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2013 DIGILAW 1817 (BOM)

S v. D

2013-09-04

A.S.OKA, REVATI MOHITE DERE

body2013
JUDGMENT A. S. OKA, J. As this Judgment will be available on public domain, we have described the Appellant and Respondent as 'S' and 'D' respectively. The Appellant-husband has taken an exception to the judgment and decree dated 18th August, 2003 passed by the learned Judge of the Family Court, Pune, by which a petition for divorce filed by the Appellant and the counter-claim made by the Respondent wife for restitution of conjugal rights have been dismissed. We must note here that the earlier Division Bench had kept the Appeal in Chamber with a view to bring about amicable settlement between the Appellant and Respondent. However, as amicable settlement was not possible, on 20th August, 2013, the Appeal was directed to be placed on final hearing board. Accordingly, we have taken up the Appeal for final hearing. 2. The Appellant husband applied for divorce on the ground of cruelty and desertion under clauses (ia) and (ib) of sub-section (1) of Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as "the said Act"). With a view to appreciate the submissions made across the bar, it will be necessary to make a brief reference to the factual aspects of the case. 3. The marriage between the Appellant and the Respondent was solemnized on 4th December, 1994 according to Hindu Vedic Rites. A female child was born on 24th November, 1995 from the wed-lock. 4. In support of the plea of cruelty, various allegations have been made by the Appellant. The allegations start from the very day of marriage. It is contended that on the day of marriage, the parties went to Shegaon to pay obeisance to Saint Gajanan Maharaj. It is alleged that the Respondent wife refused to visit the temple. It is alleged that for a period of 6 months from the marriage, the Respondent cohabited properly. The allegations are made in the petition by the Appellant that thereafter, the Respondent started becoming obstinate. She did not attend to the domestic work properly. It is alleged that she insulted the Appellant's parents and brother. It is alleged that on two occasions, the Respondent threw away her Mangalsutra towards the Appellant by stating that she did not want his bondage and wanted to return to her father. It is alleged that in June 1995, the Respondent proceeded to her parent's home for the purpose of delivery. It is alleged that on two occasions, the Respondent threw away her Mangalsutra towards the Appellant by stating that she did not want his bondage and wanted to return to her father. It is alleged that in June 1995, the Respondent proceeded to her parent's home for the purpose of delivery. However, she did not resume cohabitation for a period of one year. It is alleged that without consulting the Appellant or his parents, the Respondent and her parents scheduled the naming ceremony of the girl child on 21st December, 1995 and gave intimation of the same to the Appellant only two days prior to the said date. It is alleged that the Appellant visited the house of the Respondent's parents to bring her back. It is alleged that the Respondent insulted the Appellant at the time of visit. It is alleged that the parties resumed co-habitation, but the behaviour of the Respondent did not improve. She started insisting that the Appellant should make an arrangement for their separate residence. The averments have been made in the petition as regards the conduct of the Respondent in relation to marriage of the Respondent's cousin. There is an allegation made in the petition that the Respondent always used to tell the Appellant that she should be sent back to her parent's home. It is alleged that in March, 1998, the Respondent beat minor daughter by a stick who is only two years of age at that time. It is alleged that Respondent has made false allegations against the Appellant and his parents, therefore, the Appellant was compelled to send a message to Respondent's father and call Respondent's father to Pune where the parties were cohabiting. It is alleged that Respondent's father decided to take the Respondent with him but the Appellant resisted. Due to resistance, the Respondent's father filed a complaint with Shramik Mahila Sanstha as well as Hadapsar Police outpost. The Respondent's father alleged in the complaint that the Appellant may cause danger to the life of the Respondent. It is alleged that Respondent's parents took Respondent with them on 2nd April, 1998. On 7th April, 1998, the Appellant issued a notice through his. Advocate to the Respondent calling upon her to resume cohabitation. The notice was replied on 29th April, 1998 contending therein that she apprehended danger to her life and on that ground, she declined to resume cohabitation. On 7th April, 1998, the Appellant issued a notice through his. Advocate to the Respondent calling upon her to