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Madhya Pradesh High Court · body

2014 DIGILAW 1252 (MP)

Bhoori Bai v. Santosh

2014-09-30

S.K.GANGELE, S.K.PALO

body2014
JUDGMENT S.K. Palo, J. 1. Appeal has been preferred by the non-applicant/wife under Section 28 of Hindu Marriage Act, 1955, challenging the judgment and decree dated 28.4.2008 passed in Case No. 60-A/2007 by the Additional District Judge, Chachoda District Guna, whereby the learned Trial Court has allowed the application of the respondent/husband under Section 13(1)(1-b) of HMA 1955 and granted a decree of divorce. 2. The undisputed facts in this case are that the marriage of the appellant and respondent was solemnized 7-8 years back. Ex.P/1 notice was served upon the appellant by the respondent. The reply to the notice is Ex.P/3. On the report of appellant at Police Station, Chachoda, a criminal case was registered under Section 498A of IPC against the respondent and his father, in which charge sheet has been filed in the Court. The appellant has further stated that the criminal case under Sections 494, 109, 120 of IPC has been lodged against the respondent and other persons. The appellant is not residing with the respondent. She is residing with her father. The appellant has also moved an application under Section 125 of Cr.P.C for maintenance for herself and her minor son. 3. The factual matrix before the Trial Court in brief are that the respondent married to the appellant on 8.5.1997 observing Hindu Customs for 2-3 years they lived happily. In the year 2003 appellant gave birth to a baby boy. She left the matrimonial home with the child and started living in her parental house. After repeated requests she did not come to matrimonial home. She has expressed that she is not willing to live with the respondent, without any reason, she has deserted the respondent and deprived the respondent of his right to cohabit and also spoiled the career of son. 4. The respondent filed the application for restitution of conjugal right and subsequently amended the application, for a decree of divorce on the ground of desertion. 5. Per contra, the appellant/wife denied all the averments levelled against her and submitted that after marriage the respondent demanded Rs. One Lakh dowry. The family of the respondent was not keeping her well, they harassed her. When she went to her parental house, respondent did not come to take her to matrimonial house. She further stated that when the respondent did not receive Rs. One Lakh dowry. The family of the respondent was not keeping her well, they harassed her. When she went to her parental house, respondent did not come to take her to matrimonial house. She further stated that when the respondent did not receive Rs. One Lakh, she was driven out by the respondent from the house. In June 2007 the respondent married to another woman. Therefore, a private complaint case has been lodged by the appellant under Section 494 of IPC. Regarding demand of dowry also another case has been registered, beside an application under Section 125 of Cr.P.C. The appellant has no means of income. Notice given to her in this case was for the reason that the respondent wanted to escape from the criminal cases. 6. On these averments, the learned trial Court has framed issues and after due consideration pronounced the impugned judgment on 28.4.2008. The learned Trial Court allowed the application under Section 13(1) (1-b) of Hindu Marriage Act, 1955 and granted decree of divorce in favour of the respondent. 7. The appellant assailed the impugned judgment on several grounds, contended that the judgment is manifest illegal, arbitrary and contrary to law. There is no ground of desertion. As the appellant has not willfully left the matrimonial house. Restitution of conjugal rights cannot be travelled with relief of divorce. The appellant has stated that she is ready to live with the respondent but the respondent is not ready to live with the appellant. The learned trial Court absolutely ignored the criminal cases under Section 498A of IPC and 494 of IPC and the case for maintenance has been instituted because of the default of the respondent. Therefore, the respondent cannot take the benefit of the same. 8. We have heard the learned counsel for the parties at length and perused the record. 9. The appellant has reiterated before the learned trial Court that she is not willfully living separately but because of the demand of dowry Rs. One Lakh and for the reason that she was beaten by the respondent, she is living with her parents. But this pleading has not been substantiated. Besides allegations have also been levelled by the appellant that the respondent has entered into a second marriage. This fact has not been proved by the appellant. 10. One Lakh and for the reason that she was beaten by the respondent, she is living with her parents. But this pleading has not been substantiated. Besides allegations have also been levelled by the appellant that the respondent has entered into a second marriage. This fact has not been proved by the appellant. 10. The statement made by the appellant show that she has not seen the second marriage herself. But her brother had seen the same. Gopal Singh (PW-2), the cousin brother of the appellant has stated that he attended the second marriage of the appellant at Ujjain. But he did not try to stop the marriage nor he lodged any report. After this incident, he kept silent and informed the same to the appellant and her father after 20 days. 11. Surprisingly, no other evidence has been adduced to establish the allegation levelled by the appellant. Therefore, the trial Court has given a finding in negative on the issue framed in this regard. On the other hand, the statement of Bhoori Bai, appellant in paras 8,10,12 and 13 stated that she is not at all willing to live with the respondent. She has clearly and ambiguously stated that, she will not go to live with the respondent, even if he beg to do so. She wants to live separately. She has also expressed that she is nothing to do with the respondent, she wants maintenance for her and her child. 12. Considering all these material available on record, the trial Court has rightly allowed the petition under Section 13 (1) (1-b) of Hindu Marriage Act, 1955. But we are not oblivious of the appellant's right to alimony. We profitable refer to follow the principle laid down in U. Sree Vs. U. Srinivas, (2013) 2 SCC 114 where in the Apex Court has stated 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 need any kind of man-made misfortune”. 13. 13. In view of the aforesaid, we fix one time permanent alimony Rs. 10,00,000/- (Rs. Ten Lakhs) which shall be deposited before the learned Additional District Judge Chachoda, Guna. Out of which Rs.5,00,000/- shall be kept in fixed deposit in the name of appellant wife in nationalized bank which would be utilized for benefit of her and her son. The deposit shall be made in such a manner so that the appellant wife would be in a position to draw quarterly interest. Rest amount be paid to the appellant by account payee cheque for meeting her immediate needs: Respondent/husband has to deposit the amount of alimony in the Court of Additional District Judge Chachoda in the following manner (1) 50% of the amount has to be paid within thirty days from today. (2) 25% be deposited within two months from the deposit of first installment. (3) Another 25% be deposited in the Family Court within two months from the date of second installment. If respondent/husband fails to deposit the said amount, the decree of divorce in his favour will be deemed inoperative. Accordingly, appeal disposed of.