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Decree of divorce passed in foriegn country not valid in India as wife did not contest the proceeding in that country

Delhi High Court
Sheenam Raheja vs Amit Wadhwa on 10 September, 2012

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ CS(OS) 990/2010

SHEENAM RAHEJA … Plaintiff Through: Mr. Deepak Anand, Advocate

along with plaintiff in person.

versus

AMIT WADHWA ….. Defendant Through: Defendant is ex parte.

% Date of Decision : September 10, 2012

CORAM:

HON’BLE MS. JUSTICE REVA KHETRAPAL

JUDGMENT

: REVA KHETRAPAL, J.

1. The plaintiff has filed the present suit seeking a decree of

declaration in favour of the plaintiff and against the defendant,

declaring that the proceedings initiated by the defendant for the

dissolution of marriage between the parties on the ground of

irreconcilable differences, arising out of File No.1-09-FL-149089,

pending before the Superior Court of California, County of Santa

Clara, San Jose, USA are illegal, invalid and void ab-initio.

2. During the pendency of the present suit, however, a decree of

dissolution was passed by the Superior Court of California, County of

CS (OS) No.990/2010 Page 1 of 21 Santa Clara, San Jose, USA in favour of the defendant/Husband and

thereupon the plaintiff amended her plaint to seek appropriate orders

declaring the order of dissolution of marriage dated January 14, 2011

and January 18, 2011 passed by the Superior Court of California as

null and void and non-est in the eyes of law.

3. The plaintiff and defendant were married on 15th April, 2000

according to Hindu rites and ceremonies at New Delhi. The marriage

was duly registered under the Hindu Marriage Act, 1955 on 24th

April, 2000. From the wedlock two female children were born on 17th

August, 2001 and 2nd July, 2004, aged 9 years and 6 years

respectively. Both the children are presently in the custody of the

defendant, who, as detailed in the plaint, has taken them away

clandestinely. Shorn of details, the marriage of the plaintiff ran into

troubled waters on account of cruelty inflicted upon her by the

defendant, his mother, sister and other relatives. The mother and sister

of the defendant publicly humiliated the plaintiff for dowry, whenever

she visited India, even though for short spells. On account of said

cruelty and harassment, the plaintiff had become unwell, and on 7th

July, 2008, when the plaintiff came to India along with her two

CS (OS) No.990/2010 Page 2 of 21 children she had to be hospitalized at New Delhi. During this period

the mother-in- law of the plaintiff, without the knowledge and consent

of plaintiff, preponed the already confirmed tickets of the two

children for 17th August, 2008 and took them away with her to USA

on 5th August, 2008. The aforesaid act of the plaintiff’s mother-in-law

naturally caused apprehension in the mind of the plaintiff about her

safety and security in USA, as it became clear to her that the

defendant had no intention to call her to USA. The mother-in-law of

the plaintiff with malafide intentions locked the matrimonial home i.e

H-87, Kirti Nagar, New Delhi and all the belongings of the plaintiff

therein. Since the parents of the plaintiff had limited financial

resources, the plaintiff in order to withdraw money from her savings

bank account visited the State Bank of Patiala, Branch Pusa Road,

New Delhi and was flabbergasted to discover that her savings had

already been withdrawn fraudulently by the defendant and his

relatives by forging her signatures. On coming to know that her bank

account had been cleaned out in this manner, the plaintiff informed

the law enforcing agencies and got registered FIR bearing

No.164/2009 under Sections 420/467/468/471/120-B IPC with the

CS (OS) No.990/2010 Page 3 of 21 Economic Offences Wing, Crime Branch (Delhi Police), where the

matter is still pending for investigation. To be noted at this juncture

that the plaintiff had also lodged a complaint in USA against the

defendant for domestic violence committed in the USA.

4. As averred in the plaint, the plaintiff in the third week of

March, 2010, through a whisper campaign amongst close relatives of

the plaintiff and defendant, came to know that the defendant has filed

some proceedings before a Court in USA. The plaintiff checked the

website of the said Court and came to know that a case for dissolution

of marriage of the parties on the ground of irreconcilable differences

had been filed by the defendant before the Superior Court of

California, County of Santa Clara, San Jose, USA. It is the allegation

of the plaintiff that the plaintiff was never served with the petition and

other pleadings by the defendant, who has played a fraud on the

judicial process to the extent that he did not even disclose the address

of the plaintiff to the Californian Court. The plaintiff on 8th April,

2010 after obtaining copies of the Court papers through her friends in

USA sent a letter to the Court at California, disputing the jurisdiction

of the said Court to entertain the petition of the defendant for

CS (OS) No.990/2010 Page 4 of 21 dissolution of her marriage, solemnized and registered under the

provisions of the Hindu Marriage Act, 1955. The plaintiff also

instituted the present suit seeking a declaration that the proceedings

before the Superior Court at California were illegal, invalid and void

ab-initio.

5. During the pendency of this suit, the plaintiff learnt that a final

order of dissolution of marriage was granted by the Superior Court of

California, County of Santa Clara, San Jose, USA in favour of the

defendant on January 14, 2011 (vide notice of entry judgment dated

January 18, 2011). The plaintiff now seeks to assail the said order of

dissolution of the marriage as null, void and non-est by amendment of

the plaint.

6. Summons of the institution of the present suit were issued to

the defendant on 18th May, 2010. By an order of the same date this

Court opined that prima facie the continuance of proceedings in the

Superior Court of California, County of Santa Clara, San Jose, USA

would act to the prejudice of the plaintiff, as she did not appear to

have any means to contest the said proceedings, and, in the

circumstances, the defendant was restrained from proceeding further

CS (OS) No.990/2010 Page 5 of 21 with the aforesaid case. The defendant was duly served with the order

of this Court along with the copy of plaint and application by all

modes including E-mail, Registered A.D post and UPC at the local

address and at the USA address-3651, Cabernet, Vineyards Circle,

San Jose, CA 95117, USA. Acknowledgement dated 5th June, 2010,

signifying the receipt of the copy of the plaint and the injunction

order of this Court, duly served upon the defendant by the United

States Postal Service and Indian Postal Service, are placed on record

by the plaintiff. It is pleaded that despite being aware of the restraint

order passed by this Court, the defendant knowingly, wilfully and

intentionally continued to proceed with the case in USA in breach of

the interim injunction passed by this court. The plaintiff also served

upon the defendant legal notice dated 12th October, 2010, making the

defendant aware of the consequences ensuing from the breach of

injunction order dated 18th May, 2010 passed by this Court, but to no

avail.

7. Mr. Deepak Anand, the learned counsel representing the

plaintiff, had drawn my attention to the fact that the order of the

Superior Court of California, County of Santa Clara, San Jose, USA

CS (OS) No.990/2010 Page 6 of 21 dated September 3, 2010 unequivocally shows that the order of this

Court was on the file of the said Court. The relevant portion of the

order of the Superior Court of California states:

“The Court notes that it received a letter from Wife dated May 28, 2010, to which she attached a non-certified copy of an order dated May 18, 2010, from the High Court of New Delhi in New Delhi, India. The order, which appears to bear two case numbers-6701/2010 and 99/2010

(sic.)-purports to prohibit Husband from

proceeding with his divorce action in

California based on the theory that California recognizes divorce based on a finding of

irreconcilable differences which, according to the order, is contrary to Indian marriage law.”

8. After noting that this Court had prohibited the husband from

proceeding with the divorce action in California, the Court at

California, however, observed that the Indian order did not indicate

that the husband was ever served with the Indian order. The learned

counsel for the plaintiff contended and I think rightly so, that the said

observation is of no consequence in view of the fact that there is proof

of service upon the defendant on 5th June, 2010, through the United

States Postal Service, which even bears the signatures of the

defendant, namely, Amit Wadhwa with the date and time of service

i.e 05-June-2010 – 10.35 A.M endorsed on it. This is quite apart from

CS (OS) No.990/2010 Page 7 of 21 the fact that the defendant was served through all other modes

including E-mail, proof whereof has been placed on record. The

learned Superior Court of California, despite full and complete

knowledge of the existence of the injunction order passed by this

Court, authorized the defendant to proceed with his request to enter

the plaintiff’s default in case bearing No.1-09-FL-149089 for legal

separation and dissolution of marriage initiated by the defendant in

USA.