resume cohabitation. The notice was replied on 29th April, 1998 contending therein that she apprehended danger to her life and on that ground, she declined to resume cohabitation. The Respondent filed an application under Section 125 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the said Act") in the Court of Judicial Magistrate, First Class, Buldhana, in which order of maintenance was passed. It is stated by the Appellant that he filed marriage petition No.458 of 1998 praying for the relief for restitution of conjugal rights. It is the case of the Appellant that as the Respondent did not resume cohabitation, on 16th March, 2001, the said petition was withdrawn by him. It is alleged that on 15th February, 200 I, the Respondent addressed a letter to the Appellant's father. It is alleged that very objectionable language was used by the Respondent in the said letter about the Appellant's elder brother and his wife. It is alleged that on 15th March, 2001, the Respondent made a phone call to the father of the Appellant and abused him. As stated earlier, the Appellant filed a petition for divorce both on the grounds of cruelty and desertion. The petition was lodged on 7th April, 2001. 5. The Respondent contested the petition by filing a written statement-cum-counter claim. There is a general denial of the averments made in the Appellant's petition in the said written statement. It is stated in the written statement that for the reasons recorded therein with the consent of the Appellant and his elder family members, the Respondent continued to stay with her parents' place even after delivery of the child. It is alleged that the parents of the Appellant had assaulted Respondent and caused physical and mental cruelty to her. It is stated that the Appellant telephonically informed the Respondent's parents at Buldhana, calling upon them to come to Pune. Accordingly, on 31st March, 1998, the Respondent's father came to Pune. When he requested the Appellant to allow the Respondent to accompany him to Buldhana, the Appellant and his father insisted that he should agree for grant of divorce. It is alleged that as the Respondent's father was threatened and insulted, he lodged a complaint with Shramik Mahila Sanstha. Accordingly, on 31st March, 1998, the Respondent's father came to Pune. When he requested the Appellant to allow the Respondent to accompany him to Buldhana, the Appellant and his father insisted that he should agree for grant of divorce. It is alleged that as the Respondent's father was threatened and insulted, he lodged a complaint with Shramik Mahila Sanstha. It is stated that even the intervention by the workers of said Sanstha failed and that is the reason why the Respondent's father was compelled to approach the police. It is alleged that the Appellant's father gave a consent in writing before the Police to accompany Respondent's father and that is how the Respondent accompanied her father to Buldhana. It is stated in the written statement that Respondent replied to the legal notice dated 7th April, 1998. It is stated that after filing of the petition, the Respondent agreed before the Court to resume cohabitation, considering the welfare of the minor child. The prayer in the counter-claim was for restitution of conjugal rights. 6. The parties adduced evidence before the Family Court. The Appellant examined him self by filing an affidavit-in-lieu of examination-in-chief. The Appellant examined his father by filing his affidavit-in-lieu of examination-in-chief. The Appellant also examined his brother as a witness. Respondent examined herself by filing affidavit-in-lieu of examination-in-chief. She also examined her mother who was also extensively cross-examined by the Appellant's Advocate. 7. As we have observed earlier, the learned Judge of the Family Court held that the Appellant failed to establish both the grounds pleaded by him. The Family Court also held that the Respondent is disentitled to a decree of restitution of conjugal rights. We may note here that there is neither an appeal nor a cross-objection preferred by the Respondent wife for challenging that part of the decree by which counter-claim filed by her was dismissed. 