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2022 DIGILAW 1235 (JHR)

Vibha Singh @ Bebi Kumari Singh D/o Shri Bacha Singh v. Dilip Kumar Singh S/o Shri Baijnath Singh

2022-10-12

RATNAKER BHENGRA, SHREE CHANDRASHEKHAR

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ORDER : 1. Original Suit No. 30 of 2003/Matrimonial Title Suit No. 30 of 2003 (hereinafter referred to as Original Suit No. 30 of 2003) filed by Smt. Vibha Singh @ Bebi Kumari Singh who was the wife of Dilip Kumar Singh has been decreed vide judgment dated 07th March 2006 and the marriage solemnised between them on 19th May 1995 was dissolved with a direction to Dilip Kumar Singh to pay a sum of Rs. 1,000/- per month to Smt. Vibha Singh from the date of the decree in Original Suit No. 30 of 2003. 2. The appellant filed an execution case vide Miscellaneous Execution Case No. 3 of 2006 in Original Suit No. 30 of 2003 for compliance of payment of Rs. 1,000/- per month. About eleven years thereafter, an application under section 25(2) and (3) of the Hindu Marriage Act, 1955 (in short HM Act) was filed by Dilip Kumar Singh on the ground that his wife had been living an adulterous life in respect of which a finding was recorded in Maintenance Case No. 63 of 1997, however, that was suppressed by her, or, not considered by the Principal Judge, Family Court, Ranchi while granting maintenance and decreeing the divorce suit. 3. The aforesaid application under section 25(2) and (3) of the HM Act has been allowed, against which the present First Appeal has been preferred. 4. Original Suit No. 30 of 2003 was instituted by Smt. Vibha Singh seeking a decree of divorce on the ground that her husband has inflicted such cruelty upon her that it became difficult for her to stay with him in the matrimonial home. She gave various instances of her sufferings and mental agony at the hands of her husband and pleaded that on 20th December 1995, 31st December 1995 and 20th May 1997 her father paid money to her husband. Still, her sufferings in her matrimonial home continued and, therefore, she left the company of her husband on 22nd June 1997. She examined herself as PW-1 and admitted in her cross-examination that she suffered miscarriage while she was carrying pregnancy of eight months. However, she denied the suggestion that she had undergone abortion on 18th October 1997 in the clinic of Dr. Papiya Rai and, that, in GR Case No. 631 of 1997 she made a statement that she got her pregnancy terminated by the said Dr. Papiya Rai. However, she denied the suggestion that she had undergone abortion on 18th October 1997 in the clinic of Dr. Papiya Rai and, that, in GR Case No. 631 of 1997 she made a statement that she got her pregnancy terminated by the said Dr. Papiya Rai. Her witness Sudhir Singh who was examined as PW-2 supported her in the Court on the issue of demand of dowry and her harassment and torture in her matrimonial home. 5. Dilip Kumar Singh who was respondent in the divorce suit did not file his written statement but tendered evidence in the Court as RW-1. He deposed in the Court that his wife had illicit relationship with Dinesh Sahu R/o Qr. No. DT 1722, Dhurwa and that, she deserted him and filed several cases against him and his family members. He has further stated in the Court that the maintenance case was dismissed on the ground that the wife was found to have been living an adulterous life. He instituted Matrimonial Title Suit No. 28A of 1997 for divorce which was withdrawn by him for filing a joint petition under section 13-B of the HM Act and, in connection thereof, he paid some money to his wife but due to his ill health he could not appear in the Court and, as such, the said application was dismissed in default on 15th January 2002. By that time, in GR Case No. 631 of 1997 which was filed by Smt. Vibha Singh, the allegations against him were found false and concocted leading to his acquittal. 6. From the aforesaid evidences which were laid by the parties in Original Suit No. 30 of 2003, it is quite apparent that there was specific pleading by the respondent as regards illicit relationship of the appellant with one Dinesh Sahu. There is also a reference about maintenance case which according to the respondent was dismissed on the ground that the applicant was leading an adulterous life. The above being the factual scenario, it cannot be contended that the decree in Original Suit No. 30 of 2003 was obtained by playing fraud by the appellant. 7. There is also a reference about maintenance case which according to the respondent was dismissed on the ground that the applicant was leading an adulterous life. The above being the factual scenario, it cannot be contended that the decree in Original Suit No. 30 of 2003 was obtained by playing fraud by the appellant. 