for 2-3 days. At that time, she consumed 235 sleeping tablets and attempted to commit suicide in the matrimonial home. Noticing the same, the respondent rushed her to St.John’s Medical Hospital, Bangalore and provided her the medical treatment. Immediately after discharge from the hospital, she left the matrimonial home and started residing at Jalandhar at her parental house. The appellant had obtained a separate phone number 9888854456 at Jalandhar which proves that she had deserted the respondent from November 1999. The desertion is further proved by the action of the appellant purchasing the flat in the year 2002 at Bangalore whereby she had the intention to stay away from the respondent separately. The dividend warrants showing the address of the appellant with the Koramangala address would not establish the factum of residence of the appellant with the respondent. It is known fact that unless the change of address is made with the companies holding the shares, the dividend vouchers would be sent to the address available on the company’s register. In fact, the appellant was collecting the dividend warrants from one of their son’s or through servants. Since November 1999, the respondent and petitioner have not lived together under one roof as husband and wife. It is submitted that after the grant of decree of divorce by the Family Court on 30.6.2011, the respondent contracted the second marriage on 10.11.2011 and that the said marriage is registered on 13.02.2012, he has been living with his wife ever since then. On this ground alone, the judgment and decree of the Family Court is not liable to be disturbed.
  13. The respondent himself being advanced in age, presently aged about 75 years, has no avocation nor any source of income and is fully dependent on his wife who is a qualified medical practitioner, having source of income from her practice. During the subsistence of the marriage between the appellant and the respondent, the site at Koramangala was purchased in the joint name of the appellant and respondent out of his own funds, there being no financial participation by the respondent in the purchase of construction. Due to the action of the appellant of forging and fabricating a board resolution, removing the respondent as Managing Director of the Company and withdrawing all banking powers of the Company, the Company which was financially sound and flourishing in the Garment export trade, suddenly suffered losses as export shipment could not be made within the stipulated time resulting in huge forfeiture for non performance by the export council and loss of credibility in the market with the suppliers, bankers and workers, over all image of the company was totally ruined. In order to set-right the things, the respondent was constrained to move the City Civil Court and succeeded in bringing restraining orders and got the Board resolution stayed and tried to salvage the Company’s business, despite which the Company could not survive. Out of the sale proceeds of the house at Koramangala, Rs.50.00 lakh was paid to the appellant and Rs.11.00 lakh each to the children and from the balance amount, bank liability was cleared, no amount was left in the hands of the respondent. After discharging the liabilities, the respondent was himself reduced to penury with no amount left with him nor having independent source of income. Even regarding the gift made by the respondent’s mother with respect to a house on Cunningham Road, Bangalore, the said property being attached for auction and proclamation notices were issued on various bank loans availed by Mr.Ashok Mahajan with their mother as a co-obligant, in order to prevent the creditors from auctioning the same, the said property was sold to discharge the loans who had funded payment to the debtor banks of Mahajan Borewell Company. From the remaining amount, respondent purchased a Two BHK Flat and is residing there with his mother.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
  14. The appellant owns the flat valued about Rs.70.00 lakhs apart from holding shares valued about Rs.1.18 crores and liquid cash in the form of deposits. As such, there is no dearth of money for the appellant and she is living in luxury. No such plea being made by the appellant before the trial Court for maintenance, the application filed in the appeal proceedings is not maintainable. Accordingly, it is contended that the judgment and decree passed by the Family Court is after considering the material evidence available on record. The respondent has proved the ingredients of Section 13(1)(i-a) and 13(1)(i-b) of the Act. Appreciating the same, the Family Court has granted a decree of divorce which does not call for any interference at this stage. Accordingly, respondent seeks to dismiss the appeal and the application filed by the wife for maintenance/permanent alimony filed under Section 25 of the Act.
  15. We have carefully considered the rival submissions made by the parties and perused the material on record. The respondent has filed the petition before the Family Court under Section 13(1)(i-a), 13(1)(i-b) and 13(1)(iii) of the Act seeking a decree of divorce, dissolving the marriage solemnized between the parties on 18.01.1974. Family Court though dismissed the petition on the ground of mental disorder i.e., under Section 13(1)(iii) of the Act, allowed the petition under Sections 13(1)(i-a) and 13(1)(i-b) of the Act. The Family Court after considering the pleadings of the parties has framed five issues. The respondent himself was examined as PW1 and marked documents Exs.P.1 to P.8. Appellant is examined as RW1 and marked exhibits R.1 to R.17. The main grounds urged by the respondent to prove the cruelty are: (1) Filing of M.C.No.1331/1999 by the appellant seeking decree of divorce against the respondent and making false allegations against the respondent of having an affair with Smt.Geetha Srinivasan – an employee of the Company. (2) Fabricating the resolution of the Company and freezing the bank accounts by which the respondent was constrained to obtain an interim injunction against the appellant before the city Civil Court which affected the business of the respondent in its entirety, causing financial loss and damage to the reputation of the company as well as to the respondent. In the result, the respondent was finally forced to shut down the business.
  16. We have examined the evidence available on record. It is seen from the records, that on the allegation that the respondent had some relationship with an employee of the Company i.e., Smt. Geetha Srinivasan, M.C. petition was filed by the respondent seeking for decree of divorce. No-doubt the same was withdrawn by the petitioner on 27.03.2000, such an act of the respondent, filing of the petition for divorce indicates the intention of the appellant to dissolve the marriage. Indeed it is contended by the appellant that subsequent to the withdrawal of the petition, both the parties lived together as husband and wife under one roof which is categorically denied by the respondent. Exs.R.1 to R.16 are relating to the year 2000 to 2004. Ex.R.17 is the copy of the sale deed dated 18.01.2007. The address of the parties shown in the said sale deed is 720,2nd “B” Main, 2nd B” Cross, 8th Block, Koramangala, Bangalore. In the cross examination of R.W.1 – the witness has deposed that she does not remember, the number of rooms and floors of the said property and it is admitted that the said house described in Ex.R.17 is the rented house and she does not remember when that house was taken for rent and how many years she stayed with her husband in the said house. The said evidence available on record indicates that the respondent is not having the correct picture of the house in which she claims to have resided with her husband – appellant in the year 2007. It is further deposed by RW.1 that she cannot remember the address given in the passport as well as Driving Licence , whether it relates to the Flat at Kodigehalli. It is also deposed that she does not remember the address shown in the passbook relating to her Account in State Bank of Mysore, Sahakarnagar. Hence, no credence would be given to this document – Ex.R.17 to accept the contention of the respondent that the parties lived together till 2007. As already discussed Exs.R.1 to R.7 are the dividend warrants of different Companies. These documents do not prove that the parties were residing together as husband and wife after November 1999. Hence, desertion of statutory period of 2 years before filing of the petition as contemplated under Section 13(1)(i-b) of the Act is proved by the appellant. It is strongly contended by the learned counsel appearing for the appellant that this material evidence which discloses that the appellant was residing with her husband at the matrimonial house was totally ignored by the Family Court. Generally, dividends are sent to the address of the share holders, as maintained in the Register of the company, unless the change of address is incorporated in the Register. It is the case of the respondent that Exhibits P-4 to 8, unopened covers of dividends remained with him which indicates that the appellant was not residing with him after November 1999. It may be true that after the withdrawal of the M.C. petition filed by the appellant, there was a long gap in filing the petition by the husband alleging cruelty, desertion and mental disorder. However, it cannot be ruled out that the respondent was subjected to cruelty in view of the alleged allegations of having relationship with an employee of the company and the M.C. petition filed on that ground. Interference of the appellant in the financial affairs of the Company by passing a fabricated resolution and freezing the bank accounts may be even to safeguard the interest of the family and the Company as narrated by the appellant but however, the said interference has caused damage to the business and the reputation of the Company resulting in financial loss to the Company and causing mental agony to the respondent which cannot be brushed aside and no cogent evidence is led by the appellant to discard the evidence of the respondent in this regard. The impact of these two incidents are suffice to establish the cruelty.
  17. The submission of the appellant that the husband has not participated even in the marriage functions of their children, in any manner would indicate the grave and serious nature of strained relationship between the appellant and the respondent. This would be indicative of the fact that now the parties have no emotions, sentiments or feelings for each other. This is not an ordinary case of wear and tear of married life but a clear case of irretrievable break down of marriage. The word ‘cruelty’ though not defined under the Act is well interpreted by the Courts from time to time. It is often cautioned by the Apex Court that no Court should even attempt to give a comprehensive definition of ‘mental cruelty’ in which all kinds of cases of ‘mental cruelty’ can be covered.
  18. The Apex Court in the case of Shobha Rani vs. Madhukar Reddi (1988) 1 SCC 105 has held Thus:
    • ” To constitute cruelty, the conduct complained of should be “gave and weighty” so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than “ordinary wear and tear of married life”. Conduct has to be considered in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions. It is difficult to lay down a precise definition or to give exhaustive description of the circumstances, which would constitute cruelty. It must be of the type as to satisfy the conscience of the court that the relationship between the parties had deteriorated to such an extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce.”
  19. The Apex Court in A. Jayachandra (supra) has held thus:
    • “10. The expression “cruelty” has not been defined in the Act. Cruelty can be physical or mental. Cruelty which is a ground for dissolution of marriage may be defined as willful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. The question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society to which the parties belong, their social values, status, environment in which they live. Cruelty, as noted above, includes mental cruelty, which falls within the purview of a matrimonial wrong. Cruelty need not be physical. If from the conduct of his spouse same is established and/or an inference can be legitimately drawn that the treatment of the spouse is such that it causes an apprehension in the mind of the other spouse, about his or her mental welfare then this conduct amounts to cruelty. In delicate human relationship like matrimony, one has to see the probabilities of the case. The concept, a proof beyond the shadow of doubt, is to be applied to criminal trials and not to civil matters and certainly not to matters of such delicate personal relationship as those of husband and wife. Therefore, one has to see what are the probabilities in a case and legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the complainant spouse because of the acts or omissions of the other. Cruelty may be physical or corporeal or may be mental. In physical cruelty, there can be tangible and direct evidence, but in the case of mental cruelty there may not at the same time be direct evidence. In cases where there is no direct evidence, Courts are required to probe into the mental process and mental effect of incidents that are brought out in evidence. It is in this view that one has to consider the evidence in matrimonial disputes.
    • 11. The expression ‘cruelty’ has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. Cruelty is a course or conduct of one, which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical, the Court will have no problem in determining it. It is a question of fact and degree. If it is mental, the problem presents difficulties. First, the enquiry must begin as to the nature of cruel treatment, second the impact of such treatment in the mind of the spouse, whether it caused reasonable apprehension that it would be harmful or injurious to live with the other.
    • 12. Ultimately, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. However, there may be a case where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted (See Sobh Rani v. Madhukar Reddi, AIR 1988 SC 121).
    • 13. The Court dealing with the petition for divorce on the ground of cruelty has to bear in mind that the problems before it are those of human beings and the psychological changes in a spouse’s conduct have to be borne in mind before disposing of the petition for divorce. However insignificant or trifling, such conduct may cause pain in the mind of another. But before the conduct can be called cruelty, it must touch a certain pitch of severity. It is for the Court to weigh the gravity. It has to be seen whether the conduct was such that no reasonable person would tolerate it. It has to be considered whether the complainant should be called upon to endure as a part of normal human life. Every matrimonial conduct, which may cause annoyance to the other, may not amount to cruelty. Mere trivial irritations, quarrels between spouses, which happen in day-to-day married life, may also not amount to cruelty. Cruelty in matrimonial life may be of unfounded variety, which can be subtle or brutal. It may be words, gestures or by mere silence, violent or non-violent.
  20. In the case of Naveen Kohli vs. Neelu Kholi (supra) the Apex Court observed as under: 
    • “74. We have been principally impressed by the consideration that once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be harmful to society and injurious to the interests of the parties. Where there has been a long period of continuous separation, it may fairly be surmised that the matrimonial bond is beyond repair. The marriage becomes a fiction, though supported by a legal tie. By refusing to sever that tie the law in such cases does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties.
    • 75. Public interest demands not only that the married status should, as far as possible, as long as possible, and whenever possible, be maintained, but where a marriage has been wrecked beyond the hope of salvage, public interest lies in the recognition of that fact.  76. Since there is no acceptable way in which a spouse can be compelled to resume life with the consort, nothing is gained by trying to keep the parties tied for ever to a marriage that in fact has ceased to exist.
    • 77.   Some     jurists  have     also expressed     their   apprehension     for  introduction of irretrievable breakdown of marriage as a ground for grant of the decree of divorce. In their opinion, such an amendment in the Act would put human ingenuity at a premium and throw wide open the doors to litigation, and will create more problems then are sought to be solved.
    • 78. The other majority view, which is shared by most jurists, according to the Law Commission Report, is that human life has a short span and situations causing misery cannot be allowed to continue indefinitely. A halt has to be called at some stage. Law cannot turn a blind eye to such situations, nor can it decline to give adequate response to the necessities arising  therefrom.
    • 79. When we carefully evaluate the judgment of the High Court and scrutinize its findings in the background of the facts and circumstances of this case, it becomes obvious that the approach adopted by the High Court in deciding this matter is far from satisfactory.”
  21. Applying the principles of law enunciated by the Apex Court as discussed above, we have analyzed the case on hand in the backdrop of the facts of cruelty alleged by the respondent and denied by the appellant. It is well settled that the concept of ‘cruelty’ differs from person to person depending on various factors like geographical and cultural background, education, customs, religion, traditions, values etc.
  22. It is true that ‘cruelty’ said to have been experienced by a person cannot be viewed in the same perspective at all times. It has also come on record that the appellant attempted to commit suicide by consuming 235 sleeping tablets in the matrimonial home in the year 2000 and was provided with medical treatment at St. John’s Hospital, Bengaluru, by the respondent. These are all admitted facts which creates apprehension of leading a cordial martial life together. In our opinion, it is not significant to save the marriage when the relationship between the parties is strained, rupturing matrimonial bond beyond repair as the respondent has contracted second marriage. Even on the ground of desertion, it is well established principle that mere desertion would not be a ground for divorce unless two important ingredients, namely, [a] factum of desertion, [b] animus deserendi – intention to desert the spouse; to bring an end to cohabitation or marital life are proved.
  23. The Apex Court in the case of Savitri Pandey [supra] has held thus:
    • “7A. “Desertion”, for the purpose of seeking divorce under the Act, means the intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent and without reasonable cause. In other words it is a total repudiation of the obligations of marriage. Desertion is not the withdrawal from a place but from a state of things. Desertion, therefore, means withdrawing from the matrimonial obligations, i.e., not permitting or allowing and facilitating the cohabitation between the parties. The proof of desertion has to be considered by taking into consideration the concept of marriage which in law legalises the sexual relationship between man and woman in the society for the perpetuation of race, permitting lawful indulgence in passion to prevent licentiousness and for procreation of children. Desertion is not a single act complete in itself, it is a continuous course of conduct to be determined under the facts and circumstances of each case.”
  24. It is the specific contention of the appellant that till the year 2007, the parties resided together and as such statutory period of desertion is not proved. As discussed earlier, it is not so. Even assuming for a moment, if we accept the arguments of the learned Counsel for the appellant that no desertion is proved, no purpose would be served in keeping this marriage alive which has already become a dead wood, in view of the subsequent development, the respondent having contracted the second marriage on 10.11.2011 and the same being registered on 13.02.2012 before the jurisdictional Sub-Registrar.
  25. As regards the application filed by the appellant seeking maintenance/permanent alimony, both the parties have made allegations and counter allegations against each other. Our best efforts made to see that the matter gets amicably settled between the parties, has not yielded any positive results. Contracting a second marriage, after waiting period, would not absolve the husband from paying the permanent alimony and maintenance to the wife in terms of Section 25 of the Act.
  26. Section 25[1] of the Act contemplates that any court exercising jurisdiction under the Act may at the time of passing of any decree or at any time subsequent to the application made to it for the purpose by either the wife or the husband order for maintenance or support of either of the spouse depending on the income and other property of the applicant and the respondent and other circumstances of the case.
  27. Admittedly, the appellant herein has filed application under Section 25 of the Act in this appeal proceedings before this Court. The appellant is alleging that the respondent has not taken any interest in the family and not discharged his responsibilities as dutiful husband. It is averred that the respondent owns the properties and huge amount of liquid cash besides the fixed deposits in various banks whereas the respondent has filed affidavit denying the same and he contends that he has no source of income and that at this advanced age, he is depending on the income of his second wife. This complex issue of facts requires to be decided on the established evidence, regarding status and income of the parties. In the appeal proceedings, the entitlement and quantum of maintenance cannot be decided unless any cogent evidence is available on record. Hence, we are not inclined to adjudicate on the application IA No.1/2015 filed by the appellant seeking for maintenance/permanent alimony.
  28. For the foregoing reasons, the appeal and IA No.1/2015 stands dismissed. Judgment and decree passed by the Family Court in M.C.No.1933/2008 dated 30.06.2011 is confirmed.
  29. It is made clear that dismissing of this appeal or application for maintenance/permanent alimony shall not come in the way of the appellant to move the appropriate application before the jurisdictional Court, if advised.