8. The learned counsel appearing for the Appellant has taken us through the pleadings, notes of evidence and other documents on record. She urged that consistent conduct of the Respondent which is duly established by the Appellant by examining himself, his brother and father proves the ground of cruelty. She did not dispute that earlier the petition filed by the Appellant for restitution of conjugal rights has been unconditionally withdrawn. She urged that consistent conduct of the Respondent which is duly established by the Appellant by examining himself, his brother and father proves the ground of cruelty. She did not dispute that earlier the petition filed by the Appellant for restitution of conjugal rights has been unconditionally withdrawn. Her submission is that though the petition remained pending for three years, the Respondent never offered to cohabit with him and that is the reason why the said petition was withdrawn. She invited our attention to the reply to the legal notice issued by the Appellant in which the Respondent came out with the excuse of threat to her life for not cohabiting with the Appellant. She pointed out that the said case made out in the reply was neither pleaded nor proved by the Respondent. She pointed out that the claim for restitution of conjugal rights was belatedly filed in the year 2002. The submission is that taking the evidence of the Respondent as it is, it clearly proves that the Respondent made no attempt to resume cohabitation and, therefore, there is a clear intention on her part to abondon the matrimonial relationship and, therefore, the decree for divorce on the ground of desertion must follow. The learned counsel appearing for the Respondent supported the impugned judgment and decree to the extent to which the prayer for divorce has been dismissed. Her submission is that the allegations of cruelty are of serious nature and in any event, the same have not been substantiated on the evidence. She submitted that even in the reply to the notice issued by the Advocate for the Appellant, the Respondent has set out the reasons as to why she could not resume cohabitation. She submitted that at that stage, there was a serious threat to her life. She urged that at no stage, the Respondent refused to resume cohabitation and on the contrary, there is no overt act on the part of the Appellant to resume cohabitation. She urged that there is no evidence to show that there was any intention on the part of the Respondent to desert the Appellant. 9. We must note here that we have also heard the learned counsel appearing for the Appellant and Respondent on the issue of grant of maintenance. She urged that there is no evidence to show that there was any intention on the part of the Respondent to desert the Appellant. 9. We must note here that we have also heard the learned counsel appearing for the Appellant and Respondent on the issue of grant of maintenance. The learned counsel appearing for the Appellant, on instructions, has stated that the Appellant lost his earlier employment due to a complaint made by the Respondent. Today, the Appellant is working as Commission Agent and his gross income is Rs.10,000/- p.m. On instructions, he stated that in the event a decree of divorce is passed, the Appellant is willing to pay maintenance at the rate of Rs.7,000/- pm to the daughter. The learned counsel appearing for the Respondent submitted that the Appellant is possessing large immovable properties and his income is much more than 10,000/- pm. Her submission is that the Stridhan of the Respondent has been illegally retained by the Appellant. Lastly, the learned counsel appearing for the Respondent relied upon the decision of Jharkhand High Court in the case of Sunil Kumar Gupta v. Kunti Gupta AIR 2003 Jharkhand 42. 10. We have given careful consideration to the submissions. We have perused the record of the Family Court. Following questions arise for consideration in this Appeal :- (I) Whether the Appellant has established the ground of cruelty ? (II) Whether the Appellant has established the ground of desertion? (II) In the event the Appellant makes out a case for passing a decree of divorce, what would be the permanent alimony payable in accordance with Section 25 of the said Act? 11. Now, we deal with the first question which arises for consideration. The petition for divorce was filed on 7th April, 2001. Perusal of the petition and written statement shows the admitted position that from 2nd April, 1998, the Appellant and the Respondent have not cohabited together and from that day, the Respondent started residing with her parents. The Respondent never returned to matrimonial home after 2nd April, 1998. In this contest, it will be necessary to make a reference to averments made in the petition filed by the Appellant. There is a specific assertion that in the year 1998, the Appellant tiled Marriage Petition No.458 of 1998 against the Respondent for restitution of conjugal rights and that the said petition was unconditionally withdrawn on 16th March, 2001. In this contest, it will be necessary to make a reference to averments made in the petition filed by the Appellant. There is a specific assertion that in the year 1998, the Appellant tiled Marriage Petition No.458 of 1998 against the Respondent for restitution of conjugal rights and that the said petition was unconditionally withdrawn on 16th March, 2001. 