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Jharkhand High Court · body

2008 DIGILAW 1257 (JHR)

Chandrasekhar Prasad v. Soni Nagvanshi

2008-11-12

R.K.MERATHIA

body2008
JUDGMENT : This writ petition has been filed under Article 227 of the Constitution of India for setting aside the order dated 31.1.2006, passed by the learned Principal Judge, Family Court, Bokaro in Civil Misc. Case No. 12/2001 setting aside the ex parte judgment and decree of divorce dated 19.5.2001, passed in Title Matrimonial Suit No. 43/2000 filed by the petitioner, and restoring the suit to its original file. 2. Mr. R.N. Sahay, learned counsel for the petitioner, submitted that the impugned order is perverse. Referring to paragraph 3 of the evidence of A.W.-2-Binda Prasad Chourasia ( father-in-law of the sister of the respondent), he submitted that A.W-2 admittedly got knowledge on 10.5.2001 about the matrimonial suit no. 43/2000 i.e. prior to the judgment passed therein on 19.5.2001, but no action was taken by him or the respondent. Referring to paragraph 4 of the evidence, he submitted that only on 30.5.2001, A.W-2 applied for the certified copy, which was received on 11.6.2001. He submitted that A.W-2 did not disclose any reason explaining the delay between 10.5.2001 and 30.5.2001. Referring to the evidence of A.W-1-respondent, he submitted that she said in paragraph 5 that she got knowledge of the said matrimonial suit from A.W-2 when he went to the Court in connection with another case instituted by her parents. Mr. Sahay submitted that thus respondent got knowledge on 10.5.2001 but there is no explanation why the copy was applied after 20 days on 30.5.2001 after the judgment was delivered on 19.5.2001. He further submitted that actually the respondent had full knowledge about the said matrimonial suit but she deliberately avoided to appear therein and allowed the suit to proceed ex parte and therefore the finding that she had no knowledge of the said case is perverse. He further submitted that in fact the respondent herself filed a Matrimonial Case no. 17 of 2001 in the Family Court at Muzaffarpur for judicial separation and for alimony. Referring to the petition for amendment filed by her in the said case on 31.10.2006 and the order passed thereon on 7.2.2007, he submitted that taking into consideration the ex parte judgment passed in the present Matrimonial Suit no. 43 of 2000 and the factum of the second marriage of the petitioner, she was allowed to delete the prayer of judicial separation, as prayed by her. 43 of 2000 and the factum of the second marriage of the petitioner, she was allowed to delete the prayer of judicial separation, as prayed by her. He further submitted that in the said case, she was granted interim alimony of Rs.1,000/-per month during the pendency of that case, which is being received regularly by the respondent. He lastly submitted that the parties are living separately since 8.7.1999 and in view of the fact that the petitioner filed a case for divorce and respondent also filed a case for judicial separation and in view of the decree of divorce, she withdrew her prayer for judicial separation and confined the case to alimony, it has to be taken that both parties wanted separation and their marriage broke irretrievably and therefore no useful purpose will be served by setting aside the ex parte judgment of divorce and asking the parties to contest the present suit filed by the petitioner for divorce. He relied on the judgment reported in 2008 AIR SCW 5190Satish Sitole Vs. Ganga. 3. Mr. Manoj Tandon, appearing for the respondent, on the other hand submitted that this Court should not interfere with the finding of fact-that the respondent had no knowledge about the case, recorded in the impugned order. He relied on paragraphs 10 and 38 of the judgment reported in (2003) 6 SCC 675 -Surya Dev Rai with regard to the scope of interference under Article 226 of the Constitution of India. However, he could not dispute that in case of perversity, the order can be interfered by the High Court but referring to the evidence, he submitted that there is no perversity in the impugned order. He submitted that in the matrimonial suit in question, there was deemed service of notice and respondent has proved that she had no knowledge of the present suit and therefore in the interest of justice, the same has rightly been set aside by the impugned order. He relied on the judgment reported in 2008 (4) JLJR 69-Soma Roy Vs. Uttam Kumar Roy, and on 2008 (1) JLJR 125 Smt. Pallavi Vs. Shri Rajkamal. He further pointed out to the conduct of the petitioner in suppressing the factum of the second marriage in the Courts. 4. It appears that several litigations were/are going on between the parties. He relied on the judgment reported in 2008 (4) JLJR 69-Soma Roy Vs. Uttam Kumar Roy, and on 2008 (1) JLJR 125 Smt. Pallavi Vs. Shri Rajkamal. He further pointed out to the conduct of the petitioner in suppressing the factum of the second marriage in the Courts. 