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2016 DIGILAW 359 (JK)

Harnam Kour and Anr. v. Gurmeet Kour

2016-07-15

RAMALINGAM SUDHAKAR

body2016
JUDGMENT 1. This appeal is of the year 2004. 2. The instant appeal was earlier filed by Gurdeep Singh s/o Jaswant Singh challenging that portion of the judgment of learned Additional District Judge (Matrimonial Cases) Jammu, whereby the Court vide order dated 25.08.2004, directed petitioner-husband to pay a sum of Rs. 5,00,000/- (Rupees five lac) as permanent alimony and maintenance to his wife. The order reads as under- “Hence, this petition is accepted and the marriage of the parties solemnized on 16.05.1991 is hereby dissolved by a decree of divorce. The wife has already lost 13 years of youth and is now on the odd side of the middle age, that too with a stigma of divorce. It will be just and proper if the petitioner husband is made answerable for her maintenance present and future, so that the wife lives rest of her life with dignity and honour. An amount of Rs. Five lacs appear to be reasonable, if granted to the wife on account of permanent alimony after considering the family background and social status of both the parties. The office is directed to frame a decree sheet accordingly. The parties are left to bear their own costs. File to consigned to records after its due completion.” 3. During the pendency of the appeal appellant-Gurdeep Singh expired on 13.07.2005 and his mother-Harnam Kour and brother Joginder Singh of the appellant-Gurdeep Singh got themselves impleaded as appellants to prosecute the appeal, only in respect of the issue relating to permanent alimony and maintenance. Learned counsel who represents’ respondent-Gurmeet Kour submits that despite his best efforts he has no instructions in the matter. 4. Mr. Sharma, Learned counsel for the appellants submits that he has filed a miscellaneous application to indicate that the respondent has re-married with one Assa Singh s/o Saraoop Singh on 02.12.2008 i.e. after the decree of the Court granting dissolution of the marriage between the parties, such application was filed on 31.03.2009. There is no reply filed to this application denying the factum of re-marriage of respondent-wife with Assa Singh. 5. In this background, appeal being of the year 2004 prosecuted by mother and brother of the appellant-late Gurdeep Singh is now being taken up. First there was a request for adjourning the matter, however, this Court is not inclined to adjourn the mater and the Appeal is taken up for final disposal. 6. 5. In this background, appeal being of the year 2004 prosecuted by mother and brother of the appellant-late Gurdeep Singh is now being taken up. First there was a request for adjourning the matter, however, this Court is not inclined to adjourn the mater and the Appeal is taken up for final disposal. 6. The short issue in the instant Appeal is that the marriage between late Gurdeep Singh and Gurmet Kour-respondent was solemnized on 16.05.1991 as per the Sikh religion, however, it is pointed out that at the time of marriage, late Gurdeep Singh-husband was working in Rajouri city and his wife respondent herein was a Teacher in a School at village Pouni. Due to differences of opinion between the parties, it appears that right from the date of marriage there was no compatibility and despite intervention of relatives the relation got further deteriorated which ultimately resulted in filing of a petition for dissolution of marriage. Statements of witnesses were recorded and it is found that out of their wedlock no child was born and that they were living separately for more than 8-10 years. The respondent–wife has different story altogether, but, however, conceded that they were living separately for more than seven years at the time of filing of the petition. Court below however, came to the conclusion that the husband was not inclined towards his wife for whatever reasons and he remained silent most of the time. The Court below held that parties could not establish the marriage relation right from day one of the marriage. Court below also found that the husband had maintained silence and showed no interest in the marriage life. Court below came to the conclusion that the marriage between the parties has broken down irretrievably and there is no scope of the parties re-union as they were living separately right from 1994. It was further held that the marriage between the parties was dead emotionally as well as practically. At the same time, there is a finding that in absence of love and affection between the parties, especially on the side of the husband marriage should be dissolved and the reasons which have been given by the Court below are as follows- “Having regard to the facts and circumstances, given herein above, it is apparently clear that the marriage is dead between the parties emotionally as well as practically. The dispute which was started in a religious court has found its way into this Court, with the result both the parties are suffering torture and misery for the last more than ten years which is beyond any body’s comprehension. The marriage of the parties has ceased to be a reality, as such, continuance of this marital knot for name’s sake will amount to prolonging the agony and affliction of both the parties. It is best for the spouses to say goodbye to each other permanently in order to save themselves from further agony and torture, as the parties have already wasted 13 years of their youth in marital discord. It would be an exercise in futility to return a finding on the ground of cruelty and desertion, as such, it will be in the interests of justice to order the dissolution of the marriage of the parties which has brought miseries and untold hardships not only to the petitioner but also to the respondent who has been endlessly waiting for her rehabilitation in the matrimonial home.” 7. Per contra in cross appeal the respondent -wife has prayed for setting aside the decree passed by the Additional District Judge (matrimonial Cases) , Jammu whereby the marriage solemnized between late Gurdeep Singh and appellant-wife on 16.05.1991 has been dissolved by a decree of divorce and late Gurdeep Singh – husband has been directed to pay a sum of Rs. 5,00,000/- (Rupees five lac) as permanent alimony and maintenance to his wife. The cross appeal becomes academic as admittedly she has remained and has not denied the miscellaneous petition filed by appellant contending that she has remarried. Hence cross appeal is infructuous. 8. The question for determination is whether the Court was justified in passing permanent alimony and maintenance of Rs. 05 Lac. Section 31 of the Hindu Marriage Act provides for permanent alimony and maintenance. Hence cross appeal is infructuous. 8. The question for determination is whether the Court was justified in passing permanent alimony and maintenance of Rs. 05 Lac. Section 31 of the Hindu Marriage Act provides for permanent alimony and maintenance. The said Act reads as follows- (1) Any court exercising jurisdiction under this Act may, at the time of passing any decree or at any 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 applicant 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, be 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 re-married 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 party vary, modify or rescind any such order in such manner as the court may deem just.” 9. In this case the Court below has not considered the issue in the manner under which Section 31 has to be dealt with. There is no application filed by the respondent-wife seeking permanent alimony and maintenance. Even otherwise, there has to be some reasoning given by the Court as to the conduct of the parties and other circumstances of the case which would be just and reasonable to order that a particular sum as permanent alimony and maintenance. There is no application filed by the respondent-wife seeking permanent alimony and maintenance. Even otherwise, there has to be some reasoning given by the Court as to the conduct of the parties and other circumstances of the case which would be just and reasonable to order that a particular sum as permanent alimony and maintenance. I find from the relevant portion of the order which has already been extracted, there is no discussion and there is no basis or relevant material considered for deciding the quantum of permanent alimony/maintenance. 10. In such circumstances an order without reasons granting permanent alimony and maintenance of Rs. 5,00,000/- (Rupees five lac) cannot be accepted, as it does not comply with the requirement of Section 31. 11. Without rendering a finding on the income and the property of the husband on whom the order of permanent alimony and maintenance has to be imposed, the order suffers from lack of reasons and, therefore, it cannot be just. 12. Therefore, the appeal insofar as it relates to grant of permanent alimony/maintenance has to be set aside and is set aside. 13. Appeal stands allowed, as above. Cross appeal is dismissed.