Sd/-

JUDGE Sd/-

JUDGE Brn, AN/-

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Wife allegs dowry, adultry & beatng. Stil FC & HC grant divorc due 2 desertion by wife! Madras HC clasic

…In the meanwhile smart husband has re married and has only THREE KIDS from next marriage !!!. …..

In this classic case, considering the long separation and disappearance of emotional bonds, both the Family court and HC grant Divorce to the husband (FC smartly claims wife’s desertion is the grounds) . Wife appeals to the HC and claims she was beaten, she was thrown out of the house etc. She points out that the husband has re-married and has children from the second wife!! Ostensibly this husband has NOT paid a penny maintenance as well… Still HC does NOT reverse the divorce that is granted !! smart husband does NOT even appear for the appeal @ HC !!


IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 07.08.2015

CORAM :

THE HONOURABLE MR.JUSTICE S.MANIKUMAR
AND
THE HONOURABLE MR.JUSTICE M.VENUGOPAL

C.M.A.No.1679 of 2015

Nallagatla Sukanya @ Chinnamma … Appellant

Vs.

1. Nallagatla Nagesh,
S/o.Ramiah, aged 33 years,
Office Assistant,
Anchor Gate Building,
Port Trust, Chennai 600 001.

2. Guntupalli Balaih
Timmareddypalem Village,
Lingasamudram Mandal,
Prakasam District, Andra Pradesh. … Respondents

Civil Miscellaneous Appeal is filed under Section 19 of the Family Courts Act, against the fair and decreetal order, passed in F.C.O.P.No.1281 of 2000, dated 02.08.2011, on the file of the Principal Family Court at Chennai.

For Appellant : Ms.A.Veeramarthini

For 1st Respondent : No appearance

JUDGMENT

(Judgment of the Court was made by M.VENUGOPAL, J.)

