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2017 DIGILAW 839 (JHR)

Chandreshwar Prasad v. Anjali Kumari

2017-05-09

H.C.MISHRA, S.N.PATHAK

body2017
ORDER : Heard learned counsel for the appellant and learned counsel for the respondent. 2. The appellant-husband is aggrieved by the Judgment and Decree dated 04.12.2008 passed by the learned Principal Judge, Family Court, Ranchi, in M.T.S. No. 209 of 2005, whereby, the suit for dissolution of marriage between the parties, by a decree of divorce, brought by him in the Court below on the ground of cruelty, has been dismissed on contest. 3. The facts of this case lie in a short compass. The marriage between the parties had taken place on 17.04.2003 at Ranchi, according to Hindu rites and customs. It is the case of the appellant-husband that soon after the marriage they went for honeymoon to Puri, in a scheduled programme for six days, but due to short temper and arrogant behaviour of the respondent-wife, they had to cut short the programme and return back only after four days. It is alleged that the behaviour of the respondent-wife towards the appellant-husband and his relatives was irresponsible and even on slightest irritation she used to lose her temper and used to abuse the appellant and his relatives. It is also alleged that the respondent-wife pressurised the husband to transfer the house in her name and she left her matrimonial home on 6.5.2004. The husband went to meet her at her parents' place on 24.08.2004, when he was asked to live as Gharjamai, which was not acceptable to him. After persuasions she came back on 30.08.2004 to her matrimonial home, but her parents took her back on 05.01.2005. She again returned back on the occasion of Holi, and ultimately on 14.08.2005 the respondent-wife left the matrimonial home with bag and baggage, including her Stridhan and jewellery. There is also an allegation of demand of Rs.3,00,000/- by the respondent-wife on failure of which it is alleged that threats were given to falsely implicate in criminal case. It is also alleged that the respondent and her mother had gone to the house of the appellant-husband for the aforesaid demand and they entered the house of the appellant and committed the theft of Rs.1100/- kept in the husband's dressing table and Rs.800/-from the appellant's father's table as also the wrist watch of the appellant. With these allegation the matrimonial suit was filed in the Court below under Section 13(1)(i-a) of the Hindu Marriage Act. 4. With these allegation the matrimonial suit was filed in the Court below under Section 13(1)(i-a) of the Hindu Marriage Act. 4. Upon notice, the respondent-wife appeared in the Court below and filed her written statement in which the facts of marriage and going on honeymoon trip to Puri were admitted. All other allegations in the petition filed by the husband were denied. According to the case of the respondent-wife, she was being subjected to cruelty and torture for demand of Rs.50,000/- by the husband and his family members and when the demand could not be met, she was kicked out of the matrimonial home. She has stated that she never did any wrong to the applicant-husband or his family members. 5. On the basis of the pleadings of the parties, issues were framed by the Court below, including the issue relating to cruelty. The impugned Judgement shows that four witnesses were examined on behalf of the petitioner-appellant in the Court below including himself. The other three witnesses were his friends. It appears that no family member of the petitioner-appellant was examined by him. On the other hand four witnesses were examined on behalf of the respondent also, including the respondent herself and her father, who were examined as D.Ws. 1 and 3 respectively. 6. In his evidence, the petitioner-appellant who was examined as A.W.-1, stated that soon after marriage they went to Puri for honeymoon, but due to cruel behaviour of the respondent the trip was cut short and they had to return back early. On 06.05.2004, the brother of the respondent came and took her to his home. She used to leave the matrimonial home without permission of the petitioner and family members and always used filthy and insulting language towards the petitioner and his family members even in presence of the relatives. On 05.01.2005 she left the home with bag and baggage, but after some persuasions she returned on the occasion of Holi in the year 2005, and again left the matrimonial home on 14.08.2005 with her bag and baggage. She was also demanding Rs.3,00,000/-and pressurising to transfer the house in her name, threatening to falsely implicate them in criminal case. On 05.01.2005 she left the home with bag and baggage, but after some persuasions she returned on the occasion of Holi in the year 2005, and again left the matrimonial home on 14.08.2005 with her bag and baggage. She was also demanding Rs.3,00,000/-and