Research › Search › Judgment

Gauhati High Court · body

2013 DIGILAW 298 (GAU)

Roma Singha v. Hare Kirshna Singha

2013-05-10

ANIMA HAZARIKA, I.A.ANSARI

body2013
JUDGMENT Anima Hazarika, J. 1. Challenge in the instant appeal is made under Section 28 of the Hindu Marriage Act, 1955 (hereinafter referred to as "the Act") by the wife questioning the legality and validity of the judgment and decree dated 08.09.2010 passed by the Principal Judge, Family Court, Cachar, Silchar in FC (Civil) No. 33 of 2006 decreeing dissolution of marriage between the spouses under section 13 of the Act filed by the respondent herein (husband). Heard Ms. R. Devi, learned counsel appearing for the appellant. Also heard Ms. B Chowdhury, learned counsel appearing for the respondents. 2. Case of the respondent as pleaded relating to matrimonial offence committed by the appellant herein (wife) in a nutshell is summarized as follows:-- The marriage between the spouses was solemnized on 19.04.1999 according to Hindu rites and rituals. After the marriage they lived as husband and wife and out of the said wedlock a male child was born named Harshadheer Singha on 12.05.2000. The allegations brought against the appellant was that after the marriage she used to visit her parent's house frequently and stayed there for about 2/3 weeks at a stretch on various causes without taking into consideration the hardships faced by the respondent. After the birth of the child, the appellant went to her parent's house on the plea of her post natal necessities whereof she conveyed her unwillingness to live with the respondent as his wife. However, on persuasion good sense prevailed and she came back to fulfill her marital obligation. It has been further alleged that during January 2001 both the spouse went to attend the marriage of her sister wherefrom she refused to come back and stayed there (her parental house) for one (1) month causing inconvenience to him. She did not come back to the residence of the respondent to celebrate Basanti Puja in spite of request. The allegation would further reveal that when the respondent get fractured injuries in a vehicular accident she did not come back to look after him which culminated a suit for restitution of conjugal rights and during the pendency of the suit, through amicable discussion, the appellant came back to resume conjugal life. The allegation would further reveal that when the respondent get fractured injuries in a vehicular accident she did not come back to look after him which culminated a suit for restitution of conjugal rights and during the pendency of the suit, through amicable discussion, the appellant came back to resume conjugal life. Thereafter, the respondent was transferred to Dehradun and both the spouse went to Dehradun, his place of posting, whereof the respondent had undergone gallbladder operation and the appellant instead of looking after him picked up quarrel with him and caused injuries on his person biting with teeth and thereafter, she left Dehradun on 16.10.2005 and conveyed her decision over phone withdrawing herself from the life of the respondent which caused a reasonable apprehension in the mind of the respondent that it would be harmful for him to live with the appellant and conduct of such marital offence would come within the purview of the term cruelty. The husband, therefore, filed a suit being FC (Civil) No. 33 of 2006 before the Principal Judge, Family Court, Cachar, Silchar seeking a decree for dissolution of marriage. 3. The appellant contested the suit by filing the written statement admitting the marriage but denied the allegations as leveled against her contending inter alia that the respondent-is a womanizer who had married another woman but divorced her and thereafter the respondent married her and is also trying to marry another girl and neglected her and her newly born child due to love affairs with another girl. The respondent had never tried to bring back the appellant and the child to his society and hence, prayed for dismissal of the suit with costs. 4. The trial proceeded in accordance with law as the reconciliation between the spouses had failed. Upon the pleadings of the parties the following issues were framed, viz.:-- 1. Whether the suit is maintainable in its present form? 2. Whether the respondent treated the petitioner with cruelty? 3. Whether the respondent deserted the petitioner for a continuous period of not less than 2 years? 4. Whether the petitioner is entitled to get a decree for dissolution of marriage as sought for? 5. What other relief/reliefs the parties are entitled to? 5. In order to substantiate their respective claims, the appellant had examined herself whereas the respondent has examined three witnesses including himself. 