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2017 DIGILAW 2861 (RAJ)

Bhanwar Singh v. Kusum Kanwar

2017-12-21

DINESH CHANDRA SOMANI, PRADEEP NANDRAJOG

body2017
JUDGMENT : Dinesh Chandra Somani, J. By way of this appeal filed under section 19 of the Family Courts Act, 1984 the defendant/appellant has assailed the judgment and decree dated 30.09.2003 passed by the Judge, Family Court No. 1, Jaipur in Case No. 104/2000, whereby the learned Family Court partly allowed the petition filed by the plaintiff/respondent under Section 18 & 20 of the Hindu Adoption and Maintenance Act, 1956 and granted Rs. 2,000/- per month from the date of institution of the petition towards the maintenance of the plaintiff herself and two daughters namely Om Kanwar and Teena Kanwar. 2. Material facts necessary for disposal of this appeal are that the plaintiff/respondent (hereinafter referred as "the plaintiff") filed a petition under Section 18 & 20 of the Hindu Adoption and Maintenance Act, 1956 (hereinafter referred as "the Act") against the defendant/appellant (hereinafter referred as "the defendant") for granting Rs. 6,000/- per month as maintenance to her and four children namely daughter Om Kanwar, son Laxveer Singh, daughter Teena Kanwar and son Chandrapal Singh and also for right of residence in house situated in Chittorgarh. It is stated by the plaintiff that in the year 1985, the defendant turned them out from the house. Thereafter the plaintiff alongwith the children came to Jaipur and took shelter at her uncle Shri Laxman Singh. It is also stated that in the year 1990, after death of her mother, the plaintiff went to the defendant at Chittorgarh to live there. Then the defendant assured her that he will get himself transferred to Jaipur to live with them and told the plaintiff to shift there. Thus, the plaintiff alongwith the children came back to Jaipur but neither the defendant came there nor he sent money for maintenance. In such compelling circumstances, the plaintiff filed a similar suit in the Family Court, Jaipur in the year 1992, which came to be disposed of by compromise. Thereafter the plaintiff went to Chittorgarh. It is further stated that after some time the defendant again started saying the plaintiff to shift at Jaipur and assured her to send the maintenance expenses and to get himself transferred there. The defendant has been sending maintenance upto the year 1998 and stopped the same thereafter. It is also stated that in the end of 1998, the defendant came to the plaintiff at Jaipur and stole the title deeds of her plot. The defendant has been sending maintenance upto the year 1998 and stopped the same thereafter. It is also stated that in the end of 1998, the defendant came to the plaintiff at Jaipur and stole the title deeds of her plot. Thereafter on 09.04.1999, the plaintiff went to Chittorgarh with her daughter and found there another women Lal Kanwar, who claimed to be wife of Bhanwar Singh. She misbehaved with the plaintiff and her daughter and did not allow them in the house. It is further stated that the defendant is permanent employee in Rajasthan State Electricity Board and getting Rs. 10,000/- per month as salary with other facilities. In addition to this, the defendant is getting Rs. 3,000/- per month as income from rent and Rs. 5,000/- per month as income from agriculture and other sources. 3. The defendant filed written statement admitting the fact of marriage with the plaintiff in the year 1971 and the fact of having four children out of the wedlock, as mentioned in para 2 of the petition and denied all other averments of the petition. The defendant has stated that all the four children are adult and are in job thus they are capable to maintain themselves. It is also stated that out of her own will, the plaintiff alongwith the children left the house of the defendant in the year 1984, went with Kem Khan and solemnized marriage with him and since then she is living an adulterous life with Kem Khan in Jaipur. It is also stated that Kem Khan used to visit her frequently in absence of the defendant. It is further stated that on 10.06.1984, the plaintiff gave in writing to the defendant that she will not file any suit in the Court for maintenance of her and the children. It is also stated that it is wrong to say that the plaintiff ever stayed with her uncle Laxman Singh. The defendant further stated that he never maltreated her and the children, rather they left the house of the defendant out of their own will. The defendant admitted to be an employee of Rajasthan State Electricity Board (RSEB) and denied the fact that he is getting Rs. 10,000/- per month as salary. He also denied the income of Rs. 3,000/- per month from rent, and Rs. 5,000/- per month from agriculture and other sources as stated by the plaintiff. The defendant admitted to be an employee of Rajasthan State Electricity Board (RSEB) and denied the fact that he is getting Rs. 10,000/- per month as salary. He also denied the income of Rs. 3,000/- per month from rent, and Rs. 5,000/- per month from agriculture and other sources as stated by the plaintiff. The defendant also stated that the plaintiff instituted a criminal case against him and thereafter, RSEB suspended him. Therefore, after usual deductions he is getting Rs. 2,492/- per month only. It is also stated that the plaintiff is earning Rs. 1,500/- per month by selling milk and all the children are in job. It is also stated that the plaintiff has wrongly shown Lal Kanwar to be wife of the defendant and prayed to dismiss the petition filed by the plaintiff. 