9. The learned counsel for the plaintiff on the aforesaid facts and

on the basis of the affidavits by way of evidence filed by the plaintiff

contends that the marriage between the parties having been

solemnized and registered under the provisions of the Hindu Marriage

Act, 1955 in New Delhi, within the jurisdiction of this Court, its

dissolution could be effected only under the said Act. Both the parties

are Indian citizens holding Indian passports and are permanent

residents of India, hence are governed by Indian laws. The Superior

Court of California does not have the jurisdiction to grant decree of

divorce as per the provisions of Hindu Marriage Act, 1955, as neither

the marriage between the parties was solemnized in USA nor the

CS (OS) No.990/2010 Page 8 of 21 plaintiff was residing within the jurisdiction of the Superior Court of

California at the time of the presentation of the petition. The

jurisdiction assumed by the foreign Court as well as the grounds on

which the relief is claimed must be in accordance with the

matrimonial law under which the parties are married i.e. the Hindu

Marriage Act, 1955. The plaintiff and the defendant have both resided

together in India and hence as per Section 19 of the Hindu Marriage

Act, 1955, the jurisdiction for the grant of decree of divorce vests

with the Courts in India. It is further the contention of the learned

counsel for the plaintiff that the plaintiff has till date not submitted

herself to the jurisdiction of the foreign Court i.e Superior Court of

California, County of Santa Clara, San Jose, USA nor was she

represented through counsel and the Court passed the decree in her

absence.

10. The learned counsel placed reliance on the provisions of

Section 13 of the Code of Civil Procedure, 1908 to contend that the

plaintiff is entitled to a decree of declaration as claimed by her. For

the sake of facility of reference, the provisions of Section 13 of the

CPC are reproduced hereunder:-

CS (OS) No.990/2010 Page 9 of 21 “13. When foreign judgment not conclusive- A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon

between the same parties or between parties

under whom they or any of them claim

litigating under the same title except-

(a) where it has not been pronounced by a

Court of competent jurisdiction;

(b) where it has not been given on the merits of the case;

(c) where it appears on the face of the

proceedings to be founded on an incorrect view of international law or a refusal to recognize the law of India in cases in which such law is applicable;

(d) where the proceedings in which the

judgment was obtained are opposed to natural justice;

(e) where it has been obtained by fraud;

(f) where it sustains a claim founded on a

breach of any law in force in India.”

11. Mr. Anand relied on the decision in the case of Y. Narasimha

Rao and Others Vs. Y.Venkata Lakshmi and Another, (1991) 3 SCC

451, where the Hon’ble Supreme Court interpreted each and every

clause of Section 13 of the Civil Procedure Code vis-à-vis

matrimonial law with a view to secure required certainty and protect

the sanctity of the institution of marriage and the unity of family

which are the cornerstones of our societal life. Clauses (b), (c), (d)

CS (OS) No.990/2010 Page 10 of 21 and (f) of Section 13 were interpreted by the Supreme Court in the

following manner :

“16. Clause (b) of Section 13 states that if a foreign judgment has not been given on the

merits of the case, the courts in this country will not recognise such judgment. This clause

should be interpreted to mean (a) that the

decision of the foreign court should be on a ground available under the law under which

the parties are married, and (b) that the

decision should be a result of the contest

between the parties. The latter requirement is fulfilled only when the respondent is duly

served and voluntarily and unconditionally

submits himself/herself to the jurisdiction of the court and contests the claim, or agrees to the passing of the decree with or without

appearance. A mere filing of the reply to the claim under protest and without submitting to the jurisdiction of the court, or an appearance in the court either in person or through a

representative for objecting to the jurisdiction of the court, should not be considered as a

decision on the merits of the case. In this

respect the general rules of the acquiscence to the jurisdiction of the court which may be valid in other matters and areas should be ignored and deemed inappropriate.

17. The second part of clause (c) of Section 13 states that where the judgment is founded on a refusal to recognise the law of this country in cases in which such law is applicable, the

judgment will not be recognised by the courts in this country. The marriages which take place in this country can only be under either the

CS (OS) No.990/2010 Page 11 of 21 customary or the statutory law in force in this country. Hence, the only law that can be

applicable to the matrimonial disputes is the one under which the parties are married, and no other law. When, therefore, a foreign

judgment is founded on a jurisdiction or on a ground not recognised by such law, it is a

judgment which is in defiance of the law.

Hence, it is not conclusive of the matters

adjudicated therein and, therefore, unenforceable in this country. For the same

reason, such a judgment will also be

unenforceable under clause (f) of Section 13, since such a judgment would obviously be in

breach of the matrimonial law in force in this country.

18. Clause (d) of Section 13 which makes a

foreign judgment unenforceable on the ground that the proceedings in which it is obtained are opposed to natural justice, states no more than an elementary principle on which any civilised system of justice rests. However, in matters concerning the family law such as the

matrimonial disputes, this principle has to be extended to mean something more than mere

compliance with the technical rules of

procedure. If the rule of audi alteram partem has any meaning with reference to the

proceedings in a foreign court, for the

purposes of the rule it should not be deemed sufficient that the respondent has been duly served with the process of the court. It is

necessary to ascertain whether the respondent was in a position to present or represent

himself/herself and contest effectively the said proceedings. This requirement should apply

equally to the appellate proceedings if and

CS (OS) No.990/2010 Page 12 of 21 when they are filed by either party. If the

foreign court has not ascertained and ensured such effective contest by requiring the

petitioner to make all necessary provisions for the respondent to defend including the costs of travel, residence and litigation where

necessary, it should be held that the

proceedings are in breach of the principles of natural justice. It is for this reason that we find that the rules of Private International Law of some countries insist, even in commercial

matters, that the action should be filed in the forum where the defendant is either domiciled or is habitually resident. It is only in special cases which is called special jurisdiction where the claim has some real link with other forum that a judgment of such forum is recognised. This jurisdictional principle is also recognised by the Judgments Convention of the European

Community. If, therefore, the courts in this country also insist as a matter of rule that foreign matrimonial judgment will be

recognised only if it is of the forum where the respondent is domiciled or habitually and

permanently resides, the provisions of clause (d) may be held to have been satisfied.”

12. The Supreme Court thereafter deduced the following rule as

regards to the binding effect of a decree of dissolution of marriage

passed by a foreign court :-

“The jurisdiction assumed by the foreign Court as well as the grounds on which the relief is granted must be in accordance with the

matrimonial law under which the parties are

CS (OS) No.990/2010 Page 13 of 21 married. The exceptions to this rule may be as follows:- (i) where the matrimonial action is filed in the forum where the respondent is

domiciled or habitually and permanently

resides and the relief is granted on a ground available in the matrimonial law under which the parties are married; (ii) where the

respondent voluntarily and effectively submits to the jurisdiction of the forum as discussed above and contests the claim which is based on a ground available under the matrimonial law under which the parties are married; (iii)

where the respondent consents to the grant of relief although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties.”

13. Reliance was also placed by Mr. Anand on the decision of

Veena Kalia v. Dr. Jatinder Nath Kalia and Anr., 59 (1995) DLT

635, wherein a learned Single Judge of this Court, Hon’ble Mr.

Justice D.P.Wadhwa (as his Lordship then was) after noting that the

petitioner had never contested the proceedings for divorce filed by the

respondent in the Supreme Court at Nova Scotia, held that it would

not mean that she conceded the jurisdiction of that Court or that the

Supreme Court at Nova Scotia was the Court of competent

jurisdiction. The silence of the wife, which the learned Judge

observed, was not because of her own volition but because of the

CS (OS) No.990/2010 Page 14 of 21 constraints which she could not overcome to contest the proceedings

there, could not confer jurisdiction on that Court, more so as the

husband was not permanently residing within the jurisdiction of the

Supreme Court of Nova Scotia. The Court further observed as under:-

“It is also clear that the ground on which

the decree of divorce had been granted by

the foreign Court is not a ground on which

such a decree could be granted under the

Act. Since the petitioner wife was not in a

position to contest the proceedings in a

foreign Court as she had no means to go

there and the foreign Court did not see to it whether the wife was possessed of sufficient funds and her documentation to visit

Canada complete, the rules of natural

justice stood violated. It is a matter of

common knowledge that mere buying an air

ticket is not enough to visit Canada. There

are various other formalities to be

completed. I am of the firm view that the

foreign judgment on which the husband

relied has no legal validity in this country.”