4. Whether the petitioner is entitled to get a decree for dissolution of marriage as sought for? 5. What other relief/reliefs the parties are entitled to? 5. In order to substantiate their respective claims, the appellant had examined herself whereas the respondent has examined three witnesses including himself. Finding that the appellant has caused mental cruelty to the respondent, on a perusal of the entire evidence, both oral and documentary, the trial Court passed a decree for dissolution of marriage in favour of the respondent. However, the learned trial Court refused to grant permanent alimony and maintenance to the appellant holding that the appellant being a Government employee, she earns sufficient amount from her salary per month. The trial Court, on the other hand, directed the respondent to pay a sum of Rupees five thousand only per month for the education and welfare of the minor child Harshadheer Singha. Feeling aggrieved, the present appeal has been filed by the appellant wife. 6. Heard the learned counsel appearing for the parties. Perused the materials including the evidence: available on record. Ms. Devi, learned counsel appearing for the appellant has advanced argument relating to the finding of cruelty meted out to the respondent on which the decree for dissolution of marriage was granted by the learned trial Court Criticizing the judgment, Ms. Devi has prayed that the same requires interference being perverse. The Court, on a query made to the learned counsel appearing for the appellant to issue Nos. 2 and 3 and the finding arrived at by the learned trial court as well as the allegation of the respondent being womanizer, which the appellant has failed to prove, vis-a-vis the evidence of PW 1 and PW 3 which demonstrate otherwise; the counsel switched over to the question of permanent alimony and permanent maintenance. Learned counsel has further submitted that the findings arrived at by the learned trial Court that the appellant has sufficient means being a Government employee is not sufficient ground for not making an order of maintenance where a decree is passed granting substantive relief under the Act. The same thus require interference by the appellate court in this appeal. 7. The Court gave its anxious thought relating to permanent alimony and permanent maintenance to the appellant which has been denied by the learned trial court. The same thus require interference by the appellate court in this appeal. 7. The Court gave its anxious thought relating to permanent alimony and permanent maintenance to the appellant which has been denied by the learned trial court. A reading of Section 25 of the Act would reveal that the same empowers the Court to grant maintenance to the wife which is regarded as a statutory right and the obligation of the respondent to provide for his wife's maintenance and support does not come to an end simply on the passing of a decree in favour of the husband. In arriving at the quantum of permanent alimony and permanent maintenance, the Court must have regard to the respondent's income including the appellant's income and property and the conduct of the parties and other circumstances of the case and the amount may be such as seems to the Court to be just. 8. Now in estimating the amount of permanent alimony and permanent maintenance the court has to consider the pleaded facts of the parties and their total gross income. Admittedly, the respondent husband is serving as Superintendent of Geo-Physicist in Oil and Natural Gas Commission and is getting approximately gross salary of Rs. 60,000/- per month whereas the appellant is an employee of Silchar Medical College and Hospital ('SMCH' for short) maternity and serving as a typist. The only son of the spouse is a student of Delhi Public School ('DPS' for short) at Guwahati and the recurring expenditure of day to day life at Guwahati and the maintenance for welfare and education of the son as awarded by the learned trial court for Rs. 5000/- is a meager amount and therefore, the Court seems it fit to enhance the monthly allowance of the son to Rs. 15,000/- (Rupees fifteen thousand only) per month till he attains majority. The Court has further considered the permanent maintenance to the wife per month should be Rs. 10,000/- having regard to the means of the parties and thereby interfere with the issue No. 5 whereby and whereunder the trial court refused to give permanent alimony and permanent maintenance to the appellant wife. 9. In the result, the decree for dissolution of marriage between the spouse is affirmed. The respondent husband is directed to pay Rs. 10,000/- having regard to the means of the parties and thereby interfere with the issue No. 5 whereby and whereunder the trial court refused to give permanent alimony and permanent maintenance to the appellant wife. 9. In the result, the decree for dissolution of marriage between the spouse is affirmed. The respondent husband is directed to pay Rs. 15,000/- (Rupees fifteen thousand) only per month to the son for education and welfare till he attains majority and Rs. 10,000/- (Rupees ten thousand) only per month to the appellant wife as permanent maintenance in order to enable them to lead a decent standard of living. 10. The amount shall be paid from the date of filing of the instant Matrimonial Appeal before this Court, i.e. 3.12.2010. It is hereby made clear that the current amount of Rs. 15,000/- and Rs. 10,000/- as indicated above shall be paid from 1st June, 2013 and the arrear amount shall be paid within a period of six months from today. 11. The parties are left to bear their own costs. Send down the lower Court records.