4. On basis of the pleadings of the parties, learned Family Court framed following issues :- 1. Whether the defendant after solemnizing marriage with another women, turned out the plaintiff from the house and since then she is living separately from her husband? 2. Whether the plaintiff is entitled to get maintenance from the defendant? If so, then how much? 3. Relief? 5. The plaintiff examined herself as P.W.-1 and three witnesses Laxveer Singh, Kalpana and Chandrapal Singh as P.W.-2, P.W.-3 and P.W.-4 respectively and exhibited Family Ration Card as Ex-1. The defendant examined D.W.-1 Bhanwar Singh himself, D.W.- 2 Narendra Singh, D.W.-3 Babu Khan and exhibited his suspension order as Ex.A-1. 6. After hearing the parties and perusal of record, the learned Family Court partly allowed the petition filed by the plaintiff and granted maintenance as stated hereinabove vide impugned judgment and decree dated 30.09.2003. 7. Being aggrieved and dissatisfied with the impugned judgment and decree, the defendant has preferred this appeal. 8. Heard learned counsel for the parties. 9. Learned counsel for the defendant/appellant submits that the defendant got himself operated for family planning on 17.12.1975 and birth of Ms. Teena Kanwar and Chandrapal Singh (who are twins) took place thereafter. Therefore, Ms. Teena Kanwar and Master Chandrapal Singh are not of the appellant. This fact proves that Ms. Teena Kanwar and Chandrapal Singh were born from someone else and not from the defendant/appellant. Teena Kanwar and Chandrapal Singh (who are twins) took place thereafter. Therefore, Ms. Teena Kanwar and Master Chandrapal Singh are not of the appellant. This fact proves that Ms. Teena Kanwar and Chandrapal Singh were born from someone else and not from the defendant/appellant. It is also contended that the defendant has successfully proved that the plaintiff/respondent alongwith the children has left the house of the defendant/appellant out of her own will and they are residing with Kem Khan in Jaipur, who used to visit the plaintiff frequently in absence of the defendant/appellant and she is leading an adulterous life with him. It is also contended that the plaintiff/respondent left the house of the defendant in the year 1984 and since then she is living with Kem Khan as his wife and he is maintaining her and the children. As the plaintiff/respondent is leading an adulterous life, she is not entitled for any maintenance and the petition filed by the respondent deserves to be dismissed on this ground alone. 10. Per contra, learned counsel for the respondent strongly opposed the submissions of learned counsel for the appellant and supported the impugned judgment passed by the Family Court. 11. During pendency of the appeal, the appellant filed an application alongwith copy of Office Order regarding his superannuation on 31/05/2009 (Annexure-1) and a letter issued by Accounts Officer regarding amount of provisional pension sanctioned to the appellant (Annexure-2). The application was allowed and the documents have been taken on record. The plaintiff/respondent also filed an application alongwith copy of her application addressed to Deputy Secretary (Pension) and endorsement thereon by way of reply (Annexure R-1) and copy of judgment dated 21.07.2005 passed by Additional District Judge No. 1, Chittorgarh in case No. 146/1999 (Annexure R-2). 12. During arguments learned counsel for the appellant conceded that the divorce petition filed by the appellant under section 13 of the Hindu Marriage Act has been dismissed by the Additional District Judge No. 1, Chittorgarh on 21.07.2005. Judgment dated 21.07.2005 (supra) reveals that the appellant has filed the divorce petition against the respondent on the ground of cruelty and adultery with the similar allegations as levelled in the written statement of present case. Burden to prove the allegations of cruelty and adultery was on the appellant but he failed to prove the same. Judgment dated 21.07.2005 (supra) reveals that the appellant has filed the divorce petition against the respondent on the ground of cruelty and adultery with the similar allegations as levelled in the written statement of present case. Burden to prove the allegations of cruelty and adultery was on the appellant but he failed to prove the same. Therefore both the issues were decided against the appellant and the learned trial Court dismissed the divorce petition filed by the appellant. 13. Indisputably, the plaintiff/respondent has married with the defendant/respondent in the year 1971 and they are living separately after 1998. 