Husband marries a woman thinking she is not married earlier. Some years into the relationship strains develop in the relationship. One fine day husband comes to know that wife is already married and has a kid from the earlier marriage. He files for divorce before the Learned Principal Judge, Family Court, Palamau at Daltonganj. Wife receives notice and replies in writing seeking time to transfer case to her own hometown, but for some reason such transfer order is never obtained by her. Neither does she appear for the case. Husband wins exparte divorce, which wife appeals at HC. HC affirms the exparte decree as the wife’s fault of non appearance etc come out clearly
IN THE HIGH COURT OF JHARKHAND AT RANCHI
First Appeal No. 187 of 2010
Smt. Sheela Devi …. … Appellant
Dr. Braj Bhushan Singh … … Respondent
CORAM : HON’BLE MR. JUSTICE H. C. MISHRA
HON’BLE MR. JUSTICE Dr. S.N. PATHAK
For the Appellant : Mrs. Pratyush Kumar, Advocate
For the Respondent : Mr.S.K. Murari, Advocate.
1. Heard the learned counsel for the appellant and learned counsel for the respondent.
- The appellant wife is aggrieved by the ex-parte decree of divorce passed against her, by Judgment and Decree dated 22.05.2010, by the Learned Principal Judge, Family Court, Palamau at Daltonganj, in Matrimonical Case No. 28 of 2009.
It may be stated that this appeal also was filed after inordinate delay of 101 days, which was condoned by order dated 13.05.2011 passed in I.A No. 3700 of 2010.
The petitioner respondent had brought the suit of the decree of divorce stating that he was practicing medicine in Homeopathy and his first wife had died on 14.09.2005 due to cancer. Thereafter, he wanted to marry an unmarried lady and the father of the appellant approached him stating that his daughter was unmarried and of a good behaviour, and believing this the marriage between the parties was solemnized on 14.06.2008 at a Temple in Patna City, Patna. Thereafter both the parties came to Daltonganj where the husband was practicing medicine in Homeopathy, and started living together as husband and wife. It is alleged that after sometime the wife started pressuring the husband to transfer his entire property in her name, which was ignored by the petitioner respondent, whereupon she started subjecting him to cruelty and torture. She also used to lock his chamber, where the husband was practicing. Thereafter, the petitioner-respondent brought his wife to his in-laws’ place, where his father-in- law asked him to leave his wife at his house for sometime and he will try to correct her behaviour. On 15.08.2008 for the first time the father-in-law of the petitioner husband informed him that his wife was already married earlier and she had female child from her earlier husband and he had to maintain the female child also. The petitioner husband was shocked to hear this and he was not ready for the same. On 09.08.2009 the wife came to the residence of the petitioner respondent at Daltonganj along with a female child aged about two and half years and thereafter she started committing physical and mental torture upon the petitioner respondent in various ways. She had also tried to commit suicide by pouring Kerosene Oil on herself in the presence of his patients, but with the help of his patients she could be prevented from committing suicide. She also used to subject the petitioner respondent to cruelty in various ways making the life of the petitioner respondent miserable, which forced the petitioner-respondent to file the suit for dissolution of marriage between the parties by a decree of divorce in the Court below.
The impugned Judgment shows that registered notice was issued to the opposite party appellant by the Court below, which was also validly served upon her on 12.12.2009. Thereafter, she also wrote a letter to the Court below acknowledging the receipt of the notice, and stating that she intended to move the High Court for transfer of the case from Daltonganj to Jamshedpur, where she was living with her parents, but that was also not done by her and no order of transfer was received in the Court below. Ultimately by order dated 30.03.2010 the case was fixed for ex-parte proceeding.
It appears from the impugned Judgment that four witnesses were examined by the petitioner in the Court below, including himself, and the witnesses proved the case of cruelty and mental cruelty upon the petitioner respondent. The appellant did not appear in the Court below even for cross- examining those witnesses, and ultimately, by the ex-parte Judgment and Decree dated 22.05.2010, the marriage between the parties was dissolved by the Court below, giving permanent alimony of Rs. 1,00,000/- to the wife.
