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2011 DIGILAW 360 (GAU)

Ratna Sen v. Apan Sen

2011-04-25

BIPLAB KUMAR SHARMA, UTPALENDU BIKAS SAHA

body2011
JUDGMENT Biplab Kumar Sharma, J. 1. Heard Ms. N. Guha, learned Counsel for the Appellant wife. Also heard Mr. R.R. Dutta, learned Counsel appearing for the Respondent husband. 2. This appeal is directed against the judgment and order dated 15.6.2007, passed by the learned Family Court, Agartala, West Tripura in Case No. Title Suit (Divorce) 60 of 2006. By the said judgment and order, the petition filed by the Respondent husband under Section 13 of the Hindu Marriage Act, 1955 for a decree of divorce against the Appellant wife has been allowed with the provision for monthly maintenance of Rs. 2,000/- to the Appellant wife and Rs. 1,000/- each to her two minor sons. It is submitted by the learned Counsel for the Appellant wife that on the basis of an application filed by the Appellant wife such maintenance allowance of Rs. 4,000/- as was granted by the learned Family Court has been enhanced to Rs. 5,200/- per month by an order dated 2.4.2011. 3. While the learned Counsel for the Appellant wife submits that the impugned judgment and order dated 15.6.2007 is not sustainable in law inasmuch as the learned Family Court failed to appreciate the evidence on record in its true perspective, Mr. Dutta, learned Counsel appearing for the Respondent husband submits that it being a case of breakdown of the marriage for all practical purposes, the learned Family Court has rightly passed the impugned judgment and decree. He further submits that after the impugned judgment and order, the Respondent husband has once again entered into a marital tie and presently he is living a married life with a minor daughter. Be it stated here that the marriage took place before the filing of the appeal. 4. We have considered the submissions made by the learned Counsel for the parties and the entire materials on record. On the basis of the pleadings of the parties, the learned Family Court while framing the following issues answered the same in the affirmative. The issues are:- (1) Whether the case is maintainable in its present form and nature? (2) Whether the Petitioner is entitled to a decree of divorce as prayed for? (3) Any other relief/reliefs, the parties are entitled thereto? 5. The issues are:- (1) Whether the case is maintainable in its present form and nature? (2) Whether the Petitioner is entitled to a decree of divorce as prayed for? (3) Any other relief/reliefs, the parties are entitled thereto? 5. On the basis of the evidence on record, it is found that there was virtually breakdown of the marriage and accordingly, the learned Family Court was inclined to grant the decree of divorce. Following are the factors which were considered by the learned Family Court towards granting the decree of divorce: (i) Both the parties admitted their differences and in fact there was attack and counter-attack between the parties, which resulted in injuries to both the parties as a consequence of which the Respondent husband had to remain in hospital for the period from 15.12.2004 to 25.12.2004. At this stage, learned Counsel for the Appellant wife also submits that in fact the Appellant wife was also admitted in hospital and she was in the hospital for the period from 15.12.2004 to 23.12.2004. (ii) Prior to the petition under Section 13 of the Hindu Marriage Act, there was a criminal proceeding against the Respondent husband at the instance of the Appellant wife. The said proceeding was under Sections 498(A)/326/307 of the Indian Penal Code and the same was registered and numbered as GR Case No. 843 of 2004. The Respondent husband, however, was acquitted from the said proceeding. (iii) Both the parties have been living separately since 15.12.2004. Prior to that also they lived separately on different occasions and had compromised their differences with the pledge to live together, but with failure. (iv) Even during the trial proceeding, the Court initiated a move for reconciliation, but the same resulted in failure. The Appellant wife although agreed for restoration of conjugal life, but she insisted for her husband to live together only at Agartala. 6. The learned Family Court has discussed in detailed about the allegations and counter-allegations by and between the parties towards the finding that it was a case of total breakdown of marriage. The Appellant wife although agreed for restoration of conjugal life, but she insisted for her husband to live together only at Agartala. 6. The learned Family Court has discussed in detailed about the allegations and counter-allegations by and between the parties towards the finding that it was a case of total breakdown of marriage. It has been observed in the impugned judgment that the marital relationship between the parties has completely broken down and it will not be healthy for the parties to live together as husband and wife because of the fact that psychologically both the parties are afraid of each other and nourished hatred and bitterness to the point of no return. Coupled with this fact, the Respondent husband has now settled down marriage out of which a daughter has also born to him. 7. In view of the above fact, we are of the considered opinion that no useful purpose would be served to restore the marriage by and between the parties and accordingly, we confirm the impugned judgment and order dated 15.6.2007. 8. Above now leads us to the question what should be the quantum of monthly maintenance that should be paid by the Respondent husband to the Appellant wife and their children, i.e. two sons. As noticed above, the monthly maintenance of Rs. 4,000/- that was granted by the learned Family Court by its impugned judgment and order has since been enhanced to Rs. 5,200/- by an order dated 2.4.2011 on the basis of an application filed by the Appellant wife. Learned Counsel for the Respondent husband submits that such enhancement by the order dated 2.4.2011 is ex parte inasmuch as the Respondent husband did not have any knowledge about initiation of further proceeding by the Appellant wife. Be that as it may, considering the time that has elapsed since the date of the impugned judgment, i.e. 15.6.2007, we are of the considered opinion that the Appellant wife along with her two sons is entitled to monthly maintenance of Rs. 5,500/- from the month of May 2011 which the Respondent husband shall continue to pay per month without any delay. It is hereby ordered that the monthly maintenance shall be paid by the Respondent husband to the Appellant wife in the first week of every month. 5,500/- from the month of May 2011 which the Respondent husband shall continue to pay per month without any delay. It is hereby ordered that the monthly maintenance shall be paid by the Respondent husband to the Appellant wife in the first week of every month. At this stage, learned Counsel for the Respondent husband submits that the Respondent husband will continue to pay the monthly maintenance regularly. He also fairly submits that the Respondent husband will deposit the monthly maintenance every month in the SB A/C. No. 11127 standing in the name of the Appellant wife in the Tripura Gramin Bank, Jogendranagar Branch, Agartala, West Tripura. 9. With the above observations and directions, this appeal is disposed of.