12. On this aspect, the Appellant has been subjected to cross-examination by the Advocate for the Respondent. In paragraph 10, the Appellant stated that as the Respondent went away with her parents, he tiled a petition for restitution of conjugal rights. He has denied the correctness of the suggestion that the Respondent had shown willingness to resume cohabitation. He has also denied the correctness of the suggestion that Respondent's father had also stated that he was willing to withdraw all the complaints and send back the Respondent to resume cohabitation. It is pertinent to note that allegations of very serious nature regarding conduct of the Respondent have been made in the petition which according to the Appellant constitute acts of cruelty. All the allegations relate to the period prior to 2nd April, 1998. The very fact that after 2nd April, 1998, in the year 1998 itself, the Appellant tiled a petition for restitution of conjugal rights shows that the Appellant himself was ready and willing to resume cohabitation with the Respondent and, therefore, the very conduct of filing the petition for restitution of conjugal rights is nothing but a clear act of condonation of the alleged acts of cruelty. No other inference is possible to be drawn as there was no reason for the Appellant to file a petition for seeking a decree for restitution of conjugal rights. The Appellant has made no attempt to explain in detail, the reasons for tiling the petition for restitution of conjugal rights and the reasons as to why the petition was unconditionally withdrawn. In view of the act of condonation of cruelty, in the light of clause (b) of sub-section (1) of Section 23 of the said Act, the Appellant will be disentitled to claim a decree of divorce on the ground of cruelty. 13. That takes us to the second question which arises for consideration. In view of the act of condonation of cruelty, in the light of clause (b) of sub-section (1) of Section 23 of the said Act, the Appellant will be disentitled to claim a decree of divorce on the ground of cruelty. 13. That takes us to the second question which arises for consideration. The Appellant issued a legal notice to the Respondent on 7th April, 1998 calling upon the Respondent to resume cohabitation within a period of8 days from the date of receipt of the notice. There is a reply dated 29th April, 1998 sent by the Respondent through her Advocate. At this stage, we may note that both the notice and reply have not been marked as Exhibits. However, in the affidavit-in-lieu of examination-in-chief of the Appellant, he has specifically referred to the reply as well as the notice. In the written statement-cum-counter claim, not only that the Respondent has relied upon the reply dated 29th April, 1998, but she has quoted the material portion of the said reply sent through Advocate which appears in paragraph 8 thereof. That is why we are of the view that the office copy of the notice and the original reply of the Respondent which are on record ought to have been admitted in evidence and marked as exhibits. 14. The material portion of the reply dated 29th April, 1998 is in paragraph 8 which reads thus :- "now there is every apprehension to the life and limb of my client if she cohabits with you and hence you are called upon to provide the separate maintainance of Rs.2000/- per month." Perusal of the reply and in particular paragraph 8 thereof shows that apart from denying the allegations made in the notice, the Respondent specifically declined to resume cohabitation on the ground that there was a threat to her life and limb if she resumes cohabitation. In fact, by the reply, the Appellant was called upon to pay maintenance at the rate of Rs.2,000/- p.m. In the reply, the Respondent has not at all shown readiness and willingness to resume cohabitation. In fact, by the reply, the Appellant was called upon to pay maintenance at the rate of Rs.2,000/- p.m. In the reply, the Respondent has not at all shown readiness and willingness to resume cohabitation. Careful perusal of the written statement-cum-counter claim as well as affidavit-in-lieu of examination-in-chief of the Respondent shows that the contention raised in the reply to the notice that there was a danger to her life and limb seems to have been given up by the Respondent as the same has not been pleaded. The reason appears to be obvious that the Respondent has made prayer in the counterclaim for a decree of restitution of conjugal rights. We must note here that in the year 1998 itself, the Respondent admittedly filed an application under Section 125 of the said Code. In the affidavit-in-lieu of examination-in-chief of the Appellant and in particular paragraph 7 thereof, the Appellant has come out with the case that at the time of hearing of Miscellaneous Petition No. 116 of 1998, which was the application for maintenance, the Respondent specifically stated that she was not willing to resume cohabitation. On this statement, there is no cross-examination made of the Appellant. The Marriage Petition No.458 of 1998 filed by the Appellant for restitution of conjugal rights remained pending till 16th March, 2001. There is nothing placed on record by the Respondent to show that even during the pendency of the said petition, she offered to resume cohabitation. In the cross-examination, the Respondent admitted that she replied to the notice dated 7th April, 1998 but she did not file any petition for restitution of conjugal rights. The prayer for restitution of conjugal rights was belatedly made by the Respondent by filing a counter claim in the year 2002. 