Learned counsel for the appellant has submitted that the impugned Judgment passed by the Court below cannot be sustained in the eyes of law, inasmuch as, no family member of the petitioner-respondent was examined in the Court below, rather only non-family member witnesses were examined, who had only supported the case of the petitioner-respondent. Learned counsel submitted that in any event the permanent alimony granted to her is at a very lower side.
Learned counsel for the respondent on the other hand has opposed the prayer and submitted that in spite of receiving notice, the appellant did not appear in the Court below, even though she had acknowledged by writing a letter to the Court below that she had received the notice. After giving sufficient opportunity to the appellant the matter was fixed for ex-parte proceeding and after examining witnesses of the petitioner respondent, who proved the case of cruelty and mental cruelty upon the petitioner by the opposite-party-wife, the marriage between the parties was dissolved by the decree of divorce. Learned counsel submitted that there is no illegality in the impugned Judgment and Decree and even the present appeal was filed after an inordinate delay of 101 days.
Having heard learned counsels for both the parties and upon going through the record, we find no valid reason for setting aside the ex-parte decree. It is an admitted position that the notice issued to the appellant was validly served upon her and she had also written a letter to the Court below acknowledging the same and seeking time for bringing the order for transfer of the case. No application for transfer of the case was filed by the appellant-wife in the High Court, and after waiting for sufficient period the case was fixed for ex-parte proceeding. The petitioner respondent examined four witnesses, including himself, to prove the case of the cruelty and mental cruelty by the appellant and accordingly, the suit was decreed on the basis of the evidence on record. We do not find any illegality in the impugned Judgment, nor any valid reason for setting aside the ex-parte Judgment and Decree, dissolving the marriage between the parties by a decree of divorce.
So far as the submission of the learned counsel for the appellant that the permanent alimony granted to the appellant is of the lower side, we are of the considered view that for enhancement of the amount of permanent alimony it is always open to the appellant wife to move the competent Court and to prove her case for any such enhancement under Section 25 of the Hindu Marriage Act.
We do not find any merit in this appeal and the same is accordingly, dismissed.
( H. C. Mishra, J.) (Dr. S.N. Pathak, J.) P.K.S./Anjali
Key excerpts :
“…The parties are highly in litigating terms and admittedly, both the parties are living separately since more than twenty years. The record shows that all efforts of reconciliation between the parties, either at the level of Court below, or by this Court, have only failed….”
“….on 12.01.2017, that ultimately the parties have settled their disputes amicably outside the Court and they agreed to settle all their disputes and to finally separate themselves from each other, severing all relationships, on payment of Rs. 25,00,000/-as one time permanent alimony and litigation cost of Rs. 2,00,000/-, i.e., in total Rs. 27,00,000/- to the respondent wife by the appellant husband. It was also agreed upon, that upon such severing of the relationship between the parties, the other criminal cases pending between them shall also come to an end…..”
Thus ends a LONG LONG fight for freedom !!
IN THE HIGH COURT OF JHARKHAND AT RANCHI
F.A. No. 138 of 2010
I.A. No. 1163 of 2017
Bipin Kumar Jha …… Applicant/ Appellant
Meena Jha …… Opp. Party/Respondent
Cr. Rev. No. 943 of 2013
Meena Jha …… Petitioner
State of Jharkhand & Anr. …… Opp. Parties/Respondents
Cr. Rev. No. 838 of 2013
Bipin Kumar Jha …… Petitioner
State of Jharkhand & Anr. …… Opp. Parties/Respondents
Cr. Rev. No. 887 of 2009
Bipin Kumar Jha …… Petitioner
State of Jharkhand & Anr. …… Opp. Parties/Respondents
THE HON’BLE MR. JUSTICE H. C. MISHRA
THE HON’BLE MR. JUSTICE DR. S.N.PATHAK
For the Appellant : Mr. P.P.N. Roy, Sr. Advocate.
For the Respondent : Mr. Jay Prakash Jha, Sr. Advocate
Order No.16 dated 8.2.2017
F.A. No. 138 of 2010 and I.A. No. 1163 of 2017
- Heard learned counsel for the appellant and learned counsel for the respondent, who are also the parties in the connected Criminal Revisions.