  1. The Appellant/1st Respondent-Wife has preferred the instant Civil Miscellaneous Appeal, as against the order, dated 02.08.2011, in F.C.O.P.No.1281 of 2000, passed by the Learned Principal Judge, Family Court, Chennai. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
  2. The Learned Principal Judge, Family Court, Chennai, while passing the impugned order in F.C.O.P.No.1281 of 2000 (on 02.08.2011), filed by the 1st Respondent/Petitioner-Husband, had inter alia observed as follows: “…12. In the instant case, both the parties have been living separately for the past 19 years and all the efforts of amicable settlement have failed. Time has taken its toll in as much as it has indisputably contributed to uncomenting factor. There has been total disappearance of emotional substratum in the marriage and in that event nothing is gained by trying to keep the parties tied for ever to a marriage which in fact has ceased to exist. Therefore in view of the aforesaid reasoning, I am of the considered view that the Petitioner is entitled to get a decree of divorce on the ground of desertion. and resultantly, allowed the petition, by granting the relief of Divorce, on the ground of ‘Desertion’.
  3. As regards the grounds of cruelty and adultery, the Learned Principal Judge, Family Court, Chennai, came to a conclusion that the 1st Respondent/Petitioner-Husband was not entitled to the relief of divorce. Added further, the Learned Principal Judge, Family Court, Chennai, had opined that the Appellant/1st Respondent-Wife had left the matrimonial home, without any reasonable cause.
  4. Feeling aggrieved against the order, dated 02.08.2011, in F.C.O.P.No.1281 of 2000, passed by the Learned Principal Judge, Family Court, Chennai, the Appellant/1st Respondent-Wife has focused the instant Civil Miscellaneous Appeal, primarily on the grounds that the trial Court had failed to observe that the Appellant/1st Respondent-Wife had not deserted the 1st Respondent/Petitioner-Husband. On the contrary, the 1st Respondent-Husband (Petitioner) demanded dowry and on failure to comply with, he forced her to send her to her parent’s home.
  5. Learned counsel for the Appellant/1st Respondent-Wife urges before this Court that the trial Court had failed to take note of the important aspect, viz., the 1st Respondent/Petitioner(Husband) had married one Rajeswari, after deserting the Appellant/1st Respondent-Wife and through the said Rajeswari, he has three children and living with her.
  6. Apart from the above, Learned Counsel for the Appellant/1st Respondent-Wife would vehemently contend that the Appellant had taken several steps, including by filing a complaint before the Police for re-union, as seen from Ex.R1 and due to non-cooperation of the 1st Respondent/Petitioner-Husband, the matter proved futile.
  7. Continuing further, it is also represented by the Learned counsel for the Appellant/1st Respondent-Wife that the Appellant-Wife has been living separately, only because of the attitude of the 1st Respondent/Petitioner-Husband, who deserted her and therefore, she has no other option to lead and live separately.
  8. The Learned counsel for the Appellant proceeds to project an argument that the trial Court had failed to appreciate the evidence of RW.1 (Appellant), to the effect that the 1st Respondent/Husband had beat her mercilessly on 01.01.1992 and she was bleeding profusely. Also that, on the same day, she was forcefully taken in a cycle rickshaw to Korukkupet Railway Station at 10.20 P.M., boarded with Mother-in-Law, Bolamma, Baleswari, Eswaramma, Sister-in-Law and when the train reached Singarayakonda Station at 10.30 A.M., they had left her alone, without ticket and she herself boarded the bus to to go over her parent’s house.
  9. The last submission made, on behalf of the Appellant, is that the trial Court had failed to note that the Appellant/1st Respondent-Wife was perforced to file a case for maintenance in M.C.No.1 of 1997, on the file of the Learned Additional District Munsif Magistrate, Kandukur and a maintenance of Rs.300/- per month, was awarded in her favour, but the 1st Respondent/Petitioner-Husband had failed to comply with the said order.
  10. It is to be noted that the marriage between the 1st Respondent/Petitioner (Husband) and the Appellant/1st Respondent (Wife) took place on 13.10.1988 at Old Washermanpet, Chennai, according to Christian Rites and Customs. Admittedly, no child was born to the Appellant/1st Respondent-Wife, through the 1st Respondent/Petitioner-Husband.
  11. The stand of the 1st Respondent/Petitioner-Husband before the Learned Principal Judge, Family Court, Chennai, in F.C.O.P.No.1281 of 2000, was that the Appellant/1st Respondent-Wife had an illicit relationship with the 2nd Respondent in the Original Petition, viz., Gunallapalli Balaih, who is the son of the maternal aunt. Also that, he was shocked to witness the illicit relationship between the Appellant and the 2nd Respondent herein and both were caught red handed, during the course of illicit intimacy, etc. Furthermore, the Appellant/1st Respondent-Wife left the matrimonial home, on her own volition on 10.01.1992, deserting the 1st Respondent/Petitioner-Husband.
  12. Under the aforesaid circumstances, the 1st Respondent/Petitioner-Husband was perforced to file F.C.O.P.No.1281 of 2000, on the file of the Learned Principal Judge, Family Court, Chennai. Before the Family Court, the Appellant/1st Respondent-Wife had filed a detailed counter/statement of objections, denying the averments/stand taken by the 1st Respondent/Petitioner-Husband.
  13. That apart, the Appellant/1st Respondent (Wife) had projected a case, as if, she was beaten by her Husband, viz., 1st Respondent/Petitioner (Husband), on 01.01.1992 and forcefully taken her to Korukkupet Railway Station at 10.20 P.M., etc. The Appellant/1st Respondent-Wife, in her counter/objections, had categorically denied the allegations of her illicit intimacy with the 2nd Respondent herein, Gunallapalli Balaih and she came out with a plea that she never had any illicit intimacy with the said Gunallapalli Balaih and never deserted the 1st Respondent/Petitioner (Husband), as claimed by him.
  14. Before the trial Court, the Husband, viz., 1st Respondent/Petitioner was examined as PW.1 and on his behalf, another witness, PW.2, was examined. On behalf of the Appellant/1st Respondent-Wife, witnesses, Rws.1 and 2, were examined. Besides, on the side of the 1st Respondent/Petitioner-Husband, Exs.P1 and P2 marked. On the side of the Appellant/1st Respondent-Wife, Ex.R1 was marked.
  15. The trial Court, on a careful consideration of the entire facts and attendant circumstances of the case, in an encircling fashion and after going through the available materials on record, had resultantly held that the 1st Respondent/Petitioner-Husband was not entitled to divorce, on the grounds of cruelty and adultery. But the trial Court had given a categorical finding that the Appellant/1st Respondent-Wife had left the matrimonial home, without any sufficient/reasonable cause. Insofar as relief of divorce was concerned, the trial Court had granted the relief of divorce, mainly on the ground of desertion, made by the Appellant/1st Respondent-Wife. As such the trial Court had allowed F.C.O.P.No.1281 of 2000, to the extent, as indicated supra. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
  16. This Court had carefully heard the arguments of the Learned counsel for the Appellant/1st Respondent-Wife and also perused the order of the trial Court in F.C.O.P.No.1281 of 2000, dated 02.08.2011.
  17. On going through the contents of the order, passed by the trial Court in F.C.O.P.No.1281 of 2000, dated 02.08.2011, this Court is of the considered view that the trial Court had dealt with the matter in an elaborate manner and deliberated upon the rival contentions of the parties, in a meticulous and careful fashion and ultimately allowed the petition, only on the ground of desertion. However, it dismissed the petition, for divorce filed by the 1st Respondent/Husband, on the ground of cruelty and adultery.
  18. In view of the foregoing analysis, this Court is in complete agreement with the view taken by the trial Court, in allowing the Original Petition. In fact, this Court is not in a position to take a different view in Appeal, than the one taken by the trial Court. As such, this Court held that the instant Civil Miscellaneous Appeal, filed by the Appellant/1st Respondent-Wife, is devoid of merits.
  19. In fine, the Civil Miscellaneous Appeal is dismissed. No costs.

S. MANIKUMAR, J.

AND M. VENUGOPAL, J.

skm

(S.M.K., J.) (M.V., J.)

10.08.2015

Index: Yes/No

Internet: Yes/No

skm

To The Principal Family Court, Chennai.

C.M.A.No.1679 of 2015

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This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.


CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
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Caling inlaws ghost, 3 abortion, rejectg Indian values, desertng. Dvrc grantd, husbnd remarries B4 appeal ! SC GEM !

This wife, a highly educated woman, has three abortions one after another and wishes to pursue her career. Husband accuses her of abortions without his consent, desertion & matrimonial cruelty. This lady has won scholarship etc., and has been employed both at India & USA.The Hon courts notice from her diary entries and letters that she calls her in laws ghosts and says that she has NOT believe in Indian social values !! The courts also notice that she has deserted the husband. Appreciating the overall matrix the courts (Hon HC and Hon SC) grant the husband divorce !

“….37. The High Court also took a serious note of an entry in the personal diary of the appellant-wife dated September 14, 1986 wherein she stated; “I said, “we started this journey as two individuals and if you can do so fine otherwise forget and don’t bring the ghost of parents in between the two of us. He did not like the use of words ghosts and first cursed my vocabulary and then he said “you do not have any, but I have better ties”. At this I told him you are given these 15 days and you can find another wife for yourself. He has this notion that he will go to USA (NY) and I will stay with his parents and I told him I will not …..”. 38. From the above letter, it is clear that the appellant-wife had described the parents of the husband as `ghost’.

39. In the letter dated June 21, 1988, she stated; “I really wish you would understand my urge in pursuing my freedom away from the hawk eyes of your mother, sister and all other relatives. But, as I am not ready to share the economic gains of this job with you and other family members. I don’t expect either you or them to understand my need and commitment for this job, or any job. I am bound to cause friction with so many people around me- I was at war with just you around me in Bombay.”

40. In another letter, she stated that the respondent-husband should not make a condition for the wife of living together. She stated; “I am not a good person to waste all your potential, emotion on. I do not deserve it. … … … … Please do not make living together a condition for the coming few months. …..”

