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2015 DIGILAW 110 (ORI)

Manasi Sarita Dash v. Mahendra Kumar Nath

2015-02-19

B.R.SARANGI

body2015
JUDGMENT Dr. B.R.SARANGI, J. - The wife, being the appellant, has filed MATA No. 57 of 2009 challenging the judgment and decree dated 07.09.2009 and 17.09.2009 respectively passed by the Learned Civil Judge (Sr. Division), Dhenkanal in Mat Case no. 191 of 2007 wherein the learned Court below dissolved the marriage and passed a decree of divorce in favour of the husband-respondent under Section 13{l)(i-a) of Hindu Marriage Act, 1955, in short “the Act, 1955”. The husband, being the appellant in MATA No. 58 of 2009 has challenged the very same judgment and decree granting benefit of monthly maintenance of Rs.3,000/- to the wife and Rs.2,000/- the minor son till he gets majority starting from the month of September, 2009 until any circumstances arises warranting a modification or variance of the decree regarding maintenance under Sections 25 and 26 of the Hindu Marriage Act. Both the appeals having arisen out of one judgment and decree passed in Mat Case No.191 of 2007, they being heard together, are disposed of by this common judgment. 2. The factual matrix of the case in hand is that the marriage between the parties was held on 30.06.2006 and after the marriage they stayed in- her matrimonial home at Karigar Sahi of Dhenkanal town and led a conjugal life. After 8 to 10 days of marriage the wife persuaded the husband to stay with him at his service place at Tikarpada. The wife questioned that whether Sonu, the son of the deceased sister of the husband will remain with them or not and she expressed her dissatisfaction with the family members of the husband and persuaded him to leave his family members and to lead an independent life with better amenities and also did not like to take the burden and responsibility of other family members of the husband. It is further stated that the mother of the wife misbehaved the married sisters of the husband and gave unpleasant remarks about his brother-in-law. The husband assured the wife to bring a cordial atmosphere but the wife did not agree to stay in the matrimonial house with other family members and made some remarks against all the family members and refused to cohabit with the husband in order to compel the husband to leave his parents and take her to his service place. The husband assured the wife to bring a cordial atmosphere but the wife did not agree to stay in the matrimonial house with other family members and made some remarks against all the family members and refused to cohabit with the husband in order to compel the husband to leave his parents and take her to his service place. After 20 to 25 days of the marriage, the mother of the wife came to the house of her husband and abused all his family members in filthy language and threatened that she will not spare anybody who stands on the way of her daughter's comfort. On 11.11.2006 the wife left her matrimonial house with her brother to her parental house without informing her husband and refused to join him. The wife alleged the incestuous relationship of the husband with his own sister and informed that she is pregnant and threatened to terminate the pregnancy if the husband will not act according to her will and also threatened to institute criminal case against the husband and other family members. Thereafter, the husband went to the in-law’s house with hope for conciliation and during his stay at night, he found that his wife was ill. So, he proposed her for medical check-up, which was refused. Therefore, the husband finding no other alternative returned back after giving her a sum of Rs.10,000/- with advice to take care of herself during pregnancy. On 23.06.2007 the wife gave birth a male child. But this fact was not informed neither to the husband nor to his parents and this was made known to the husband and other family members by outsiders. The husband went along with his brother to the hospital, but the mother of the wife did not allow them to see the child and abused them in filthy language. On 25.07.2007 the mother of the wife came to the house of the husband and scolded his parents in filthy language alleging illicit relationship between the husband and his sister. The matter was reported to the Town Police Station, Dhenkanal on 30.7.2007. The husband wrote a letter to the wife asking her to change herself to lead a happy family life or else there is no other option than to seek a divorce in the Court of law. But all his efforts were. in vain. The matter was reported to the Town Police Station, Dhenkanal on 30.7.2007. The husband wrote a letter to the wife asking her to change herself to lead a happy family life or else there is no other option than to seek a divorce in the Court of law. But all his efforts were. in vain. Due to such behaviour of the wife, the husband suffered mental agony and harassment which amounts to cruelty. Therefore, finding no other way out, the husband preferred the Mat case before the learned Civil Judge (Senior