pressurising to transfer the house in her name, threatening to falsely implicate them in criminal case. He has also stated about the abortion of the respondent-wife and it may be stated at this place itself, that the respondent-wife has also deposed in her evidence about her forcible abortion, but in view of the fact that these facts were not stated in the pleadings of the either parties, these evidences have not been considered by the Court below. The other witnesses examined on behalf of the appellant have only stated about the behaviour of the respondent-wife, but the fact remains that they are not the family members of the husband. The Court below has taken note of the fact that even though there were allegations of committing theft against the wife and her mother, but no evidence was adduced for that allegation by the appellant himself or any of his witnesses. 7. On the other hand, the witnesses examined on behalf of the respondent, including the respondent herself, stated that she was being subjected to cruelty and torture for demand of dowry at her in-laws' place and she was turned out of the matrimonial home. She has deposed that for the demand of dowry she was assaulted and ousted from the matrimonial home. The filing of a criminal case against the husband and In-laws is admitted in the evidence of the wife. The father of the respondent, who was examined as D.W.-3 has also deposed that his daughter was being treated with cruelty for the demand of Rs.50,000/- in dowry. Upon getting the knowledge about the said demand, on 20.01.2006 he went to the house of the petitioner, but he was not allowed to enter into the house till 7:30 p.m., and he saw his daughter weeping. 8. The Court below, upon discussing the evidence on record, has found that in the evidence of the petitioner it had only come that the opposite party used filthy language with the petitioner and her in-laws and she was not ready to live with them. 8. The Court below, upon discussing the evidence on record, has found that in the evidence of the petitioner it had only come that the opposite party used filthy language with the petitioner and her in-laws and she was not ready to live with them. The Court below, has also taken note of the fact that in the present situation the respondent is not ready to live with her husband and in-laws. The Court below, however, held that using the filthy language is not a cruelty of such a nature so as to sever the relationship between the parties, as it is only normal wear and tear in the matrimonial relation. With these findings the Court below has dismissed the matrimonial suit. 9. Learned counsel for the appellant submitted that the impugned Judgement passed by the Court below is absolutely illegal and cannot be sustained in the eyes of law. It is submitted by learned counsel that admittedly both the parties are now living separately since 14.08.2005, i.e., about 12 years now, and in the given circumstances there is no chance of any re-union between the parties. The efforts of amicable settlement of the dispute between the parties, even at the hands of a trained Mediator at Jharkhand State Legal Services Authority, have failed. Learned counsel accordingly, submitted that the acts of the respondent-wife amounted to cruelty and it is a fit case in which the suit ought to have been decreed. 10. Learned counsel for the respondent on the other hand, though has opposed the prayer submitting that there is no illegality in the impugned Judgement, but the fact remains that in the present situation and taking into consideration the long separation between the parties, now even the respondent-wife is not willing to live with her husband and she also wants to sever the matrimonial tie. Indeed the evidence has been adduced by the respondent herself and even by her father that she was being subjected to cruelty and torture for demand of dowry at her matrimonial home, and according to the respondent's case there is a case of cruelty at least from the petitioner's side. It is also an admitted fact that both the parties are living separately since 14.08.2005 itself, i.e., about 12 years now. 11. It is also an admitted fact that both the parties are living separately since 14.08.2005 itself, i.e., about 12 years now. 11. We had made endeavors to get the matrimonial dispute between both the parties amicably settled at the hands of a trained Mediator at Jharkhand State Legal Services Authority, but the efforts of mediation failed. Even thereafter, we adjourned the case on two occasions for settlement of the matrimonial dispute outside the Court, in view of the stand of the respondent also that it was not possible for her to maintain the matrimonial relationship with her husband, but the matter could not be settled between the parties. 