Research › Search › Judgment

Gauhati High Court · body

2021 DIGILAW 801 (GAU)

Lalit Sinha @ Lalit Madan Sinha v. Sandhya Sinha, W/O Lalit Sinha

2021-12-13

ARUN DEV CHOUDHURY, SUMAN SHYAM

body2021
JUDGMENT : A. D. Choudhury. J. Heard Mr. S.C. Bswas, learned counsel for the appellant. We have also heard Mr. M. H. Rajbarbhuiya, learned counsel for the respondent. 2. This matrimonial appeal has been filed by the appellant husband, being aggrieved by the judgment and decree dated 22.12.2017, passed in Title Divorce Suit No. 48/2015 by the learned court of District Judge, Karimganj, dismissing the suit for divorce preferred by the appellant husband. 3. The case of the appellant husband as projected is that, the marriage between appellant and the respondent was solemnized on 01.06.1996 and out of their wedlock, one daughter and a son were born. The appellant is a constable serving under Assam Police. Though the appellant and respondent started their conjugal life, the appellant had to stay away from his residence, as he was posted initially at Nalbari and thereafter, at Haflong. According to the appellant, the respondent wife, during his absence used to stay in her parental house and refused to take care of his elderly mother. Since 2004, according to the appellant, the respondent started continuously living at her parental home leaving behind the appellant and her matrimonial home without any just cause. According to him, being situated thus on 04.06.2012, the appellant sent a legal notice to his wife to come back to his company and after receiving such legal notice, on 19.07.2012, the wife filed a case under Section 498(A) of the IPC which was registered as C.R. Case No. 872/2012. The respondent wife also filed another case under Section 125 of the Cr.P.C. for her maintenance, which was registered as Misc. Case No. 171/2012. The appellant husband contends that in the said case registered under Section 498(A) of the IPC, the appellant and his mother were discharged. According to the appellant, he continued to pay the maintenance granted in Miss Case No. 171/2012. 4. The respondent wife contested the case by filing a written statement, in which, she pleaded that she was subjected to cruelty by her husband and his mother. She was treated like maid servant in the house of her husband without dignity in any manner. She also stated that she was subjected to cruelty to meet illegal demand of dowry of Rs. She was treated like maid servant in the house of her husband without dignity in any manner. She also stated that she was subjected to cruelty to meet illegal demand of dowry of Rs. 1 Lakh and on denial, the appellant husband and his family members perpetrated torture, both physical and mental and she silently tolerated all such cruelty of her husband and family members considering of her future. But, when she could not tolerate the extreme torture meted to her by the husband, she was forced to leave her matrimonial house and thereafter she lodged the case under Section 498(A) of the IPC. It was also her stand that she had always been ready, willing and interested to maintain her matrimonial life with the appellant husband but failed owning to malafide intention of her husband and his family members. 5. The appellant husband adduced two witnesses in support of his pleading, including himself. The respondent wife examined herself as witness. 6. The learned District Judge, upon the pleadings, filed by the parties, framed the following issues, “(i) Whether the plaintiff is entitled to get a decree of divorce or judicial separation as prayed for? (ii) What other relief/reliefs is the plaintiff is entitled to?” 7. The learned District Judge dealt with both the issues and dismissed the suit and rejected the prayer of the appellant husband for decree of divorce. 8. We have perused the pleadings, evidence on record and the documents exhibited. The admitted fact in the case is that a complaint under Section 498(A) of the IPC was filed by the respondent wife against the appellant husband and his mother after 16 years from solemnization of their marriage. The material on record also shows that the respondent wife, as per her own version, has been leaving separately from her husband since 03.06.2012. 9. The learned District Judge came to a conclusion that filing of case under Section 498(A) of the IPC and getting acquittal therein, shall not come within the meaning of cruelty as defined under Section 13 of the Hindu Marriage Act, 1955. 9. The learned District Judge came to a conclusion that filing of case under Section 498(A) of the IPC and getting acquittal therein, shall not come within the meaning of cruelty as defined under Section 13 of the Hindu Marriage Act, 1955. According to the learned District Judge, there is no material laid by the appellant that he was providing monetary help to the respondent wife, so as to enable her to file an appeal or revision against the order of dismissal passed by the concerned Judicial Magistrate, even if the respondent wife was not satisfied with the said order. It was further conclusion of the learned District Judge that decision of Criminal Courts are not binding on Civil Court and the standard of proof required in a criminal trial and in a civil trial is not the same. Accordingly, the learned District Judge, rejected the plea of cruelty projected by the appellant husband. 10. Upon due perusal of the judgment, we are of the opinion that the learned District Judge had failed to evaluate the evidence in proper prospective. Lodging of criminal cases on unsubstantiated allegations against the appellant husband and or husband’s family members amounts to cruelty, as held by the Hon’ble Apex Court in a catena of decisions. In this context, we can safely rely on the judgment of the Hon’ble Apex Court passed in Mr. Rani Narasimha Sastry vs. Rani suneela Rani reported in 2019 SCC online Sc 1595. In the said jdugment, the Hon’ble Supreme Court has held that filing of criminal cases like case under Section 498 (A) of the IPC etc. against the husband and the family member and which are subsequently dismissed/rejected, is sufficient to be construed as an act of cruelty by the wife. The Hon’ble Apex Court has held as under:- “13. In the present case the prosecution is launched by the respondent against the appellant under Section 498-A of IPC making serious allegations in which the appellant had to undergo trial which ultimately resulted in his acquittal. In the prosecution under Section 498-A of IPC not only acquittal has been recorded but observations have been made that allegations of serious nature are levelled against each other. The case set up by the appellant seeking decree of divorce on the ground of cruelty has been established. In the prosecution under Section 498-A of IPC not only acquittal has been recorded but observations have been made that allegations of serious nature are levelled against each other. The case set up by the appellant seeking decree of divorce on the ground of cruelty has been established. With regard to proceeding initiated by respondent under Section 498-A of IPC, the High Court made following observation in paragraph 14: 14.....Merely because the respondent has sought for maintenance or has filed a complaint against the petitioner for the offence punishable under Section 498-A of IPC, they cannot be said to be valid grounds for holding that such a recourse adopted by the respondent amounts to cruelty." 