15. We must note a very important aspect that in the year 1998, the Appellant himself filed a petition for restitution of conjugal rights which remained pending till 2001. In the reply to the notice, there is a specific refusal by the Respondent to resume cohabitation on the ground of a threat to her life and limb. The said plea is virtually given up by the Respondent while filing written statement and counter-claim and even in her examination-in-chief. There is no attempt made by the Respondent to substantiate the plea regarding danger to her life and limb. The said plea is virtually given up by the Respondent while filing written statement and counter-claim and even in her examination-in-chief. There is no attempt made by the Respondent to substantiate the plea regarding danger to her life and limb. There is no overt act made by the Respondent which is brought on record to show that a genuine effort was made by her to resume matrimonial relationship. As stated earlier, till the year 2002, the Respondent neither file a petition for restitution of conjugal rights nor issued a legal notice calling upon the Appellant to resume cohabitation. Perhaps in the reply to the legal notice, an attempt was made to come out with the case that there was a sufficient cause for not resuming the cohabitation. The cause pleaded was the threat to her life and limb. This case has not been substantiated in the evidence by the Respondent. Therefore, the only inference which can be drawn is that there was a clear intention on the part of the Respondent to abandon matrimonial ties with the Appellant. The only inference which can be drawn is of intention on the part of the Respondent to desert the Appellant. As stated earlier, no attempt has been made to prove that the desertion was for a reasonable cause. The Respondent has not established that due to any particular conduct on the part of the Appellant that she was not willing to resume cohabitation. Therefore, in our view, this was a case where a decree ought to have been passed on the ground incorporated in clause (ib) of sub-section (1) of Section 13 of the said Act. Perusal of the judgment of the Family Court shows that no attempt has been made even to advert to the pleadings and the evidence on the issue of desertion. Very cryptic reasons have been recorded by the learned Judge of the Family Court for declining to grant a decree of restitution of conjugal rights. To that extent, the impugned judgment and decree will have to be set aside. 16. Now, we go to the aspect of grant of permanent alimony under Section 25 of the said Act. We must note here that under section 125 of the Code of Criminal Procedure, 1973, the Appellant was directed to pay maintenance of Rs.600/- pm to the Respondent. 16. Now, we go to the aspect of grant of permanent alimony under Section 25 of the said Act. We must note here that under section 125 of the Code of Criminal Procedure, 1973, the Appellant was directed to pay maintenance of Rs.600/- pm to the Respondent. By an order dated 16th September, 2001, in addition to maintenance amount of Rs.600/- pm, the Appellant was directed to pay interim alimony of Rs.600/- pm and Rs.500/- pm to the Respondent and her daughter respectively. 17. The learned counsel appearing for the Appellant, on instructions, states that notwithstanding the said order, the Appellant has been paying monthly maintenance to the Respondent of Rs.1,000/- and Rs.1,000/- to the minor daughter. As far as income of the Appellant is concerned, in paragraph 13 of his cross-examination, which is recorded on 7th June, 2003, he has stated that he was working as a Computer Operator-cum-Clerk with Spica Elastics Limited and was drawing salary of Rs.5,000/-. An attempt was made by the learned counsel appearing for the Appellant to contend that subsequently the Appellant has lost his job. Today, on instructions of the Appellant, she has stated that presently, the Appellant is getting monthly income of approximately Rs.10,000/pm and he was willing to pay maintenance of Rs. 7,000/- to his daughter. Whether the Petitioner gave up the job or not is not relevant. The admission in paragraph 13 of the cross-examination recorded on 7th June, 2003 shows that as of that date, the Appellant was in a position to earn income of Rs.5,000/- p. m. Thus, earning capacity of the Appellant as of that date has been established. Today, there is an oral statement that the present income of the Appellant is Rs.10,000/-. Looking to the