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2014 DIGILAW 1100 (MP)

Rajkumari v. Sonu Vishwakarma

2014-09-03

S.K.GANGELE, S.K.PALO

body2014
JUDGMENT Palo, J. -- 1. Aggrieved by the Judgment and decree dated 27.9.2007 passed by the Second Additional District Judge(Fast Track Court) Ganjbasoda district Vidisha in Case No.47-A/2006 (HMA), whereby the learned Second Additional District Judge has granted decree of divorce in favour of the husband/ respondent, the appellant/wife has filed this appeal under section 28 Hindu Marriage Act,1955. 2. It is not disputed that marriage between the appellant and respondent was solemnized on 22nd April 2004 at village Basoda by observing Hindu custom. This marriage was held in ‘Samuhik Vivah Sammelan’(A common marriage platform in which number of couples particular community solemnized their marriage. 3. Brief fact transpired before the learned trial Court is that immediately after the marriage on 22.4.2004 the respondent/husband suspected that the appellant/wife is pregnant. The respondent took her to a maternity home Bhopal for her checkup. Whereby it was informed that the appellant/wife is pregnant. Again on 1.6.2004 respondent/ husband got the appellant/ wife examined by a lady doctor in Uma Nursing Home at /village Basoda. Lady doctor informed that the wife/ appellant is ten weeks pregnant. It is alleged by the respondent that the appellant/wife and her parents suppressed this fact and got her marriage performed with respondent/ husband. Therefore, respondent tried to get customary divorce (Chod-Chutti). But could not succeed. The family members of respondent/husband despite assurance avoided any such proceeding. Therefore, the respondent/ husband could not file a petition earlier. Claiming that cause of action arose on 25.5.2004 when respondent/husband came to know about the pregnancy of the appellant/ wife and the failure to keep her the assurance by family members respondent has filed the petition under section 13 of Hindu Marriage Act 1955 for decree of divorce. 4. Per-contra, the appellant/wife denied all the allegations and submitted that the allegations are false and has been made because the demands of respondent/husband’s demand of motorcycle and cash as dowry could not fulfilled. The prescription was prepared by conniving with the Medical Officer. Appellant/ wife gave birth to a boy who is ten months old now. Respondent/husband never came to see him or his wife. Allegations made by the respondent/husband has caused defame to her and her family in the society. Appellant/ wife still wants to live with the husband if provided he treats her properly and without any violence. 5. Appellant/ wife gave birth to a boy who is ten months old now. Respondent/husband never came to see him or his wife. Allegations made by the respondent/husband has caused defame to her and her family in the society. Appellant/ wife still wants to live with the husband if provided he treats her properly and without any violence. 5. On the basis of the averments learned trial Court framed the issues and allowed the parties to adduced evidence. Learned trial Court granted decree of divorce in favour of the respondent/husband finding that it is an irretrievable break down of marriage. 6. The respondent/wife assailed the judgment and decree on several grounds. In the appeal she pleaded that the judgment and decree is not sustainable in the eye of law. Allegation made by the respondent/ husband amounts to moral turpitude. There was no positive finding regarding the alleged ground taken by the respondent and ground in which the decree has been passed is not envisaged in section 13 of Hindu Marriage Act. Learned trial Court also failed to pass any order regarding alimony whereas the respondent is not maintaining the appellant/ wife and the minor son, which is the responsibility of the respondent. Therefore, it is urged to set-aside the impugned judgment and decree of divorce. Learned trial Court has found that the document Ex.PA-1 does not contain the detailed address of the appellant/wife, only name and age is mentioned. Therefore, it could not be held that appellant/ wife was the person examined. It could be any other person named Rajkumari. 7. Learned trial Court also held that, if at all it is deemed that it is the appellant/wife who has been examined by the lady doctor Anita Agrawal even then, it can not be ascertained that the appellant/wife was pregnant for ten weeks on the date of examination. Because no scientific instruments used for said examination was done by lady doctor. Appellant witness No.2 who has admitted that pregnancy could be 1-1/2 to 2 months. But it is not the exact period of pregnancy it is estimated period. Therefore, it could not be relied upon. 8. It would be pertinent to mention here that appellant/wife denied having any examination ever conducted on her. She denied that she had never gone to Uma Nursing Home for any pregnancy test. But it is not the exact period of pregnancy it is estimated period. Therefore, it could not be relied upon. 8. It would be pertinent to mention here that appellant/wife denied having any examination ever conducted on her. She denied that she had never gone to Uma Nursing Home for any pregnancy test. That being so, it could not be said for certain that she was pregnant at the time of marriage. Therefore, the learned trial Court disbelieved the respondent/ husband case. As regard, allegation made by the appellant/wife that she was subjected to cruelty and demand of dowry. But this fact could not be proved that marriage was solemnized in ‘Samuhik Vivah Sammelan’ where there was no scope for such dowry, nor there is any discussion about dowry before the marriage. 