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2017 DIGILAW 348 (UTT)

Naresh Kumar Garg v. Santosh alias Garima

2017-07-04

RAJIV SHARMA, SHARAD KUMAR SHARMA

body2017
JUDGMENT : Sharad Kumar Sharma, J. 1. These are two appeals. Appeal No. 15 of 2007, Naresh Kumar Garg Vs. Santosh, in which the order under challenge is the order dated 29th July, 2005 passed by the Family Court, Dehradun in Misc. Case No. 170 of 2002, under Section 25 of the Hindu Marriage Act (hereinafter referred to as ‘Act’). By the impugned order, the learned Trial Court has directed to pay a sum of Rs. 3,000/- p.m. to the respondent wife, and Rs. 2,000/- p.m. to the minor son as a maintenance. 2. Whereas, in the another connected Appeal, being Appeal No. 74 of 2005, Smt. Santosh @ Garima Vs. Judge Family Court, Dehradun and another, the appellant has challenged the judgment and decree dated 29th July, 2005, passed by the Principal Judge, Family Court in Original Suit No. 25 of 2002, Naresh Kumar Garg Vs. Santosh @ Garima. By virtue of the impugned judgment under challenge in FA No. 74 of 2005, the Principal Judge Family Court, Dehradun had decreed, Section 13 of the Act and, consequently, the marriage between the appellant and respondent No. 2 in Appeal No. 74 of 2005 was dissolved. On these appeals being filed, the Appeal No. 74 of 2005 was admitted on 1st September, 2005 and, thereafter, ultimately the said appeal was decided by the judgment dated 12th September, 2007. 3. Similarly, the Appeal No. 15 of 2007, at the admission stage, was admitted on 11th April, 2007 and it was too decided by common judgment dated 12.09.2007. 4. Both the appeals were consolidated and they were heard together by the Coordinate Bench of this Court on 12th September, 2007. The Coordinate Bench, vide judgment dated 12th September, 2007, dismissed both the appeals and affirmed the judgment dated 29th July, 2005, passed by the Court below in Original Suit No. 25 of 2002, under Section 13 of the Act, as well as, the judgment of the like date passed in Miscellaneous Case No. 170 of 2002. 5. Being aggrieved against the judgment dated 12th September, 2007, SLP No. 10190/ 2008 was filed by Naresh Kumar Garg only against the judgment rendered in First Appeal No. 15 of 2007. Meaning thereby, on simple perusal of the judgment of the Apex Court dated 4th March, 2013, it was only the order dated 29th July, 2005 as far as it related to Misc. Meaning thereby, on simple perusal of the judgment of the Apex Court dated 4th March, 2013, it was only the order dated 29th July, 2005 as far as it related to Misc. Case No. 170 of 2002 was put to challenge before Hon’ble Apex Court, but so far as judgment dated 12.09.2007 is concerned in absence of its challenge has attained finality. 6. The Hon’ble Apex Court, while considering the SLP No. 10190 of 2008, as against the judgment dated 12th September, 2007, rendered by the Division Bench of this Court in First Appeal No. 15 of 2007 had passed the following orders : “Upon hearing counsel the Court made the following ORDER The petitioner is aggrieved by the operative portion of judgment dated 12.09.2007 of the Division Bench of Uttarakhand High Court, whereby it was declared that the respondent will remain in the ancestral property till her life time because the petitioner has share in that property. Learned counsel for the petitioner invited our attention to the typed copy of sale deed dated 12.02.1976 by which his mother is said to have purchased the property to which reference has been made in the operative portion of the impugned judgment. After going through the document, we enquired from the learned counsel whether the same had been produced before the High Court. In reply, learned counsel stated that there was no occasion for the petitioner to produce the sale deed before the High Court because the question whether the property to which reference has been made in the impugned judgment belongs to his mother did not arise for consideration. After making further submission, learned counsel for the petitioner made a request that his client may be permitted to withdraw the special leave petition with liberty to apply for review of the direction contained in the impugned judgment. The request is accepted and the special leave petition is disposed of with liberty in terms of the prayer made. It is also made clear that the petitioner’s mother may also file appropriate application before the High Court for reconsideration of the direction contained in the operative portion of the impugned judgment.” 