4. It appears that several litigations were/are going on between the parties. Though, it is not possible to believe that respondent had no knowledge of the Matrimonial Suit No. 43/2000, but even if her contention that she had no knowledge about the said suit is accepted and the impugned order is allowed to stand, the effect will be that the respondent will be allowed to contest the said suit filed for divorce by the petitioner. The fact that-the respondent herself filed a suit for judicial separation and in view of the present decree of divorce, though ex parte, and the factum of second marriage contracted by the petitioner, she withdrew her claim of judicial separation and confined it to the alimony, goes to show that the respondent also wanted separation. It is not disputed that the parties are living separately since 8.7.1999. In these circumstances, no useful purpose will be served by allowing the parties to indulge in further litigation. 5. It appears that for this reason, the parties were referred to the Conciliator to resolve their disputes. The relevant portion of the report of the Conciliator dated 7.8.2008 reads as follows:- “ That during the conciliation session, it is observed that as the separation is from the last ten years, and in the meantime, as the petitioner husband has solemnized another marriage and blessed with a baby out of the wedlock, hence neither party are interested for the restoration of their marital tie. That the respondent wife has given her intention/desire that she should be paid a sum of Rs.10,00000/-( Rs. Ten lacs only) as permanent alimony in lieu of the dissolution of her marriage with the petitioner. The petitioner husband stated that the demand of the respondent is beyond his capacity and proposed that he is ready to pay a sum of Rs.3,00000/-( Rs. Three lacs only) and beyond that he is unable to pay. The respondent wife is not agreed on this proposal. As such the deadlock occurred during the conciliation, as parties did not arrive to an agreement on the point of payment of the permanent alimony. Three lacs only) and beyond that he is unable to pay. The respondent wife is not agreed on this proposal. As such the deadlock occurred during the conciliation, as parties did not arrive to an agreement on the point of payment of the permanent alimony. That lastly, the undersigned intervened and proposed that the parties should fix the amount of permanent alimony in between the amount of Rs.3 lacs and 10 lacs. At this the respondent wife, on my intervention and persuasion became agreed on the amount of Rs.6,00000/-( six lacs only), but the petitioner husband stated that he is unable to pay even this amount because he is a soldier in the Air Force and the payment of the same is beyond to his capacity. His stand was that he is unable to pay more than the amount of Rs.3,00000/-( three lacs). The respondent wife is not ready, so on this score conciliation remained fail”. 6. During the course of hearing, I asked Mr. Sahay and Mr. Tandon to ask their clients and inform this Court on what amount they are agreeable. Mr. Sahay on taking instruction from the petitioner submitted that at best petitioner can pay a sum of Rs.5 lacs but in five yearly installments of Rs.1 lac each. Mr. Tandon on instruction submitted that the respondent agreed before the conciliator for an amount of Rs. 6 lacs, though her claim of Rs.10 lacs was reasonable. He further submitted that the respondent will be agreeable to any amount and/or terms and conditions which may be fixed by this Court. 7. On this, Mr. Sahay also submitted that the petitioner will also be agreeable to the amounts and/or terms and conditions as may be fixed by this Court. Mr. Sahay and Tandon both agreed that it will be in nobody’s interest, if the parties indulge in litigation further. 8. In the facts and circumstances, noticed above and in the interest of justice, I pass the following order. As it could not be denied that the petitioner was ready to pay Rs. 3 lacs before the Conciliator, petitioner is directed to deposit a demand draft of Rs.3 lacs in the name of the respondent with the Registrar General of this Court within two months from today, which the respondent will be entitled to withdraw. As it could not be denied that the petitioner was ready to pay Rs. 3 lacs before the Conciliator, petitioner is directed to deposit a demand draft of Rs.3 lacs in the name of the respondent with the Registrar General of this Court within two months from today, which the respondent will be entitled to withdraw. Petitioner is also directed to deposit demand drafts of Rs.3 lacs in the name of the respondent in the following manner. One lac by 30th June, 2009; one lac by 31st December, 2009 and the last installment of Rs.1 lac by 30th June, 2010, which the respondent will be entitled to withdraw. If the petitioner deposits the said amount of Rs.3 lacs within two months, all further proceedings in all the cases pending between the parties in different courts including the interim maintenance of Rs.1,000/-granted in Matrimonial Case No. 17 of 2000, shall remain stayed. However, if the petitioner fails to deposit the said amount of Rs.3 lacs or any installment, as aforesaid, this writ petition shall stand automatically dismissed. If the petitioner and the respondent obeys this order fully, all the cases pending between them in different courts shall stand closed. With these observations, and directions, this writ petition is disposed of.