The appellant Bipin Kumar Jha is aggrieved by the Judgment and Decree dated 26.05.2010 passed by the learned Principal Judge, Family Court, Chaibasa, in Matrimonial Suit No. 21 of 2006, whereby the suit filed by the appellant for dissolution of marriage between the parties by a decree of divorce under Section 13 (1) (i-a) (i-b) of the Hindu Marriage Act, on the ground of alleged cruelty and desertion by the respondent, has been dismissed by the Court below, finding that the suit was barred by the principles of res judicata, as both the grounds had been decided between the parties in the earlier round of litigation up to the High Court. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick
During the pendency of this appeal, efforts for conciliation between the parties were made, but the same failed. The parties are highly in litigating terms and admittedly, both the parties are living separately since more than twenty years. The record shows that all efforts of reconciliation between the parties, either at the level of Court below, or by this Court, have only failed.
It was submitted by the learned counsels for both the sides on the last occasion on 12.01.2017, that ultimately the parties have settled their disputes amicably outside the Court and they agreed to settle all their disputes and to finally separate themselves from each other, severing all relationships, on payment of Rs. 25,00,000/-as one time permanent alimony and litigation cost of Rs. 2,00,000/-, i.e., in total Rs. 27,00,000/- to the respondent wife by the appellant husband. It was also agreed upon, that upon such severing of the relationship between the parties, the other criminal cases pending between them shall also come to an end.
In view of the submissions made by learned counsels for both the sides, the matter was adjourned for today, enabling learned counsels for both the parties to file joint compromise petition in the aforesaid terms. Pursuant thereto, a joint compromise petition has been filed in I.A. No. 1163 of 2017, in which the affidavit is sworn by both the parties, reiterating the aforesaid terms. Pursuant to the agreement between the parties, two bank drafts drawn upon S.B.I. bearing Nos.731734 and 718423 for the amount of Rs. 18,00,000/- and Rs. 9,00,000/- respectively, totaling Rs. 27,00,000/-, have been handed over to the respondent by the appellant in the Court, which the respondent has accepted and she has also acknowledged the same in the order-sheet of this Court. Since, as agreed upon by both the parties, the amount of permanent alimony and the cost of litigation have been paid by the appellant to the respondent in the Court, the marriage between the parties, i.e., Bipin Kumar Jha and Meena Jha, is hereby, dissolved by a decree of divorce.
Let the decree be prepared accordingly, with the joint compromise petition in I.A. No. 1163 of 2017, forming part of the decree.
This appeal accordingly, stands disposed of in the terms of joint compromise petition filed in I.A. No. 1163 of 2017. The interlocutory application I.A. No. 1163 of 2017 also stands disposed of.
Cr. Rev. No. 943 of 2013 and Cr. Rev. No. 838 of 2013
We are informed that the appellant was making payment of Rs. 4,000/- per month as maintenance to the respondent and the respondent had filed Cri. Misc. No. 12 of 2009 for enhancement of the maintenance amount, which was enhanced to Rs. 6,000/- per month by order dated 15.06.2013 passed by the Family Court, Bokaro, in the said case. Against the said order, both the parties have filed Criminal Revisions in this Court. The husband has challenged the enhancement of the amount in Cri. Rev. No. 838 of 2013 (Bipin Kumar Jha Vs. State of Jharkhand & Anr.), and the wife has filed Cri Rev. No. 943 of 2013 (Meena Jha Vs. State of Jharkhand & Anr.), for further enhancement of the maintenance amount. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick
Since, as agreed upon between the parties, the amount of permanent one time alimony has been paid to the respondent, the appellant is hereby, absolved from the responsibilities of the making the payment of any monthly maintenance to the respondent henceforth, and accordingly, in view of the agreement reached between the parties, the order dated 15.06.2013 in Cri. Misc. No. 12 of 2009, passed by the learned Principal Judge, Family Court, Bokaro, is hereby, set aside.
Since the appellant is absolved from the responsibilities of making payment of any monthly maintenance to the respondent henceforth, there shall be no deduction of the amount of monthly maintenance from the salary of the appellant from the month of February, 2017.
Both these Criminal Revisions stand disposed of with the directions as above.
