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2013 DIGILAW 184 (UTT)

Lina Banerjee v. Paramesh Banerjee

2013-04-05

PRAFULLA C.PANT, SERVESH KUMAR GUPTA

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Judgment : Prafulla C. Pant, J. Both these appeals, preferred under section 19 of Family Courts Act, 1984 are directed against the judgment and order dated 31.01.2012 passed by Principal Judge, Family Court, Dehradun, in Original Suit No. 75 of 2010, whereby said court has allowed the petition under section 13 of Hindu Marriage Act, 1955, and directed the respondent to pay one time lump sum alimony of Rs.10,00,000/- under section 25 of the Act to the respondent (present appellant) with further direction to provide a flat, for her residence, of value of Rs. 20-25 lac. 2. Heard learned counsel for the parties and perused the lower court record. 3. Brief facts of the case are that Dr. Paramesh Banerjee (present respondent) filed a petition under section 13 of Hindu Marriage Act, 1955, against his wife Smt. Lina Banerjee (present appellant) on the ground that she treated the petitioner with cruelty. It has been stated in the petition that the petitioner Dr. Paramesh Banerjee got married to Smt. Lina Banerjee (present appellant) on 18.11.1991 following Hindu rites. A son (named Suprateek Banerjee) was born out of the wed-lock on 27.02.1995, who lives with his father. Earlier, on 16.07.2007 Dr. Paramesh Banerjee filed Suit No. 280 of 2007 for divorce but the same was withdrawn on joint request of the parties on 17.11.2007 as they decided to live together. The allegation made by the petitioner (husband) in the fresh divorce petition is that after withdrawal of said suit the appellant did not change her behaviour and the conjugal relationship could not be established since 17.11.2007 due to which the petitioner is living in mental agony. It is further stated in the petition that that the petitioner was a Senior Scientist with Himalaya Wadia Institute and the appellant was working as a teacher with Seven Oak School, Dehradun. It is alleged by the petitioner (husband) that his wife does not want to lead conjugal life with him and alleges that he is a mad man. At present the petitioner is working in Singapore as Geo Scientist. It is pleaded by the husband that due to the behaviour of the appellant he had to leave Wadia Institute, Dehradun. It is alleged by the petitioner (husband) that his wife does not want to lead conjugal life with him and alleges that he is a mad man. At present the petitioner is working in Singapore as Geo Scientist. It is pleaded by the husband that due to the behaviour of the appellant he had to leave Wadia Institute, Dehradun. It is also stated in the petition for divorce that on 18.11.2007 the appellant slapped the petitioner and did not allow him to sleep in her room and he was made to live in a separate room. It is also alleged by the husband that his wife did not care to look after whether he was getting proper food or not. He has further stated that after leaving job with Wadia Institute he took up temporary work with New Castle University, U.K. from where he has now shifted to Singapore and joined another job with Earth Observatory in Singapore. Pleading that it has become impossible for him to live with his wife, divorce is sought. 4. The appellant who was respondent before the trial court filed her written statement and contested the petition. She admitted her marriage with Dr. Paramesh Banerjee and that a son (Suprateek Banerjee) was born out of the wed lock. She did not deny that suit no. 280 of 2007 filed earlier by the husband for divorce was withdrawn after the parties expressed their desire to live together. However, she denied the rest of the allegations made in the petition for divorce. She stated that since 17.11.2007 conjugal relations were reestablished. She further stated that she loved her husband, and she treated him as ‘PARAMGURU’ (Noble Guide). She denied all the allegations of alleged cruelty. She further pleaded that the petitioner left job with Wadia Institute on his own volition and joined New Castle University whereafter he took up job with Earth Observatory in Singapore, where he earns $ 7,000/- per month. She further stated that she gave every help for giving good education to their son and denied that she caused any hindrance to the petitioner. It has been stated in the written statement that due to the nature of the job of her husband he never used to come to his house for lunch and she used to cook food for him in the evening. 5. It has been stated in the written statement that due to the nature of the job of her husband he never used to come to his house for lunch and she used to cook food for him in the evening. 