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2009 DIGILAW 3678 (ALL)

Mohit Tandon v. Preeti Tandon

2009-12-07

RAJIV SHARMA, SATISH CHANDRA

body2009
JUDGMENT : Rajiv Sharma, Satish Chandra, JJ. Heard Sri Mohd. Arif Khan, senior advocate assisted by Sri Amit Arora, learned Counsel for the defendant/appellant and Sri S.C. Shukla, learned Counsel for the plaintiff/respondent. 2. The afore-captioned First Appeal No. 1 of 2007 arises out of the order dated 28.10.2006, passed by the Principal Judge, Family Court, Lucknow in Regular Suit No. 174 of 1999 u/s 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as the 'Act' for the sake of brevity), whereas First Appeal No. 2 of 2007 arises out of the order dated 28.10.2006, passed by the Principal Judge, Family Court, Lucknow (hereinafter referred to as the 'Family Court' for the sake of brevity) in Regular Suit No. 1246 of 2001 u/s 9 of the Act. 3. Since both the suits, i.e., Regular Suit Nos. 174 of 1999 and 1246 of 2001, were decided by a common order dated 28.10.2006 by the family court and the same have been challenged in First Appeal Nos. 1 of 2007 and 2 of 2007 before this Court, therefore, both the appeals were connected and heard together. Now both these appeals are being disposed of by a common order. 4. Brief background of the case as is reflected from the record is that the marriage between the appellant- Mohit Tandon and respondent-Preeti Tandon was solemnized on 3.3.1995 according to Hindu rites and customs. On 14.10.1995, respondent-Preeti Tandon, for whatever reason, left her matrimonial home and went back to her parents and since then the couple is living separately. In December, 1995, the father of respondent-Preeti Tandon lodged a complaint against the appellant and his parents u/s 498A of the Indian Penal Code. On the basis of the said complaint, police arrested the appellant and his parents in the month of June, 1997. Thereafter, the appellant and his parents were released on bail from the court of C.J.M., Hardoi, in the said criminal proceedings. 5. On 3.8.1997, a reconciliation proceeding was initiated by the appellant through Secretary of Khatri Mahasabha, namely, Sri Ravindra Seth, in which, parties came to the amicable solution that the father of the respondent will withdraw the case filed u/s 498A of the Indian Penal Code against the appellant and the appellant would treat and accept the respondent as his wife. On 3.8.1997, a reconciliation proceeding was initiated by the appellant through Secretary of Khatri Mahasabha, namely, Sri Ravindra Seth, in which, parties came to the amicable solution that the father of the respondent will withdraw the case filed u/s 498A of the Indian Penal Code against the appellant and the appellant would treat and accept the respondent as his wife. However, to give some breathing time, the next meeting was fixed for 10.8.1997 but on 10.8.1997, none of the family members of the respondent attended the meeting. Thus, the parties failed to come to any terms. It is said that on 11.6.1998 and 13/14.6.1998, father and mother of the appellant died due to shock and mental agony. 6. Subsequently, the appellant-husband filed a suit for decree of divorce u/s 13 of the Hindu Marriage Act on the ground of cruelty and desertion, which was registered as Suit No. 174 of 1999. On the other hand, the respondent-Preeti Tandon filed a case u/s 125, Cr. P.C. in the court of Judicial Magistrate, Hardoi. 7. After considerable lapse of time from filing Regular Suit No. 174 of 1999 by husband Mohit Tandon u/s 13 of the Act, the respondent-Preeti Tandon filed a suit, bearing Regular Suit No. 1246 of 2001, u/s 9 of the Act for restitution of conjugal rights. The record also reveals that the wife-Preeti Tandon filed a Case No. 967 of 2000 u/s 125, Cr. P.C. claiming half benefit of salary and other service benefits on 11.10.2000. This case was withdrawn on 24.11.2001. After the institution of Misc. Case No. 194C of 1999, Preeti Tandon v. Mohit Tandon, u/s 24 of the Hindu Marriage Act, the Court granted monthly maintenance of Rs. 390 as interim maintenance, Rs. 2,000 towards the case expenses and Rs. 150 as visiting charges to the Court. 8. This case was withdrawn on 24.11.2001. After the institution of Misc. Case No. 194C of 1999, Preeti Tandon v. Mohit Tandon, u/s 24 of the Hindu Marriage Act, the Court granted monthly maintenance of Rs. 390 as interim maintenance, Rs. 2,000 towards the case expenses and Rs. 150 as visiting charges to the Court. 8. Initially, the family court, on the basis of pleadings and arguments advanced before it, framed four issues in Regular Suit No. 174 of 1999 filed by the appellant, which are as under: 1- D;k fookg vuq"Bkiu ds i'pkr~ izfrokfnuh us ;kfpdkdrkZ ds lkFk bl izdkj Øwjrk iwoZd O;ogkj fd;k fd nksuksa ds e/; oSokfgd lEcU/k pyus dh fLFkfr esa ugha jg x;k gS A ;fn gkWa rks bldk izHkko\ 2- D;k izfrokfnuh us ;kfpdkdrkZ dks ;kfpdk lafLFkr fd;s tkus ds vO;griwoZ nks o"kZ dh fujarjrk dh vof/k ls vfHkR;Dr dj j[kk gS A ;fn gka rks bldk izHkko\ 3- ;kfpdkdrkZ fdl vuqrks"k ds ikus dk vf/kdkjh gS\ 9. On 30.7.2002, the family court, on the basis of the pleadings and arguments advanced by the parties, observed that in view of the pendency of proceedings u/s 9 as well as Section 13 of the Act, it would be appropriate in