Division), Dhenkanal bearing Mat case No. 191 of 2007 under Section 13(1) (i-a) of the Act, 1955 seeking for a decree of divorce in dissolving the marriage between them. 3.After getting notice in Mat Case No. 191 of 2007, the wife filed written statement. The wife while admitting the fact of marriage and consummation •of their marital life with the husband, stated, inter alia that out of their. wed-lock, she had been blessed with a son, but alleges that the family members of the husband demanded dowry of a car and colour T.V. and teased her by giving mental stress. The wife also denied the allegation that she refused cohabitation with her husband nor put pressure on him to leave his parents and to take her to his place of service. The wife made allegation with regard to the illicit relationship of her husband with his own unmarried sister, which is not only heinous but also shocking and gave her a mental jolt. It is further stated that the wife was being brutally assaulted by her husband at the instigation of his mother and unmarried sister for further demand of dowry. It is denied by the wife that after 22-25 days of marriage, her mother went to the house of her husband and misbehaved other family members by using filthy language. On the other hand, the husband used filthy language against her mother and her sister. When the wife protested, she was assaulted inside the room, which caused swelling injury on her head. The mother and sister of the husband took away all the gold ornaments from the wife and when she was tortured by the family members of her husband, it became unbearable. When the wife protested, she was assaulted inside the room, which caused swelling injury on her head. The mother and sister of the husband took away all the gold ornaments from the wife and when she was tortured by the family members of her husband, it became unbearable. Finding no other alternative, she left the matrimonial house and went to her parent’s house in order to save herself and the child in her womb. While the wife was in her parent’s house, she suffered from profuse bleeding and informed the same to her husband, who advised her to terminate the pregnancy and adopt the son (nephew of the husband) as their child, which was denied by the wife. On 23.6.2007 and 24.6.2007 the father of the husband was intimated and thereafter the wife intimated through the DFO about the birth of the child. Neither the husband nor his family members visited the child and on the other hand, the husband threatened to divorce the wife and thereby she was also subjected to cruelty. It is further stated that the wife time and again expressed her intention to stay with her husband and to lead a happy conjugal life and to have her own family with their son, but the husband for no justifiable reason has filed the aforesaid Mat case, which the wife seeks for dismissal. 4.On the basis of the above pleadings, learned Court below framed as many as five issues. The husband examined three witnesses including himself as P.W.1, sister-Smitarani Nath as P.W.2 and his father-Duryodhan Nath as P. W.3 and relied upon several documents marked as Exts. l to 7. Per contra, the wife examined herself as D. W.1 and her mother Sanjukta Dash as D. W.2 . and exhibited three documents as Exts.A, A/1 and B. 5.Considering the materials available on record and on analyzing the evidence adduced by the parties and going through the documents, learned Civil Judge (Senior Division), Dhenkanal allowed Mat Case No.191 of 2007 by passing a decree of divorce and by directing the husband to pay Rs.3,000/- to the wife as her maintenance and Rs.2,000/- to the child towards maintenance till he gets majority per month vide judgment and decree dated 07.09.2009 and 17.09.2009 respectively. 6. Ms. 6. Ms. D.Priyanka, learned counsel for the appellant in MATA No. 57 of 2009 strenuously urged that the learned Court below has committed gross error by passing an order for dissolution of marriage by a decree of divorce without properly considering the provisions contained in Section 13(1)(i-a) of the Act, 1955 and the learned Court below has accepted the evidence of P.Ws. 1 to 3 without examining the veracity of the statements and also shifted the onus on the wife to prove the allegations of extraneous relationship of her husband with his uterine sister and disbelieved the same in absence of any corroborative statement and also stated that the learned Court below has committed gross error of law in disbelieving the statement of D.W. 1- wife as her statement is corroborated by Ext.2 and the learned Court below should not have ignored the same and passed the impugned judgment against her. 7.Mr.S.K.Dash, learned counsel appearing for the husband in MATA No.58 of 2009•though accepted part of the judgment and decree with regard to dissolution of marriage by granting decree of divorce, but objected to the grant of maintenance of Rs.3,000/- and Rs.2,000/- per month in favour of the wife and the son. It is stated that the award of such maintenance is contrary to the provisions contained in Sections 25 and 26 of