The court also notices that “….41. She further said that the respondent- husband should not bring her marital status preventing her from pursuing her career in the name of marriage. She stated that when she was unable to give even a child to the respondent- husband, up to what stage, they should live together. She clarified that she did not want to close her avenues in life at least at that stage. She also did not want to forego her chances whatever she would believe about her chances. She did not believe in love any more. She expressly stated that she did not believe in Indian social value system and she was very happy in the foreign country…” ……. My way of loving is not like that. I do not even believe in love any more. There is no bigger lie that any one could tell another person. I do not even believe in the Indian social value system. So I am better off being here away from every person and every thing that I grew up with. Whenever I have understood things to be a different shade I will decide whether I want to be here or there.”

43. The High Court, in contrast, referred to the letters written by the respondent- husband. It noted that those letters were full of love and affection. …”

Both the HC and SC grant the husband divorce on grounds of cruelty. SC does NOT pass ANY strictures on the husband for re marrying !!

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REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.6582 OF 2008
ARISING OUT OF
SPECIAL LEAVE PETITION (CIVIL) NO. 10907 OF 2007

SUMAN KAPUR … APPELLANT
VERSUS
SUDHIR KAPUR … RESPONDENT

J U D G M E N T

C.K. THAKKER, J.

1. Leave granted.

2. The present appeal is filed by the appellant-wife being aggrieved and dissatisfied with the decree of divorce dated August 07, 2004 passed by the Additional District Judge, Delhi in HMA No. 322/2001/96 and confirmed by the High Court of Delhi on January 29, 2007 in Matrimonial Appeal No. 62 of 2004.

3. The facts in nutshell are that the appellant Suman Kapur is the wife and respondent Sudhir Kapur is the husband. The matrimonial alliance was entered into between the parties as per Hindu rites and rituals in Delhi on March 04, 1984. It was the case of the appellant that both the parties were friends from childhood and were knowing each other since 1966. They had also studied together in the same school. They were very close since 1974 and after a friendship of more than a decade, they decided to marry. The marriage was inter-caste marriage. Though initially parents of both the parties were opposed to the marriage, subsequently, they consented. The parties have no issue from the said wedlock.

4. The appellant has a brilliant academic record and has been the recipient of the prestigious Lalor Foundation Fellowship of United States of America (USA), offered to young scientists for outstanding performance in the area of research. According to her, at the time of her marriage, she was in employment with the Department of Bio-chemistry in the All India Institute of Medical Sciences (AIIMS) and was also pursuing her Ph.D.

5. It is the case of the appellant that she conceived for the first time in 1984, within a period of about one month of the marriage, but on account of being exposed to harmful radiations as a part of lab work of her Ph.D. thesis, she decided to terminate the pregnancy. The appellant asserted that it was done with the knowledge and consent of the respondent-husband.

6. Again, in 1985, she conceived. But even that pregnancy was required to be terminated on the ground of an acute kidney infection for which she had to undergo an IVP, which entailed six abdominal X-rays and radiometric urinary reflect test with radioactive drinking dye. She claimed that even the second pregnancy was terminated with the knowledge and consent of the respondent- husband.

7. According to the appellant, third time she became pregnant in 1989, but she suffered natural abortion on account of having a congenitally small uterus and thus prone to recurrent miscarriages.

8. It is the case of the appellant that though she was well-placed and having good job in AIIMS in Delhi, only with a view to accompany her husband who was serving in Bombay, she left the job. In 1988, the parties together left for USA. The appellant was awarded Lalor Foundation Fellowship in USA for which she had to move to Kansas city and could not join the respondent-husband at the place of his work.

9. The case of the respondent-husband, on the other hand was that since solemnization of marriage between the parties, the attitude, conduct and behaviour of the appellant-wife towards the respondent as well as his family members was indignant and rude. It was alleged by him that first pregnancy was terminated in 1984 by the appellant-wife without consent and even without knowledge of the respondent. Same thing was repeated at the time of termination of second pregnancy in 1985. He was kept in complete dark about the so-called miscarriage by the appellant-wife in 1989. The respondent was thus very much aggrieved since he was denied the joy of feeling of fatherhood and the parents of the respondent were also deprived of grand-parenthood of a new arrival. It was also contended by the respondent that the attitude of the appellant-wife towards her in-laws was humiliating. Several instances were cited in support of the said conduct and behaviour by the husband.

10. The respondent-husband, therefore, filed HMA No. 322/2001/96 in the Court of Additional District Judge, Delhi under Section 13(1)(ia) and (ib) of the Hindu Marriage Act, 1955 (hereinafter referred to as `the Act’) for getting divorce from the appellant-wife. Two grounds were taken by the respondent-husband in the said petition, i.e. (i) cruelty and (ii) desertion. It was alleged by the husband that the wife was all throughout conscious, mindful and worried of one thing and that was her career. In view of her thinking only in one direction, she deprived the respondent-husband of conjugal rights and matrimonial obligations. She also treated the family members of the respondent-husband with cruelty. She, without consent or even knowledge of the respondent- husband, got her pregnancy terminated twice in 1984 as well as in 1985 and falsely stated that there was natural miscarriage at the time of third pregnancy in 1989. At no point of time, she had taken consent of the husband nor even she had informed about the termination of pregnancy or about miscarriage to the respondent. At several occasions, she had stated that she was not interested at all in living with the respondent-husband and to perform marital obligations. She had made it explicitly clear to the respondent-husband that she was not willing to be a mother at the cost of her career. She had specifically told the respondent-husband that if he was very much interested and eager to be a father and his mother (respondent’s mother) wanted to be a grand-mother, he could enter into marriage tie with any other woman, but the appellant-wife would not give up her career. She had also stated that she had no objection if the respondent adopts a child which action would not adversely affect her career. She had issued a notice to the respondent-husband that it would be better that they would peacefully separate from each other so that the respondent-husband may be able to fulfil the wishes of his parents and the appellant-wife may pursue her future career. The respondent- husband, therefore, submitted that the case attracted both the provisions, viz. (i) cruelty on the part of the wife under clause (ia) of sub-section (1) of Section 13 and (ii) desertion of matrimonial home and refusal to perform marital obligations falling under clause (ib) of sub-section (1) of Section 13 of the Act. On both the grounds, the respondent- husband was entitled to a decree of divorce.

11. The appellant-wife in her objections denied the allegations of the husband. According to her, she was doing her best to please her husband as well as her in-laws. Precisely for that purpose, she had left her service in Delhi and joined the husband. It was admitted that she was in service and was also interested in career as she was well- educated lady and wanted to contribute to the society. But that did not mean that she was not performing her marital obligations. It was an admitted fact that immediately after her marriage, she conceived and she was very happy about it. Unfortunately, however, for the circumstances beyond her control, she was compelled to get the pregnancy terminated with the knowledge and consent of her husband. The same thing was repeated in 1985. In 1989, there was natural miscarriage. She also contended that she had to go to USA for receiving prestigious award of Lalor Foundation Fellowship. According to her, instead of being happy about the progress of the wife, the husband had initiated the present proceedings with jealousy and hence, he was not entitled to a decree of divorce. Even otherwise, there was no cruelty on her part. According to the wife, during regular intervals, the parties used to stay together and the appellant had never refused to perform her matrimonial obligations or even had shown her intention to deprive the husband of conjugal rights. It was, therefore, submitted that the husband was not entitled to the relief sought by him and the petition was liable to be dismissed.

12. The trial Court after hearing the parties held that the husband was not entitled to a decree of divorce on the ground that the wife had deserted the husband for a continuous period of not less than two years immediately preceding the presentation of the petition. He, however, held that it was fully established by the husband that there was cruelty on the part of the wife. The wife without the knowledge and consent of the husband got her pregnancy terminated twice – firstly in 1984 and secondly in 1985. The husband was also not informed about natural miscarriage in 1989. A finding was also recorded by the trial Court that the wife was not ready and willing to perform matrimonial obligations and she always attempted to stay away from her husband by depriving conjugal rights of the husband. It was, therefore, a case of mental cruelty. The trial Court also referred to several letters written by wife to the husband, and notice issued by the wife through an advocate which went to show that she was not interested in performing marital obligations and continuing marital relations with the husband. The Court also relied upon various entries made by the appellant-wife in her diary which suggested that all throughout she was worrying about her future and her career. For wife, according to the trial Court, her career was the most important factor and not matrimonial obligations. The trial Court, therefore, held that the case was covered by mental cruelty which was shown by the wife towards the husband and the husband was entitled to a decree of divorce on that ground.

13. Being aggrieved by the decree passed by the trial Court, the wife preferred an appeal in the High Court of Delhi. The High Court again appreciated the evidence on record and confirmed the decree of divorce passed by the trial Court. The High Court, however, held that it was not necessary for the Court to consider mental cruelty so far as termination of pregnancy was concerned, since in the opinion of the High Court, even otherwise from the letters and entries in diary, it was proved that there was mental cruelty on the part of the wife. Accordingly, the decree of divorce passed by the trial Court was confirmed by the High Court.

14. The said order has been challenged in the present proceedings. On July 16, 2007, notice was issued by this Court. The respondent appeared and affidavit-in-reply and affidavit-in-rejoinder were thereafter filed. Considering the nature of controversy, the Registry was directed to place the matter for final hearing and accordingly, the matter has been placed before us.