the ends of justice to frame an additional issue and consequently, framed the following additional issue: 4- D;k ;kph eksfgr V.Mu us izR;fFkZuh izhfr VaM+u dks fcuk fdlh leqfpr dkj.k ds ifjR;Dr dj fn;k gS vkSj D;k izR;fFkZuh izhfr VaMu nkEiR;thou vf/kdkjh dh LFkkiuk dh vkKfIr izkIr djus dh vf/kdkfj.kh gS\ 10. The family court, after hearing the parties and on the basis of the evidence adduced as well as material on record, vide order dated 28.10.2006, dismissed Regular Suit No. 174 of 1999 filed by the appellant u/s 13 of the Act and decreed Regular Suit No. 1246 of 2001 filed by the respondent u/s 9 of the Act for restitution of conjugal rights in favour of respondent. It was also provided in the said judgment that the appellant would accept the respondent as his wife and shall live together. 11. It was also provided in the said judgment that the appellant would accept the respondent as his wife and shall live together. 11. Against the order dated 28.10.2006, the appellant preferred these appeals inter alia on the grounds that admittedly, the respondent-wife left the residence of the husband-appellant on 14.10.1995 and had deserted him for a continuous period of more than two years which has been admitted by her in the proceeding u/s 125 of Code of Civil Procedure. Further, a complaint was lodged by respondent's father against the appellant, his father and mother (now deceased) u/s 498A, Indian Penal Code, in which the appellant was arrested by the police. Now, the appellant and respondent are living separately since last more than fourteen years, i.e., w.e.f. 14.10.1995 and in view of initiation of proceeding u/s 125, Cr. P.C. as also the lodging of criminal case u/s 498A, I.P.C., there is no likelihood of parties living together and lead peaceful matrimonial life. It was also alleged that the respondent-wife never made any sincere efforts to come to her matrimonial house though there were number of occasions like serious ailment of appellant's mother and when the appellant lost his parents. 12. As these appeals are related with the matrimonial affairs in which the young couple was involved, this Court, vide order dated 1.11.2007, referred the dispute for amicable settlement to the Mediation and Conciliation Centre, High Court, Lucknow and the parties were directed to appear before Mediation and Conciliation Centre, High Court, Lucknow. Pursuant to the order dated 1.11.2007, reconciliation proceedings were started by the Mediator, Mediation and Conciliation Centre, High Court, Lucknow Bench, Lucknow and both the parties appeared. The Mediator, vide order dated 28.11.2007, reported that more than seven hours in total for mediation on different dates, i.e., 5.11.2007, 14.11.2007 and 28.11.2007 were devoted but it concluded without any amicable solution and agreement between the parties. 13. From the perusal of the mediator's report, it is evident that the willingness was shown on behalf of the respondent-wife to the effect that she was ready to go back with the husband-appellant but such an attempt ended in failure on account of non-cooperation of the husband. 14. 13. From the perusal of the mediator's report, it is evident that the willingness was shown on behalf of the respondent-wife to the effect that she was ready to go back with the husband-appellant but such an attempt ended in failure on account of non-cooperation of the husband. 14. It would not be out of place to mention here that when the case was called out in the first round, on the request of Sri Amit Arora, learned Counsel for the appellant that the case be passed over as Sri Mohd. Arif Khan, senior advocate, had to argue the matter on behalf of the appellant. When the case was called out in the second round, Mohd. Arif Khan, senior advocate, was present, who was requested to come prepared with the case at 1 p.m. in the Chamber of one of us (Hon'ble Rajiv Sharma. J.) alongwith the parties. At 1 p.m., parties, i.e., appellant and respondent appeared in person in the Chamber of one of us (Hon'ble Rajiv Sharma, J.) but Sri Mohd. Arif Khan did not turn up. In the Chamber, we also persuaded the husband and the wife to come to an amicable settlement and live a happy life but our efforts also went in vain as the appellant did not show any intention to take his wife though the wife was ready and showed her willingness to go with her husband. Thereafter, at about 1.25 p.m., Sri Mohd. Arif Khan, senior advocate, appeared and submitted that the case may be decided on merits. At 2 p.m., when the case was called out, again a request was made by Sri Amit Arora that the case may be passed over as Sri Mohd. Arif Khan is arguing the matter in another Court. Consequently, the Court waited for Sri Mohd. Arif Khan till 2.45 p.m. but he did not turn up. Thereafter, the Court requested Sri Amit Arora to start arguing the matter on merit but he repeated similar request that the case may be passed over. We are painful to record the above happenings as it reflects the conduct of the counsel in such sensitive cases. In these circumstances, the Court proceeded to decide the matter on merits after going through the records and with the assistance rendered by Sri Amit Arora, counsel for the appellant and Sri S. C. Shukla, counsel for the respondents. 