the Act, 1955 and stated that without filing any proper application, the impugned order relating to maintenance of the child in absence of such application is bad and also stated that the quantum of maintenance for the wife and child is excessive and therefore, the same should be modified and reduced or instead of awarding periodical sum towards maintenance, permanent alimony should be decided and without doing so, the order so passed by the learned Court below is absolutely misconceived one. In order to substantiate his contention, he has placed reliance on B.Srnivasulu v. Mrs.Veena Kumari, AIR 2008 AP 20 , Mrs.Manisha Sandeep Gade v. Sandeep Vinayak Gade, AIR 2005 Bombay 180, Smt.Pranati Chatterjee v. Shri Goutam Chatterji, AIR 2006 Cal 196 , Satish Kumar v. Suman, 2012(1) CCC 225 (P & H), Malarvijy v. Kanthan, 2012(1) CCC 82(Mad), Bhavana N.Shah v. Nmn Chimanlal Shah, AIR 2012 Bombay 148, Vijay Kumar Ramchandra Bhate v. Neela Vijay Kumar Bhate, AIR 2003 SC 2462 , U.Sree v,. U.Srinivas, AIR 2013 SC 415 , K.Srinivas Rao v. D.A.Deepa, AIR 2013 SC 2176 and Guntamukkala Naga Venkata Kanaka Durga v. Guntamukkala Eswar Sudhakar and another, AIR 2013 AP 58 . 8.Considering the above pleadings of the parties and materials available on record and going through the evidence, initially this Court made an endeavour for reconciliation, but the same having failed, opportunity was given to the parties to settle the matter amicably with lump-sum as permanent alimony, but the same having not been materialized, matters were heard at length. 9. So far as the question of dissolution of marriage by granting decree of divorce is concerned, the learned trial Court dealt with the matter in proper perspective. As it appears, the husband has established mental cruelty inflicted on him through pleadings and evidence on record, it does not require solemn’s wisdom to understand the embarrassment and harassment that might have been felt by the husband on account of allegations pertaining to highly immoral conduct raised by the wife before institution of the proceeding, which has been further aggravated by narrations in the written statement and in her deposition before the Court. The level of disappointment on his part can well be visualized like a moon in cloudless sky. The evidence of the wife having been studiedly scrutinized by the learned Court below, who had additional opportunity to mark the demeanor, categorically reveal that there. was not even any basis for any kind of suspicion with regard to harshest allegation about the conduct of any person. It can be stated with certitude that the cumulative effect of the evidence brought on record clearly establishes a sustained attitude of causing humiliation and calculated torture on the part of the wife to make the life of the husband a miserable hell. The husband has been treated as an un- person as has been rightly analyzed by the learned Court below that with the mental pain, agony and sufferings, the husband cannot be asked to put up with the conduct of the wife and continue to live with her. On the basis of the facts available that both the spouses fought the matter with utmost bellicosity and hardly there is any chance of reunion. 10. In U.Sree (supra) , the apex Court has held as follows: 23. On the basis of the facts available that both the spouses fought the matter with utmost bellicosity and hardly there is any chance of reunion. 10. In U.Sree (supra) , the apex Court has held as follows: 23. In the case at hand, the husband has clearly deposed about the constant and consistent ill-treatment meted out to him by the wife inasmuch as she had shown her immense dislike to his “sadhna” in music and had exhibited total indifference and, in away, contempt to the tradition of teacher and disciple. It has graphically been demonstrated that she had not shown the slightest concern for the public image of her husband on many an occasion by putting him in a situation of embarrassment leading to humiliation. She has made wild allegations about the conspiracy in the family of her husband to get him re-married for the .greed of dowry and there is no iota of evidence on record to substantiate the’same.This, in fact, is an aspersion not only on the character of the husband but also a maladroit effort to malign the reputation of the family. The learned Family Judge as well as the High Court has dearly analysed the evidence and recorded a finding that the wife had treated the husband with mental cruelty. True it is, there is some reference in that regard to the photostat copy of the letter which we have not accepted as admissible in evidence but the other evidence brought on record dearly support the findings recorded by the learned Family Judge and the High Court and the said finding remains in the realm of fact.