earning capacity of the Appellant as reflected in the year 2003, it is not possible for us to accept that the present income of the Appellant is only Rs.10,000/- pm. The income must be much more than Rs.10,000/- per month. The Appellant has offered to pay Rs.7,000/- pm as permanent alimony to the daughter. Section 20 of the Hindu Adoption and Maintenance Act, 1956 reads thus : "Maintenance of children and aged parents (1) Subject to the provisions of this section a Hindu is bound, during his or her lifetime, to maintain his or her legitimate or illegitimate children and his or her aged or infirm parents. Section 20 of the Hindu Adoption and Maintenance Act, 1956 reads thus : "Maintenance of children and aged parents (1) Subject to the provisions of this section a Hindu is bound, during his or her lifetime, to maintain his or her legitimate or illegitimate children and his or her aged or infirm parents. (2) A legitimate or illegitimate child may claim maintenance from his or her father or mother so long as the child is a minor. (3) The obligation of a person to maintain his or her aged or infirm parent or a daughter who is unmarried extends insofar as the parent or the unmarried daughter, as the case may be, is unable to maintain himself or herself out of his or her own earnings or other property." 18. Though, the minor child will become major in November, 2013, the child being an unmarried daughter, the Appellant will have to pay maintenance to her till the date of her marriage. Apart from maintenance of Rs.7,000/- pm, the Appellant is under an obligation to reimburse the Respondent for expenditure incurred on the daughter's education and the Appellant shall be under an obligation to pay requisite amount for meeting the expenditure of marriage of the daughter. Considering the earning capacity of the Appellant, we deem it appropriate to fix permanent alimony payable to the Respondent at Rs.3,000/- pm. 19. Here we must note that an attempt was made by the learned counsel appearing for the Respondent to submit that income of the Appellant is much more than what is sought to be projected and the Appellant is possessed of large immovable property. However, there is no evidence adduced in that behalf. Therefore, we propose to reserve liberty to the Respondent to apply to the Family Court in accordance with Sub-section (2) of the Section 25 of the said Act to apply enhancement of the maintenance. 20. By a Civil Application No.149 of 2010 which is pending in this Court, a prayer is made for directing the Appellant to pay a sum of Rs.4,000/- to the Respondent per visit to this Court and for the cost of litigation Rs.30,000/-. The cost of litigation payable to the Respondent is fixed at Rs.15,000/-. 21. 20. By a Civil Application No.149 of 2010 which is pending in this Court, a prayer is made for directing the Appellant to pay a sum of Rs.4,000/- to the Respondent per visit to this Court and for the cost of litigation Rs.30,000/-. The cost of litigation payable to the Respondent is fixed at Rs.15,000/-. 21. Hence, we pass the following order :- ORDER (i) The impugned judgment and decree dated 18th August, 2003 is quashed and set aside to the extent to which the prayer for divorce on the ground of desertion has been rejected by the trial Court; (ii) We pass a decree of divorce declaring that the marriage solemnized between the Appellant and the Respondent on 4th December, 1994 stands dissolved by a decree of divorce under clause (ib) of sub-section 13 of Hindu Marriage Act, 1955; (iii) We direct the Appellant to pay maintenance at the rate of Rs.7,000/- pm to the daughter from today till the date of solemnization of her marriage. In addition, the Appellant shall be liable to reimburse the Respondent the expenditure incurred on the education of the daughter. The Appellant shall be also liable to pay for the marriage expenditure of the daughter. In the event, the Appellant fails to pay the aforesaid amount on demand being made by the Respondent in writing it will be open for the Respondent to make an application to the Family Court for quantification of the amount payable on both the grounds; (iv) The Appellant shall pay permanent alimony of Rs.3,000/- pm from today to the Respondent; (v) We direct the Appellant to pay costs quantified at Rs.15,000/- to the Respondent within a period of eight weeks from today; (vi) The appeal is accordingly partly allowed on the above terms; (vii) We make it clear that it will be open for the Respondent to make an application under sub-section (2) of Section 25 of the Hindu Marriage Act, 1955 before the Family Court for enhancement of the amounts fixed by way of permanent alimony maintenance under this judgment and decree. If such application is made, the Family Court shall decide the same on merits in accordance with law. 22. Civil Application No.149 of 2010 does not survive and the same is disposed of accordingly. Appeal partly allowed.