14. With regard to issue No. 1 Smt. Kusum Kanwar (PW-1) deposed that one lady named Lal Kanwar met her when she went to Chittorgarh in 1999 with her daughter Om Kanwar, who stated herself to be wife of Bhanwar Singh. Lal Kanwar misbehaved and did not allow them in the house, therefore they returned to Jaipur and are living there since then. In cross-examination, the witness proved Family Ration Card (Ex.-1). Name of Lal Kanwar is entered in the Ration Card Ex.1 as wife of Bhanwar Singh, the appellant. Bhwanwar Singh (DW-1) in his cross-examination, has denied the suggestion that he has solemnized marriage with Lal Kanwar. In written submissions submitted in learned Family Court, the appellant gave an explanation that Lal Kanwar is the second name of Smt. Kusum Kanwar but no such suggestion was given to Smt. Kusum Kanwar (PW-1) and other witnesses of the plaintiff in their cross-examination, who are sons and daughter of the plaintiff. 15. Admittedly the parties are living separately from the year 1999. Case of the appellant is that the respondent is living in Jaipur with Kem Khan out of her own will and leading adulterous life. The appellant filed divorce petition against the respondent with almost same allegations and the Court did not find the allegations proved. There is nothing on record to suggest that the appellant has ever made any efforts to bring back the respondent to live with him or he ever paid maintenance to her and children after the year 1998. To us, the unfounded allegation of adultery is sufficient ground for the respondent to live separately. 16. There is nothing on record to suggest that the appellant has ever made any efforts to bring back the respondent to live with him or he ever paid maintenance to her and children after the year 1998. To us, the unfounded allegation of adultery is sufficient ground for the respondent to live separately. 16. After analyzing the evidence brought on record, the learned Family Court has noted that regarding allegation of run away with Kem Khan, the appellant examined Narendra Singh (DW-2) and Babu Khan (DW-3) in support of his statement. Narendra Singh (DW-2) deposed that after loading the goods in the truck, the plaintiff/respondent ran away with a Musalman in the night at about 11-12 hours, whereas Babu Khan (DW-3) deposed that the plaintiff/respondent ran away with a Musalman in evening at about 7-8 hours. Thus, there is contradiction in the statements of both the witnesses with regard to material fact. 17. The appellant deposed that he was not at home when the respondent ran away with Kem Khan. He did not state that his tenant Narendra Singh (DW-2) would have told him about the incident. Rather he stated that his neighbours told him that she ran away with a Musalman in the night at about 12 hours, whereas Narendra Singh (DW-2) deposed that he saw the respondent in the night at about 11-12 hours while loading the goods in a truck and the appellant was not present there at that time and the witness informed him about the incident when he returned from his duty. 18. It is pertinent to note that during arguments and in memo of the appeal, contention of the appellant is that the twins Ms. Teena Kanwar and Chandrapal Singh are not his children and are attributed to someone else because both the children were born after his operation for family planning in the year 1975, whereas the appellant in para 2 of his written statement has categorically admitted the fact that all the four children are out of their wedlock. In view of this, the deposition of the appellant and his witnesses cannot be relied upon, rather it reveals that the appellant can go to any extent to escape from the liability of payment of maintenance to his wife and unmarried daughters. 19. In view of this, the deposition of the appellant and his witnesses cannot be relied upon, rather it reveals that the appellant can go to any extent to escape from the liability of payment of maintenance to his wife and unmarried daughters. 19. Annexure-2 issued by Accounts Officer of the appellant's employer, speaks about the amount of provisional pension sanctioned to the appellant to be Rs. 2,616/- per month. Endorsement dated 24.6.2011 made by Assistant Secretary (Pension) on application of the respondent speaks that final pension has not been sanctioned and after removal of anomaly, the appellant's proposed pension would be Rs. 6,505/- per month plus dearness relief. 20. From the evidence produced by the appellant, it is not proved that the respondent has abandoned the appellant without reasonable cause, rather it reveals that she is living separately from the appellant for the just cause. Learned Family Court took into consideration the position and status of the parties, reasonable wants of the plaintiff/respondent, plaintiff's own income, dependency of both unmarried daughters and granted Rs. 2,000/- per month only towards maintenance, which cannot be said to be on higher side by any stretch of imagination. 21. We find no fault in the impugned judgment passed by the learned Family Court which calls for our interference in this appeal. The appeal is devoid of merits. 22. Consequently, the appeal is dismissed with cost.