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2017 DIGILAW 826 (JHR)

Shashank Jha v. Dipti Jha

2017-05-08

H.C.MISHRA, S.N.PATHAK

body2017
ORDER : 1. Heard learned counsel for the appellant and learned counsel for the respondent. 2. The appellant-husband is aggrieved by the Judgment and Decree dated 25.03.2015, passed by the Principal Judge, Family Court, Bokaro, in TMS No. 34 of 2010, whereby the matrimonial suit filed by the husband for dissolution of marriage between the parties by a decree of divorce, on the ground of cruelty, has been dismissed by the Court below on contest. 3. It is an admitted fact that the marriage between the parties had taken place as per Hindu rites and customs on 31.5.2002 at Madhubani, in the State of Bihar. Thereafter both the parties lived together as husband and wife at Darbhanga, Ranchi, Dhanbad and recently at Bokaro, but the couple was not blessed with any issue. 4. The appellant husband is an employee of HDFC Bank since the year 2003. The dispute between the parties appears to have arisen almost soon after the marriage in the year 2003 itself, and there are series of litigations between the parties thereafter. It is the case of the appellant that he was being subjected to cruelty and torture by his wife as she always pressurized him for bearing all the expenses of her parents and other relatives from his pocket, threatening him that he would be implicated in dowry case, and on such threats approximately Rs. 9,00,000/-had been taken by the respondent-wife from the husband between the year 2004 to 2009. There are other allegations of treating the petitioner with cruelty also there, and it is alleged that on 28.01.2010 when the petitioner was in his office in the Bank, the respondent-wife along with her parents forcibly took the petitioner from his Bokaro Branch Office of the Bank, to Ranchi and got him admitted in RINPAS, but somehow the petitioner was released from RINPAS, Ranchi. Expressing threats to his personal life due the behaviour of the respondent-wife, the petitioner-husband filed the suit before the Court below for dissolution of marriage between the parties by a decree of divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955. 5. Upon notice, the respondent-wife appeared in the Court below and filed her written statement, in which the marriage between the parties is admitted fact, but the allegations made in the petition are denied. 5. Upon notice, the respondent-wife appeared in the Court below and filed her written statement, in which the marriage between the parties is admitted fact, but the allegations made in the petition are denied. It is, however, the case of the respondent-wife that the petitioner by his behaviour has disturbed her mental peace by various ways and means and had been torturing her since long after the marriage. It is also case of the respondent-wife that the petitioner husband is badly addicted to drugs and for that he was admitted in RINPAS, Ranchi, with the knowledge of the HDFC Bank Officials. 6. On the basis of the pleadings between the parties, the Court below framed issues, including the issue relating to cruelty and addiction of the husband to drugs, leading to his admission in RINPAS, Ranchi, with the knowledge of HDFC Bank officials. 7. Both the parties examined themselves and their father as witnesses from their sides. Apart from the oral evidence, certified copies of the documents relating to the cases between the parties, a letter written by the respondent to the Director of RINPAS, and some documents from RINPAS were also proved which were marked Exhibits. 8. On the issue relating to cruelty, the Court below, on the basis of the evidence on record, held that petitioner-husband could not prove the fact that he had paid Rs. 9,00,000/- between the period 2004-2009 to the respondent-wife. On the issue relating to addiction of the husband to drugs, leading to his admission in RINPAS, Ranchi, with the knowledge of HDFC Bank officials, the Court-below has held that the allegation that the respondent-wife and her parents forcibly took the husband from his office at Bokaro to RINPAS, also could not be proved, as no guard or any Bank official was examined by the petitioner on this point. 