Cr. Rev. No. 887 of 2009
This Criminal Revision pending between the parties as the appellant husband was convicted for the offence under Section 498-A of the Indian Penal Code in a criminal case filed by respondent wife, by the Judgment of conviction and Order of sentence dated 30.08.2007 passed by the learned SDJM, Bokaro, in G.R. Case No. 99 of 1996 / Tr. No. 06 of 2007. The said Judgment of conviction and Order of sentence were maintained by the learned Additional Sessions Judge, FTC-I, Bokaro, by Judgment dated 31.07.2009 passed in Cri. Appeal No. 97 of 2007 / Cri. Appeal No. 115 of 2007, against which this Cri. Revision No. 887 of 2009 has been filed by the husband, which is pending in this Court.
Since, this criminal case arises out of the matrimonial dispute between the parties which has been amicably settled by them, severing all their relationships, and the amount of permanent one time alimony and the cost of litigation have also been paid by the husband to the wife in the Court, we are of the considered view that for securing the ends of justice, this criminal case also must come an end.
Even though the offence under Section 498-A IPC is not compoundable in nature, taking a cue from the decision of the Hon’ble Supreme Court in Gian Singh Vrs. State of Punjab & Anr., reported in (2012) 10 SCC 303, we, in exercise of the inherent power conferred under Section 482 of the Cr.P.C., in order to secure the ends of justice, set aside the Judgment of conviction and Order of sentence dated 30.08.2007 passed by the learned SDJM, Bokaro, in G.R. Case No. 99 of 1996 / Tr. No. 06 of 2007, as also the Judgment dated 31.07.2009 passed in Criminal Appeal No. 97 of 2007 / Cri. Appeal No. 115 of 2007, passed by the learned Addl. Sessions Judge, FTC-I, Bokaro. Consequently, the petitioner in Cr. Rev. No. 887 of 2009 is acquitted of the charge and is discharged from the liabilities of his bail bond. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick
Accordingly, Cr. Rev. No. 887 of 2009 also stands disposed of.
(H. C. Mishra, J.)
(Dr. S.N. Pathak, J.)
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
- 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
S.B. CIVIL MISC. APPEAL NO.99/1996
Smt. Raj Kumari @ Chandrakala w/o Shri Nandlal D/o
Shri Badri Singh, by caste Mali Kachhawaha, resident
of Sardarshahar at present Bikaner.
Nandlal son of Late Shri Dalchand Ji, By caste Mali,
Sangodiya, resident of Sardarshahar Churu.
Date of Judgment :: 17.10.2016
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.
As we all know Interim maintenance is one of the most painful things that can befall a husband when he seeks justice from a family court / civil court
This divorce case seems to have been dragging on since 2007. It’s the husband’s contention that wife is NOT eligible for ANY money. However, this husband seems to have been ordered to pay interim maintenance. After initial payments, husband keeps begging the courts for speedy trial and decision and has even obtained a HC order for speedy trial. However the case keeps dragging in the lower court and wife keeps pushing for the arrears , .. moolah !!
Arrears builds up to some lakhs, husband says he is unable to pay and the matter reaches HC.
However Hon HC feels that husband is wantonly delaying / denying maintenance and orders that he has to pay the arrears of interim maintenance (which runs into lakhs !!)
The Hon HC also orders that “…if within that reasonable time, the arrear and current maintenance with cost awarded above is not deposited or paid, the Court shall dismiss the divorce case for disobedience of the order of the trial court …..” !!!
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.915 of 2016
Priyanka Devi …. …. Opposite Party/Petitioner
Kaushal Kishor Gautam …. …. Petitioner/Respondent
For the Appellant/s : Mr. Chandra Kant
For the Respondent/s : Mr. Rakesh Kumar
CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO
(1) I have already heard the learned counsel, Mr. Chandra Kant for the petitioner and the learned counsel, Mr. Rakesh Kumar for the respondent.
(2) This Civil Miscellaneous application has been filed by the wife-petitioner for setting aside the order dated 08.06.2016 passed by Principal Judge, Family Court, West Champaran, Bettiah in Divorce Case No.138 of 2007 whereby the learned Court below rejected the application filed by the petitioner for recovery of arrears of maintenance amount of Rs.2,27,200 from the respondent-husband and till then stay of proceeding.