14. In Smt.Anubha v. Vikas Aggarwal & Ors, 100 (2002) DLT

682, this Court relying upon the decision of the Supreme Court in the

case of Narasimha Rao (supra), held that as laid down by the

Supreme Court, the first and foremost requirement of recognising a

foreign matrimonial judgment is that the relief should be granted to

the petitioner on a ground available under the matrimonial law under

CS (OS) No.990/2010 Page 15 of 21 which the parties are married, or where the respondent voluntarily and

effectively submits to the jurisdiction of the forum and contests the

claim which is based on a ground available under the matrimonial law

under which the parties are married. On the facts of the case before it,

the Court further held as under:-

“25. The ground on which the marriage of

the defendant was dissolved is not available in the Hindu Marriage Act. The parties are

Hindus. Their marriage was solemnised

according to the Hindu rites. Their

matrimonial dispute or relationship was,

therefore, governable by the provisions of

Hindu Marriage Act. Since the plaintiff did

not submit to the jurisdiction of the USA

Court nor did she consent for the grant of

divorce in the US Court the decree obtained

by the defendant from the Connecticut Court

of USA is neither recognisable nor

enforceable in India.”

15. The learned counsel for the plaintiff also vehemently contended

that the defendant-husband has practiced fraud upon the Court at

USA inasmuch as no summons were ever served on the plaintiff at

any point of time. The proof of service of summons do not have any

acknowledgement/receipt/signature of the person to whom the

summons and copies were delivered. The issue of service of

CS (OS) No.990/2010 Page 16 of 21 summons, however, need not be delved into in view of the

observations made hereinafter.

16. In the instant case, the Superior Court of California has passed

the decree of dissolution of marriage on the ground of irreconcilable

differences. The said ground, not being a ground available for

dissolution of marriage under Section 13 of the Hindu Marriage Act,

1955 under which the marriage between the parties was contracted, it

cannot be said that the judgment is passed on merits. Further, it can,

by no stretch of imagination, be said that the decision of the Superior

Court of California was the result of the contest between the parties.

On the contrary, the judgment dated 14.01.2011 shows no application

of mind or appreciation of facts and is merely mechanical in its form

as well as substance. Moreover, the impugned proceedings and the

decree of dissolution are in violation of the principles of natural

justice, which the Supreme Court in the case of Narasimha (supra)

interpreted to mean something more than mere compliance with the

technical rules of procedure. It was observed by the Supreme Court

that it should not be deemed sufficient that the respondent had been

duly served with the process of the court but it must also be

CS (OS) No.990/2010 Page 17 of 21 ascertained whether the respondent was in a position to present or

represent himself/herself and contest effectively the said proceedings

and if the foreign court had not ascertained and ensured effective

contest by requiring the petitioner to make all necessary provisions

for the respondent to defend including the costs of travel, residence

and litigation where necessary, it should be held that the proceedings

were in breach of the principles of natural justice. In this regard, the

order dated 18.05.2010 passed by this Court and the order dated

03.09.2010 passed by the Superior Court of California are of

significance. This Court on 18.05.2010 concluded that prima facie the

continuance of proceedings in the Superior Court of California would

act to the prejudice of the plaintiff, as she did not appear to have any

means to contest the said proceedings, and, in the circumstances, the

defendant was restrained from proceeding further with the aforesaid

case till the next date of hearing which was 21.10.2010. The Superior

Court of California on 03.09.2010, despite being aware of the order of

this Court, disregarded the same merely on the technical ground that

the order did not indicate that the husband was ever served with the

Indian order and in completely ignoring the principles of natural

CS (OS) No.990/2010 Page 18 of 21 justice, concluded that the Court had the jurisdiction to hear the

husband’s petition for dissolution of marriage and that there was no

legal basis to stay the divorce proceedings, authorizing the husband to

proceed with his request to enter wife’s default.

17. The cumulative effect of the aforesaid facts, in my considered

opinion, is that the decree of dissolution of marriage passed by the

Superior Court of California cannot be said to have been passed on

merits nor can it be said to be in compliance with the principles of

natural justice. The plaintiff-wife did not contest the claim nor agree

to the passing of the decree. In fact, the plaintiff in the present case

did not have the wherewithal to contest the impugned proceedings. As

noticed above even her bank account had been fraudulently operated

by the defendant and his relatives by forging her signatures and First

Information Report in this regard was lodged by her being FIR

No.164/2009 under Sections 420/467/468/471/120-B IPC, in respect

of which Status Report has been filed by the Investigating Agency

from time to time. In these circumstances, the judgment, having been

passed in default of wife’s appearance, is clearly in violation of the

principle of audi alteram partem as enunciated by the Supreme Court

CS (OS) No.990/2010 Page 19 of 21 with reference to foreign judgments rendered in matrimonial disputes,

where the wife is not in a position to contest the case in a foreign

jurisdiction, resulting in grave injustice to the wife.

18. Lastly, this Court cannot help but refer to the following

observations made by the Hon’ble Supreme Court in Neeraja Saraph

(Smt) v. Jayant V.Saraph and Anr, (1994) 6 SCC 461, which case

pertained to desertion of an Indian wife by an NRI husband:-

“…But the rule of domicile replacing the

nationality rule in most of the countries for assumption of jurisdiction and granting relief in matrimonial matters has resulted in conflict of laws. What this domicile rule is not necessary to be gone into. But feasibility of a legislation safeguarding interest of women may be

examined by incorporating such provisions as-

(1) No marriage between a NRI and an

Indian woman which has taken place in

India may be annulled by a foreign

court;

(2) Provision may be made for adequate

alimony to the wife in the property of the

husband both in India and abroad.

(3) The decree granted by Indian courts

may be made executable in foreign

courts both on principle of comity and by

entering into reciprocal agreements like

Section 44-A of the Civil Procedure Code

which makes a foreign decree executable

as it would have been a decree passed by

that court.”

CS (OS) No.990/2010 Page 20 of 21

19. Regretfully the plight of women and their exploitation by NRI

husbands is yet to be ameliorated through legislative measures as

suggested in the said case.

20. In view of the aforesaid, the decree of dissolution of marriage

passed by the Superior Court of California in favour of the defendant

can not be said to be conclusive under Section 13 of the Civil

Procedure Code and hence is not enforceable in India. The decree of

dissolution of marriage dated January 14, 2011 and judgment entered

on January 18, 2011 passed by the Superior Court of California,

County of Santa Clara, San Jose, USA in favour of the defendant be

and is hereby declared null and void and unenforceable in India being

opposed to the laws in force in this country.

21. Resultantly, the suit stands decreed in terms of the prayer made

by the plaintiff. The plaintiff shall also be entitled to recover cost in

the sum of Rs.2 lakhs from the defendant.

22. CS(OS) No.990/2010 and IA Nos.182/2012 and 183/2012

stand disposed of.

REVA KHETRAPAL

(JUDGE)

September 10, 2012/’k’

CS (OS) No.990/2010 Page 21 of 21

Categories: Judgement

HC: Refusal to have sexual life with spouse amounts to cruelty-Husband granted divorce

Categories: Judgement

Denying sex to spouse on first night ground for marriage annulment: Delhi high court

Delhi High Court
Smt. Shashi Bala vs Shri Rajiv Arora on 21 March, 2012

IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment delivered on: 21.03.2012

FAO No.185/2001

Smt. Shashi Bala ……appellant. Through: Mr. Atul Bandhu, Adv.

Vs.

Shri Rajiv Arora ……Respondents Through: Mr. R.G. Srivastava, Adv.

CORAM:

HON’BLE MR. JUSTICE KAILASH GAMBHIR

KAILASH GAMBHIR, J.

