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2011 DIGILAW 830 (JHR)

Ram Pravesh Sharma v. Bindu Devi

2011-09-05

P.P.BHATT, PRAKASH TATIA

body2011
JUDGMENT: This appeal has been preferred against the judgement and decree dated 3rd June, 2006 passed by the Court of 4th Additional District Judge, Palamau at Daltonganj in Matrimonial Case No. 08 of 2004 whereby the divorce petition filed by the husband-appellant under section 13 of the Hindu Marriage Act and in alternative for judicial separation has been dismissed. The appellant sought decree for divorce on the ground of desertion and cruelty. 2. Learned counsel for the appellant submitted that marriage of the appellant with the respondent was solemnized on 9th July, 2000 and the appellant was unemployed at the time of marriage and the respondent after marriage on 9th July, 2000, came to the house of the appellant on 10th July, 2000 and resided there till 20th August, 2000 and was taken back to her parental house by her brother Kamalkant Sharma where she stayed till her vidai on 22nd November, 2000. Thereafter, she was taken back by her father on th February, 2001 and she stayed with her parents for three months and came back to the appellant's house on 7th May, 2001 and ultimately, from 22nd May, 2001 the respondent is not residing with the appellant. 3. There are allegations of cruelty as well as of desertion levelled against the respondent. The respondent filed a written statement and controverted the allegations and she submitted that she is a dedicated wife and maintains all norms of decipline, decorum and decency, however, inspite of slapping and beating and use of abusive language and demand of money and costly items by her in-laws. The respondent alleged that she was forced to live separately. The Trial Court framed the issues and witnesses were examined and after considering the statement of the witnesses produced by the parties, the Trial Court rejected the allgations of the appellant and, therefore, dismissed the divorce petition by the impugned judgement and decree dated 3rd June, 2006. 4. During this appeal, efforts were made for reconciliation which failed and the respondent-wife on 15th March, 2011 submitted affidavit alleging that the appellant has already contracted second marriage with another lady whose name has also been given with full details and identity. 4. During this appeal, efforts were made for reconciliation which failed and the respondent-wife on 15th March, 2011 submitted affidavit alleging that the appellant has already contracted second marriage with another lady whose name has also been given with full details and identity. The respondent also stated that she has already filed a criminal complaint case before the Court of Chief Judicial Magistrate, Palamau being Case No. C-654/2009 under section 498-A I.P.C. as well as under the provision of Dowry Prohibition Act. She also stated that in another case, maintenance has been awarded to the respondent @Rs.500/-per month and the order of maintenance was challenged before this Court in W.P.(C) No. 1991 of 2005 which has already been dismissed by this Court on 3rd May, 2005. The respondent submitted that in view of contracting second marriage by the appellant, now the respondent also wants to break the marriage tie and wants to get the matter settled. She claimed permanent alimony of Rs.10,00,000/-. 5. We also perused the report submitted by the Conciliation Officer. 6. The appellant has submitted in another affidavit filed on 25.08.2011 stating therein that he is working on the post of para-teacher and getting Rs.150/-per day which amounts to Rs.4,500/-per month to the maximum. He has no other source of income and after exploring all possibilities of payment of the maintenance amount to the respondent, he found that he can pay Rs.2,50,000/-in five equal instalments of Rs.50,000/-each commencing 1st week of October, 2011. 7. Learned counsel for the respondent submitted that the appellant has already filed the affidavit indicating that there is no possibility of settlement in view of her allegations. However, the appellant is controverting the allegation of second marriage. 8. Be that as it may, the facts clearly reveals that marriage of the parties took place in the year 2000 and that too, in the month of July, 2000 and they admittedly are living separately since May, 2001. The allegations of appellant appears against the respondent of cruelty whereas the respondent's allegations as levelled in her reply to the divorce petition is of cruelty against the respondent by the appellant and his family members. A criminal case has already been initiated and there is allegation of second marriage after which the respondent herself stated on oath that it is a case of breakdown of the marriage tie. 9. A criminal case has already been initiated and there is allegation of second marriage after which the respondent herself stated on oath that it is a case of breakdown of the marriage tie. 9. We are of the considered opinion that by this time, it is a case of irretrievable breakdown of marriage. We are concious that irretrievable breakdown of marriage yet is not a ground for divorce as such ground is not provided under section 13 of the Hindu Marriage Act for grant of decree for divorce but when there is allegation of cruelty against each other and lodging of criminal case by the wife and admittedly both the parties are living separately for the last ten years, then case for divorce on the ground of desertion is made out on the basis of which the decree for divorce can be passed and, therefore, we are of the considered opinion that it is a fit case where decree for divorce is required to be passed which will be in the interest of both the parties looking to wishes of both the parties to separate. 10. So far as the award of permanent alimony is concerned the respondent was awarded Rs.500/-per month but that was a meagre amount and at the same time the appellant is only a para-teacher and according to him, he is getting salary of Rs.150/-per day which amounts to Rs.4,500/-per month and he also has his own liabilities and the respondent could not place on record any other material so as to indicate that appellant has other source of income and properties. 11. Looking to the total status of the parties, we are of the considered opinion that a lump-sum amount of Rs.2,50,000/-will be appropriate amount which will sufficient one time amount of maintenance in lump-sum for the respondent. Therefore, by passing the decree for maintenance, we order that the appellant shall pay Rs.2,50,000/-for consideration of maintenance for life to the respondent. However, looking to the financial condition of the appellant, the appellant is directed to pay Rs.75,000/-by 1st of October, 2011 as first instalment against Rs.2,50,000/-of maintenance amount, the remaining amount shall be payable in four equal instalments after 1st October, 2011 of four monthly instalments. 12. In view of the above reasons, the appeal is allowed. Impugned judgement and decree dated 3rd June, 2006 is set aside. 12. In view of the above reasons, the appeal is allowed. Impugned judgement and decree dated 3rd June, 2006 is set aside. The divorce petition of appellant is allowed and the marriage of the appellant and the respondent is hereby dissolved from today and the appellant shall pay the maintenance amount as awarded above.