(3) It appears that the husband-respondent filed the aforesaid divorce case under Section 12(i)(d) of the Hindu Marriage Act. The cases of the parties are not required to be mentioned here. The wife appeared and is contesting the said case. During the pendency of the said divorce case, an application under Section 24 of the Hindu Marriage Act was filed by the wife who is petitioner herein. After hearing both the parties, the learned Family Court by order dated 26.06.2009 directed the husband- respondent herein to pay Rs.4,000 per month as maintenance and also Rs.15,000 lump sum as litigation cost.
(4) This order dated 26.06.2009 was challenged before this High Court by the husband in civil revision. The High Court set aside the order and remanded the matter directing to pass a fresh order after recording finding on the question of income of husband. After remand, the Family Court by order dated 13.01.2010 recorded finding about the income and then again directed the husband to pay Rs.4,000 as maintenance and Rs.15,000 as litigation cost. Against the said order, the husband filed CWJC No.20647 of 2011. After hearing both the parties, the said writ application was dismissed on 21.06.2012 which is Annexure 2 to this Civil Miscellaneous application.
(5) After the above order, the husband filed an application before the Family Court for recall of the order dated 13.01.2010. The said application was rejected by the Family Judge on 27.07.2013 and the husband-respondent was directed to comply the order.
(6) On 02.08.2014, the wife filed application for directing the husband to pay Rs.1,76,000, the arrears of maintenance, stating that because of paucity of money, she is unable to contest the case and if maintenance is not paid, she may be permitted to leave the case. Thereafter, the husband again filed CWJC No.2161 of 2014 which was dismissed on 21.04.2015 and while dismissing this writ application this Court directed the Court below to decide the case within six months. Again, CWJC No.1471 of 2016 was filed by the husband-respondent for directing the Court below to decide the matter as early as possible which was again dismissed by order dated 16.05.2016. Thereafter, the wife-petitioner filed application praying for a direction to the husband to pay the arrears of maintenance as directed by the Court. The arrears of maintenance is Rs.2,27,200/- and the wife has no money to contest the case but the learned Court below by the impugned order rejected the application and proceeded to decide the divorce case.
(7) The learned counsel for the petitioner submitted that the order under Section 24 of the Hindu Marriage Act was passed in the year 2009. After some payment, the husband stopped the payment of maintenance. He challenged the order repeatedly before the High Court which has already been rejected but instead of paying that huge amount of arrear, the husband is proceeding for the disposal of the case expeditiously. The petitioner has no money, therefore, she is unable to contest and if amount is not paid, as directed by the Court, it will be denial of justice to the petitioner.
(8) On the other hand, the learned counsel for the respondent submitted that there is already an order by this Court for expeditious disposal of the divorce case. It is incorrect to say that the wife-petitioner has got no money to contest the suit. According to the learned counsel, the wife is not entitled to get the maintenance amount. It cannot be said that unless the arrear amount is paid, the case cannot be decided. The Court below is proceeding to decide the case, therefore, the further proceeding cannot be withheld or stayed because of non-payment of the arrears of maintenance and also the current monthly maintenance. The Court below is deciding the case in view of the direction of the High Court. If the petitioner has no money then how she is filing this case before the High Court. Therefore, the intention of the wife is only to delay the disposal of divorce case. Moreover, the order passed by the Court below is legal and valid, therefore, it cannot be interfered with in exercise of supervisory jurisdiction.