7. By the said judgment, the Hon’ble Apex Court has dealt with the argument of the counsel for Naresh Kumar Garg so far it related to the property to which the reference has been made in the judgment of 12th September, 2007. By the said judgment, the Hon’ble Apex Court has dealt with the argument of the counsel for Naresh Kumar Garg so far it related to the property to which the reference has been made in the judgment of 12th September, 2007. The Hon’ble Apex Court, while dealing with the said controversy held that in view of the fact that the judgment of the Division Bench dated 12th September, 2007, so far it relates to the issue, as to whether the property belongs to his mother or not, did not arise for consideration. The Hon’ble Apex Court permitted the appellant to withdraw the SLP with liberty to apply for review of the direction contained in the impugned judgment. Yet again, if this order is taken into consideration, it was only confined to file the review so far it related to the direction to the effect that till “her life time she will remain in her ancestral property and mother can live with her son.” 8. This Court with all humility feels that the Hon’ble Apex Court judgment dated 4th March, 2013, has confined its observation only with regard to the issue pertaining to the judgment dated 12th September, 2007 which related to the First Appeal No. 15 of 2007 in relation to the proceedings under Section 25 of the Hindu Marriage Act. As no SLP on Section 13 issue was agitated or put to challenge before the Apex Court, it would be deemed that as far as the judgment dated 12th September, 2007 is concerned, in relation to the dismissal of First Appeal No. 74 of 2005, has attained finality. 9. In compliance of the judgment passed by the Apex Court, a Review Petition, being Review Petition No. 106 of 2013, was filed before this Court. The Division Bench, vide its judgment dated 25th March, 2013, yet taking into consideration the fact pertaining to the rights over the ancestral property as created by judgment 12/09/2007, which has been subsequently purchased by the mother of Naresh Kumar Garg, and as to whether the right to reside in a property which has been purchased by the mother, could be granted to Santosh under the pretext that it happens to be an ancestral property. It is to seen that after the purchase of the property by the mother, it ceases to be the ancestral property, where Naresh Kumar Garg had any right by succession. It is to seen that after the purchase of the property by the mother, it ceases to be the ancestral property, where Naresh Kumar Garg had any right by succession. After the purchase by the mother, it becomes the exclusive right of hers and, thus, the direction given of the permission reside in relation with the property vested with the mother was bad. 10. Taking that into consideration, the Division Bench, vide its order dated 25th March, 2013, issued notice on the Review Application to the respondents. The Division Bench at that point of time, when the Division Bench was taking cognizance, in pursuance of the direction of Hon’ble Apex Court, proper assistance was not rendered by the counsel for the parties as nobody pointed out that the direction of the Hon’ble Apex Court dated 4th March, 2013 would be treated to be in relation to First Appeal No. 15 of 2007 only as judgment in FA No. 74 of 2005 was not under challenge. 11. Simultaneously, the mother too after the order passed by the Hon’ble Apex Court on 4th March, 2013, had filed Impleadment Application, being Impleadment Application No. 2721 of 2013. Later on the Division Bench of this Court, vide its order dated 20th August, 2013, allowed the oral prayer of mother seeking impleadment of the matter in the review/ impleadment application was dismissed as withdrawn. On the statement given by the counsel for the review applicant/recall application, the mother was permitted to file Review Application, if she is so advised for re-consideration of the judgment dated 12th September, 2007 in the light of the judgment of the Apex Court dated 4th March, 2013. The applicant, i.e. the mother of Naresh Kumar Garg, filed Civil Misc. Recall Application No. 9170 of 2013. 12. The said application was dismissed as withdrawn by the order of Division Bench dated 29th August, 2013, with liberty to file review application in the light of direction issued by the Hon’ble Apex Court dated 4th March, 2013. 13. The review application, being Review Application No. 599 of 2013, was filed by the mother alongwith delay condonation application No. 10322 of 2013. 13. The review application, being Review Application No. 599 of 2013, was filed by the mother alongwith delay condonation application No. 10322 of 2013. After the exchange of the pleadings on review application No. 599 of 2013, filed by the mother, the review application 106 of 2013 filed by Naresh Kumar Garg, the delay condonation application in review application was allowed and the judgment under review dated 12th September, 2007 has been recalled directing the appeals to be heard afresh. 14. The order dated 27th October, 2013 by virtue of which both the reviews has been allowed, yet again, it was on the ground of lack of proper assistance by the Counsel to the Division Bench and Bench was persuaded to allow both the reviews irrespective of the fact that there was no such challenge given to the order dated 12th September, 2007 so far it related to Appeal No. 74 of 2005. Thus, if at all, order dated 27th October, 2013 would be confined to the review so far it relates to the order dated 12th September, 2007 in relation to the First Appeal No. 15 of 2007. It has been brought on record that the order of review dated 22nd October, 2013 was put to challenge before the Hon’ble Apex Court in SLP No. 2118-2119 of 2014 and SLP has been dismissed by order of Hon’ble Apex Court on 07/02/2014. Consequently, the appeals have come up for consideration. 15. Heard Mr. Piyush Garg, learned counsel for the appellant in First Appeal No. 15 of 2007 and Mr. Pawan Mishra, learned counsel for the respondents. 