• 11.In K.Sriniva Rao(supra), the apex Court in paragraphs 14, 22 & 23 held as follows : 14. Thus, to the instances illustrative of mental cruelty noted in Samar Ghosh, we could add a few more. Making unfounded indecent defamatory allegations against the spouse or his or her relatives in the pleadings, filing of complaints or issuing notices or news items which may have adverse impact on the business prospect or the job of the spouse and filing repeated false complaints and cases in the Court against the spouse would, in the facts of a case, amount to causing mental cruelty to the other spouse. 22. We need to now see the effect of the above events. 22. We need to now see the effect of the above events. In our opinion, the first instance of mental cruelty is seen in the scurrilous, vulgar and defamatory statement made by the respondent-wife in her complaint dated 04/10/1999 addressed to the Superintendent of Police, Women Protection Cell. The statement that the mother of the appellant-husband asked her to sleep with his father is bound to anger him. It is his case that this humiliation of his parents caused great anguish to him. He and his family were traumatized by the false and indecent statement made in the complaint. His grievance appears to us to be justified. This complaint is a part of the record. It is a part of the pleadings. That this statement is false is evident from the evidence of the mother of the respondent-wife, which we have already quoted. This statement cannot be explained away by stating that it was made because the respondent-wife was anxious to go back to the appellant- husband. This is not the way to win the husband back. It is well settled that such statements cause mental cruelty. By sending this complaint the respondent-wife has caused mental cruetty to the appellant-husband. 23. Pursuant to this complaint, the police registered a case under Section 498-A of the IPC. The appellant- husband and his parents had to apply for anticipatory bail, which was granted to them. Later, the respondent-wife withdrew the complaint. Pursuant to the withdrawal, the police filed a closure report. Thereafter, the respondent- wife filed a protest petition. The trial Court took cognizance of the case against the appellant-husband and his parents (CC No. 62/2002). What is pertinent to note is that the respondent-wife filed criminal appeal in the High Court challenging the acquittal of the appellant-husband and his parents of the offences under the Dowry Prohibition Act and also the acquittal of his parents of the offence punishable under Section 498-A of the IPC. She filed criminal revision seeking enhancement of the punishment awarded to the appellant-husbend for the offence under Section 498-A of the IPC in the High Court which is still pending. When the criminal appeal filed by the appellant-husband challenging his conviction for the offence under Section 498-A of the IPC was allowed and he was acquitted, the respondent-wife filed criminal appeal in the High Court challenging the said acquittal. When the criminal appeal filed by the appellant-husband challenging his conviction for the offence under Section 498-A of the IPC was allowed and he was acquitted, the respondent-wife filed criminal appeal in the High Court challenging the said acquittal. During this period respondent-wife and members of her family have also filed complaints in the High Court complaining about the appellant-husband so that he would be removed from the job. The conduct of the respondent- wife in filing a complaint making unfounded, indecent and defamatory allegation against her mother-in-law, in filing revision seeking enhancement of the sentence awarded to the appellant-husband, in filing appeal questioning the acquittal of the appellant-husband and acquittal of his parents indicates that she made all attempts to ensure that he and his parents are put in jail and he is removed from his job. We have no manner of doubt that this conduct has caused mental cruelty to the appellant-husband.” 12. Similar view has also been taken by the apex Court in the judgments cited by Mr.S.K.Dash, learned counsel appearing for the husband mentioned supra. Therefore, with regard to the finding of the learned Court below that the marriage has broken irretrievably and the chapter should therefore be closed, this Court is of the considered opinion that the learned Court below has not committed any irregularity or illegality in coming to such conclusion and therefore, concurs with such finding. 13. In Vijay Kumar Ramchandra Bhate (supra), the apex Court has considered the word “mental cruelty” as mentioned in Section 13(1)(i-a) of the Act, 1955. In paragraph 11 of the said judgment, the apex Court has held as follows: 11. That apart, in our view, even the fact that the application for amendment seeking for deletion of the accusations made in the written statement was ordered and amendments carried out subsequently does not absolve the husband in this case, from being held liable for having treated the wife with cruelty by making earlier such injurious reproaches and statements, due to their impact when made and continued to remain on record. To satisfy the requirement of Clause (i-a) of sub-Section (1) of Section 13 of the Act, it is not as though the cruel treatment for any particular duration or period has been statutorily stipulated to