1. By this appeal filed under section 28 of the Hindu Marriage Act, 1955, the appellant seeks to challenge the impugned order and decree dated 12.2.2001 passed by the learned Trial Court whereby a decree of divorce in favour of the respondent husband under Section 13(i)(a) of the Hindu Marriage Act was granted and the counter claim FAO 185/01 Page 1 of 19 filed by the appellant seeking a decree for restitution of conjugal rights under Section 9 of the Hindu Marriage Act was dismissed.

2. Brief facts of the case relevant for deciding the present appeal is that the marriage between the parties was solemnized on 17.2.1991 according to Hindu rites and ceremonies. It was stated by the husband in his divorce petition that after the solemnization of the marriage, right from the inception, the attitude of the appellant was indifferent and she complained that the marriage had not been solemnized with a man of her taste. As per the respondent husband, the appellant had refused to participate in the traditional ceremony of dud-mundri by saying that she did not like all this but without disclosing any reasons. As per the respondent, the appellant also did not take any interest in the dinner which was served on the wedding night i.e. 18.2.1991. It is also the case of the respondent that when both of them went to their bedroom around 11.30 p.m. the appellant was not responsive and she did not allow the respondent to have sexual intercourse with her. The respondent has alleged that it is only on 25.2.1991, that he was allowed to have sexual intercourse with the appellant for the first time, but again the appellant remained unresponsive and such conduct of the appellant caused mental cruelty FAO 185/01 Page 2 of 19 to the respondent. It is also the case of the respondent husband that on 13.4.1991, the appellant refused to perform “chuda ceremony” which not only hurt the sentiments of the respondent but his parents as well. It was also stated that the appellant in fact removed the chuda and threw it under the bed by saying that she did not believe in all these things. It is also the case of the respondent that the appellant used to visit her parents on her own without even informing the respondent and finally left the matrimonial home on 16.4.1992 and since then she did not come back. It is also the case of the respondent that he had sexual intercourse with the appellant only for about 10-15 times during her stay with him for a period of about 5 months. It is also the case of the respondent that the appellant used to quarrel with his old parents and she also used to insist to shift to her parents’ house at Palam colony. The respondent also alleged that on 11th March, 1991 the appellant tried to illegally remove the jewellery from the almirah which belonged to his mother and which was kept for his unmarried sister and while doing so she was caught red handed. It is also the case of the respondent that the appellant made a false complaint with the Crime Against Women Cell and Family Counsel Office, which complaints were ultimately withdrawn by her. Based on FAO 185/01 Page 3 of 19 these allegations the respondent husband claimed the decree of divorce under Section 13(1)(ia) of the Hindu Marriage Act.

3. In the written statement filed by the appellant wife, she denied all the abovesaid allegations leveled by the respondent husband. She denied that she had refused to participate in the “Dud Mundari Ceremony”. The appellant had also stated that after taking lunch on the wedding day, one lady relative of her in-laws and parents of the respondent remarked that she did not bring bed and sofa sets in her dowry and in response she informed them that her father had given a bank draft of Rs. 30,000/- besides presenting costly clothes, ornaments, TV, clothes for relatives, utensils and other articles in the marriage. It is also the defence of the appellant that on the wedding night the respondent entered the bedroom showering filthy abuses on the appellant and told her that she had not brought the dowry according to their expectations. It is also her case that she was also told by the respondent that the bank drafts should have been prepared either in the name of the respondent or in the name of his father. It was denied by the appellant that her attitude was indifferent at the time of dinner. She also denied the allegation of non- consummation of the marriage on the wedding night. The appellant FAO 185/01 Page 4 of 19 took a stand that right from the wedding night i.e. 18.2.1991 the parties had normal physical relationship with each other. She also denied that she did not perform “chuda ceremony” or threw the chuda under the bed. She also denied that she left the matrimonial home on 16.4.1992. The appellant also took a stand that on 23.4.1992 the respondent, his parents and two sisters asked her to bring Rs. 50,000/- or otherwise leave the matrimonial home and on her refusal to meet the said demand, she was thrown out of the matrimonial home. The appellant denied that she had sexual relationship with the respondent only 10-15 times or she had refused to have sex with the respondent. She also denied that she never insisted the respondent to live in the house of her parents. She also denied that on 11th March, 1991 she made any attempt to steal the jewellery or she was caught red handed. She also stated that in the last week of April, 1991 she was told by the respondent to withdraw Rs. 30,000/- from her bank account as the old sofa lying in the house required replacement but no new sofa set was purchased when she brought the said money and gave the same to the mother of the respondent. The appellant also took a stand that she was prepared to FAO 185/01 Page 5 of 19 live with the respondent as she had withdrawn from her society without any reasonable cause and without any fault on her part.

4. Based on the pleadings of the parties, the learned Trial Court framed the following issues:-

(i) Whether the respondent has treated the petitioner with cruelty? (ii) Relief.

(iii) Whether the petitioner has withdrawn from the company of the respondent without any reasonable cause or excuse? If so, its effect. The respondent in evidence examined himself as PW2 besides examining Shri Dalveer Singh, Head Constable as PW1 and Shri Vishwamitra, father of the respondent as PW 3, his colleague Shri Vijay Kumar Taygi PW4. The appellant on the other hand examined herself as RW1 with no other evidence in support.

 

5. After taking into consideration the pleadings of the parties, the learned Trial Court found that the refusal of the appellant wife to participate in the “Dud Mundari ceremony” and thereafter “Chudha ceremony”, which were customary rituals in the family of the respondent husband caused embarrassment and humiliation to the respondent and such acts on the part of the appellant amounted to cruelty. The learned Trial Court also found that in the span of one FAO 185/01 Page 6 of 19 year and two months of the married life, the parties had sex only for about 10-15 times and also denial of the appellant for sexual relationship on the very first night of the marriage is a grave act of cruelty as healthy sexual relationship is one of the basic ingredients of a happy marriage. The learned Trial Court also found that filing of the complaints by the appellant with the Crime Against Women Cell and Family Counsel Office also collectively caused mental cruelty to the respondent husband. Accordingly, the learned trial court granted a decree of divorce in favour of the respondent and against the appellant and consequently also dismissed her counter claim for restitution of conjugal rights.

 

6. Mr. Atul Bandhu, learned counsel appearing for the appellant before this court vehemently argued that the learned Trial Court did not refer to the evidence of the appellant wife wherein she has denied all the allegations leveled by the respondent husband in his petition for divorce. Counsel also contended that the marriage was consummated on the very first night and the appellant wife never denied sexual relationship to the respondent husband. Counsel also submitted that nowhere the respondent husband has stated that as to when he was refused any such sexual relationship by the appellant. FAO 185/01 Page 7 of 19 Counsel thus argued that the learned Trial Court has granted the decree of divorce merely on the ground that the appellant wife did not participate in the dud-mundari ceremony and chudha ceremony and also she did not allow the husband to have sexual intercourse more than 10-15 times in a period of 5 months and as per the counsel, these grounds cannot be treated sufficient enough to constitute cruelty as envisaged under Section 13(ia) of the Hindu Marriage Act. In support of his arguments, counsel for the appellant placed reliance on the judgment of the Hon’ble Supreme Court in Savitri Pandey vs Prem Chandra Pandey AIR2002SC591 and V. Bhagat vs D. Bhagat (Mrs) (1994) 1 SCC 337.