(9) It is admitted fact that the husband has been directed to pay Rs.4,000 per month as maintenance under Section 24 of the Hindu Marriage Act in the year 2009. After some payment, he stopped the payment. Now, there is huge amount of arrears as claimed by the petitioner and this amount, which is an arrear, is not denied by the husband. The wife is repeatedly filing the application and praying for directing the husband to comply the order otherwise she will be unable to contest the suit. The order passed by the Family Court directing the husband to pay the arrears of maintenance and current monthly maintenance has been upheld by the High Court but the husband is not complying the direction of the Court which is upheld by the High Court. The divorce suit is proceeding. Since the wife had no source of income for her maintenance and to defend her in the divorce suit, the Court directed the husband to provide the cost of maintenance and litigation. If the cost of maintenance and the litigation cost is not paid by the husband then the wife will be defenceless. In other words, she will be unable to defend the case filed by the husband and the case will be ex parte against her. However, from the facts stated above, now it becomes clear that intentionally the husband is not obeying the order of the Court and thereby he is depriving the wife of her right to defend the case. In one hand, he is insisting the Court to proceed and decide the case expeditiously and on the other hand, he is disobeying the order of the Court. This conduct of the husband shows that his intention is to get the case decided without the defence of the wife. No doubt, wife can file a petition under Order 21 Rule 37 C.P.C. for recovery of the amount and the husband can be proceeded against the contempt of Court also for disobedience of the Court’s order, but Section 24 of the Hindu Marriage Act empowers the Court to make an order for maintenance and for expenses to a needy and indigent wife. If the amount is not made available then the very object and purpose of this provision shall be defeated. Wife cannot be directed in all cases to proceed for execution for recovery of the amount which will take much time and thereby again it will delay the disposal of the case. Law is not so powerless to bring the husband to book. If the husband has failed to make the payment, as directed by the Court, his defence/case can be struck out. The person who is disobeying the order of the Court cannot be allowed to be heard on merit considering his conduct. After all he is approaching the Court for justice as claimed by him but at the same time, Court has to administer justice to both the parties. The wife is also entitled equally to get justice and for that she needs the maintenance and litigation cost and, therefore, the Court has directed the husband. If the husband is not obeying the order of the Court then why the Court should oblige and proceed to hear his case.
(10) A Division Bench of the Himachal Pradesh High Court in the case of Jai Singh v. Smt. Khimi Bhiklu and another, AIR 1978 Himachal Pradesh 45 has held that the husband who was ordered to pay interim alimony and expenses pendente lite, deliberately and contumaciously flouted the order, it is open to the court to pass an order striking out the defence of the husband by invoking inherent powers under S. 151 C.P.C.
(11) The Odissa High Court also expressed the same view in the case of Ghasiram Das v. Srimati Arundhati Das and another, AIR 1994 Orissa 15. It has been held that the purpose of Section 28 could not be allowed to defeat by driving the indigent spouse to enforce the order of maintenance pendente lite in an execution proceeding in every case. The court in appropriate circumstance can enforce its order by striking out the pleadings of defaulting party.
(12) The Kolkata High Court in AIR 1962 Calcutta 88 Smt. Anita Karmokar and another v. Birendra Chandra Karmokar has held that “the object of S.24 of the Hindu Marriage Act is to enable an indigent spouse, who has no independent means or income of her own, to conduct her defence without being handicapped in any way by poverty. A husband, on whom an order under S.24 has been made, but who refuses to pay under the order and aspires yet to go on with his suit must not be encouraged. The English principle, followed in matrimonial causes, of staying the suit in such circumstances is the best way of dealing with such a situation and the said principle should be applied in proceedings under the Hindu Marriage Act, 1955 as a rule of justice, equity and good conscience.”
(13) A Division Bench of High Court of Punjab in the case of Smt. Malkan Rani v. Krishan Kumar, AIR. 1961 Punjab 42 has held that “if the court directed the husband under S. 24 of the Hindu Marriage Act to pay the wife maintenance pendente lite and the litigation expenses, the court has inherent power to stay the proceedings till the husband paid the amount which he has been ordered to pay under S. 24. The enforcement of the order otherwise than by execution is not prohibited or excluded by S. 28.”
(14) In view of the above decisions of the various High Courts, in my opinion, the orders passed by the Court below, in not staying the further proceeding till the arrears and current monthly maintenance and litigation cost is paid by the petitioner, will occasion failure of justice and put the wife in a position as if she has not defended the case. As stated above, intentionally the husband is disobeying the order of the Court.
(15) In the result, this Civil Miscellaneous application is allowed with cost of Rs.10,000 to be paid by the husband- respondent to the wife-petitioner. The impugned order is set aside. The further proceeding in Divorce Case No.138 of 2007 pending in the Court of Principal Judge, Family Court, West Champaran shall remain stayed till the arrear amounts of maintenance and aforesaid cost is deposited/paid by the husband to the wife within a reasonable time. The Court shall fix the said reasonable time and if within that reasonable time, the arrear and current maintenance with cost awarded above is not deposited or paid, the Court shall dismiss the divorce case for disobedience of the order of the trial court merged in the order of the High Court.
(Mungeshwar Sahoo, J)