9. However, the fact remains that it is an admitted case that the husband was admitted in RINPAS, Ranchi, and according to the respondent's case he was admitted at RINPAS, Ranchi for his drug addiction which was known to the bank officials. The respondent also has not examined any Bank official to prove her case that the husband was admitted in RINPAS, Ranchi, within the knowledge of the officials of the Bank, that he was a drug addict. The respondent also has not examined any Bank official to prove her case that the husband was admitted in RINPAS, Ranchi, within the knowledge of the officials of the Bank, that he was a drug addict. The evidence on record clearly shows that both the parties have made allegations and counter allegations upon each other that they are in highly litigated terms and admittedly, presently both the parties are living separately at least from the year 2010. 10. Apart from the aforesaid facts, one more fact of the case needs to be mentioned and discussed, in view of the fact that the impugned Judgment is absolutely silent about it. In the written statement there is no allegation by the respondent-wife that the petitioner had any illicit relationship with anyone, but in her evidence in the Court below, she stated on affidavit that her husband had illicit relationship with a student of DAV Shayamli (named in the evidence but purposely we are not disclosing her name) and that illicit relationship of her husband still continues. In her cross-examination, however, she has stated that she had not personally seen the girl and she had heard about it from her husband. She has also stated in her cross-examination that the girl is the cousin of her husband. As such, apart from other allegations and counter allegations, as discussed above, there is a serious allegation upon the character of the appellant-husband by the respondent-wife, which was never pleaded by the respondent wife, and in our considered view, she failed to prove it. 11. Learned counsel for the appellant has submitted that there are litigations between the parties, starting soon after the marriage and the allegations and counter allegations between the parties are also serious. The parties are admittedly not living together since the year 2010 and accordingly, it is a fit case in which the Court below ought to have dissolved the marriage between the parties by a decree of divorce. Learned counsel has also submitted that an absolutely uncalled for false allegation has been leveled by the respondent-wife in her evidence that husband is having illicit relationship with his cousin, which she could not substantiate in her evidence. Learned counsel has also submitted that an absolutely uncalled for false allegation has been leveled by the respondent-wife in her evidence that husband is having illicit relationship with his cousin, which she could not substantiate in her evidence. It is submitted that this action of the respondent-wife itself amounts to such cruelty so as to entitle the husband to a decree of divorce and this has not been taken into consideration by the Court below. In support of his connection learned counsel for the appellant placed reliance upon decisions of the Supreme Court in Vishwanath Vs. Sau. Sarla Vishwanath Agrawal, reported in (2012) 7 SCC 288 [: 2014(4) JLJR (SC)1] and in K. Srinivas Rao Vs. D.A. Deepa, reported in (2013) 5 SCC 226 [: 2013(1) JLJR (SC)443]. Learned counsel submitted that the impugned Judgment and Decree passed by the Court below cannot be sustained in the eyes of law and it is a fit case in which the marriage between the parties be dissolved by a decree of divorce. 12. Per contra, learned counsel for the respondent-wife submitted that there is no illegality in the impugned Judgment and Decree and the appellant husband has not been able to prove the case of cruelty in the Court below. 13. We must record at this juncture, that prior to hearing this case on merits, we have tried our level best to get the matrimonial dispute between the parties amicably settled. The matter was sent for amicable settlement of dispute at the hands of the trained Mediator at JHALSA, Ranchi, but the efforts of mediation failed. Thereafter also we wanted that their dispute be amicably settled keeping in view the future of both the parties who are still young and they have long life to live. From the conduct of the parties, it is apparent that both the parties now cannot live together and in view of the categorical statement of the respondent-wife in her written statement that the petitioner, by his behaviour has disturbed her mental peace by various ways and means and had been torturing her since long after the marriage, and that her husband is a drug addict, we cannot even ask her to live with her husband. Indeed the respondent has also made allegation against her husband in her evidence that he is having illicit relationship with his cousin, which she could not even prove. 