14. The above observation of the High Court cannot be approved. It is true that it is open for anyone to file complaint or lodge prosecution for redressal for his or her grievances and lodge a first information report for an offence also and mere lodging of complaint or FIR cannot ipso facto be treated as cruelty. But when a person undergoes a trial in which he is acquitted of the allegation of offence under Section 498-A of IPC, leveled by the wife against the husband, it cannot be accepted that no cruelty has meted on the husband. As per pleadings before us, after parties having been married on 14.08.2005, they lived together only 18 months and thereafter they are separately living for more than a decade now. 11. This aspect of cruelty though, was dealt by the learned District Judge, but came to an erroneous and perverse finding as stated hereinabove. The fact of discharge of the appellant in the case under Section498A IPC initiated by the respondent is not under dispute. Therefore, in view of the law laid down by the Hon’ble Apex Court and also in view of the given facts and circumstance of the case, we are of the considered view that the impugned judgment of the learned District Judge, Karimganj needs to be set aside. 12. From the evidence on record, we have found that even after the demand of the appellant husband asking the respondent wife to join his company, made by way of pleaders notice, the wife did not make any attempt to join the company of the appellant husband. 12. From the evidence on record, we have found that even after the demand of the appellant husband asking the respondent wife to join his company, made by way of pleaders notice, the wife did not make any attempt to join the company of the appellant husband. Instead, initiated criminal prosecution for offences under section 498A IPC, wherein the appellant husband was discharged by competent court from such acquisition. Therefore, we are of the considered view that the respondent wife has left the company of the appellant husband without any reasonable cause and without consent of the appellant husband. 13. The parties to the marriage has been living separately for almost a decade now. The present litigation for divorce has been pending for more than 9 years and a good part of the lives of both the parties has been consumed in this litigation and yet, the end is not in sight and that the allegations made against each other in the petition and the counter by the parties will go to show that living together is out of question and rapprochement is not a possibility. Even during pendency of this appeal, the attempt for reconciliation made through the learned counsels representing the parties had failed. Therefore, we are of the considered opinion that the marriage between the parties has broken down irretrievably and there is no possibility of re-union between them. 14. For the reasons and conclusions, made hereinabove, we are of the opinion that the appellant husband has made out a good case for granting a decree of divorce. The impugned judgment and decree dated 22.12.2017 passed by the learned court of District Judge, Karimganj is therefore, set aside. The petition being Title Divorce Suit No. 48/2015 is hereby allowed and a decree of divorce is accordingly granted by dissolving the marriage between the appellant and the respondent. 15. Section 25 of the Hindu Marriage Act’1955 empowers any court exercising jurisdiction under the Act to grant permanent alimony and maintenance at the time of passing a decree or anytime thereafter, on an application made, either to the husband or to the wife, as the case may be. In the case in hand, the wife has not filed any application for permanent alimony and maintenance under section 25 of the Hindu Marriage Act, 1955. In the case in hand, the wife has not filed any application for permanent alimony and maintenance under section 25 of the Hindu Marriage Act, 1955. But in the peculiar facts and circumstances of the present case, we are of the opinion that respondent wife should not be denied such a relief for not filing an application for permanent alimony as otherwise she is entitled for a permanent alimony and maintenance under the Hindu Marriage Act, 1955. The fact also remains that during the course of argument, Mr. S.C. Biswas, learned Counsel for the appellant had also submitted that his client is not averse to paying a reasonable amount as permanent alimony to the respondent wife, in the event decree of divorce is granted in this case. Learned Counsel for the appellant further submitted that his client is also willing to bear the educational and medical expenses of the two children during their parental dependency. According to him, the son of the appellant has attained majority and is studying in college whereas the Daughter is still a minor. 16. While considering such submissions of the learned Counsel for the appellant, we are of the considered opinion that in the interest of justice, an order for payment of permanent alimony needs to be passed in favour of the respondent wife, in the given facts and circumstances of the case. 17. The appellant husband is a constable in Assam Police but he is on the verge of retirement. His present salary is stated to be Rs. 54,000/-, which is not disputed by the respondent. It appears that the appellant is also having some loan liabilities. In the above backdrop, we are of the considered opinion that a sum of Rs. 6,00,000.00 (Rupees Six laths), as permanent alimony to be paid by the appellant husband to the respondent wife, would be just and sufficient. We accordingly, direct the appellant husband to pay an amount of Rs. 6,00,000.00 (Rupees Six lakhs) to the respondent wife as permanent alimony, within a period of four months from the date of this order, if need be, in two equal instalments. We accordingly, direct the appellant husband to pay an amount of Rs. 6,00,000.00 (Rupees Six lakhs) to the respondent wife as permanent alimony, within a period of four months from the date of this order, if need be, in two equal instalments. We also make it clear that, if the amount is not paid within the time frame, as indicated hereinabove, the unpaid amount would carry interest @ 7.5 % per annum with effect from expiry of four months from today, till such time, the entire amount is paid by the appellant husband to the respondent wife. 18. We also direct that the appellant shall also bear the medical and educational expanses of his two children living with their mother during their parental dependency, on the basis of documentary proof to be submitted by the respondent wife on monthly basis, as regard the actual expenditure incurred on the above count. 19. With the above observations and directions this appeal stands disposed of.