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2014 DIGILAW 294 (GUJ)

Gitaben Rameshbhai Solanki v. Rameshbhai Laxmanbhai Solanki

2014-02-21

JAYANT PATEL, SONIA GOKANI

body2014
JUDGMENT : Sonia Gokani, J. The respondent husband herein preferred Family Suit No.330 of 2000 (Old No.38 of 1998) under section 13(1) of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act') for obtaining a decree of dissolution of marriage against the appellant wife herein. The Court after due adjudication passed a judgment and decree dated October 29, 2012 in Family Suit No.330 of 2000 for divorce under section 13(1) of the Act and also ordered the respondent husband to pay a sum of Rs.5,000/- per mensem to the wife towards permanent alimony under section 25 of the Act. 2. The present appellant wife also preferred Family Suit No.376 of 2006 for restitution of conjugal rights under section 9 of the Act. The Court consolidated both the suits and a common judgment was rendered on October 29, 2012 and thereby, dismissed the suit preferred by the appellant wife. 3. Aggrieved by the impugned judgment and decree, the appellant wife has preferred present appeal being First Appeal No.32 of 2013, where she has prayed for quashing and setting aside the impugned judgment and decree with the following prayers : "6(a) Your Lordships may be pleased to admit and allow this Appeal; (b) Your Lordships may be pleased to quash and set aside the impugned judgment and order dated 29.10.2012 and the decree passed by the Ld.Family Court No.4 Ahmedabad below Exh.165 in Family Suit No.330 of 2000 (Old No.38 of 1998) annexed at ANNEXURE" A". And Your Lordships may be pleased to enhance the amount of permanent alimony awarded to the wife and pleased to allow whole application filed below Ex.145 by the wife and the respondent husband may be directed to provide house to the wife. (C) Your Lordships may be pleased to grant such other and further reliefs that may be deemed fit and proper in the facts and circumstances of the case;" 4. (C) Your Lordships may be pleased to grant such other and further reliefs that may be deemed fit and proper in the facts and circumstances of the case;" 4. Yet another appeal being First Appeal No.33 of 2013 has been preferred by the appellant wife before this Court challenging the decree of divorce passed in favour of the respondent husband with the following prayers : "6(a) Your Lordships may be pleased to admit and allow this Appeal; (b) Your Lordships may be pleased to quash and set aside the impugned judgment and order dated 29.10.2012 and the decree passed by the Ld.Family Court No. 4 Ahmedabad in Family Suit No.376, which was preferred under section 9 of the Hindu Marriage Act 1955, annexed at ANNEXURE" A". And Your Lordships may be pleased to enhance the amount of permanent alimony awarded to the wife and pleased to allow whole application filed below Ex.145 by the wife and the respondent husband may be directed to provide house to the wife. (C) Your Lordships may be pleased to grant such other and further reliefs that may be deemed fit and proper in the facts and circumstances of the case;" 5. As common questions of law and facts arise in this group of appeals, they are being disposed of by this common judgment. 6. The brief facts leading to filing of the present appeals are as under : 6.1 The marriage of the appellant and the respondent was solemnised eight years prior to filing of the suit and out of the said wedlock, they have two sons, namely, Mehul and Mahendra. It was the case of the respondent husband before the Family Court that five years prior to filing of the suit by the respondent husband, the appellant wife had abandoned him with all her ornaments and articles and all the efforts to bring her back resulted into vain. According to the appellant wife, there were serious allegations of illicit relations of the respondent husband with the sister-in-law (wife of elder brother of the respondent Page husband) of the appellant wife. It was alleged by the appellant wife that she herself is the eyewitness to such relationship, as the elder brother of the respondent husband had died. The respondent husband served with the Telephone Department and was a permanent employee. It was alleged by the appellant wife that she herself is the eyewitness to such relationship, as the elder brother of the respondent husband had died. The respondent husband served with the Telephone Department and was a permanent employee. In such a background, a request was made by the respondent husband in Family Suit No.330 of 2000 for dissolution of marriage. 6.2 Whereas the appellant wife requested for restitution of conjugal rights in the litigation filed by her being Family Suit No.376 of 2006, one of the reliefs prayed for by the appellant wife in the said suit which was denied by the trial Court. However, the trial Court held that the appellant wife is entitled for permanent alimony limiting to the tune of Rs.5,000/- per mensem from the respondent husband. 7. The learned advocate Mr. Bhavsar with Mr. Mukesh Patel appearing for the appellant wife has forcefully submitted that the trial Court has erred seriously in allowing the decree of divorce when the appellant wife is still ready and willing to reside with the respondent husband, provided he leaves the company of her sister-in-law. He further urged that the appellant wife had to look after and maintain both her children. The amount of maintenance given by the Court towards permanent alimony is also very meagre. He further urged that the appellant wife never deserted the husband, however, it was the respondent husband who had driven her out of her matrimonial house. He further urged that the total amount of salary of the respondent husband is on higher side and, therefore, the grant of Rs.5,000/- to the appellant wife and her two children by the Court is too meagre an amount. He, of course, has argued that the right to get permanent alimony of the appellant wife would include the right of residence, too and the trial Court has completely ignored the said aspect. 