15. We are painful to record the above happenings as it reflects the conduct of the counsel in such sensitive cases. In these circumstances, the Court proceeded to decide the matter on merits after going through the records and with the assistance rendered by Sri Amit Arora, counsel for the appellant and Sri S. C. Shukla, counsel for the respondents. 15. Sri S. C. Shukla, learned Counsel for the respondent submits that respondent is ready to live with the appellant without any terms and condition. Appellant, who is working as Technician in Indian Telephone Industry Gomti Nagar, Lucknow, is drawing around Rs. 16,000 per month as salary at present. Appellant has inherited a house, bearing No. 414/148, Sarai Mali Khan, Post Office Chowk, Lucknow and from the house in question, he is earning Rs. 36,000 per year as rental income. He also submits that appellant has inherited a shop situated at Nazirabad, which was sold by him for Rs. 16,00,000 in year 2005-2006. 16. As regards to the other proceedings, he submitted that respondent-wife had filed a suit for maintenance, bearing Case No. 515 of 1998 u/s 125, Cr. P.C. and the court below allowed the said suit by directing the appellant to pay Rs. 500 per month and the same was decided finally on 16.12.1998 in terms of compromise in Hardoi. He submits that respondent has no independent source of income to maintain herself and meet the necessary legal expenses to contest the cases. 17. Sri Amit Arora, learned Counsel for the appellant submits that admittedly, physical relationship did not subsist after 14.10.1995, which is the essence of the marital life and in view of the statement made by her coupled with the fact that a complaint was lodged by her father against the appellant and his father and mother (now deceased) u/s 498A, I.P.C, in which the appellant was arrested by police and remained in police lock up for a day and further despite an offer being made by the appellant on earlier occasion to keep the respondent but the respondent utterly refused to reside permanently with the appellant to lead a peaceful life. The surrounding circumstances and the fact that on account of lodging of criminal case the parents who had to go Jail, suffered serious mental trauma and ultimately left for heavenly abode but all these facts have not been considered by the family court and a compulsive order has been passed without there being any cogent reason. The family court also erred in not taking into consideration the fact that it was his wife who deserted and neglected him and wanted to live separately. He also submits that the learned court below while dismissing the petition for divorce and in decreeing the petition for restitution of conjugal rights, has failed to consider not only the entire oral and documentary evidence on record in its proper perspective but had also failed to consider the subsequent events during the pendency of the case disentitling her to get the decree for restitution as prayed for. 18. We have heard learned Counsel for the parties and perused the records and impugned Judgment. 19. The essence of marriage is a sharing of common life, a sharing of all the happiness that life has to offer and all the misery that has to be faced in life. The ground of act of cruelty are to be distinguished from ordinary wear and tear of family. 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. The ideal couple or a mere ideal one will probably have no occasion to go to matrimonial court. 20. It may be added that cruelty may be inferred from the facts and matrimonial relations of the parties and interaction in their daily life disclosed by the evidence and inference on the said point can only be drawn after all the facts have been taken into consideration. Where there is proof of deliberate course of conduct on the part of one, intended to hurt and humiliate the other spouse, and such a conduct is persisted, cruelty can easily be inferred. Neither actual nor presumed intention to hurt the other spouse, is a necessary element in cruelty. 21. Where there is proof of deliberate course of conduct on the part of one, intended to hurt and humiliate the other spouse, and such a conduct is persisted, cruelty can easily be inferred. Neither actual nor presumed intention to hurt the other spouse, is a necessary element in cruelty. 21. Taking into consideration the facts in its entirety and the failure of settlement between them either before the lower court and also by us, we are of the view that the marriage has seized to exist in substance and in reality, living apart is a symbol indicating the negation of such sharing. It is indicative of the disruption of the essence of marriage. From the circumstances, we are fully convinced that the marriage between the parties is irretrievably broken down because of incompatibility of temperament. In fact, there has been total disappearance of emotional substratum in the marriage. The matrimonial bond between the parties has been wrecked beyond the hope of salvage and cannot be repaired. The Apex Court in number of cases, namely, Harpit Singh Anand Vs. State of West Bengal, (2004) 10 SCC 505 , Kanchan Devi (Smt) Vs. Promod Kumar Mittal and Another, (1996) 8 SCC 90 , and Ashok Hurra Vs. Rupa Bipin Zaveri, (1997) 4 SCC 226 , in order to do complete justice, granted decree of divorce and directed for closer of all sort of proceedings between the parties. 