5. In her application under section 25 of Hindu Marriage Act, 1955, filed before the trial court appellant has pleaded that as a Technical Director with Earth Observatory Singapore, the petitioner is earning $ 15,000/- per month. It is further stated by her that as a music teacher with Seven Oak School she is earning meager amount of Rs. 9,400/- per month which is not sufficient for her maintenance. She admitted that she is living in House No.13 Mohit Nagar, Dehradun, owned by her husband. In reply of said application the husband has stated that his earning is $ 7000/- per month in Singapore and that he purchased house no. 13 Mohit Nagar, Dehradun, after taking loan from a bank but said house is mortgaged. Pleading that the living cost in Singapore is too high it is stated by him that he is able to save very little money. It is also pleaded by husband that the wife is earning sufficiently as a music teacher. 6. On the basis of pleading of the parties following issues were framed by the trial court:- (i) Whether respondent has treated the petitioner with cruelty as alleged in the different paras of the petition? (ii) Whether no cause of action has arisen to the petitioner as alleged in para 34 of the written statement? (iii) To what relief if any, the petitioner is entitled? 7. The parties adduced oral and documentary evidence before the trial court whereafter the trial court decided all the three issues in favour of the husband. The trial court allowed the petition for divorce filed by husband under section 13 of Hindu Marriage Act, 1955 and dissolved the marriage dated 18.11.1991 between the parties. The trial court disposed the application under section 25 of Hindu Marriage Act, 1955 filed by the wife directed the husband to pay Rs. ten lac as lump sum permanent alimony and further directed him to provide flat of value of Rs. 20-25 lac to her for her residence. 8. The marriage between the parties is an admitted fact. The trial court disposed the application under section 25 of Hindu Marriage Act, 1955 filed by the wife directed the husband to pay Rs. ten lac as lump sum permanent alimony and further directed him to provide flat of value of Rs. 20-25 lac to her for her residence. 8. The marriage between the parties is an admitted fact. It is also admitted to the parties that one son (Suprateek Banerjee) was born out of the wed lock in the year 1995 who lives with his father. It is also not disputed that the petitioner Dr. Paramesh Banerjee is Scientist/Technical Director with Earth Observatory Singapore since 2008, and his wife appellant Lina Banerjee is a music teacher in Dehradun with Seven Oak School. As such only following two Points of Determination arose in these appeals on which the parties argued their cases:- (I) Whether the trial court has wrongly appreciated the evidence on record to come to the conclusion that the petitioner succeeded in proving that he was treated with cruelty by his wife, and was entitled to decree of divorce? (II) Whether in the facts and circumstances of the case, permanent alimony directed to be paid under section 25 of Hindu Marriage Act, 1955 is insufficient? 9. Point of determination no. 1:- The petitioner Dr. Pramesh Banerjee filed an affidavit in support of the pleadings made by him in the petition. He was cross-examined as P.W.1 before the trial court. In para 12 of his affidavit P.W.1 Dr. Paramesh Banerjee has stated that after order dated 17.11.2007 (whereby earlier suit no. 280 of 2007 for divorce was withdrawn) was passed, the parties to matrimony have not established conjugal relations. In this connection, he has further stated that petitioner lives in mental agony and stress as the respondent (present appellant) has not allowed him to have physical relations. It is also stated by him that he is a renowned scientist but because of the respondent’s behaviour he was unable to work with healthy mind. In para 17 of the affidavit it has been stated that the house which was purchased by the petitioner in the year 2001, in half of its portion respondent (present appellant) resides and in the rest the petitioner was made to live in a state of desertion. In para 17 of the affidavit it has been stated that the house which was purchased by the petitioner in the year 2001, in half of its portion respondent (present appellant) resides and in the rest the petitioner was made to live in a state of desertion. In para 18 he has stated that when he came to Dehradun in January 2010 for collecting certificates of his son, the respondent again called him ‘a mad man’. Narrating the incident of cruelty in para 19 of the affidavit (examination in chief) the petitioner has stated that on 18.11.2007 when the petitioner warmly approached the respondent he was slapped by her on his face and she abused him. It is further stated that wife did not allow the petitioner to sleep in her room. It is also stated that when the guest of the petitioner used to come in the house they were insulted by the appellant whereafter they stopped coming. He named those guests as S.K. Bhowmic, his wife Anjali Bhwomic, N.D. Verma, C.P. Dabral and Anand Chakrawarti. The witness has been subjected to lengthy examination but nothing has come out which makes his statement untrustworthy. 