15. We have heard the learned counsel for the parties.

16. The learned counsel for the appellant contended that both the courts had committed an error of law in granting a decree of divorce against the appellant-wife. It was submitted that the courts below ought not to have held that there was mental cruelty on the part of the appellant-wife and the respondent-husband was entitled to a decree of divorce on that ground. It was also submitted that once the High Court has not considered the allegation as to termination of pregnancy without the consent of the husband, no decree for divorce on the ground of mental cruelty could have been passed by it. Even if all the allegations leveled against the wife had been accepted, they were in the nature of `normal wear and tear’ in a matrimonial life of a couple which would not fall within the mischief of clause (ia) of sub- section (1) of Section 13 of the Act and the orders passed by the courts below are liable to be set aside. It was further submitted that even otherwise, the wife is entitled to an appropriate relief from this Court inasmuch as from the evidence, it is clearly established that the High Court confirmed the decree passed by the trial Court on January 29, 2007 and before the period of filing Special Leave to Appeal to this Court expires, the respondent- husband entered into re-marriage with a third party and from the said wedlock, he is having an issue. It was, therefore, submitted that the husband has created a situation which had seriously prejudiced the appellant and the Court may not allow the respondent-husband to take undue advantage of the situation created by him.

17. The learned counsel for the respondent-husband, on the other hand, supported the decree passed by the trial Court and confirmed by the High Court. It was urged that the trial Court on the basis of evidence adduced by the parties recorded a finding of fact that the conduct and behaviour of the wife was in the nature of mental cruelty and accordingly allowed the petition filed by the husband. The High Court, though convinced on all grounds, did not think it fit to enter into correctness or otherwise of the finding recorded with regard to illegal termination of pregnancy by wife without the knowledge and consent of the husband since it was convinced that even otherwise on the basis of evidence on record, mental cruelty of the wife was established. It was not necessary for the High Court to consider and to record a finding as to illegal termination of pregnancy by wife since the decree passed by the trial Court could be confirmed. As far as mental cruelty is concerned, on the basis of other evidence and material on record, a finding had been recorded by the trial Court. The said finding was a finding of fact which was confirmed by the High Court. In exercise of jurisdiction under Article 136 of the Constitution, this Court will not interfere with the said finding and hence the appeal deserves to be dismissed.

18. Regarding re-marriage by the husband, it was stated that after the decree of divorce passed by the trial Court, the husband did not re-marry. But the decree of divorce was confirmed by the High Court. The husband thereafter had taken the action which cannot be said to be illegal or otherwise unlawful. The wife, therefore, cannot take a technical contention that the husband should have waited till the period of filing Special Leave to Appeal to this Court would expire. It was, therefore, submitted that the appeal deserves to be dismissed. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

19. Having heard the learned counsel for the parties, on the facts and in the circumstances of the case, in our opinion, it cannot be said that by recording a finding as to mental cruelty by the wife against the husband, the Courts below had committed any illegality.

20. Section 13 of the Hindu Marriage Act provides for grant of divorce in certain cases. It enacts that any marriage solemnized whether before or after the commencement of the Act may be dissolved on a petition presented either by the husband or by the wife on any of the grounds specified therein. Clause (ia) of sub- section (1) of Section 13 declares that a decree of divorce may be passed by a Court on the ground that after the solemnization of marriage, the opposite party has treated the petitioner with cruelty.

21. Now, it is well-settled that the expression `cruelty’ includes both (i) physical cruelty; and (ii) mental cruelty. The parties in this connection, invited our attention to English as well as Indian authorities. We will refer to some of them.

Mental Cruelty
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22. The concept of cruelty has been dealt with in Halsbury’s Laws of England [Vol.13, 4th Edition Para 1269] as under;

“The general rule in all cases of cruelty is that the entire
matrimonial relationship must be considered, and that rule is of
special value when the cruelty consists not of violent acts but of
injurious reproaches, complaints, accusations or taunts. In cases
where no violence is averred, it is undesirable to consider judicial
pronouncements with a view to creating certain categories of acts or
conduct as having or lacking the nature or quality which renders them
capable or incapable in all circumstances of amounting to cruelty;
for it is the effect of the conduct rather than its nature which is
of paramount importance in assessing a complaint of cruelty. Whether
one spouse has been guilty of cruelty to the other is essentially a
question of fact and previously decided cases have little, if any,
value. The court should bear in mind the physical and mental
condition of the parties as well as their social status, and should
consider the impact of the personality and conduct of one spouse on
the mind of the other, weighing all incidents and quarrels between
the spouses from that point of view; further, the conduct alleged
must be examined in the light of the complainant’s capacity for
endurance and the extent to which that capacity is known to the other
spouse”.

23. In Gollins V. Gollins 1964 AC 644: (1963)2 All ER 966, Lord Reid stated:

“No one has ever attempted to give a comprehensive definition of
cruelty and I do not intend to try to do so. Much must depend on the
knowledge and intention of the respondent, on the nature of his (or
her) conduct, and on the character and physical or mental weakness of
the spouses, and probably no general statement is equally applicable
in all cases except the requirement that the party seeking relief
must show actual or probable injury to life, limb or health”.

24. Lord Pearce also made similar observations;

“It is impossible to give a comprehensive definition of cruelty, but
when reprehensible conduct or departure from normal standards of
conjugal kindness causes injury to health or an apprehension of it,
is, I think, cruelty if a reasonable person, after taking due account
of the temperament and all the other particular circumstances would
considered that the conduct complained of is such that this spouse
should not be called on to endure it”.

[see also Russell v. Russell, (1897) AC 395 : (1895-99) All ER Rep 1].

25. The test of cruelty has been laid down by this court in the leading case of N.G. Dastane v. S. Dastane, (1975)2 SCC 326 thus:

“The enquiry therefore has to be whether the conduct charges as
cruelty is of such a character as to cause in the mind of the
petitioner a reasonable apprehension that it will be harmful or
injurious for him to live with the respondent….”

26. In Sirajmohmedkhan Janmohamadkhan v. Haizunnisa Yasinkhan & Anr., (1981) 4 SCC 250, this Court stated that the concept of legal cruelty changes according to the changes and advancement of social concept and standards of living. It was further stated that to establish legal cruelty, it is not necessary that physical violence should be used. Continuous cessation of marital intercourse or total indifference on the part of the husband towards marital obligations would lead to legal cruelty.

27. In Shobha Rani v. Madhukar Reddi, (1988) 1 SCC 105, this Court examined the concept of cruelty. It was observed that the term `cruelty’ has not been defined in the Hindu Marriage Act. It has been used in Section 13(1)(ia) of the Act in the context of human conduct and behavior in relation to or in respect of matrimonial duties or obligations. It is a course of conduct of one spouse which adversely affects the other spouse. The cruelty may be mental or physical, intentional or unintentional. If it is physical, it is a question of degree which is relevant. If it is mental, the enquiry must begin as to the nature of the cruel treatment and then as to the impact of such treatment on the mind of the other spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other, ultimately, is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. There may, however, be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted. The absence of intention should not make any difference in the case, if by ordinary sense in human affairs, the act complained of could otherwise be regarded as cruelty. Mens rea is not a necessary element in cruelty. The relief to the party cannot be denied on the ground that there has been no deliberate or wilful ill-treatment.

28. In V. Bhagat v. D. Bhagat (Mrs.), (1994) 1 SCC 337, the Court observed;

“Mental Cruelty in Section 13(1)(ia) 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 unintentional. If it is physical, it is a
question of fact and degree.

If it is mental, the enquiry must begin as to the nature of the
cruel treatment and then as to the impact of such treatment on the
mind of the spouse. Whether it caused reasonable apprehension that it
would be harmful or injurious to live with the other, ultimately, is
a matter of inference to be drawn by taking into account the nature
of the conduct and its effect on the complaining spouse. There may,
however, be cases where the conduct complained of itself is bad
enough and per se unlawful or illegal. Then the impact or the
injurious effect on the other spouse need not be enquired into or
considered. In such cases, the cruelty will be established if the
conduct itself is proved or admitted. The absence of intention should
not make any difference in the case, if by ordinary sense in human
affairs, the act complained of could otherwise be regarded as
cruelty. Intention is not a necessary element in cruelty. The relief
to the party cannot be denied on the ground that there has been no
deliberate or wilful ill-treatment or 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”.

29. This Court in Chetan Dass v. Kamla Devi, (2001) 4 SCC 250, stated;

“Matrimonial matters are matters of delicate human and emotional
relationship. It demands mutual trust, regard, respect, love and
affection with sufficient play for reasonable adjustments with the
spouse. The relationship has to conform to the social norms as well.
The matrimonial conduct has now come to be governed by statute
framed, keeping in view such norms and changed social order. It is
sought to be controlled in the interest of the individuals as well as
in broader perspective, for regulating matrimonial norms for making
of a well-knit, healthy and not a disturbed and porous society. The
institution of marriage occupies an important place and role to play
in the society, in general. Therefore, it would not be appropriate to
apply any submission of “irretrievably broken marriage” as a
straitjacket formula for grant of relief of divorce. This aspect has
to be considered in the background of the other facts and
circumstances of the case”.

30. Mental cruelty has also been examined by this Court in Parveen Mehta v. Inderjit Mehta (2002) 5 SCC 706 thus;

“Cruelty for the purpose of Section 13 (1)(ia) is to be taken as a
behavior by one spouse towards the other, which causes reasonable
apprehension in the mind of the latter that it is not safe for him or
her to continue the matrimonial relationship with the other. Mental
Cruelty is a state of mind and feeling with one of the spouses due to
the behavior or behavioral pattern by the other. Unlike the case of
physical cruelty, mental cruelty is difficult to establish by direct
evidence. It is necessarily a matter of inference to be drawn from
the facts and circumstances of the case. A feeling of anguish,
disappointment and frustration in one spouse caused by the conduct of
the other can only be appreciated on assessing the attending facts
and circumstances in which the two partners of matrimonial life have
been living. The inference has to be drawn from the attending facts
and circumstances taken cumulatively. In case of mental cruelty it
will not be a correct approach to take an instance of misbehavior in
isolation and then pose the question whether such behavior is
sufficient by itself to cause mental cruelty. The approach should be
to take the cumulative effect of the facts and circumstances emerging
from the evidence on record and then draw a fair inference whether
the petitioner in the divorce petition has been subjected to mental
cruelty due to conduct of the other.”

