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2014 DIGILAW 1241 (MP)

Brijesh Kumar v. Vandana Srivas

2014-09-29

S.K.GANGELE, S.K.PALO

body2014
JUDGMENT S.K. Palo, J. 1. Aggrieved by the judgment pronounced on 28.09.2013 by Additional District Judge, Ganjbasoda district Vidisha (M.P.) in Civil Suit No. 126-A/2012 (HMA), the appellant/husband has filed this appeal under Section 28 of the Hindu Marriage Act, 1955 (for brevity “the Act”). 2. It is not disputed that marriage of the appellant with the respondent was solemnised in the year 2001 by observing Hindu rites. Due to their wedlock, they have two girls named Unnati and Harshita. 3. The appellant/husband moved an application under Section 13 of the Act before the Trial Court for a decree of divorce on the ground of 'cruelty' and desertion. He alleged that the respondent/wife without sufficient cause and without the consent of the appellant/husband left the matrimonial home along with minor daughters. She is living with her parents at Sehore. She is not inclined to live at her matrimonial home when she was living with the appellant. She joined a job without the consent of the appellant/husband and his family members. She also used to meet her male friends. She is not cooperative in performing the domestic duties. She has been tolerated by the appellant/husband but the respondent/wife did not improve herself. She left with the children. She was expressing that, her marriage was performed with the appellant without her wishes. As the appellant is illiterate, her life has become miserable. She also threatened the appellant that if he wants to keep the family members safe, he should dissolve the marriage. Her behaviour towards the appellant/husband was cruel. She was neglecting the parents of the appellant. Since 2009, they have no relation with each other 4. The respondent denied all the averments made by the appellant and pleaded that she was observing the duties very seriously. She never neglected her family. The appellant is the son of an advocate notary. He is efficient in photography and videography. Under the influence of his father, he is torturing and harassing the respondent/wife. There is no reason to dissolve the marriage. The family members also instigated the appellant for Rs. 1.00 lac as dowry. She was not being treated properly. As no male child is born to her, they are despising her. On 08.06.2010, even after the improper response of the appellant/husband, she along with her children came to her maternal home. But the appellant and his parents driven her out. The family members also instigated the appellant for Rs. 1.00 lac as dowry. She was not being treated properly. As no male child is born to her, they are despising her. On 08.06.2010, even after the improper response of the appellant/husband, she along with her children came to her maternal home. But the appellant and his parents driven her out. The appellant cannot escape his liability and he is not entitled for a decree of divorce. 5. The learned Trial Court, after adducing evidence of both the parties, pronounced the impugned judgment on 28.09.2013. The application under section 13 of the Act was rejected. At the same time, the learned Trial Court directed the appellant to keep the respondent and restore her conjugal rights. The appellant/husband has filed this appeal assailing the impugned judgment on several grounds. 6. We have gone through the records and heard the counsel for the appellant at length. 7. In matrimonial cases, the evidence has to be analyzed by preponderance of probability, unlike criminal cases where allegation has to be proved strictly. 8. In matrimonial cases, the dispute has to be decided on the basis of the “oath versus oath” evidence. The respondent/wife has admitted that she is not residing at her matrimonial home since last 2-3 years. She has alleged cruelty against the respondent and also stated that it is the appellant himself who rang up her parents on October, 2009 to take respondent for treatment. The present suit was filed on 28.03.2011. The respondent, as per the averments, did not desert the appellant for a continues period of two years. Therefore, learned Trial Court has rightly decided issue No. 1 as “not proved.” 9. As regarding “cruelty” the averments made by the appellant has to be analyzed by the evidence on record. The appellant has alleged that the respondent joined a service in the school for 4-5 months without the consent of the appellant. Respondent has submitted that the appellant at the time of marriage informed that he has completed B.Com but after marriage when she asked to show his mark-sheet, he did not show it. She also alleged that the appellant after consuming alcohol used to beat her, whereas the consuming of alcohol by appellant and beating her is not pleaded in the written statement. Her allegation of treating her with “cruelty” becomes unfounded. She also alleged that the appellant after consuming alcohol used to beat her, whereas the consuming of alcohol by appellant and beating her is not pleaded in the written statement. Her allegation of treating her with “cruelty” becomes unfounded. She admits that whenever she was ill, her husband used to accompanying her for treatment and she had never been “seriously ill”. After the birth of the girl, she is living with her husband separately in the same house where her in-laws are living. In her written statement, she has alleged that for demand of dowry, she was being treated cruelly. The appellant has uttering failed to prove the demand of dowry and cruelty on that account. There is no allegation of consuming alcohol is mentioned in the pleadings. That means in the statement this has been developed by the respondent according to her convenience. She was living separately since last 2-3 years and depriving cohabitation to the appellant. This amounts to cruelty. 10. In Smt. Vibha Shrivastava Vs. Dinesh Kumar Shrivastava ( AIR 1991 MP 346 ), it is held that derogatory and disparaging remarks against spouse and close relatives and the written statement, the allegations of illicit sexual relation and sexual perversity amounts to cruelty. Deprivation of the marital relationship or cohabitation also amounts to cruelty. 11. In Samar Ghosh vs. Jaya Ghosh (2007) 4 SCC 511 , the Apex Court has held that:- “Cruelty is something that cannot be explicitly cast in a particular mould, as regards what is an what may not amount to cruelty. The Supreme Court has stated that however, as a result of some situations, the marriage may become a fiction, and though supported by a legal hue, such a bond ought to be severed.” 12. In the above circumstances, we are inclined to allow this appeal. But before parting with the appeal, we also deem it proper to consider the award of alimony. 13. In U. Sree Vs. U. Srinivas (2013) 2 SCC 114 , the Apex Court has held that:- “Grant of permanent alimony to wife – Factors to be considered. In the above circumstances, we are inclined to allow this appeal. But before parting with the appeal, we also deem it proper to consider the award of alimony. 13. In U. Sree Vs. U. Srinivas (2013) 2 SCC 114 , the Apex Court has held that:- “Grant of permanent alimony to wife – Factors to be considered. No arithmetic formula, held, can be adopted therefore – However, status of parties, their respective social needs, financial capacity of husband and other obligations must be taken into account – Duty of Court is to see that wife lives with dignity and comfort and not in penury – Though living need not be luxurious, Court has to act with pragmatic sensibility that wife does not meet any kind of man-made misfortune.” 14. Keeping in view the status of the appellant and respondent and following the principles laid down in U. Sree (supra), we fix the oen time alimony to the extend of Rs.7,00,000/- (Rupees Seven Lacs only) to the respondent/wife, which would be just and proper in the circumstances. 15. We therefore grant a one time alimony of Rs. 7,00,000/- (Rupees Seven Lacs only) in favour of respondent/wife, which shall be deposited in the Court of Additional District Judge, Ganjbasoda district Vidisha in the following manner:- (i) 50% of this amount has to be deposited within one month from today. (ii) 25% of the amount has to be deposited within next three months; and (iii) Rest 25% has to be deposited by the appellant/husband within next three months. (iv) The concerned Family Court is directed to see that Rs. 3,50,000/- (Rupees Three Lacs Fifty Thousand only) be kept in fixed deposit in the name of respondent/wife in any nationalized bank in such a manner that the non-applicant/wife receives the interest through her saving bank account quarterly. The rest amount of Rs. 3,50,000/- (Rupees Three Lacs Fifty Thousand only) be paid to the respondent/wife by account payee cheque for her immediate needs. (v) If the appellant/husband fails to deposit the amount as mentioned above, the decree of divorce would be rendered inoperative. 16. Accordingly, appeal is allowed to the extent as indicated above.