16. The learned counsel for the appellant submitted that since Appeal No 15 of 2007 was in relation to the challenge to the veracity of the order passed in Misc. Case No. 170 of 2002, which was proceeding under Section 25, the judgment and order dated 4th March, 2013, passed by the Hon’ble Apex Court since there was challenge to the judgment dated 12th September, 2007 in relation to the Appeal No. 15 of 2007. It would be read for First Appeal No. 15 of 2007 only. Hence, the dicta of the judgment of the Hon’ble Apex Court cannot be stretched and be applied to Appeal No. 74 of 2005. It would be read for First Appeal No. 15 of 2007 only. Hence, the dicta of the judgment of the Hon’ble Apex Court cannot be stretched and be applied to Appeal No. 74 of 2005. Hence, his submission is that as far as the dissolution of marriage is concerned, the same stand confirmed as no challenge was given to the judgment passed by the Division Bench earlier so far it related to Appeal No. 74 of 2007 which for all legal and practical purposes have attained finality. 17. In answer to the said argument, Mr. Pawan Mishra submitted that after the order passed by the Hon’ble Apex Court on 4th March, 2013, the review which has been allowed by the Division Bench of this Court on 20th October 2013. As the review was in relation to both the appeals, it would be treated that the judgment dated 12th September, 2007 would be treated to have been reviewed also in relation to the judgment passed in First Appeal No. 74 of 2005. Hence, the revival of the proceedings of both the appeals would be consequent to the order of review which according to Mr. Pawan Mishra has been affirmed by the Apex Court in SLP No. 2118/2119 of 2014 vide its judgment dated 7th February, 2014. 18. This Court feels that apparent error of mistake in interpretation cannot grant liberty to the respondent to challenge the decree of divorce denovo which stood finalized by the judgment of 12th September, 2007. Against which admittedly as per Mr. Pawan Mishra, the learned counsel for the respondent in First Appeal No. 74 of 2005 has not filed any SLP before the Apex Court. 19. It otherwise goes without saying that if at all there was any objection by the appellant of Appeal No. 74 of 2005, against the dismissal of her appeal against the grant of decree of divorce, in all rationality, she ought to have preferred an independent SLP challenging the judgment dated 12th September, 2007. Otherwise, it would assumed that she was satisfied by the decree of divorce granted to husband. Having not done so, at least, the judgment dated 12th September, 2007, would be binding upon her and she cannot be permitted to take advantage of the judgment dated 4th March, 2013 which was solicited by Mr. Otherwise, it would assumed that she was satisfied by the decree of divorce granted to husband. Having not done so, at least, the judgment dated 12th September, 2007, would be binding upon her and she cannot be permitted to take advantage of the judgment dated 4th March, 2013 which was solicited by Mr. Naresh Kumar Garg, when he challenged the judgment so far it related to Section 25 proceedings which was subject matter of First Appeal No. 15 of 2007. 20. Hence a mistake or error committed while allowing the review by the Division Bench of this Court due to lack of proper assistance cannot grant liberty to the respondent of Appeal No. 15 of 2007 to have a fresh innings of contest so far it relates the affirmation of decree of divorce. It seems that Division Bench was swayed to pass the review treating it to be review in relation to Appeal No. 74 of 2005 too, as such, because of lack of pleading and likewise proper assistance and, thus, review or order dated 12th October, 2013 cannot be extended to take within its arena the judgment dated 12th September, 2007 as far as it relates to Appeal No. 74 of 2005. 21. In the aforesaid backdrop, this Court is now confined to the arguments in relation to Appeal No. 15 of 2007, so far it relates to the challenge given to the order passed in proceedings under Section 25 of the Hindu Marriage Act. Which was registered by the Court below as Misc. Case No. 117 of 2002, which was decided by the Family Court by the impugned order under challenge in appeal. On the revival of the proceedings, in pursuance to the judgment dated 22nd October, 2013, the Division Bench of this Court on 1st July, 2016 felt that the powers under Section 89 of the C.P.C. may be invoked for making effort for settlement of the dispute. Hence, the proceedings for settlement were referred to the District Judge, Dehradun. The Mediator thus appointed on 22nd July, 2016 reported that the mediation between the parties has failed. Thus, thereafter, this Court has to adjudicate the appeal as listed today. Owing to what has been observed, this Court is confining itself to the controversy as relates to the Appeal No. 15 of 2007. 22. The Mediator thus appointed on 22nd July, 2016 reported that the mediation between the parties has failed. Thus, thereafter, this Court has to adjudicate the appeal as listed today. Owing to what has been observed, this Court is confining itself to the controversy as relates to the Appeal No. 15 of 2007. 