be necessary. As to what constitute the required mental cruelty for purposes of the said provision. To satisfy the requirement of Clause (i-a) of sub-Section (1) of Section 13 of the Act, it is not as though the cruel treatment for any particular duration or period has been statutorily stipulated to be necessary. As to what constitute the required mental cruelty for purposes of the said provision. In our view, will not depend upon the numerical count of such incidents or only on the continuous course of such conduct, but really go by the intensity, gravity and stigmatic impact of it when meted out even once and the deleterious effect of it on the mental attitude, necessary for maintaining a conducive matrimonial home. If the taunts, complaints and reproaches are of ordinary nature only, the Courts perhaps need consider the further question as to whether their continuance or persistence over a period time render, what normally would, otherwise, not be a so serious an act to be so injurious and painful as to make the spouse charged with them genuinely and reasonably conclude that the maintenance of matrimonial home is not possible any longer. A conscious and deliberate statement leveled with pungency and that too placed on record, through the written statement, cannot so lightly be ignored or brushed aside, to be of no consequence merely because it came to be removed from the record only. The allegations leveled and the incidents enumerated in the case on hand, apart from they being per se cruel in nature, on their own also constitute an admission of the fact that for quite some time past the husband had been persistently indulging in them, unrelented and unmindful of its impact. That the husband in this case has treated the wife with intense cruelty is a fact, which became a fait accompli the day they were made in the written statement. They continued on record at any rate till 05.10.1988 and the indelible impact and scar it initially should have created, cannot be said to have got ipso facto dissolved, with the’ amendments ordered. Therefore, no exception could be taken to the Courts below placing reliance on the said conduct of the appellant, in this regard, to record a finding against him.” 14. Therefore, no exception could be taken to the Courts below placing reliance on the said conduct of the appellant, in this regard, to record a finding against him.” 14. Coming to the question of grant of permanent alimony as it appears from the pleadings available on record, the wife has neither pleaded ‘in her written statement the exact amount she wants nor adduced any evidence to that extent. Considering the fact that the wife was awarded a sum of Rs.2,000/- for herself and Rs.500/- for the minor child under Section 24 of the Act, 1955 and that the husband is drawing a sum of Rs.13,535j- in 2008, learned Court below went on to assess the salary of the husband, which would not be less than Rs.20,000/- after implementation of 6th pay Commission and therefore separately awarded a sum Rs.3,000j- and Rs.2,000/- per month in favour of the wife and minor child respectively. But by virtue of the interim order passed by this Court on 22.8.2013 in Misc. case Nos.75 of 2009 and 141 of 2009, the monthly maintenance has been increased to Rs.6,000/- from the month of September, 2013 by taking into account that the husband is drawing Rs.23,145/- per month. The husband had produced the materials to reveal his liability being the eldest son of his father to bear the expenditure towards the treatment of chronic ailments of his parents, maintain his younger brother, his nephew (son of his deceased daughter) and produced further materials to show that though the house at Karigar Sahi belongs to his father, he has to bear the liability for repayment of loan taken for construction of the said house. Therefore, stated that the award of maintenance against the husband becomes too heavy in these circumstances. It is further urged that instead of monthly maintenance @ Rs.3,000/- and Rs.2,000/- awarded in favour of the wife and minor child respectively by the Court below, it would be just and proper if the award of maintenance can be computed on lump-sum basis. Opportunity has been given to the wife to suggest the quantum with regard to permanent alimony, which she can take for finalizing the dispute vide order dated 25.02.2014. Opportunity has been given to the wife to suggest the quantum with regard to permanent alimony, which she can take for finalizing the dispute vide order dated 25.02.2014. Pursuant to the same, though suggestion has come for payment of Rs.30 lakhs as permanent alimony and a sum of Rs.15,000/- per month towards education of the minor child, the same was not accepted by the husband. 