31. In A. Jayachandra v. Aneel Kaur, (2005) 2 SCC 22, the Court observed as under:

“The expression “cruelty” has not been defined in the Act. Cruelty
can be physical or mental. Cruelty which is a ground for dissolution
of marriage may be defined as wilful and unjustifiable conduct of
such character as to cause danger to life, limb or health, bodily or
mental, or as to give rise to a reasonable apprehension of such a
danger. The question of mental cruelty has to be considered in the
light of the norms of marital ties of the particular society to which
the parties belong, their social values, status, environment in which
they live. Cruelty, as noted above, includes mental cruelty, which
falls within the purview of a matrimonial wrong. Cruelty need not be
physical. If from the conduct of the spouse, same is established
and/or an inference can be legitimately drawn that the treatment of
the spouse is such that it causes an apprehension in the mind of the
other spouse, about his or her mental welfare then this conduct
amounts to cruelty. In a delicate human relationship like matrimony,
one has to see the probabilities of the case. The concept proof
beyond the shadow of doubt, is to be applied to criminal trials and
not to civil matters and certainly not to matters of such delicate
personal relationship as those of husband and wife. Therefore, one
has to see what are the probabilities in a case and legal cruelty has
to be found out, not merely as a matter of fact, but as the effect on
the mind of the complainant spouse because of the acts or omissions
of the other. Cruelty may be physical or corporeal or may be mental.
In physical cruelty, there can be tangible and direct evidence, but
in the case of mental cruelty there may not at the same time be
direct evidence. In cases where there is no direct evidence, Courts
are required to probe into the mental process and mental effect of
incidents that are brought out in evidence. It is in this view that
one has to consider the evidence in matrimonial dispute.”

32. In Vinita Saxena v. Pankaj Pandit, (2006) 3 SCC 778, the Court said;

“It is settled by a catena of decisions that mental cruelty can cause
even more serious injury than the physical harm and create in the
mind of the injured appellant such apprehension as is contemplated in
the section. It is to be determined on whole facts of the case and
the matrimonial relations between the spouses. To amount to cruelty,
there must be such willful treatment of the party which caused
suffering in body or mind either as an actual fact or by way of
apprehension in such a manner as to render the continued living
together of spouses harmful or injurious having regard to the
circumstances of the case.

The word “cruelty” has not been defined and it has been used in
relation to human conduct or human behaviour. It is the conduct in
relation to or in respect of matrimonial duties and obligations. It
is a course of conduct and one which is adversely affecting the
other. The cruelty may be mental or physical, intentional or
unintentional. There may be cases where the conduct complained of
itself is bad enough and per se unlawful or illegal. Then the impact
or the injurious effect on the other spouse need not be enquired into
or considered. In such cases, the cruelty will be established if the
conduct itself is proved or admitted”.

33. It was further stated:

“Each case depends on its own facts and must be judged on these
facts. The concept of cruelty has varied from time to time, from
place to place and from individual to individual in its application
according to social status of the persons involved and their economic
conditions and other matters.

The question whether the act complained of was a cruel act is to be
determined from the whole facts and the matrimonial relations between
the parties. In this connection, the culture, temperament and status
in life and many other things are the factors which have to be
considered.

The legal concept of cruelty which is not defined by the statute is
generally described as conduct of such character as to have caused
danger to life, limb or health (bodily and mental) or to give rise to
reasonable apprehension of such danger. The general rule in all
questions of cruelty is that the whole matrimonial relations must be
considered, that rule is of a special value when the cruelty consists
not of violent act but of injurious reproaches, complaints,
accusations or taunts. It may be mental such as indifference and
frigidity towards the wife, denial of a company to her, hatred and
abhorrence for wife, or physical, like acts of violence and
abstinence from sexual intercourse without reasonable cause. It must
be proved that one partner in the marriage however mindless of the
consequences has behaved in a way which the other spouse could not in
the circumstances be called upon to endure, and that misconduct has
caused injury to health or a reasonable apprehension of such injury.
There are two sides to be considered in case of apprehension of such
injury. There are two sides to be considered in case of cruelty. From
the appellants, ought this appellant to be called on to endure the
conduct? From the respondent’s side, was this conduct excusable? The
Court has then to decide whether the sum total of the reprehensible
conduct was cruel. That depends on whether the cumulative conduct was
sufficiently serious to say that from a reasonable person’s point of
view after a consideration of any excuse which the respondent might
have in the circumstances, the conduct is such that the petitioner
ought not be called upon to endure.”

34. Recently, in Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511, this Court held;

“No uniform standard can ever be laid down for guidance, yet we deem
it appropriate to enumerate some instances of human behavior which
may be relevant in dealing with the cases of `mental cruelty’. The
instances indicated in the succeeding paragraphs are only
illustrative and not exhaustive.

(i) On consideration of complete matrimonial life of the parties,
acute mental pain, agony and suffering as would not make possible for
the parties to live with each other could come within the broad
parameters of mental cruelty.

(ii) On comprehensive appraisal of the entire matrimonial life of
the parties, it becomes abundantly clear that situation is such that
the wronged party cannot reasonably be asked to put up with such
conduct and continue to live with other party.

(iii) Mere coldness or lack of affection cannot amount to cruelty,
frequent rudeness of language, petulance of manner, indifference and
neglect may reach such a degree that it makes the married life for
the other spouse absolutely intolerable.

(iv) Mental Cruelty is a state of mind. The feeling of deep anguish,
disappointment, frustration in one spouse caused by the conduct of
other for a long time may lead to mental cruelty.

(v) A sustained course of abusive and humiliating treatment
calculated to torture, discommode or render miserable life of the
spouse.

(vi) Sustained unjustifiable conduct and behavior of one spouse
actually affecting physical and mental health of the other spouse.
The treatment complained of and the resultant danger or apprehension
must be very grave, substantial and weighty.

(vii) Sustained reprehensible conduct, studied neglect, indifference
or total departure from the normal standard of conjugal kindness
causing injury to mental health or deriving sadistic pleasure can
also amount to mental cruelty.

(viii) The conduct must be much more than jealousy, selfishness,
possessiveness, which causes unhappiness and dissatisfaction and
emotional upset may not be a ground for grant of divorce on the
ground of mental cruelty.

(ix) Mere trivial irritations, quarrels, normal wear and tear of the
married life which happens in day to day life would not be adequate
for grant of divorce on the ground of mental cruelty.

(x) The married life should be reviewed as a whole and a few
isolated instances over a period of years will not amount to cruelty.
The ill-conduct must be persistent for a fairly lengthy period, where
the relationship has deteriorated to an extent that because of the
acts and behavior of a spouse, the wronged party finds it extremely
difficult to live with the other party any longer, may amount to
mental cruelty.

(xi) If a husband submits himself for an operation of sterilization
without medical reasons and without the consent or knowledge of his
wife and similarly if the wife undergoes vasectomy or abortion
without medical reason or without the consent or knowledge of her
husband, such an act of the spouse may lead to mental cruelty.

(xii) Unilateral decision of refusal to have intercourse for
considerable period without there being any physical incapacity or
valid reason may amount to mental cruelty.

(xiii) Unilateral decision of either husband or wife after marriage
not to have child from the marriage may amount to cruelty.

(xiv) Where there has been a long period of continuous separation,
it may fairly be concluded that the matrimonial bond is beyond
repair. The marriage becomes a fiction though supported by a legal
tie. By refusing to sever that tie, the law in such cases, does not
serve the sanctity of marriage; on the contrary, it shows scant
regard for the feelings and emotions of the parties. In such like
situations, it may lead to mental cruelty”.

35. Now, coming to the facts of the case, from the evidence of Smt. Vimal Kapur (mother- in-law of appellant-wife and mother of respondent-husband) who is examined as PW 1 and Sudhir Kapur, husband-PW 2, the trial Court held that the wife was interested in her career only and she had neglected towards matrimonial obligations and exercise of conjugal rights by the husband. The trial Court also held that termination of pregnancy by wife was without consent or even knowledge of the husband which was in the nature of mental cruelty. But keeping the said element of mental cruelty aside, the High Court was convinced that the allegation of mental cruelty towards the husband by the wife was clearly established from the evidence on record adduced by the respondent-husband. The High Court noted that the appellant-wife was constantly and continuously avoiding staying with the husband and preventing him to have matrimonial relations. From the letters of the appellant- wife also, the High Court held that it was the wife who had stated that she had completely lost interest in the marriage and she was willing to get divorce. The High Court further noted that the appellant-wife sent a notice through her advocate to the respondent-husband during the pendency of mediation proceedings in the High Court wherein she alleged that the respondent was having another wife in USA whose identity was concealed. This was based on the fact that in his income-tax return, the husband mentioned the Social Security Number of his wife as 476-15-6010, a number which did not belong to the appellant-wife, but to some American lady (Sarah Awegtalewis). The High Court, however, recorded a finding of fact accepting the explanation of the husband that there was merely a typographical error in giving Social Security Number allotted to the appellant which was 476-15-6030. According to the High Court, taking undue advantage of the error in Social Security Number, the appellant wife had gone to the extent of making serious allegation that the respondent had married to an American woman whose Social Security Number was wrongly typed in the income tax return of the respondent-husband.

36. The High Court also observed that the appellant wanted to pursue her professional career to achieve success. In her written statement itself, she had admitted that she was very much interested in her career; that she was independent since 1979 and she was keen to live independent life.