14. Indeed the respondent has also made allegation against her husband in her evidence that he is having illicit relationship with his cousin, which she could not even prove. 14. At one point of time, the respondent-wife agreed for one time settlement of the matter on payment of permanent alimony of Rs. 30,00,000/- to her which is recorded in the order dated 3.5.2017. The appellant-husband was not ready to pay that amount and ultimately he was agreeable for the amount of Rs. 25,00,000/- which was not acceptable to the respondent-wife. 15. Today, when the matter was taken up, in presence of both the parties, the appellant-husband agreed to make the payment of Rs. 30,00,000/- as one time settlement to the respondent-wife, but the respondent-wife now is not ready even for that amount of Rs. 30,00,000/- and she wants more. In that view of the matter we are forced to decide the matter on merits. 16. From the discussions made above and after closely watching the conduct of the parties, we are convinced that both parties cannot live together with each other. As stated above, there are allegations and counter allegations between the parties and one allegation relating to the illicit relationship, certainly amounts to cruelty of such nature which entitles the husband to the decree of divorce. We are of the considered view that it is a fit case for severing the marital relationship between the parties by a decree of divorce. 17. In view of the aforementioned discussions, the impugned Judgment and Decree dated 25.3.2015, passed by the learned Principal Judge, Family Court, Bokaro, in TMS No. 34 of 2010, are hereby set aside, and the marriage between the parties, is hereby, dissolved by a decree of divorce. 18. This takes us to the question of alimony to the respondent-wife. Admittedly, the appellant-husband is an officer in the HDFC Bank. The amount of one time settlement is not acceptable to the respondent-wife, which was once proposed by the wife herself, and ultimately even agreed by the husband. In that view of the matter, as the law recently laid down by the Hon'ble Apex Court in Judgment dated 19.4.2017, passed in Civil Appeal No. 5369 of 2017 (Kalyan Dey Chowdhury Vs. Rita Dey Chowdhury Nee Nandy), affirming the law laid down in by the Apex Court in Dr. Kulbhushan Kumar Vs. In that view of the matter, as the law recently laid down by the Hon'ble Apex Court in Judgment dated 19.4.2017, passed in Civil Appeal No. 5369 of 2017 (Kalyan Dey Chowdhury Vs. Rita Dey Chowdhury Nee Nandy), affirming the law laid down in by the Apex Court in Dr. Kulbhushan Kumar Vs. Raj kumari and Anr, reported in (1970) 3 SCC 129 , that 25% of the husband's net salary would be just and proper to be awarded as maintenance to the respondent-wife, we hereby, direct the appellant-husband to make the payment of monthly maintenance of 1/4th of his net salary which he is getting from HDFC Bank, till the life time of the respondent-wife, or her gainful employment, or her remarriage, whichever is earlier. 19. Let a copy of this order be sent to the Chief Executive Officer of the HDFC Bank Ltd., at the address, HDFC Bank House, Senapati Bapat Marg, Lower Parel, Mumbai-400013, in order to ensure that 1/4th of the net salary of the petitioner appellant Shashank Jha be deducted every month, w.e.f. the month of June, 2017 and be deposited to the in the bank account of respondent-wife Dipti Kumari, bearing A/c No. 456202010718700 in the Union Bank of India, Branch-Dilsukhnagar, Hyderabad. 20. We are informed that there is an ex-parte order dated 21.4.2016 passed by the learned Principal Judge, Family Court, Bokaro, in Maintenance Case No. 120 of 2014, in favour of the respondent-wife under Section 125 of the Cr.P.C., directing the appellant-husband to make the payment of Rs. 15,000/- per month as maintenance to his wife from the date of order. We are informed that even this order has not been complied with by the appellant-husband. The respondent-wife shall be free to bring a case for execution of this order, for realisation of the amount with arrears. It is made clear that with effect from the month of June, 2017, the order dated 21.4.2016 passed in Maintenance Case No. 120 of 2014 shall be kept in abeyance, so long the monthly deduction from the salary of the appellant-husband, as directed above, is deposited in the bank account of the respondent-wife. 21. This appeal is accordingly, allowed with the directions as above. Let the Decree be prepared accordingly.