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2006 DIGILAW 822 (RAJ)

Dani Bai v. Amarchand

2006-03-09

PRAKASH TATIA

body2006
Judgment Prakash Tatia, J.- Heard learned Counsel for the parties. 2. The appellant/non-applicant is aggrieved against the Judgment and decree dated 10.01.2002 by which the trial Court granted decree for divorce in favour of the respondent/applicant. 3. As per the applicant, the marriage of the appellant and respondent took place about 17-18 years ago from the time of filing of divorce petition, which was filed in the year 1995. Out of the wedlock, three children, two daughters namely, Mamta and Guddi and one son Raju were born. In the year 1995, Mamta was of the age 16 years, Raju was of the age of 13 years and Guddi was of the age of 9 years. It is alleged that the appellant, wife of respondent, left the respondent in the year 1987 and did not come back despite efforts made by the respondent. The appellant initiated proceedings under Section 125, CrPC having No. 147/1987. The said petition was dismissed by the Court. According to the respondent, thereafter, 3-4 more applications under Section 125, CrPC were submitted by the appellant which too were dismissed. The respondent sought decree for divorce on the ground of cruelty and facts relating to cruelty caused by the appellant are pleaded in Para No. 4 of the divorce petition. 4. The appellant submitted written reply to the divorce petition and denied the allegation of cruelty. However, she admitted that she is living separate from his husband /respondent since 16.07.1987 but it was because of the reason that she was turned out by the respondent himself . The appellant levelled serious allegations against the respondent including allegation of attempt to burn her. The appellant admitted that her application filed under Section 125, CrPC was dismissed but she denied filing of more applications under Section 125, CrPC. She also submitted that in case, she will live with the respondent, she will have danger of her life. Not only this, it is also alleged that the respondent contracted second marriage. Therefore, the appellant lodged FIR under Section 494, CrPC but after some time, the second wife of respondent died. The appellant also claimed permanent alimony under Section 25 of the Hindu Marriage Act. 5. Not only this, it is also alleged that the respondent contracted second marriage. Therefore, the appellant lodged FIR under Section 494, CrPC but after some time, the second wife of respondent died. The appellant also claimed permanent alimony under Section 25 of the Hindu Marriage Act. 5. The trial Court framed the issues and the respondent gave his statement and produced witnesses AW 2 Tek Chand and AW 3 Lalmal whereas the appellant gave her statement and produced her mother Devi Bai as NAW 2 and Suresh Kumar as NAW 3. The trial Court after discussion of the evidence held that in fact, the appellant left the respondent without any rhyme or reason and before that, she treated the respondent with cruelty. In view of the above, the divorce decree was granted by the Court below. 6. Learned Counsel for the appellant submits that though the appellant is living separate since 1986-1987 but she is entitled to permanent alimony for herself and also entitled to get maintenance for the children. Learned Counsel for the appellant also tried to assail the finding of the trial Court recorded on the ground of cruelty. 7. Learned Counsel for the respondent submits that it is not in dispute that the appellant and respondent are living separately since 1986-87. The appellant submitted petition for getting maintenance even in the year 1987 and that petition was dismissed. The children now are of the age of more than 20 years and particularly, the eldest daughter is of the age of 26 years. In the petition filed by the appellant under Section 125, CrPC, the Court clearly observed that the appellant has sufficient means to maintain herself and the petition was filed by her to harass the respondent. In view of the above fact and in view of the statement of the appellant and her witnesses, it is clear that she could not give any explanation for living separate from the respondent for such a long period. The marriage of the appellant and respondent is only for name sake and now it has reached to the stage of irretrievable consequence. It is also submitted that the finding of cruelty is based on evidence and this Court may also even if re-appreciate the entire evidence, then also there will be no reason for taking a different view then that taken by the Court below. It is also submitted that the finding of cruelty is based on evidence and this Court may also even if re-appreciate the entire evidence, then also there will be no reason for taking a different view then that taken by the Court below. It is also submitted that asking to pay maintenance to a lady who left 20 years ago and living without maintenance from the husband, will be another factor disturbing the two persons living separately. It is also submitted that in case, the maintenance will be granted, then that will be nothing but undue advantage to the lady who failed to discharge her matrimonial obligation and apart from the fact that she has left her husband who has levelled serious allegations. 8. I have considered the submissions of learned Counsel for the parties and have also gone through the statements of the witnesses: 9. The respondent gave his statement and produced the witnesses but it is sufficient to refer the statements of the appellant and her mother who admitted that the appellant and respondent are living separately since the year 1986. They also stated that no efforts were made by the respondent to take the appellant but failed to state that what efforts they made for reconciliation. Not only this, the allegations levelled by the appellant against the respondent in the reply and the statement also constitute a clear case of cruelty. In view of the above, the Court below rightly decided the issue against the appellant. 10. Apart from it, now there is no question of reconciliation in view of the fact that both the appellant and respondent are living separately from 1986. 11. So for as the claim maintenance is concerned, there is no evidence that the appellant is not able to maintain herself . Not only this even in the year 1987, while deciding the application under Section 125, CrPC, though in criminal case, a finding has been recorded that she failed to prove that she is not able to maintain herself . In view of the above, I do not find any reason to grant permanent alimony looking to the totality of the facts of the case. In view of the above, I do not find any reason to grant permanent alimony looking to the totality of the facts of the case. Not only this, but since in fact the respondent claimed the maintenance under Section 25 of the Hindu Marriage Act, 1956 but did not lead any evidence for that relief , therefore, I do not see any reason to award any maintenance to the appellant. However, if law permits children to get maintenance from their father, they are still free to claim and may get the maintenance from their parents on proving their case in appropriate proceedings. 12. In view of the above discussion, I do not find any merit in this appeal and the same is hereby dismissed.