7. Mr. R.G. Srivastava, learned counsel appearing for the respondent on the other hand fully supported the reasons given by the learned Trial Court which entitled him to claim a decree of divorce under Section 13(ia) of the Hindu Marriage Act. Counsel for the respondent also submitted that the appellant did not respect the sentiments of the respondent and his family members by refusing to perform customary rituals like dud-mundari ceremony and chudha ceremony. Counsel also argued that the appellant did not discharge her matrimonial obligations either towards her husband or even FAO 185/01 Page 8 of 19 towards his old parents. Counsel also submitted that the appellant made false complaints to the Crime Against Women Cell and to the Family Counsel Office, which she later withdrew and such act of the appellant also caused mental cruelty to the respondent. Counsel also submitted that by denying normal sexual relationship to the respondent, the appellant had shaken and destroyed the very foundation of a sound marriage. Counsel also submitted that the respondent had duly discharged his burden to prove the case set up by him where as the appellant failed to discharge her burden and even could not prove her defence. In support of his arguments, counsel for the respondent placed reliance on the following judgments:-

1. Vinita Saxena vs Pankaj Pandit 2006(3) SCALE (SC) 367.

2. Naveen Kohli vs Neelu Kohli 2006(4) SCC 558.

3. Samar Ghosh vs Jaya Ghosh 2007 (4) SCC 511.

4. Praveen Mehta vs Inderjit Mehta AIR 2002 SC 2582

5. Rajinder Bhardwaj vs Anita Sharma AIR 1993 Delhi 135.

8. I have heard learned counsel for the parties and given my thoughtful consideration to the arguments advanced by them. FAO 185/01 Page 9 of 19

9. Cruelty as a ground for divorce is nowhere defined in the Hindu Marriage Act as it is not capable of precise definition. There cannot be any straitjacket formula for determining whether there is cruelty or not and each case depends on its own facts and circumstances. What may be cruelty in one case may not be cruelty in other and the parameter to judge cruelty as developed through judicial pronouncements is that when the conduct complained of is such that it is impossible for the parties to stay with each other without mental agony, torture and stress. It has to be something much more than the ordinary wear and tear of married life. The conduct complained of should be grave and weighty and touch a pitch of severity to satisfy the conscience of the court that the parties cannot live together with each other anymore without mental agony, distress and torture. The main grievance of the respondent herein is the denial of the appellant to have normal sexual relationship with the respondent. As per the case of the respondent, during the short period of 5 months he had sexual intercourse with the appellant only 10-15 time while the plea taken by the appellant is that she had never denied sex to the respondent. The courts have through various judicial pronouncements taken a view that sex is the foundation of marriage and marriage FAO 185/01 Page 10 of 19 without sex is an anathema. The Division Bench of this Court in the celebrated pronouncement of Mrs. Rita Nijhawan vs. Mr.Bal Kishan Nijhawan AIR1973Delhi200 held as under:

“In these days it would be unthinkable proposition to suggest that the wife is not an active participant in the sexual life and therefore, the sexual weakness of the husband which denied normal sexual pleasure to the wife is of no consequence and therefore cannot amount to cruelty. Marriage without sex is an anathema. Sex is the foundation of marriage and without a vigorous and harmonious sexual activity it would be impossible for any marriage to continue for long. It cannot be denied that the sexual activity in marriage has an extremely favorable influence on a woman’s mind and body, the result being that if she does not get proper sexual satisfaction it will lead to depression and frustration. It has been said that the sexual relations when happy and harmonious vivifies woman’s brain, develops her character and trebles her vitality. It must be recognised that nothing is more fatal to marriage than disappointments in sexual intercourse.” The learned Trial Court referred to the judgment of this court in the case of Shankuntla Kumari vs. Om Prakash Ghai AIR1983Delhi53 wherein it was held that:

“(25) A normal and healthy sexual relationship is one of the basic ingredients of a happy and harmonious marriage. If this is not possible due to ill health on the part of one of the spouses, it may or may not amount to cruelty depending on the circumstances of the case. But willful denial of sexual relationship by a spouse when the other spouse is anxious for it, would amount to mental cruelty, especially when the parties are young and newly married.”

Hence, it is evident from the aforesaid that willful denial of sexual intercourse without reasonable cause would amount to cruelty. In the FAO 185/01 Page 11 of 19 authoritative pronouncement of the Hon’ble Supreme Court in Samar Ghosh vs Jaya Ghosh (2007)4SCC511, the Hon’ble Supreme Court took into account the parameters of cruelty as a ground for divorce in various countries and then laid down illustrations, though not exhaustive, which would amount to cruelty. It would be relevant to refer to the following para 101 (xii) wherein it was held as under:- “(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.”

Although it is difficult to exactly lay down as to how many times any healthy couple should have sexual intercourse in a particular period of time as it is not a mechanical but a mutual act, however, there cannot be any two ways about the fact that marriage without sex will be an insipid relation. Frequency of sex cannot be the only parameter to assess the success or failure of a marriage as it differs from couple to couple as to how much importance they attach to sexual relation vis a vis emotional relation. There may be cases where one partner to the marriage may be over sexual and the other partner may not have desire to the same level, but otherwise is fully potent. Marriage is an institution through which a man and a woman enter into a sacred FAO 185/01 Page 12 of 19 bond and to state that sexual relationship is the mainstay or the motive to be achieved through marriage would be making a mockery of this pious institution. By getting married, a couple agrees to share their lives together with all its moments of joy, happiness and sorrow and the sexual relationship between them brings them close and intimate by which their marital bond is reinforced and fortified. There may not be sexual compatibility of a couple right from inception of the relationship and depending upon physical, emotional, psychological and social factors, the compatibility between some couples may be there from the beginning and amongst some may come later. Undoubtedly, a normal and healthy couple should indulge into regular sexual relationship but there may be exceptions to this and what may be normal for some may not be normal for others as it would depend upon various factors such nature of job, stress levels, social and educational background, mood patterns, physical well being etc. Indisputably, there has to be a healthy sexual relationship between a normal couple, but what is normal cannot be put down in black and white.

 

10. Adverting back to the facts of the present case, the marriage between the parties was solemnized on 17.2.1991 and FAO 185/01 Page 13 of 19 according to the appellant she was forced to leave the matrimonial house on 16.4.1992, whereas as per the respondent husband, the appellant wife practically stayed at the matrimonial home only for a period of five months as for rest of the period she stayed at her parental house. The case of the respondent is that he had sex with the appellant only for about 10-15 times in a span of five months of married life and that he was denied sexual relationship on the very first night of their marriage and denial of sex at the wedding night caused great mental cruelty to him. The respondent husband also stated that he was allowed to have sexual intercourse by the appellant for the first time only on 25.2.1991.The appellant wife has denied the said allegations of the respondent husband and in defence stated that she was having normal sexual relationship with her husband and even had sexual intercourse on the wedding night. The learned Trial Court after analyzing the evidence adduced by both the parties found the version of the appellant untrustworthy and unreliable while that of the respondent, much more credible and trustworthy. The appellant on one hand took a stand that on 18.2.1991 the atmosphere on that night was very tense so much so that, both the parties could not sleep and speak to each other and she did not even take proper food and the FAO 185/01 Page 14 of 19 whole night there was tension between the parties and the atmosphere was fully charged, but at the same time in the cross- examination of PW2 the suggestion was made by counsel that the appellant touched the feet of the respondent when he entered the room on the said wedding night and she also admitted that her husband had never taken liquor in her presence and he had never come to her in drunken state. It would be appropriate to reproduce para 55 of the Trial Court judgment to bring to surface the said contradiction on the part of the appellant.