8. Per contra, Ms. S.M. Ahuja, learned advocate appearing for the respondent husband, has urged that the Court has adjudicated in detail the issues between the parties and held in favour of the respondent husband. She further urged that the salary of the respondent husband is not on higher side that he can offer to pay more than Rs.5,000/- per mensem to the appellant wife. She further urged that the salary of the respondent husband is not on higher side that he can offer to pay more than Rs.5,000/- per mensem to the appellant wife. She further urged that in absence of any mistake on the part of the trial Court, this Court may not interfere with the impugned judgment and decree at this stage. The suit preferred by the appellant wife for restitution of conjugal rights was also an afterthought and, therefore, this Court needs to bear in mind the entire factual background before it chooses to intervene. 9. Upon thus hearing both the sides and on close examination of material on record, what needs to be decided in the present case is as to whether the trial Court committed any error in granting the decree of divorce to the respondent husband and denying the relief of restitution of conjugal rights to the appellant wife. Secondly, whether the trial Court was right in granting Rs.5,000/- per mensem to the appellant wife as permanent alimony; and whether such amount is sufficient considering the salary of the husband and requirement of wife as also from overall circumstances of the case. 9.1 It can be noticed that the parties have been staying separately for the last more than 20 years. There are personal allegations and counter allegations on the character by the spouses against each other. It also further emerges from the depositions recorded before the trial Court and the appreciation made by the Court concerned that the dispute between the parties is long subsisting, without any semblance of possibility of resolution. Serious allegations have been made against each other by both the sides and as rightly noted by the Court, except the spouses, the rest of the witnesses have no personal knowledge of any of the allegations made. Ordinarily in matrimonial disputes, real inside story by and large is known to the spouses concerned only. What comes out and becomes knowledge of others is again rarely the personal knowledge. 9.2 Be that as it may, when the evidence of appellant and that of the respondent is considered, the trial Court has elaborately analysed the facts and also relied upon various decisions of different High Courts and those of the Apex Court. What comes out and becomes knowledge of others is again rarely the personal knowledge. 9.2 Be that as it may, when the evidence of appellant and that of the respondent is considered, the trial Court has elaborately analysed the facts and also relied upon various decisions of different High Courts and those of the Apex Court. The allegation of the appellant wife that she was expelled from house and since then she has been residing at her parental home at Sanand, also has much weighed with the Court and in the same breath the respondent husband stated that since the year 1993, there is no relationship of husband and wife between the appellant and the respondent. Many attempts of conciliation failed and this bench also made endeavours to ensure that the parties amicably settle the dispute. However, when this did not fructify into any solution, the matter is being decided on merits. Various decisions of the Apex Court have been quoted to hold that when many attempts of resolution fail and when both the spouses have lost faith in each other, the marriage life cannot be thrust upon them. 9.3 The reasonings given by the trial Court for allowing the decree of divorce essentially revolve around the fact that the parties have separated long time ago and in absence of any chances of reconciliation, this long separation would entitle the respondent husband to get the decree. 9.4 It can be noticed that the respondent husband filed Family Suit in the year 1998, whereas the appellant wife preferred the suit for restitution of conjugal rights in the year 2006. It was at the time when the evidence was to be led by the respondent husband in the suit filed by him for dissolution of marriage that such a suit came to be filed by the appellant wife, which clearly appears to be an afterthought on the part of the appellant wife. Non-joining the husband for all these years and nonperformance of the matrimonial obligations, are held to be acts of cruelty on the part of the appellant wife by Family Court. Of course, she has alleged perpetual cruelty on account of the alleged illicit relationship of the respondent husband with his sister-in-law (elder brother's wife). Non-joining the husband for all these years and nonperformance of the matrimonial obligations, are held to be acts of cruelty on the part of the appellant wife by Family Court. Of course, she has alleged perpetual cruelty on account of the alleged illicit relationship of the respondent husband with his sister-in-law (elder brother's wife). The allegations are also made against the character of the appellant wife, but the trial Court has rightly not gone into either of the aspects, but broadly on the ground of separation of nearly 20 years' period and in absence of any possibility of reconciliation of the parties, passed the decree of divorce. We see no reason to interfere. 