10. On the other hand D.W.1 Lila Banerjee (present appellant) has denied the allegations made by her husband and stated in her affidavit stating that after 17.11.2007 both the spouses started living together and conjugal relations established. She further stated that she believes that her husband is her PARAMGURU (Noble guide). She further stated that she was happy that her husband was a scientist and was honoured with Mineral Award on 04.02.2012 for his work. She has denied that she slapped the petitioner or she refused to establish physical relations or she insulted the guests of the petitioner. 11. In such circumstances, the evidence of the parties is the oath against oath. In the conjugal matters there is little scope of outsiders witnessing the behaviour of the husband and wife. The trustworthiness of their evidence is to be seen from the facts and circumstances and other material on record supporting the statement of the parties examined before the trial court. In her cross-examination D.W.1 Lila Banerjee has admitted that she has sought information about the petitioner under Right to Information Act, and she enquired from his department as to what action was taken against her husband. In her cross-examination D.W.1 Lila Banerjee has admitted that she has sought information about the petitioner under Right to Information Act, and she enquired from his department as to what action was taken against her husband. On one hand in the examination in chief she states that she feels honoured by the award given to her husband by the Government of India, and on the other hand she approached the department he was serving as to what action was taken against him. This makes that the statement of the husband is more reliable as compared to that of the wife. Though the allegations have been made by the wife regarding the character of her husband but there is no such pleading in the written statement and the evidence adduced in this regard cannot be read in evidence. In the above circumstances, this Court finds that the trial court has rightly arrived at the conclusion that the appellant (wife) treated the petitioner (husband) with cruelty and on that ground he was entitled to decree of divorce. Accordingly Point of Determination of no. 1 stands decided in favour of the husband. Point of determination no. 2 13. It is contended on behalf of the appellant that lump sum amount of Rs. ten lac as permanent alimony granted by the trial court is insufficient. On the other hand, learned counsel for the husband argued that the cost of living in Singapore is much higher and son of the parties also living there as such he has not much saving. 14. Admittedly the petitioner Dr. Paramesh Banerjee (husband) is a Senior Scientist with Earth Observatory Singapore. It is also admitted that appellant Lina Banerjee is a teacher in Seven Oak School, Dehradun. She has admitted that her salary is Rs.9,400/- per month. It is also not disputed that she is living in the house owned by her husband in Dehradun. It is also admitted to the parties that their son Suprateek Banerjee born in 1995 lives in Singapore with the father. From the lower court record it appears that the salary of the husband of the appellant was $ 7,000/- per month (more than Rs. three lac per month). 15. It is also admitted to the parties that their son Suprateek Banerjee born in 1995 lives in Singapore with the father. From the lower court record it appears that the salary of the husband of the appellant was $ 7,000/- per month (more than Rs. three lac per month). 15. Having considered submissions of learned counsel for the parties, and keeping in mind the facts and circumstances of the case and status of the parties, this Court is of the view that apart from providing flat to the appellant in Dehradun, lump sum amount of Rs. 15 lac as permanent alimony to the wife would meet the ends of justice. Accordingly, point of determination no. 2 stands disposed of. 16. For the reasons as discussed above, FA No. 22 of 2012 challenging the decree of divorce granted by the trial court is hereby dismissed, and the decree of dissolution of marriage between the petitioner Dr. Paramesh Banerjee and the appellant Lina Banerjee stands affirmed. However, FA No. 21 of 2012 whereby the order passed by the Principal Judge, Family Court, Dehradun, under section 25 of Hindu Marriage Act, 1955, awarding the permanent alimony of Rs. 10 lac to the appellant Lina Banerjee and further direction to provide her a flat of value of Rs. 20-25 lac is concerned, the order of alimony is modified to the extent that Dr. Paramesh Banerjee (husband) shall pay Rs. 15 lacs (instead of Rs. 10 lacs) as permanent alimony to his wife (Lina Banerjee) adjusting the amount if any already paid in compliance of the decree passed by the trial court, apart from providing her a flat in Dehradun. Till the flat (in Dehradun) for her residence is provided, she will have a right to continue to reside in the house no. 13/1 Mohit Nagar, G.M.S. Road, Dehradun owned by her husband Dr. Pramesh Banerjee. Said appeal (FA No. 21 of 2012) stands disposed of accordingly.