“55.From the evidence on record, it is gathered that on the wedding night i.e. on 18.2.91 a “Dud Mundari” ceremony was to be performed but the respondent wife refused to participate in the same. This version of PW 2 has been fully corroborated by his father PW 3. The husband i.e. Rajiv Arora, had entered by both PW 2 and RW1. RW 1 in her cross-examination has stated that their marriage had been consummated on that very night and her husband had come to her and she did not have to persuade the petitioner. On the other hand the petitioner has stated that their marriage could not be consummated on their wedding night and he had sex with his wife for the first time only on 25.2.91. RW1 in her cross-examination has stated that the atmosphere that night was very tense and both the parties could not sleep and they did not speak to each other and her husband had grievance about the insufficient dowry which had been given in the marriage . RW 1 has also admitted that on 18.2.91, she did not take proper food as she was not feeling well. This version of RW1 that she did not take food that night is corroborated by the version of PW1 who has stated that on the wedding night at the time when the dinner was served the attitude of the respondent was indifferent and she did not take any dinner but she took only a little sweet.” FAO 185/01 Page 15 of 19

11. In matrimonial cases, more often than not it is a challenging task to ascertain as to which party is telling truth as usually it is the oral evidence of one party against the oral evidence of the other. What happens in the four walls of the matrimonial home and what goes on inside the bed room of the couple is either known to the couple themselves or at the most to the members of the family, who are either residing there or in whose presence any incident takes place. Whether the couple has had sex and how many times or have had not had sex and what are the reasons; whether it is due to the denial or refusal on the part of the wife or of the husband can only be established through the creditworthiness of the testimonies of the parties themselves. Consequently, the absence of proper rebuttal or failure of not putting one’s case forward would certainly lead to acceptance of testimony of that witness whose deposition remains unchallenged. In the present case, the testimony of the respondent that the appellant was never responsive and was like a dead wood when he had sexual intercourse with her remained unrebutted. It is not thus that the respondent had sex with her wife only about 10-15 times from the date of his marriage within a period of five months, but the cruel act of the appellant of denying sex to the respondent FAO 185/01 Page 16 of 19 especially on the very first night and then not to actively participate in the sex even for the said limited period for which no contrary suggestion was given by the appellant to the respondent in his cross- examination. The respondent has also successfully proved on record that the appellant did not participate in the customary rituals of dud mundri and that of chudha ceremony, which caused grave mental cruelty to the respondent. It is a matter of common knowledge that after the marriage, certain customary rituals are performed and the purpose of these rituals is to cement the bond of marriage. The question whether there was a refusal on the part of the respondent not to perform the ritual of dud-mundari and chudha ceremony is difficult to be answered as on one hand, the appellant has alleged that she had duly participated in the ceremonies while on the other hand the respondent has taken a stand that there was refusal on the part of the appellant to participate in the ceremonies. No doubt the testimony of the respondent has been supported by the evidence of his father and there is no corroborative evidence from the side of the appellant, although her brother had accompanied her in doli and in such backdrop, adverse inference thus has to be drawn against the appellant for not producing her brother in evidence who could be the FAO 185/01 Page 17 of 19 best witness to prove the defence of the appellant alleging her participation in the dud-mundari ceremony. Undeniably, these customary ceremonies are part of the marriage ceremony and refusal of the same that too in the presence of the family members of the husband would be an act of cruelty on the part of the wife. The appellant has also failed to prove any demand of dowry made by the respondent or his family members as no evidence to this effect was led by the appellant. The appellant herein also filed criminal complaints against the respondent and his family members and later withdrew the same. Undoubtedly, it is the right of the victim to approach the police and CAW cell to complain the conduct of the offending spouse, however, frivolous and vexatious complaints like in the present case led to cause mental torture and harassment to the respondent and his family members. Thus, taking into account the conduct of the appellant in totality, this court is of the view that the same amounts to causing mental cruelty to the respondent.

12. Before parting with the judgment, this court would like to observe that the sex starved marriages are becoming an undeniable epidemic as the urban living conditions today mount an unprecedented pressure on couples. The sanctity of sexual FAO 185/01 Page 18 of 19 relationship and its role in reinvigorating the bond of marriage is getting diluted and as a consequence more and more couples are seeking divorce due to sexual incompatibility and absence of sexual satisfaction. As already stated above, to quantify as to how many times a healthy couple should have sexual intercourse is not for this court to say as some couples can feel wholly inadequate and others just fine without enough sex. “That the twain shall become one flesh, so that they are no more twain but one” is the real purpose of marriage and sexual intercourse is a means, and an integral one of achieving this oneness in marriage.

 

13. This Court therefore, does not find any kind of illegality or perversity in the findings given by the learned Trial Court in the impugned judgment dated 12.2.2001 and the same is accordingly upheld. The present appeal filed by the appellant is devoid of any merits and the same is hereby dismissed.

KAILASH GAMBHIR, J

21.03. 2012

FAO 185/01 Page 19 of 19

 
 
Categories: Judgement

HC: Maintenance under HMA25 is valid even if divorce is rejected

Rajasthan High Court
Vishram Singh vs Smt Bholi Bai on 1 March, 2012
name=”textfield” rows=”27″ cols=”100″>

In the High Court of Judicature for Rajasthan at Jaipur Bench Jaipur

S.B.Civil Misc. Stay Application No.785 of 2010

in

S.B.Civil Misc.Appeal No.1049 of 2010

Vishram Singh

vs.

Smt. Bholi Bai @ Bholeshwari @ Kamlesh

Date of Order : 01.3.2012

HON’BLE MS. JUSTICE BELA M. TRIVEDI

Mr.J.R.Tantia for the appellant/applicant.

Mr. Pankaj Gupta for the respondent.

By the Court:

1.Heard learned counsel for the parties.

2.Vide order dated 16.4.2010, this court while issuing notice to the respondents had directed the appellant to continue to pay the maintenance at the rate of Rs.5,000/- per month and stayed the recovery of arrears of maintenance. Today, the matter has come up for confirmation of the said stay order.

3.It has been sought to be submitted by learned counsel Mr.J.R.Tantia for the appellant that the court below could not have passed the permanent alimony under section 25 of Hindu Marriage Act, when the divorce petition of the appellant was dismissed. According to him, in view of section 25(1) of the said Act, the amount of arrears be stayed during the pendency of the appeal. There is no force in the submissions of learned counsel for the appellant, inasmuch as under section 25 of the said Act, any court exercising its jurisdiction under the said Act may at any time of passing of any decree or at any time subsequent thereto, on application to it for the purpose of maintenance direct the concerned respondent to pay maintenance. In the instant case, the court below had specifically framed the issue with regard to the permanent alimony to be paid to the respondent-wife and while dismissing the divorce petition filed by the appellant, the court had directed the appellant to pay maintenance at the rate of Rs.5,000/- per month from the date of application i.e. 30.8.2005 till the date of payment. There is no reason to stay the said order. Hence, in the opinion of the court, the appellant is liable to pay entire amount arrears with interest as directed by the court below and also to continue to pay Rs.5,000/- per month to the respondent-wife.

4.In that view of the matter, it is directed that the appellant shall deposit the entire amount of arrears within eight weeks from today.

5.The application stands disposed of accordingly.

(BELA M. TRIVEDI) J.

om

All corrections made in the judgment/order have been incorporated in the judgment/order being emailed. Om Prakash

PA

http://indiankanoon.org/doc/151597974/

Categories: Judgement, Judgement

HC: Maintenance under HMA25 is valid even if divorce is rejected

Rajasthan High Court
Vishram Singh vs Smt Bholi Bai on 1 March, 2012
name=”textfield” rows=”27″ cols=”100″>

In the High Court of Judicature for Rajasthan at Jaipur Bench Jaipur

S.B.Civil Misc. Stay Application No.785 of 2010

in

S.B.Civil Misc.Appeal No.1049 of 2010

Vishram Singh

vs.

Smt. Bholi Bai @ Bholeshwari @ Kamlesh

Date of Order : 01.3.2012

HON’BLE MS. JUSTICE BELA M. TRIVEDI

Mr.J.R.Tantia for the appellant/applicant.

Mr. Pankaj Gupta for the respondent.

By the Court:

1.Heard learned counsel for the parties.

2.Vide order dated 16.4.2010, this court while issuing notice to the respondents had directed the appellant to continue to pay the maintenance at the rate of Rs.5,000/- per month and stayed the recovery of arrears of maintenance. Today, the matter has come up for confirmation of the said stay order.

3.It has been sought to be submitted by learned counsel Mr.J.R.Tantia for the appellant that the court below could not have passed the permanent alimony under section 25 of Hindu Marriage Act, when the divorce petition of the appellant was dismissed. According to him, in view of section 25(1) of the said Act, the amount of arrears be stayed during the pendency of the appeal. There is no force in the submissions of learned counsel for the appellant, inasmuch as under section 25 of the said Act, any court exercising its jurisdiction under the said Act may at any time of passing of any decree or at any time subsequent thereto, on application to it for the purpose of maintenance direct the concerned respondent to pay maintenance. In the instant case, the court below had specifically framed the issue with regard to the permanent alimony to be paid to the respondent-wife and while dismissing the divorce petition filed by the appellant, the court had directed the appellant to pay maintenance at the rate of Rs.5,000/- per month from the date of application i.e. 30.8.2005 till the date of payment. There is no reason to stay the said order. Hence, in the opinion of the court, the appellant is liable to pay entire amount arrears with interest as directed by the court below and also to continue to pay Rs.5,000/- per month to the respondent-wife.