37. The High Court also took a serious note of an entry in the personal diary of the appellant-wife dated September 14, 1986 wherein she stated;

“I said, “we started this journey as two individuals and if you can
do so fine otherwise forget and don’t bring the ghost of parents in
between the two of us. He did not like the use of words ghosts and
first cursed my vocabulary and then he said “you do not have any, but
I have better ties”. At this I told him you are given these 15 days
and you can find another wife for yourself. He has this notion that
he will go to USA (NY) and I will stay with his parents and I told
him I will not and he says this was the deal in July and when I
refuted he said “no you had promised”. I told him you have just now
paid the fine and you are again using the same tricks again.
Naturally, he did not like and said to me “I am not and have never
with you played tricks”. I said sorry- I do not trust you any further
and he said it is your fault. It may now be my fault but I think it
is just quits. I don’t think I will write to anybody back in Delhi
now for 15 days and if I can find myself work here any kind”.

38. From the above letter, it is clear that the appellant-wife had described the parents of the husband as `ghost’.

39. In the letter dated June 21, 1988, she stated;

“I really wish you would understand my urge in pursuing my freedom
away from the hawk eyes of your mother, sister and all other
relatives. But, as I am not ready to share the economic gains of this
job with you and other family members. I don’t expect either you or
them to understand my need and commitment for this job, or any job. I
am bound to cause friction with so many people around me- I was at
war with just you around me in Bombay.”

40. In another letter, she stated that the respondent-husband should not make a condition for the wife of living together. She stated;

“I am not a good person to waste all your potential, emotion on. I do
not deserve it.
… … … …
Please do not make living together a condition for the coming few
months. And do not read from these lines that I do not miss you- I do
so individually and circumstantially- but as is my way of working I
am not ready to stop myself for bonds and I believe the same for you.
I wish the best and topmost for you-the most perfect, one can hope to
be and wish that nothing becomes a barrier between you and you and
your achievements. Even me. It will be best if we could help each
other constructively; I also believe that we can do so- it is just
that we believe in different things.

… … … …
If possible, stand out of all this mess and try to work the best
possible solution for us and your family. I do want you to remember
that you are only one son and your family commitments. I would honour-
but not at the cost of my spiritual search in life.”

41. She further said that the respondent- husband should not bring her marital status preventing her from pursuing her career in the name of marriage. She stated that when she was unable to give even a child to the respondent- husband, up to what stage, they should live together. She clarified that she did not want to close her avenues in life at least at that stage. She also did not want to forego her chances whatever she would believe about her chances. She did not believe in love any more. She expressly stated that she did not believe in Indian social value system and she was very happy in the foreign country.

42. She stated;

“Mujhe is vivah ke naam per apne raste se mat roke. Ho sakta he mein
he galat hoon-per mujhe nahin lagta. Dampati ke tarah hum saath ji
liye hein- purani quality of life se kuch neechey hi star per jiye
hein- ye aur koin jaane ya na jaane- Cambridge school se ek dosre ko
bada hota dekh suman- sudhir achhey se jaante hein. Es vivah mein
aapko santan bhi na de saki- phir kahan tak jaruri hai ki hum saath
rahe? Aap mere vicharo se to kabhi sahmat nahin honge per auron ki
rai kar lein-jis kisiki bhi- apni jindgi suljha lein. Mujh se ye
ummid karma chod de ke kisi vyaktigat (per mujh se unrelated) ya
samajik karan se abhi mein apna rehne sochne ka tarika badloon. Jaisa
maine pehle likha- jindagi ji kar jaise bhi, job hi, jab bhi samajh
aayega tabhi aayega, jaise main apne liye chhot chahti hoon vaise he
apni oar se jitna mujhe adhikar hein aapko bhi mukt karti hoon. Meine
to kareeb chheh page par hi ye patr samapt kar diya-except for some
help that I needed for car, etc-buy your fax today was quite
unsettling. I don’t like to close my avenues in life- at lease not
yet. I was naove to believe whatever I did for marriage as a
constitution and marriage to you. I am not ready to forgo my chances-
whatever I believe to be chances for what I have experienced as being
married. I think the best alternative will be you stay in India for
some more time. Chances are that even if you get an assignment
outside Kansas we would be living separately. So decide for yourself
cause when time comes I am going to do so for myself. I will this
time not make a compromise and regret it a few months later and make
both our lives miserable. I have done that several times in the past-
at least you should have enough of it to stop trying to push me
against my belief.

My way of loving is not like that. I do not even believe in love any
more. There is no bigger lie that any one could tell another person.
I do not even believe in the Indian social value system. So I am
better off being here away from every person and every thing that I
grew up with. Whenever I have understood things to be a different
shade I will decide whether I want to be here or there.”

43. The High Court, in contrast, referred to the letters written by the respondent- husband. It noted that those letters were full of love and affection. According to the High Court, the husband tried his level best to keep the marriage tie to subsist and made all attempts to persuade the wife explaining and convincing her about the sacred relations of husband and wife, the need and necessity of child in their life and also feelings of his parents who wanted to become grand parents. According to the High Court, however, nothing could persuade the wife who was only after her career. In the light of the above facts and circumstances, the Court held that the trial Court did not commit any error of fact or of law in passing the decree for divorce on the ground of mental cruelty.

44. The High Court in paragraph 28 of the judgment stated;

“Applying the above principles to the facts of the present case, I
feel the respondent has been able to establish and prove `cruelty’
under Section 13(1) (ia) of the Act. The conduct of the appellant has
been examined above. I have referred to the letters exchanged between
the parties during the period 1986 onwards till 1994. Some of the
letters have been written by the appellant herself. These letters
reveal the conflict and difference between the parties. The present
case also reveals that the respondent was bending over his heels to
placate and woo the appellant till 1994 but thereafter gave up. The
respondent was deeply in love and was emotionally attached to her. He
has however over the passage of time developed a hatred and ill-will
for the appellant. There is no apparent ground and reason for the
same except the conduct of the appellant.”

45. We find no infirmity in the approach of the High Court. The finding relating to mental cruelty recorded by the trial Court and confirmed by the High Court suffers from no infirmity and we see no reason to interfere with the said finding. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

46. The fact, however, remains and it has been brought to the notice of this Court that the respondent got re-married on March 05, 2007 before the expiry of period of filing Special Leave to Appeal to this Court under Article 136 of the Constitution. It was also stated that a child was born from the said wedlock on December 20, 2007. Thus, the marriage had been performed within a period of ninety days of the order impugned in the present appeal.

47. Since, we are confirming the decree of divorce on the ground of mental cruelty as held by both the courts, i.e. the trial Court as well as by the High Court, no relief can be granted so far as the reversal of decree of the courts below is concerned. At the same time, however, in our opinion, the respondent-husband should not have re-married before the expiry of period stipulated for filling Special Leave to Appeal in this Court by the wife.

48. It is true that filing of appeal under Article 136 of the Constitution is not a right of the party. It is the discretion conferred on this Court to grant leave to the applicant to file appeal in appropriate cases. But, since the Constitution allows a party to approach this Court within a period of ninety days from an order passed by the High Court, we are of the view that no precipitate action could have been taken by the respondent-husband by creating the situation of fait accompli. Considering the matter in its entirety, though we are neither allowing the appeal nor setting aside the decree of divorce granted by the trial Court and confirmed by the appellate Court in favour of respondent-husband, on the facts and in the circumstances of the case, in our opinion, ends of justice would be met if we direct the respondent-husband to pay an amount of Rs. Five lakhs to the appellant-wife. The said payment will be made on or before 31st December, 2008.

49. The appeal is disposed of accordingly. The parties will bear their own costs all throughout.

J. (C.K. THAKKER)

J. (D.K. JAIN)

NEW DELHI, November 07, 2008.

*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.
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CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
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SC:Maint depends on conduct of parties, allegations, wife inflating husband’s income, husband hiding income etc !

SC:Maint depends on conduct of parties, allegations, wife inflating husband’s income, husband hiding income etc !

The Hon Apex court rules:
“…No set formula can be laid for fixing the amount of maintenance. It has, in very nature of things, to depend on the facts and circumstance of each case. Some scope for leverage can, however, be always there. Court has to consider the status of the parties, their respective needs, capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and those; he is obliged under the law and statutory but involuntary payments or deductions. ….”

“…Considering the diverse claims made by the parties one inflating the income and the other suppressing an element of conjecture and guess work does enter for arriving at the income of the husband. It cannot be and .. done by any mathematical precision. ….”

The court goes on to list some of the important factors to be considered while awarding maintenance
“…..The discretion of the court would depend upon multiple circumstance which are to be kept in view. These could be the time taken to serve the respondent in the petition the date of filing of the application under Section 241 of the Act; conduct of the parties in the proceedings; averments made in the application and the reply there to; the tendency of the wife to inflate the income out of all proportion and that of the husband to suppress the same; and the like. There has to be honesty of purpose for both the parties …”

*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.
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CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
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SMT. JASBIR KAUR SEHGAL

Vs.

THE DISTRICT JUDGE DEHRADUN & ORS.

DATE OF JUDGMENT: 27/08/1997

BENCH: SUJATA V. MANOHAR, D. P. WADHWA

ACT:

HEADNOTE:

JUDGMENT:

Present :

Hon’ble Mrs. Justice Sujata V. Manohar Hon’ble Mr. Justice D.P. Wadhwa Ms. Shalu Sharma, Rajesh K. Sharma, Rakesh K. Sharma, Advs., for the appellant.

P.P. Tripathi, Arvind Varma, Advs. for K.L. Mehta & Co., Advs. for the Respondents.

J U D G M E N T The following Judgment of the Court was delivered :

J U D G M E N T D.P. Wadhwa, J.

Leave granted.

This is wife’s appeal against the judgment dated October 14, 1996 of the High Court of Judicature at Allahabad. She is aggrieved by the impugned judgment under which she was awarded maintenance pendente lite under Section 24 of the Hindu Marriage Act, 1955 (for short `the Act’) at the rate of Rs. 1500/- per month. On an application filed by the wife in the trial court in proceeding for divorce initiated by her husband, respondent No.3 herein, she was awarded Rs. 2,500/- (Rupees two thousand and five hundred only) as expenses of litigation and maintenance pendente lite at the rate of Rs. 1000/- per month. Her revision before the District Judge Dehradun against this order was dismissed. She further filed writ petition under Article 227 of the Constitution of India in the High Court. By the impugned judgment the High Court enhanced the maintenance to Rs. 1500/- per month.