7. To recapitulate, in the judgment dated 7th March 2006 passed in Original Suit No. 30 of 2003 the Principal Judge, Family Court, Ranchi has held as under: “On discussion of the entire oral and documentary evidence on record, I find that there have been several litigations between the parties and it is admitted case that the relationship of husband and wife between them has ceased to exist since 1997. I am no hesitation to hold that the marriage between both the parties has irretrievably broken down. Therefore, I hold that the Plaintiff has been able to prove that she was subjected to cruelty by the Respondent in her marital house. This issue is decided accordingly. ISSUES NO. V: The Plaintiff by amending her plaint has claimed that she is entitled to Rs. 2,66,500/- as permanent alimony. She has claimed this amount on the ground that this was the amount of articles and cash given by her father at the time of her marriage and subsequently also. Her father has not been examined as a witness to corroborate the aforesaid fact. No receipt of money or any cash memo receipt of purchase of articles has been filed by the Plaintiff. Therefore, I hold that the plaintiff is not entitled to the amount of Rs. 2,66,500/- The Plaintiff has stated that she is entitled to permanent alimony u/s 25 of the Hindu Marriage Act. However, there is no evidence on record on behalf of the Plaintiff that she has got no source of income and is unable to maintain herself. She has not stated anything about the income of the respondent. The only fact she has stated that the respondent is a driver. On the other hand, the respondent has filed Ext. C series to show that he is suffering with T.B Ext. C is a report of RIMS showing that he is suffering with T.B Ext. C series are the medicine prescribed for the said ailment. He has claimed that he is unemployed and has got no source of income. On the other hand, the respondent has filed Ext. C series to show that he is suffering with T.B Ext. C is a report of RIMS showing that he is suffering with T.B Ext. C series are the medicine prescribed for the said ailment. He has claimed that he is unemployed and has got no source of income. The Plaintiff has admitted in her evidence that she had filed Maintenance Case u/s 125 Cr.P.C. which was dismissed. The respondent has claimed that the said Maintenance case was dismissed on the ground that the plaintiff is not entitled to maintenance allowance since she had illicit relationship. However, the Respondent has not produced the order in order to show that such finding was given against the Plaintiff. The respondent is a man of means and is capable of earning his livelihood. He is bound to maintain the Plaintiff. Therefore, I hold that the Plaintiff is entitled to permanent alimony. Accordingly, I direct Respondent Dilip Kumar Singh to pay a sum of Rs. 1,000/- per month to the Plaintiff from the date of passing of the decree. This issue is decided accordingly. ISSUES NO. I: No defect has been pointed out in the frame of the suit. I do not find any defect in the same. Therefore, I hold that the suit, as framed, is maintainable in law. ISSUES NO. II: On the findings given above, I hold that the Plaintiff has got sufficient cause of action and right to sue. ISSUES NO. V: On the findings given above, I hold that the Plaintiff is entitled to the relief as indicated above. In the result, the marriage between Plaintiff Vibha Singh @ Baby Kumari Singh and Respondent Dilip Kumar Singh solemnized on 19.5.1995 at Dhurwa, Ranchi, is hereby dissolved by a decree of divorce. The suit is decreed without cost.” 8. Mr. Ranjan Kumar, the learned counsel for the respondent would submit that sub-section (2) to section 25 of the HM Act provides that the Court may vary, modify or rescind any order and, more particularly, under sub-section (3) if the Court is satisfied that the wife has not remained chaste or remarried the order passed by the Court may be varied, modified or rescind at the instance of the other party. 9. 9. In the first place, section 25 of the HM Act is not a provision for appeal against an order passed under section 13 of the HM Act. The grounds on which a party to the marriage may seek dissolution of marriage have been provided under section 13 of the HM Act, an appeal against which would lie under section 19 of the Family Courts Act. 10. Section 19(1) of the Family Courts Act, 1984 is extracted below: “19. Appeal - (1) Save as provided in sub-section (2) and notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908) or in the Code of Criminal Procedure, 1973 (2 of 1974), or in any other law, an appeal shall lie from every judgment or order, not being an interlocutory order, of a Family Court to the High Court both on facts and on law.” 11. Under section 25 of the HM Act, it is the legislative mandate that at the time of passing any decree under the HM Act or any time subsequent thereto a direction may be issued to the other party to pay the applicant for her or his maintenance 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 and the income or other property of the applicant. On a plain reading of sub-sections (2) and (3) to section 25 of the HM Act, it is apparent that these provisions refer to a change in circumstance after a decree has been passed under the HM Act. The provisions under sub-sections (2) and (3) to section 25 of the HM Act do not affect any decree of divorce passed under section 13 of the HM Act and applicability of these provisions is confined to the award and quantum of maintenance and permanent alimony. 