22. In the instant case, the record is clear that the parties are living separately and are not discharging their matrimonial obligations continuously for the last over 15 years and there is no possibility of any reconciliation. Thus, the conclusion is inevitable that the marriage has broken down completely and irretrievably and as such there is no point in compelling them to live together and to make their life more miserable. 23. In Sandhya Rani v. Kalyanram Narayanan, reported as the Apex Court while reiterating the stand that there is no justification for continuing with the marriage which has broken down irretrievably took the view that since the parties are living separately for last more than three years there is no doubt in taking the stand that the marriage between the parties has broken down irretrievably and, therefore, the Court has no option but to grant decree of divorce. 24. In the case of Mrs. Chandrakala Memon and Anr. v. Capt. Vipin Memon and Anr. 24. In the case of Mrs. Chandrakala Memon and Anr. v. Capt. Vipin Memon and Anr. JT 1993 (1) SC 229, the Apex Court held that when the parties were living separately for many years and there appear to be no scope of settlement between them with no chance of their coming together, the decree of divorce was justified. Similar view was expressed by the Supreme Court in the case of Smt. Kanchan Devi v. Pramod Kumar Mittal and Anr. AIR 1996 SC 192. In the said case, the parties were living separately for more than 12 years and it appeared to the Court that there was no possibility of any reconciliation and as such directed for the dissolution of marriage by a decree of divorce. 25. It is indeed the obligation of the Court and all concerned that the marriage status should, as far as possible, as long as possible and whenever possible, be maintained. But when the marriage is totally dead, in that event, nothing is gained by trying to keep the parties tied forever to a marriage which infact has ceased to exist. 26. In view of the aforesaid decisions, to end the miseries of the parties and to allow them to henceforth live a happy and peaceful life by brining to an end the litigation appear to be a more sound, reasonable and practical decision. The parties are living separately for about 15 years and there is no possibility of their uniting. Thus, for all practical purposes the marriage is completely dead. In view of the above and the allegations/counter allegations levelled against each other, the element of cruelly on the part of both of them is also inherent. The Apex Court in the case of Naveen Kohli Vs. Neelu Kohli, (2006) 4 SCC 558 , suggested that the break down of marriage completely be added as one of the grounds for obtaining divorce. In Satish Sitole Vs. Smt. Ganga, (2008) 7 SCC 734 , the Supreme Court ruled and laid down that the living of parties to a marriage separately for a long time, making acrimonious allegations against each other amounts to cruelty and continuance of such marriage is a further act of cruelty. In Satish Sitole Vs. Smt. Ganga, (2008) 7 SCC 734 , the Supreme Court ruled and laid down that the living of parties to a marriage separately for a long time, making acrimonious allegations against each other amounts to cruelty and continuance of such marriage is a further act of cruelty. Therefore, following the principle of 'live and let live' and the precedent laid down by the Apex Court, it is desirable and expedient in the interest of justice to set aside the impugned orders passed by the family court and to allow the appeals. 27. The husband-appellant is working in the I.T.I. Department. The wife-respondent has no independent income. Therefore, so far as the permanent alimony is concerned though there is no application but taking the holistic view of the matter, it would be in the interest of justice to grant a lump sum alimony of Rs. 5,00,000 (Rupees five lacs) to the respondent-wife, who has lost her youth in litigation. By this amount, she can certainly stand up on her own and live a more decent life. Accordingly, the appeal stands allowed and the decree of divorce is granted. The appellant shall pay a lump sum permanent alimony of Rs. 5 lacs within a period of four months from today. In case the appellant is not paid Rs. 5,00,000 to the respondent-wife within the period prescribed above, the District Magistrate, Lucknow is directed to recover the said amount as arrears of land revenue from the petitioner and after its recovery, shall be paid to the respondent-wife. It may also be added that the family court directed for payment of Rs. 500 as monthly maintenance which was also not paid by the appellant regularly which would be evident from the fact that in April. 2008 the Judicial Magistrate, Hardoi passed an order for recovery of Rs. 6,000. There is no evidence on record to show that the appellant has paid the arrears of interim maintenance to the respondent-wife. Therefore, the appellant is also directed to pay a lump sum amount of Rs. 25,000 towards the arrears of maintenance alongwith the aforesaid amount. 28. It is also provided that the parties shall move appropriate application in all the pending cases including criminal for its closure in view of the above order.