22. Section 25 of the Hindu Marriage Act reads as under :- “25 - Permanent alimony and maintenance - (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, 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 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 other party vary, modify or rescind any such order in such manner as the court may deem just].” 23. The powers of the Court as vested under Section 25 gives the power to be exercised, at any time of passing any decree or any time subsequent to it. The powers of the Court as vested under Section 25 gives the power to be exercised, at any time of passing any decree or any time subsequent to it. For the purposes of exercising the power under the said provision, the alimony would be granted either to wife or husband but with only rider attach to it that it would be subject to own income and other property, if any, and the income from other property of the applicant. The legislature under Sub-section (2) of 25 also confers the power under Section 24 to change the alimony granted under sub-section (1) of Section 25, as the Court may feel appropriate. 24. The Allahabad High Court in the case of Amit Kumar Sharma Vs. 6th Additional District and Sessions Judge, Bijnor and other reported in AIR 1999 (All) page 4 has held that Section 25 does not make a provision attracted during the pendency of the proceedings, but the Court only assume the jurisdiction to decide such application at the time of passing of the decree. The Court can even exercise its jurisdiction even after the decree is passed on an application by either of the parties for passing an order afresh with a change circumstance. 25. Hence, Sub-section (2) of Section 25 of the Act is the stage where change in the principal order passed under subsection (1) of Section 25 could be exercised. 26. The facts of the case are that marriage between the appellant and the respondent was solemnized on 12.02.1989 according to the Hindu rites and rituals. As a result of the marriage and due to the relationship, a male child was born on 13th July, 1991. They co-habited together until the respondent of Appeal No. 15 of 2007, is said to have deserted. While the proceedings were pending under Section 13, the respondent wife filed an application under Section 25 for grant of permanent alimony for maintenance of herself and maintenance of her child. 27. In the application thus filed she claimed that she may be awarded maintenance @ Rs.8,000/- p.m. for maintenance of her child. In the affidavit she projected the income of Naresh Kumar Garg happens to be Rs. 15,000/-p.m. Mr. Naresh Garg denied the claim under Section 25. Mr. 27. In the application thus filed she claimed that she may be awarded maintenance @ Rs.8,000/- p.m. for maintenance of her child. In the affidavit she projected the income of Naresh Kumar Garg happens to be Rs. 15,000/-p.m. Mr. Naresh Garg denied the claim under Section 25. Mr. Garg had pleaded that the respondent wife is not entitled for any benefit under Section 25 of the Hindu Marriage Act for the reason she is already earning Rs. 3,000/-p.m. from the work of stitching only in which she is engaged and she also gets a sum of Rs. 700/-from the proceedings under Section 125 of the Cr.P.C. 28. In the rejoinder pleadings, the respondent wife stated that the fact of earning as depicted by the husband is false. She further submitted that the respondent is a man of sound financial condition as he has got business called under the name and style of S.K. Traders, Lucky Bagh, Dehradun. Besides this, husband is working at Delhi as contractor. Thus owing the said condition the Court has granted normal nominal amount of permanent alimony of Rs.2,000/- p.m. to the child and Rs. 3,000/- p.m. to the respondent wife. The judgment was rendered under Section 125 by the Principal Judge Family Court on 29th July, 2005. At that time, the inflation level as it exists now was much lower, but looking to the fact that the respondent wife needs a subsistence for survival and the amount as awarded by the Family court since not being on exorbitant side, furthermore, since the child has now grown up, the liability to maintain has increased, this Court decline to interfere as far as the maintenance is concerned to the wife as well as to the son. The amount as awarded is just, proper and do not call for any interference as the amount awarded is much on the lower side and it can only be held that it is not even enough to sustain the price index. Thus, Appeal No. 15 of 2007 is dismissed. 29. The amount as awarded is just, proper and do not call for any interference as the amount awarded is much on the lower side and it can only be held that it is not even enough to sustain the price index. Thus, Appeal No. 15 of 2007 is dismissed. 29. As what has been stated above, since the appellant of Appeal No. 74 of 2005 has not challenged the earlier judgment dated 12th September, 2007, rendered in this appeal, dismissing her appeal against the grant of decree of divorce, and even so much so, since the Hon’ble Apex Court has shown no indulgence in any of the order passed so far it relates to Appeal No. 74 of 2005, this Court feels that no order is required to be passed in the same because the appeal already stood decided. Thus, the appeal No. 15 of 2007 is dismissed and First Appeal No. 74 of 2005 is disposed of in terms of what has been observed above.