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Tripura High Court · body

2020 DIGILAW 16 (TRI)

Ratna Debnath v. Narayan Debnath

2020-01-22

ARINDAM LODH, S.TALAPATRA

body2020
JUDGMENT Talapatra, J. - Heard Mr. HK Bhowmik, learned counsel appearing for the appellant and Mr. DC Roy, learned counsel appearing for the respondent. 2. This is an appeal under Section 19(1) of the Family Courts Act, 1984 from the judgment dated 28.09.2015 passed by the Judge, Family Court in case No. T.S. (Divorce) 103 of 2010. 3. At the outset, Mr. Bhowmik, learned counsel appearing for the appellant has apprised this court that the respondent has contracted the second marriage after the decree of divorce as passed by the Family Court. Having taken note of the subsequent events, Mr. Bhowmik, learned counsel has submitted that even if the appeal is allowed and the decree is set aside, the parties cannot restore their conjugal life. On instruction, Mr. Bhowmik, learned counsel has further submitted that the Judge, Family Court by the impugned judgment has denied maintenance to the appellant. However, the maintenance has been provided for their son at Rs. 1,500/- per month w.e.f. 01.10.2015 and such maintenance has to be paid through the appellant within 10th day of every English calendar month by remitting the same. The respondent has been given liberty to remit the said amount in the account of the appellant. 4. The decree has been given on the ground of desertion by the appellant. It appears from the record that the respondent herein had obtained the decree of restitution of the conjugal life in case no. T.S. (RCR) 07 of 2008 and, after lapse of one year, the petition for dissolution of marriage has been filed by the respondent under Section 13(1)(ib) read with section 13(1)(1- A)(ii) of the Hindu Marriage Act, 1955. 5. We have carefully gone through the evidence and statements made in the petition. The Judge, Family Court, has returned the finding that the appellant herein had willfully deserted the petitioner, the respondent herein, and she could not be brought back to the matrimonial home even after institution of the RCR proceeding. Finally, the Judge, Family Court has observed that it has transpired that immediately preceeding the institution of the suit, the conjugal right could not be restituted even after the decree that has been passed in the suit for restitution of conjugal life. Finally, the Judge, Family Court has observed that it has transpired that immediately preceeding the institution of the suit, the conjugal right could not be restituted even after the decree that has been passed in the suit for restitution of conjugal life. Hence, according to the Judge, Family Court, the respondent herein has conclusively proved the desertion warranting issuance of the decree of divorce and, accordingly, that was passed but, perhaps for the reason that since there was a decree of restitution, the wife was not given the maintenance. However, the minor son has been given a paultry amount of Rs. 1,500/- per month w.e.f. 01.10.2015 considering the financial status of the respondent. 6. We heard Mr. DC Roy, learned counsel appearing for the respondent who has strenuously submitted that the respondent does not have any means to maintain the formal wife and the son and, as such, no order may be passed by this court directing him to maintain his son and wife. Anyway there is no appeal from the respondent in respect of the amount that has been directed to be paid as maintenance to the son. 7. Having regard to the submission made the learned counsel appearing for the parties, we are of the view that mere issuance of a decree of restitution of conjugal life cannot dis-entitle the dependent-wife from getting the maintenance. For this, the following two elements are to be inquired into, viz. (i) whether the non-return to the matrimonial home is impeded by any reasonable cause, and (ii) whether the element of destitution is obviated. These were not considered by the Judge, Family Court while passing the order of maintenance. 8. Having taken a general view and on interaction with the respondent, we modify the order of maintenance in the following terms: (i) The respondent shall pay Rs. 2,000/- per month to the appellant within 10th day of every English calendar month w.e.f. 01.01.2020 and, hence, the first maintenance amount will be paid on or before 10.02.2020 and further, the respondent shall continue to pay such maintenance; (ii) The respondent shall pay the monthly maintenance @ Rs. 1,500/- per month to their son w.e.f. 01.10.2015 as directed by the Judge, Family Court, West Tripura, Agartala; (iii) The arrears are to be paid in 20 (twenty) equal installments. 1,500/- per month to their son w.e.f. 01.10.2015 as directed by the Judge, Family Court, West Tripura, Agartala; (iii) The arrears are to be paid in 20 (twenty) equal installments. The first installment has to be paid within 10.02.2020 and it will be continued to be paid till 20 installments are paid. The installments, as stated be paid in every month in the same manner; (iv) It is made abundantly clear that along with the payment of the arrear, the respondent shall continue to pay the monthly maintenance @ Rs. 1,500/- per month to his son by 10th day of every English calendar month. 9. The appellant has categorically stated that in terms of the order dated 28.09.2015, no amount has been paid to their son as yet. It is made absolutely clear that the respondent is obligated to ear and pay maintenance in terms of this order. Subject to the above conditions and on submission of Mr. Bhowmik, learned counsel for the appellant, we affirm the decree of divorce. It is made further clear that any deviation in payment would follow action against the respondent for realization of the maintenance amount, arrear or regular. 10. Hence, this appeal stands dismissed, subject to what has been observed in respect of the maintenance of the appellant and her son. Prepare the decree accordingly. Send down the LCRs forthwith.