9. Mother of the appellant Parwatibai (NAW-2) has agreed that at the time of marriage parents of the respondent/ husband did not demand anything as dowry. Therefore, theory of demand of dowry has not been substantiated by evidence. 10. It is true that the allegation of pregnancy on the date of marriage has not been proved beyond doubt. Counter allegation made by appellant/wife as regarding demand of dowry etc. has also made the case more worse. 11. Sanctity of marriage is preserved not merely by morality that permeates it but by the reality that hold the family together; one without other spells a break down and so a ground for divorce may well be made out if there is total irreconcilability between the spouses. 12. Once marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of the fact and it would be harmful to society and injurious to the interest of the parties. In number of cases Hon’ble the Supreme Court has granted decree of divorce of primarily in situation where it found no purpose in keeping the legal bond alive de-jure, when de-facto it is particularly dead. (See Sarojrani v. Sudarsan AIR 1984 SC1562, Chandrakala Tirvedi v. Dr.S.P.Trivedi (1993) 4 SCC 232 , Kanchandevi v. Pramod Kumar, AIR 1996 SC 3192, D.P. Tripathi v. Arundhati (2005) 2 SCC 22 , Vinita Saxena v. Pankaj Pandit AIR 2006 SC 1662 ). 13. (See Sarojrani v. Sudarsan AIR 1984 SC1562, Chandrakala Tirvedi v. Dr.S.P.Trivedi (1993) 4 SCC 232 , Kanchandevi v. Pramod Kumar, AIR 1996 SC 3192, D.P. Tripathi v. Arundhati (2005) 2 SCC 22 , Vinita Saxena v. Pankaj Pandit AIR 2006 SC 1662 ). 13. Therefore, we are inclined to agree with the learned trial Court and hold that marriage which was “insoluble mess”, which was consequently dissolved by decree of divorce, ostensible on the ground cruelty but particularly on the ground of irretrievable break down. 14. Before saying Omega, we also feel that the question of alimony has to be considered. In the case of K. Srinivas Rao v. D.A. Deepa reported in AIR 2013 SC 2176 and in Vishwanath v. Sarla reported in 2012(4) MPLJ 265, the Hon’ble Supreme Court has propounded that :- “A sustained attitude of causing humiliation and calculated torture on the part of the wife to make the life of the husband miserable, with such mental pain, agony and suffering, the husband cannot be asked to put up with the conduct of the wife and to continue to live with her, husband is entitled to a decree for divorce.” 15. We also considered on the point of the alimony. Keeping in view the standard of life being laid by the parties and the education and maintenance of the minor son and also the financial position of the parties, we deem it proper to grant a one time alimony without giving into details of so called stridhan and other aspects. In Smt. Chand Dhawan v. Jawaharalal Dhawan 1993 AIR SCW 2548, Hon’ble Supreme Court has held that while passing the decree, the Court has to grant permanent alimony for maintenance. 16. The respondent/husband has not been maintaining the appellant / wife for which he is morally and legally bound to do. During the course of interim maintenance it is alleged that applicant/ husband earned Rs.20,000/- per month and owns two storey house in village Basoda and is running a STD shop and he is a Contractor in light fitting work. 17. Keeping in view the status of the appellant/ respondent and the economic status of the parties and following the principles laid down in U. Sree v. U Srinivas reported in (2013) 2 SCC 114 , we fix the alimony to extend of Rs.3,00,000/- (Rs.Three lacs only) which could be just and proper in the circumstances. 17. Keeping in view the status of the appellant/ respondent and the economic status of the parties and following the principles laid down in U. Sree v. U Srinivas reported in (2013) 2 SCC 114 , we fix the alimony to extend of Rs.3,00,000/- (Rs.Three lacs only) which could be just and proper in the circumstances. 18. In the result, we upheld the judgment and maintain the decree passed by the trial Court on 27.9.2007 subjected to following conditions :- (1) That the, appellant/wife is entitled for alimony to the tune of Rs.3,00,000/-(Rs. Three lacs only). (2) That the, respondent/ husband will deposit 50% of the amount the amount within 30 days from this order. (3) Another installment 25% will have to be deposited by respondent/ husband within three months thereafter. (4) The last installment has to be deposited by respondent/ husband within period of another three months. (5) This amount will be deposited in the trial Court. (6) On deposit of the same 50% of the total amount be paid to the appellant/ wife to meet her immediate needs and rest amount be deposited in any fixed deposit in her name in any Nationalized Bank in such manner that appellant/wife receives quarterly interests of the deposited amount in her saving account. (7) If the respondent/ husband fails to deposit the same the grant of decree and divorce in favour of the respondent / husband will have no force. 19. With this directions we disposed of the appeal. No order as to cost. .................