12. The relevant portions of provisions under section 25 of the HM Act are extracted below: “25. Permanent alimony and maintenance: ........................... (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. Permanent alimony and maintenance: ........................... (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 remarried 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].” 13. Sub-Section (3) of Section 25 of HM Act provides that where the wife has remarried or has not remained chaste the order granting maintenance may be rescinded by the Court. The expression “wife” under sub-section (3) to section 25 of the HM Act refers to a woman after a decree of divorce has been granted. Thus, as per sub-section (3) of section 25 of the HM Act, the woman who has obtained a decree of divorce upon her remarriage shall not be entitled for any maintenance under section 25 of the HM Act. Similarly, if it is found that she has not remained chaste after the divorce the order under section 25 granting maintenance to her may be rescinded. 14. The aforesaid being the statutory provisions, the Family Court had no jurisdiction to entertain the application under section 25(2) and (3) of the HM Act filed on the ground that the wife was in illicit relationship and, that too, about eleven years after the passing of the decree in Original Suit No. 30 of 2003. A woman can remarry only after the divorce and the woman remaining not chaste should be established after a decree of divorce is granted. Therefore, the allegation of illicit relation of the appellant prior to the decree in the divorce suit is irrelevant. The appellant has taken a stand that only after non bailable warrant of arrest was issued against the respondent for execution of the decree of payment of maintenance of Rs. 1,000/- per month he filed this application. 15. Therefore, the allegation of illicit relation of the appellant prior to the decree in the divorce suit is irrelevant. The appellant has taken a stand that only after non bailable warrant of arrest was issued against the respondent for execution of the decree of payment of maintenance of Rs. 1,000/- per month he filed this application. 15. The application under section 25(2) and (3) of the HM Act was filed on the ground that the decree holder has obtained the relief under section 25 of the HM Act maliciously and fraudulently. 16. In the order dated 3rd January 2018 passed on the petition filed by respondent u/s 25(2) and (3) of HM Act, the Family Court has ordered as under: “7. Now this Court has determine (I) whether petitioner/decree holder maliciously and falsely succeeded to get the relief u/s 25 of Hindu Marriage Act, 1955? (II) Whether respondent/judgment debtor has been able to prove that petitioner fraudulently succeeded to get a decree u/s 25 of Hindu Marriage Act, 1955 by concealing her illicit relation or remarriage or her un-chastity, as required under sub-section 3 of section 25 of Hindu Marriage Act, 1955? 8. Both the determination issue are taken together for appreciation in view of evidence available on record. 9. RW-1, the respondent/judgment debtor himself, has stated that in MTS Case No. 30/2003 petitioner concealed the previous litigation between the parties such as orders passed in GR Case No. 631/1997 and Maintenance Case No. 63/1997. He has stated that in GR Case No. 631/1997 allegations were found false and concocted and therefore respondent was acquitted, against the criminal charges, his evidence as such has got support from CC of judgment dated 05.02.1999 passed in GR Case No. 631/1997 marked Ext.1. He stated that from the order passed in the case of maintenance it was proved that petitioner was indulged in adultery and the Court has held that petitioner Vibha Singh has admitted that her marriage was solemnized with the respondent on 19.05.1995 and further admitted that in the May of 1995 she went to her Maika, where she stayed upto 3 months. In para-17 she admitted that her relation with the respondent was good up to 03 months. She could not tell as when Dilip cohabited her. In para-17 she admitted that her relation with the respondent was good up to 03 months. She could not tell as when Dilip cohabited her. In Para-23 she admitted that she had to under went