4.In that view of the matter, it is directed that the appellant shall deposit the entire amount of arrears within eight weeks from today.

5.The application stands disposed of accordingly.

(BELA M. TRIVEDI) J.

om

All corrections made in the judgment/order have been incorporated in the judgment/order being emailed. Om Prakash

PA

http://indiankanoon.org/doc/151597974/

Categories: Judgement, Judgement

82 lakh paid for divorce and quashing 498A

January 30, 2012 1 comment

Punjab-Haryana High Court
Parambir Singh @ Pammi And Others vs State Of Punjab And Another on 24 January, 2012
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

Crl.Misc.No.M-14727 of 2009 (O&M)

Date of decision : 24.01.2012

Parambir Singh @ Pammi and others

….Petitioners

Versus

State of Punjab and another

…Respondents

CORAM : HON’BLE MR.JUSTICE MAHESH GROVER ….

Present: Mr.Deepinder Brar, Advocate for the petitioners.

Mr. B.B.S.Teji, Addl.A.G., Haryana

for respondent No.1.

Mr.S.P.S.Sidhu, Advocate

for respondent No.2.

…..

MAHESH GROVER, J.

This is a petition under Section 482 of the Code of Criminal Procedure praying for quashing of FIR No.25 dated 21.2.2008 under Sections 498-A, 406, 342, 295-A, 506, 34 IPC, registered at the behest of the complainant-respondent No.2 at Police Station Lambi, District Muktsar.

Originally this petition was filed for quashing of the FIR on the ground that the allegations set out therein were not sustainable and that the complainant had given an aggravated version of a grievance and given to it a colour of criminality so as to settle scores with the petitioners.

Crl.Misc.No.M-14727 of 2009 (O&M) -2- During the subsistence of these proceedings, the petitioners and the complainant have resolved their differences and have decided to put an end to the entire litigation. Broadly, the terms of the agreement envisage the dissolution of marriage by a decree of divorce which has since been effected on 28.11.2011 and further as a part of settlement an amount of Rs.82 lacs was agreed to be paid by the petitioners to the complainant. Out of a sum of Rs.82 lacs some amount was already paid to the complainant and the balance amount of Rs.38 lacs has been handed over by way of Cheque No.952392 to the complainant in Court.

Learned counsel for the parties contend that in view of the aforesaid, the FIR deserves to be quashed. The parties are present in Court and have been duly identified by their respective counsel. Both have got their statements recorded separately accepting the factum of compromise and stating that they have no objection if the FIR is quashed. Having regard to the aforesaid facts when the allegations had surfaced on account of a marital discord and also noticing the fact that the parties have since resolved their differences and have nullified their marriage by a decree of divorce and in lieu thereof an amount of Rs.82 lacs has been paid by the petitioners to the complainant on account of permanent alimony, maintenance, etc. and keeping in view the observations of the Full Bench of this Court in Kulwinder Singh v. State of Punjab and others, 2007(3) RCR (Crl.) 1052, I deem it appropriate to accept the petition and direct that the Crl.Misc.No.M-14727 of 2009 (O&M) -3- FIR in question and all consequent proceedings arising therefrom be quashed. Ordered accordingly.

Before parting with the order, it is made clear to the petitioners that in case the cheque handed over to the complainant today in Court falters for some reason, it shall be viewed by the Court to be an attempt to obstruct the course of justice and appropriate orders shall be passed upon such a breach being brought to the notice of the Court.

Petition disposed of.

24.01.2012 (MAHESH GROVER) JUDGE

http://indiankanoon.org/doc/45893095/

Categories: Judgement

If order of maintenance is passed under section 18 HAMA or section 125 Cr.PC then wife can file for divorce under section 13(2)(iii)

Delhi High Court
Satinder Singh vs Bhupinder Kaur on 2 November, 2011

IN THE HIGH COURT OF DELHI AT NEW DELHI

MAT APP. No.20/2011 & CM No. 5645/2011

Judgment delivered on: 02 November, 2011

Satinder Singh ……Petitioner Through: Mr. Hari Shankar, Adv.

Vs.

Bhupinder Kaur ……Respondent Through: Mr.Shailender Dahiya, Adv.

CORAM:

HON’BLE MR. JUSTICE KAILASH GAMBHIR

KAILASH GAMBHIR, J.

*

1. By this appeal filed under Section 28 of the Hindu Marriage Act, 1955 read with section 151 CPC, the Appellant seeks to challenge the Order dated 16.8.2010 passed by the learned trial court whereby a decree of divorce under Section 13(2)(iii) of the Hindu Marriage Act was passed in favour of the respondent.

 

2. Brief sequence of events that has led to the filing of the present appeal is that the respondent filed a petition for divorce under section 13(2)(iii) of the Hindu Marriage Act and MAT APP.20/2011 Page 1 of 11 the appellant filed an application under Order VII rule 11 for rejection of the plaint which was dismissed vide order dated 13.11.2009. A revision was filed against the said order which was dismissed by this court vide order dated 17.12.2010. Thereafter the petition for divorce was decided and the respondent was granted divorce vide order dated 16.8.2010 and feeling aggrieved by the same, the appellant has preferred the present appeal.

3. Assailing the said judgment and decree, learned counsel representing the appellant submits that the order passed under Section 125 Cr.PC was an interim order and based on the interim order the learned matrimonial court could not have exercised jurisdiction to grant a decree of divorce in terms of section 13(2) (iii) of the Hindu Marriage Act. Counsel also submits that any interim order passed in any proceedings will always remain an interim order which would ultimately be subject to passing of a final order and the final order can always vary and in a given case may be against the party in whose favour an interim order has been passed. Counsel thus submits that jurisdiction under Section 13(2) (iii) of the Hindu Marriage Act may be exercised by the matrimonial court only when a final order was passed under Section 125 Cr.PC and, therefore, the MAT APP.20/2011 Page 2 of 11 expression ‘order’ referred to under section 13(2) (iii) of the Hindu Marriage Act must be read as a final order and not as an interim order. Counsel also submits that the respondent has also misled the matrimonial Court by not disclosing the fact that she got remarried and due to such suppression of a material fact on the part of the respondent she was not entitled to the grant of decree under section 13(2) (iii) of the Hindu Marriage Act. Counsel also submits that the learned matrimonial court has also not appreciated that the earlier divorce petition filed by the respondent under section 13(1) (ia) of the HM Act was dismissed and the said finding being against the respondent and in favour of the appellant, the learned trial court ought not to have passed a decree in favour of the respondent under section 13(2) (iii) of the Hindu Marriage Act. In support of his arguments, counsel for the appellant has placed reliance on the following judgments :-

1.Gita Massant vs. Narain Dass, 27 (1985) DLT 374

2.Snehlata Seth vs. V.Kewal Krishan Seth, 27(1985) DLT 449.

3.Prem Chandra Agarwal vs. U.P. , JT 2009(8) SC 118

4. Amarjeet Singh vs. Devi Ratan, AIR 2010 SC 3676

5. Kalabharati Advertising vs. Hemant Vimalnath, AIR 2010 SC 3745

4. Opposing the present appeal, counsel for the respondent submits that the appeal filed by the appellant is a MAT APP.20/2011 Page 3 of 11 gross abuse of process of law and the appellant has suppressed from this court that he had filed an application under Order VII Rule 11 CPC before the matrimonial Court to seek rejection of the said petition filed by the respondent under section 13(2) (iii) of the HM Act and that the said application of the appellant was dismissed by the trial court. Counsel further submits that against the said order the appellant had also filed a revision petition before this Court which was also dismissed vide order dated 17.12.2010. Counsel thus submits that because of suppression of these vital facts, the appellant is not entitled to the grant of any relief by this Court in the present appeal. Counsel further submits that in the order passed by the Hon’ble High Court in the said revision petition, the finding has already been given by this Court that the interim order passed under section 125 Cr.PC would give jurisdiction to the matrimonial court to pass a decree under section 13(2) (iii) of the HM Act and the said finding not being challenged by the appellant, the same attained finality and in view of this also the appellant now cannot agitate the same grievance again before this Court. Counsel also submits that so far as the remarriage of the respondent is concerned, same has taken place after the passing of the decree of divorce in favour of the respondent.