Respondent 1 and 2 in this appeal are respectively the District Judge, Dehradun and the Additional Civil Judge (IInd), Dehradun who are described as proforma respondents. It is not proper or even justified on the part of the appellant to implead the courts as respondents and respondents 1 and 2 are, therefore, struck off from the record of this appeal.

Parties were married on October 2, 1963.
The husband at that time was an army officer. He retired and Lt. Colonel on August 10, 1986. On September 28, 1989 he filed the petition for divorce against his wife under Section 13 of the Act on the alleged grounds of cruelty and desertion. He stated that within two years of the marriage the wife started creating problem for him and she persisted in her behaviour right till the year 1989. In this span of 26 years in their married life, they have become the parents of four children, two sons and two daughters. Eldest daughter who is 34 years old and unmarried is living with her mother who maintains her. Second child is so who is working with Mukul Overseas Pvt. Ltd. on a monthly salary of Rs. 7500/- per month and is living in a house in Safdarjung Enclave in New Delhi. Third child is a daughter aged 26 years. She is also unmarried and unemployed and is living with the father. Fourth child is a son of 20 years of age, he is unemployed and had studied upto 11th class. Husband says that being head of the family he is to maintain two sons and a daughter as they are dependent on him. His claim is that he is presently having a meagre salary of Rs. 5000/- per month and is employed as consultant/adviser with M/s. Mukul International Private Limited. Both Mukul Overseas (P) Ltd. and Mukul International (P) Ltd. belong to same group. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

After retirement from the army, respondent-husband joined the Oil and Natural Gas Commission (ONGC) as a Director and was posted at Dehradun. He retired from that post on August 21, 1995. Thereafter from January 1, 1996 husband is working with M/s. Mukul International Pvt. Ltd. as aforesaid. After deduction of income-tax at source, husband says he is getting an amount of Rs. 4700/- per month. Husband admits that he has a house in NOIDA which was on rent with the army and lease was terminated by letter dated January 29, 1996 from the Ministry of Defence. He says repairs are being carried on in the house and presently he is living with her eldest son in his house. He further says he is not getting any pension as on his permanent absorption in ONGC, he had opted to receive lumpsum amount in lieu of pension and prorata gratuity amount in lieu of pension and prorata gratuity amounting to Rs. 2,60,456/-. In addition the husband also received an amount of Rs. 55,775/- on account of D.C.R. Gty. Husband has also filed his computation of taxable income for the assessment years 1992- 93, 1995-96 and 1996-97. He has though not filed any assessment order. Since he retired from ONGC in August, 1995 it would be appropriate to see his computation of taxable income for the year ending March 31, 1995. His gross salary income in Rs. 1,88,281/- and after deduction of House Rent Allowance it comes to Rs. 1,78,614. Income from house property he say is Rs. 22716/-, interest income is Rs. 3179/-. Total of these three items would be Rs. 2,04,509/-. Then there are claims of standard deduction, repairs in the house and tax rebate on saving amounting to Rs. 68,922/- which include payment on account of LIC, PF, PPF, MEP, NSC and general insurance. The amount of tax payable comes to Rs. 35716/- on a taxable income of Rs. 1,81,790/-. For the assessment year 1996-97 (year ending on March 31, 1996) the salary income shown is 1,18,151/-, income from house property is Rs. 18, 930/- and after standard deduction, and other deduction and the rebate the income tax payable is Rs. 18, 464/- on the net income of Rs. 1,31,200/-.

Wife says that the husband has not given true account of his assets and income and has rather suppressed the same. Though the wife has not been able to give any specific evidence to support her contention but circumstance show that the husband has not given true state of affairs of his income. He has pleaded that both his wife and his eldest daughter are earning Rs. 10,000/- per month but there is no basis for such an allegation. The fact remains that the wife has no source of income and she is also maintaining her eldest unmarried daughter. Under the Hindu Adoptions & Maintenance Act, 1956 it is the obligation of a person to maintain her unmarried daughter if she is unable to maintain herself. In this case since the wife has no income of her own, it is the obligation of the husband to maintain her and her two unmarried daughters one of whom is living with wife and one with him. Section 24 of the Act no doubt talks of maintenance of wife during the pendency of the proceedings but this section, in our view, cannot be read in isolation and cannot be given restricted meaning to hold that it is maintenance of the wife alone and no one else. Since wife is maintaining the eldest unmarried daughter, her right to claim maintenance would include her own maintenance and that of her daughter. This fact has to be kept in view while fixing the maintenance pendente lite for the wife. We are aware of the provisions of Section 26 of the Act providing for custody of minor children, their maintenance and education but that section operates in its own field.

Husband has filed this counter affidavit in the appeal before us and on our direction both the parties have filed additional affidavits. On one date when this appeal came up for hearing we were told that the husband had left that morning itself for Canada for further treatment after his bypass surgery in India and that his expenses visiting the Canada and as well as the expenses for the treatment there were being met by his friend. In his affidavit husband has stated that his friend Sontosh Singh for his treatment in Canada paid his fare. He is, however, silent about the expense if any met by Sontosh Singh for his treatment in Canada. A copy of the statutory declaration of Sontosh Singh which is dated March 21, 1997 has also been filed. In this Sontosh Singh does say that he has undertaken to bear the cost of passage and maintenance of respondent during his stay in Canada and North America. It is a matter of common knowledge that medical treatment in Canada is high and an ordinary person cannot afford the expenses which are met by taking medical insurance. As to what expenses husband incurred for his bypass surgery in India has not been disclosed. On our query as to how much foreign exchange husband obtained while going to Canada, it was stated that Dollar U.S. 1,350 were obtained at a cost of about Rs. 50,000/-. From where all these monies came from we are left in dark. Husband had not filed any certificate of his salary from his present employer though the wife has contended that both the firms Mukul Overseas Pvt. Ltd and Mukul International Pvt. Ltd. are owned by the husband himself which fact husband had denied. Though we are not concerned with the income of his son which is stated to be Rs. 7,500/- per month, it would have been better if the husband had given complete details as to the perquisites enjoyed by his son, the rent he is paying for his rented accommodation at Safdarjung Enclave and the like. Claim of the husband that though his house in NOIDA fell vacant in January, 1996, it has neither been further let nor the husband himself living there because of certain repairs and on that account he is residing with his son does not appeal to us. It does appear to us from the affidavit of the husband that it conceals more than what it tells of his income and other assets. Attempt has been made to conceal his true income and that leads us to draw an adverse inference against the husband about his income that it is much more than what is being disclosed to us. The claim of the husband that from an income of Rs. 4,750/- per month which is getting from Mukul International Pvt. Ltd. he has to maintain himself, his two sons and daughter is absorb particularly when the eldest son is earning more than the husband and it is the husband who is living with him. Husband has also not disclosed retrial benefits if any from the ONGC and the amount of provident fund he obtained from there. Husband has interest income from Unit Trust of India and also from the fixed deposit receipt but again he has not disclosed the number of units he is holding and the amount of the fixed deposits in his name, from all these we have to hold that the annual income of the respondent-husband is even on modest estimate to be Rs. 2,40,000/- annually which would come to Rs. 20,000/- per month. Considering the diverse claims made by the parties one inflating the income and the other suppressing an element of conjecture and guess work does enter for arriving at the income of the husband. It cannot be done by any mathematical precision. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

Wife has no fixed abode of residence She say she is living in Gurudwara with her eldest daughter for safety. On the other hand husband has sufficient income and a house to him. Wife has not claimed and litigation expenses in this appeal. She is aggrieved only because of the paltry amount of maintenance fixed by the court. No set formula can be laid for fixing the amount of maintenance. It has, in very nature of things, to depend on the facts and circumstance of each case. Some scope for liverage can, however, be always there. Court has to consider the status of the parties, their respective needs, capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and those; he is obliged under the law and statutory but involuntary payments or deductions. Amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with her husband and also that she does not feel handicapped in the prosecution of her case. At the same time, the amount so fixed cannot be excessive or extortionate. In the circumstances of the present case we fix maintenance pendente lite at the rate of Rs. 5,000/- per month payable by respondent-husband to the appellant-wife.

The question then arises as to from which date the wife would be entitled to claim the enhanced amount of maintenance pendente lite. If wife has no source of income it is the obligation of the husband to maintain her and also children of the marriage on the basis of the provision contained in the Hindu Adoption and Maintenance Act, 1956. Her right to claim maintenance fructifies on the date of the filing of the petition for divorce under the Act. Having thus fixed the date as the filing of the petition for divorce it is not always that the court has to grant the maintenance from that date. The court has discretion in the matter as to from which date maintenance under Section 24 of the Act should be granted. The discretion of the court would depend upon multiple circumstance which are to be kept in view. These could be the time taken to serve the respondent in the petition the date of filing of the application under Section 241 of the Act; conduct of the parties in the proceedings; averments made in the application and the reply there to; the tendency of the wife to inflate the income out of all proportion and that of the husband to suppress the same; and the like. There has to be honesty of purpose for both the parties which unfortunately we find lacking in this case. We are therefore of the opinion that ends of justice would be met if we direct that maintenance pendente lite as fixed by this judgment to be payable from the date of impugned order of the High Court which is October 16, 1996. We order accordingly. The impugned judgment of the High Court shall stand modified to that extent. All arrears of maintenance shall be paid within a period of two months from today and then regularly every month.

The appeal is allowed with costs. Counsel fee Rs. 2,500/-.