abortion, due to assault, but she could not say the day and date of abortion. She said that she would file paper of day and date of abortion. She admitted that after 1995 she was having no relation of wife and husband with the respondent. The Court has concluded that in such situation her evidence of abortion on 28.10.2017 by Dr. Papiya Rai lead to draw an inference that she was not conceived from the respondent. The Court has further concluded that undergoing, abortion on 28.10.1997 leads to draw an inference that she was indulged in adultery. On the basis of such conclusion Court declared her not entitled to maintenance allowance from her husband. CC of order dated 28.07.1999 passed in M. Case No. 63/1997 available in the case record of Misc. Case No. 45/2009 has been marked Ext. 2. The evidence of respondent/judgment debtor has got support from Ext. 2 also. He stated that they filed MTS Case No. 28(A)/1997 for grant of decree of divorce with mutual consent in which it was decided that respondent would pay Rs. 3,000/- in three installments and will return the articles. Regarding said settlement the respondent paid Rs. 1,000/- on 07.06.2000 and Rs. 900/- on 31.08.2000 thereafter he was suffered from TB, hence due to financial deficit and illness could not appear in the Court, hence, ultimately judgment was passed on 15.01.2002 and case was dismissed. The decree passed in the said case has been marked Ext. 3, which supports the evidence of respondent/judgment debtor in Para-5. He stated that after passing of decree of divorce and subsequent to 17.03.2006 petitioner started living with Sudhir Kr. Singh s/o Late Adytia Singh R/o Qr. DT 1706 at Tanki Side of Dhurwa and continued leading adulterous life, as the consequence of which they were blessed with a son in the March of 2008. This evidence in para-7 has got support from Ext.4. He stated that again in the year 2009 she lodged GR Case No. 3061/2009 on the false ground, which is pending in the Criminal Court. This evidence in para-7 has got support from Ext.4. He stated that again in the year 2009 she lodged GR Case No. 3061/2009 on the false ground, which is pending in the Criminal Court. In para-8, he stated that after being harassed respondent filed a case before State Women Commission, Jharkhand, where commission found that petitioner was habituated to lodge false case in the PS and directed the petitioner to file a case for cancellation of order of maintenance, on the ground of solemnizing second marriage. The CC of order dated 17.09.2009 of State Women's Commission passed in M. Case No. 45/2009 has been marked Ext.4. Ext.4 supports his evidence given in Para-8. Ultimately, he stated that petitioner concealing her adulterous life got order of maintenance in MTS Case No. 30/2003 which is part of decree. It is pertinent to mention that in the instant case Execution Case No. 03/2006 was being proceeded to release of maintenance amount. 10. RW-2, Abhishek Kumar R/o Qr. No. DT 2079, has supported the evidence of respondent Dilip Kumar Singh and has proved treatment papers of TB of Dilip Kumar Singh marked Ext.5. 11. In the aforesaid facts and circumstances, I find that evidently due to treatment of T.B Dilip Kumar Singh did not appear and contest MTS 30/2003 and evidently petitioner Vibha concealing her adulterous life as well as the previous dismissal of maintenance case on the ground of adulterous life succeeded to get the order of permanent alimony. I further find that respondent has been above to prove that petitioner/decree holder has been leading adulterous life since before filing of this case and hence decree for maintenance allowance is liable to be set aside by virtue of Section 25(3) of Hindu Marriage Act, 1955. It is, therefore, ordered that execution case no. 03/2006 passed in MTS Case No. 30/2003 is hereby set aside. Accordingly, the original case no. 30/2003 is disposed of and consequently the execution proceeding comes to an end under the purview of Section 25(3) of Hindu Marriage Act, 1955.” 17. As notice above, the facts relating to illicit relationship of the appellant were before the trial Judge in the proceeding of Original Suit No. 30 of 2003 and, moreover, in a contested case it is difficult to contemplate a situation that one party to the litigation would obtain an order/decree by playing fraud upon other party. 18. As notice above, the facts relating to illicit relationship of the appellant were before the trial Judge in the proceeding of Original Suit No. 30 of 2003 and, moreover, in a contested case it is difficult to contemplate a situation that one party to the litigation would obtain an order/decree by playing fraud upon other party. 18. For the aforesaid reasons, the order dated 3rd January 2018 passed by Principal Judge, Family Court, Ranchi in Original Suit No. 30 of 2003 is set aside. 19. First Appeal No. 79 of 2018 is allowed.