15.Mr.S.K.Dash, learned counsel for the husband relied upon the judgment of Andhra Pradesh High Court in Guntamukkala Naga Venkata Kanaka Durga (supra), wherein in paragraph 32, it is held as follows: “In the context of the observations made above, awarding maintenance to a wife because of whose fault the marriage between her and her husband has been broken is against the concept of marriage. How can one of the spouses who got no respect for the marital bond be granted maintenance. The wife or husband will have the obligation of maintaining the other spouse when the other spouse is neglected by him or her without lawful excuse having got sufficient means while the other spouse got no means to maintain herself or himself having entered into the wedlock.” 16. It is urged that since the wife has no respect for the marital bond and the marriage between her and her husband was broken due to her fault, she is not entitled to maintenance. While giving such finding, the High Court of Andhra Pradesh has not taken note of Section 25 of the Act, 1955 in its proper perspective. In order to consider the aspect for grant of permanent alimony, reference was made to Section 25 of the Act, 1955 which reads as follows : Section 25. While giving such finding, the High Court of Andhra Pradesh has not taken note of Section 25 of the Act, 1955 in its proper perspective. In order to consider the aspect for grant of permanent alimony, reference was made to Section 25 of the Act, 1955 which reads as follows : Section 25. Permanent alimony and maintenance:- (1) Any Court exercising jurisdiction under this Act, may at the time of passing any decree or at time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall pay to the appellant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent’s own income and other property, if any, the income and other property of the applicant (the conduct of the parties and other circumstances of the case), it may seem to the Court to be just and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent. (2) If the Court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under sub-Section (1), it may, at the instance of either party, vary, modify or rescind any such order in such manner as the Court may deem just. (3) If the Court is satisfied that the party in whose favour an order has been made under this Section has remarried or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, it may at the instance of the other party vary, modify or rescind any such order in such manner as the Court may deem just. “ 17. Taking into consideration the above proposition of law laid down by the apex Court, similar view has also been taken by this Court in Miss Moumita Roychoudhury v. Abhijit Chattarjee, MATA No. 41 of 2012 disposed of on 27.8.2013. 18. “ 17. Taking into consideration the above proposition of law laid down by the apex Court, similar view has also been taken by this Court in Miss Moumita Roychoudhury v. Abhijit Chattarjee, MATA No. 41 of 2012 disposed of on 27.8.2013. 18. In the present case, since the offer made by the wife pursuant to the’ order dated 25.2.2014 basing upon which affidavit was filed on 23.-4.2014 was not accepted by the husband, the wife filed another affidavit on 22.8.201.4 in paragraph 6, it states as follows: “Learned counsel appearing for the respondent-husband stated that on perusing the application filed under Section 12 of the Act by the appellant-wife, it would be seen that neither there is any pleading nor any prayer for claiming permanent alimony. On the other hand, appellant-wife has claimed compensation of Rs. 10 lakhs, on consideration of which the learned Judge, Family Court has granted Rs.5 lakhs as permanent alimony, which is beyond the pleading. Therefore, he vehemently urged that the appellant is not entitled to get any permanent alimony, save and except the compensation claimed in her application under Section 12 of the Act. He further urged that by granting such permanent alimony learned Judge, Family Court has exceeded his jurisdiction and therefore the impugned judgment to that effect cannot be sustained.” 19. On perusal of the above contention, it appears that the wife has suggested for payment of Rs.20 lakhs towards permanent alimony and a sum of Rs.8,000/- per month to meet the educational expenses and the child keeping in view his welfare which is the paramount consideration. 20. In view of the above fact and law discussed above, this Court has the power under Section 25 of the Act, 1955 to award permanent alimony just like original Court. The husband, who is a Govt. employee, taking into consideration his social status and the income on the basis of the salary certificate as Annexure-A to the affidavit filed by him on 13.8.2013, it would be just and proper to award a lump-sum of Rs.17 lakhs (seventeen lakhs) towards permanent alimony in favour of the wife though she had claimed otherwise as mentioned above. Accordingly, this Court directs the husband to pay a lump-sum of Rs.17 lakhs towards permanent alimony to the wife and the minor child within a period of three months. 21. Accordingly, this Court directs the husband to pay a lump-sum of Rs.17 lakhs towards permanent alimony to the wife and the minor child within a period of three months. 21. Accordingly, MATA No. 57 of 2009 filed by the wife is hereby dismissed and MATA No. 58 of 2009 filed by the husband is partly allowed. Ordered accordingly.