9.5 In the case of Naveen Kohli v. Neelu Kohli, reported in AIR 2006 SC 1675 , the Apex Court had confirmed the decree of divorce in the wake of separation of 10 years and put an end to the large number of criminal and civil proceedings initiated by both the sides. 9.6 We are of the considered opinion that no ground is made out for grant of decree of restitution of conjugal rights by the appellant wife at this stage under section 9 of the Act. Assuming that the entire version of the appellant wife is true and she was unable to continue with her husband on account of perpetual cruelty, there are no proceedings indicating such details prior to filing of the suit by the respondent husband. Her insistence to get the decree of restitution of conjugal rights also does not appear to be genuine in the wake of the fact that the husband's suit of the year 1998 was responded to by the appellant wife by preferring a suit for restitution of conjugal rights after a period of nearly eight years. Such suit is intended to be an afterthought and to prevent the grant of decree of divorce in favour of the respondent husband. 9.7 In light of the discussion held herein above, neither any ground is made out warranting any interference in the decree of dissolution of marriage passed in favour of the respondent husband in Family Suit No.330 of 2000, nor do we see any reason for interfering with the order rejecting the suit preferred by the appellant wife for restitution of conjugal rights. 9.8 However, the order of permanent alimony while granting decree of divorce certainly is a matter of concern for the Court. The respondent husband who is a permanent employee of Telephone Department is fetching a salary to the tune of Rs.37,871/as per his payslip of November, 2013, whereby it is crystal clear that the gross pay of the respondent husband is Rs.37,871/-, total deductions come to Rs.13,202/- (Rs.8000/towards GPF + Rs.2140/towards LIC premium + Rs.1434/- towards Credit Society + Rs.1288/towards Incometax, etc.) and thus, the respondent husband is getting net pay of Rs.24,669/-. However, it is pertinent to note that out of the said total deductions of Rs.13,202/-, an amount of Rs.11,574/- is being deducted towards the future investment only and, thus, such amount needs to be added in the net pay of the respondent husband. It is argued fervently by the learned counsel for the appellant wife that the wife needs to buy a house for herself and the respondent husband has already four houses. The grant of permanent alimony should include the grant of respectable living and, therefore, the Court needs to make necessary provisions for residential accommodation as well. 9.9 Ms.Ahuja has strenuously objected to such request by pointing out that the respondent husband is a person of very meagre means and has no capacity to provide a house to the appellant wife. Moreover, he has to look after the family of his departed brother and, therefore also, providing more amount towards maintenance is not possible for him. 9.10 We cannot, however, endorse the view of the trial Court of grant of sum of Rs.5,000/towards permanent alimony under section 25 of the Hindu Marriage Act even though considering her additional source of maintenance under section 127 of the Cr.P.C., it has chosen to so do it. At the same time, in absence of any substantiating evidence or any other material showing that husband is having four houses or any other house, the residential accommodation for wife may not be possible. We are conscious of the fact that time and again, the Apex Court has explained and given a purposive meaning that the right of maintenance would include not only the subsistence allowance, but respectable living as well. We are conscious of the fact that time and again, the Apex Court has explained and given a purposive meaning that the right of maintenance would include not only the subsistence allowance, but respectable living as well. The appellant has failed to bring on record any proof of the respondent having three to four or any other residential accommodation of his own, no evidence worth the name is on record and, therefore, it is not possible for us to direct the respondent husband to provide a residential accommodation to the appellant wife. However, keeping in mind the total salary of the respondent husband, the factum that the wife has no residence of her own nor any means of earning and also considering the fact that both the sons of the parties living with the appellant wife have attained majority, we are of the opinion that grant of sum of Rs.10,000/- (Rupees Ten Thousand only) by way of permanent alimony under section 25 of the Hindu Marriage Act to the appellant wife would suffice. 10. For the foregoing reasons, First Appeal No.32 of 2013 is partly allowed. The judgment and order dated October 29, 2012 passed by the Family Court No.4, Ahmedabad, below Exhibit 165 in Family Suit No.330 of 2000 (Old No.38 of 1998) for divorce is confirmed, but the order passed by the Family Court of payment of Rs.5000/- towards the permanent alimony under section 25 of the Hindu Marriage Act from the date of such application is modified to the extent that the said amount of permanent alimony under section 25 of the Hindu Marriage Act shall stand enhanced to Rs.10,000/- ( Rupees Ten Thousand only) from the date of filing of the application under section 25 of the Hindu Marriage Act before the Family Court. Resultantly, First Appeal No.33 of 2013 challenging the order of rejection of decree of restitution of conjugal rights under section 9 of the Act passed by the Family Court is dismissed. It is, however, clarified that the prayer for enhancement of permanent alimony made in this appeal since gets covered in the decision of First Appeal No.32 of 2013, no further order is passed in that respect. Both the appeals stand disposed of accordingly. There shall be, however, no order as to costs. Order accordingly.