12. In view of the evidence led by the respondent-wife and her father in the Court below, coupled with the fact that the parties are living separately for about 12 years now, we are of the considered view that the respondent-wife cannot be forced to live with her husband maintaining the matrimonial relationship, rather this is a case in which looking into the age of both the parties, it would be proper that the matrimonial relationship between them be severed. 13. This brings us to the question as to what should be the alimony to be allowed to the respondent-wife. It is an admitted fact that that the petitioner appellant is gainfully employed in Jharkhand Tribal Development Society in Ranchi. Though it is as admitted position that in the year 2013 the appellant husband was getting the gross-salary of about Rs.14,000/-, but according to the respondent-wife, in the year 2014 the appellant-husband was getting the gross salary of Rs.19,080/-. Presently we may safely take the gross salary of the petitioner to be more than Rs.20,000/-, taking into consideration the general rise in salary. We are also informed that in a separate maintenance case the maintenance of Rs.4,000/- per month has been allowed to the respondent-wife, which is presently under challenge by the appellant-husband in this Court in Criminal Revision No. 829 of 2015, wherein by order dated 8.9.2015, an interim amount of Rs.2,000/- per month is being paid to the respondent-wife as monthly maintenance. 14. On previous occasions, when this matter was taken up a proposal was given to the husband for one time alimony of Rs.10,00,000/- (Rs. 14. On previous occasions, when this matter was taken up a proposal was given to the husband for one time alimony of Rs.10,00,000/- (Rs. ten lakhs) to be paid to the respondent-wife, for which she had agreed, but the appellant-husband is not ready to make the payment of more than Rs.6,00,000/- to his wife. We are of the considered view that the amount offered by the husband, taking into consideration the present cost index, is quite inadequate for the maintenance of the respondent-wife. In the facts of this case, we are of the considered view that the amount of Rs.10,00,000/- is the bare minimum amount that could be given to the respondent-wife as one time alimony. 15. We however, propose to give two options to the appellant-husband. The first option is to make the payment of Rs. 10,00,000/- (Rs. ten lakhs) to the respondent-wife, as one time permanent alimony, which shall absolve him from making the payment of any monthly maintenance to the respondent-wife. The second option is to make the payment of Rs.5,00,000/- to the respondent wife as alimony, and the amount of Rs.5,000/- per month as monthly maintenance, being approximately 25% of his salary of about Rs.20,000/- per month, which we consider just and proper to be paid to the respondent wife, in view of the law laid down by the Hon'ble Apex Court in Dr. Kulbhushan Kumar Vs. Raj Kumari and Anr., reported in (1970) 3 SCC 129 , relied upon by the Apex Court in its very recent Judgment dated 19.4.2017, in Civil Appeal No. 5369 of 2017 (Kalyan Dey Chowdhury Vs. Rita Dey Chowdhury Nee Nandy). 16. In view of the aforementioned discussions, the marriage between the appellant Chandreshwar Prasad and the respondent-wife Anjali Kumari, is hereby, dissolved by a decree of divorce, subject to the condition that either the amount of Rs.10,00,000/- (Rs. ten lakhs) shall be paid by the appellant husband to the respondent-wife as on time permanent alimony, within the period of four months from today, or the amount of Rs.5,00,000/- (Rs. five lakhs) shall be paid to the respondent-wife as alimony, and the amount of Rs.5,000/- per month as monthly maintenance, by 10th day of every English calendar month. ten lakhs) shall be paid by the appellant husband to the respondent-wife as on time permanent alimony, within the period of four months from today, or the amount of Rs.5,00,000/- (Rs. five lakhs) shall be paid to the respondent-wife as alimony, and the amount of Rs.5,000/- per month as monthly maintenance, by 10th day of every English calendar month. In case the appellant chooses the second option, he shall file an appropriate application in Criminal Revision No. 829 of 2015 within the aforesaid period of four months from today, undertaking that he shall be paying the amount of Rs.5,000/- per month to the respondent as monthly maintenance. The Decree of divorce shall take effect on and from the date the amount of either permanent alimony is paid to the respondent-wife, or in case the second option is exercised by the appellant-husband, on and from the date the payment of Rs.5,00,000/- (Rs. five lakhs) as alimony is made to the respondent-wife, and undertaking is filed by him in Criminal Revision No. 829 of 2015 that he shall be paying the amount of Rs.5,000/- per month to the respondent as monthly maintenance. 17. This appeal is accordingly, allowed in the aforesaid terms. Let the Decree be prepared accordingly.