MAT APP.20/2011 Page 4 of 11

5. I have heard counsel for the parties at considerable length and gone through the records.

 

6. The Law Commission in its 59th report recommended adding section 13(2)(iii) to the Act wherein it provided an additional ground of divorce to the wife. The intent of introducing the said section was to give the wife the right to seek divorce if she has been neglected or not maintained by her husband after an order of maintenance has been passed in her favour. There was discussion with regard to the said provision being made available to the husband equally but it was concluded that such right would ultimately lead to the husband misusing the provision, who in the bid to get rid of his wife would abandon her and compel the wife to move the court for the grant of maintenance and thereafter himself fully submit to the order of payment of maintenance knowing that he would be entitled to get a decree of divorce after the said period of one year has elapsed. Therefore the said provision was brought on the statute book to enable only the wife to seek a decree of divorce if after passing of the order of maintenance there has been no cohabitation for one year which would mean that the husband has ceased to value the society of the wife and their need for each others company has MAT APP.20/2011 Page 5 of 11 prima facie come to an end. Earlier it was suggested that the period under the section be of three years but later on it was reduced to one year as being appropriate. Thereafter Section 13(2)(iii) of the Hindu Marriage Act in its present form was introduced in the Act through the Marriage Laws (Amendment ) Act, 1976 (Act 68 of 1976). Hence by virtue of the said provision, an additional ground of divorce has been made available to the wife to seek dissolution of her marriage by a decree of divorce on the ground that a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife either in a suit filed by the wife under Section 18 of the Hindu Adoptions and Maintenance Act or in the proceedings under Section 125 of the Code of Criminal Procedure and since the date of passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards. For better appreciation, Section 13(2) (iii) is reproduced as under: “Section 13(2): A wife may also present a petition for dissolution of her marriage by a decree of divorce on the ground,-

(iii) that in suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 , (78 of 1956 .) or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974 .) (or under the corresponding section 488 of the Code of

Criminal Procedure, 1898 ), (5 of 1898 .) a decree or order, as the case may be, has been passed

against the husband awarding maintenance to the MAT APP.20/2011 Page 6 of 11 wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been

resumed for one year or upwards;”

 

7. It would be evident from a plain reading of the above provision that for a wife to claim divorce under the said provision she is required to satisfy the following conditions: (a) A decree or order has been passed in her favour and against the husband awarding maintenance to her either in a suit filed by her under Section 18 of the Hindu Adoptions and Maintenance Act or in the proceedings under Section 125 of the Code of Criminal Procedure; and

(b) That the wife has been living apart since passing of such a decree or order; and

(c) There has been no resumption of cohabitation between the parties for a period of one year or upwards. Hence, in a petition filed by the wife under the said section if she is able to satisfy the aforesaid three conditions, then she would be entitled to a decree of divorce. In the facts of the case at hand, the contention raised by the counsel for the appellant is that the order which gives a right to the wife to seek divorce under the said section is a final order and not an interim order. The appellant had urged this ground for filing an application MAT APP.20/2011 Page 7 of 11 under order 7 rule 11 for rejection of the petition for divorce filed by the wife on the basis of the interim order dated 2.3.2005 under section 125 CrPC where the court while dismissing the said application vide order dated 13.11.2009 held that the word ‘order’ would include an interim order as well and the appellant herein had then challenged the order before this court in the revision petition which was also dismissed by this court vide order dated 17.12.2010 with the following observations: “As per this Section, wife is entitled to file a petition for dissolution of marriage by a decree of divorce on the basis of proceedings under Section 125 Cr.P.C. wherein a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife. The word “order” appearing in this Section includes the interim order as well as the final order and does not speak only of the final order passed on a petition under Section 125 Cr.P.C. for seeking dissolution of marriage by a decree of divorce under the above provisions of law” Admittedly, the above said order of this court was not challenged by the appellant and thus attained finality laying the controversy to rest to whether the order under the said section would mean an interim order as well and the ground cannot be allowed to be reagitated by the appellant herein.

 

8. Even otherwise, a bare look at the section13(2)(iii) would manifest the intention of the legislature as two separate expressions have been used in the said Section i.e. ‘decree’ or MAT APP.20/2011 Page 8 of 11 ‘order’, which would necessarily mean either an interim or a final order. The intention of the legislature is to give a right to the wife to invoke the said provision in a case where even an interim order has been passed in either of the said proceedings, which is also clear from the language used in the said section beginning with the words “in a suit under Section 18 of the Hindu Adoption and Maintenance Act, 1956 (78 of 1956), or in a proceeding under Section 125 of the Code of Criminal Procedure , wherein the words ‘in a suit or in a proceeding’ would clearly mean that the order passed during the pendency of the proceedings either under Section 18 or under Section 125 of the Code of Criminal Procedure. There is thus no room to interpret the said provision in a manner suggested by the counsel for the petitioner which otherwise would defeat the very purpose and object of the said section.

 

9. The essence of the said provision is that there should be no resumption of cohabitation between the parties for a period of one year or upwards from the date of the passing of such an order, so this one year gap has to be reckoned from the date of the passing of an order under Section 125 of the Code of Criminal Procedure or under Section 18 of the Hindu Adoptions MAT APP.20/2011 Page 9 of 11 and Maintenance Act and not necessarily a final order or decree. The section does not talk about the payment or non payment of the maintenance amount but of the non resumption of cohabitation of the parties. Clearly, in the facts of the present case the appellant had admitted that there was no resumption of cohabitation for a period of more than one year after the order dated 02.03.2005 under Section 125 Cr.P.C. was passed by the court of the learned Metropolitan Magistrate.

 

10. It is quite pertinent to note that section 13(2)(iii) talks about section 18 under the HAMA and section 125 Cr.PC, which are both the provisions for grant of maintenance available to the wife only unlike section 24 or 25 of the HMA wherein any party can approach the court for the grant of maintenance. It is thus manifest that the order of maintenance passed in the favour of the wife in her petition under section 18 HAMA or section 125 Cr.PC would make her available the right to file for divorce under section 13(2)(iii). If the contention of the counsel for the appellant is accepted and the order in the section is meant to be only a final order then the purpose of the said provision would be negated as the wife who seeks a decree of divorce under the said section would have to wait till a final order under section 18 or MAT APP.20/2011 Page 10 of 11 section 125, as the case may be, which would certainly mean insisting on an invariably long waiting period, which is certainly not the object of the said section. The only desideratum is that the parties have ceased to live together for one year or more and to save the wife from vagrancy she has a order or decree of maintenance in her favour. The judgments relied upon the counsel for the appellant would not be applicable to the facts of the case at hand as they sought to carve a different legal proposition altogether.

 

11. In the light of the above discussion, this court does not find any merit in the present appeal and the same is hereby dismissed.

November 02, 2011 KAILASH GAMBHIR,J MAT APP.20/2011 Page 11 of 11

http://indiankanoon.org/doc/134951262/

Categories: Judgement, Judgement

Gujrat Family court passes divorce on the ground of “irretrievable break down of marriage” which is not a ground under HMA and only SC has such power under Article 142

Binaben vs Kulinkumar on 7 September, 2011
Author: Harsha Devani,

Gujarat High Court Case Information System

Print

SA/185/2011 2/ 2 ORDER

 

IN

THE HIGH COURT OF GUJARAT AT AHMEDABAD

 

 

SECOND

APPEAL No. 185 of 2011

=========================================

 

BINABEN

W/O KULINBHAI SHAH D/O SUNDERLAL SHAH – Appellant(s)

Versus

 

KULINKUMAR

CHANDRAVADAN SHAH – Defendant(s)

========================================= Appearance :

HL

PATEL ADVOCATES for Appellant(s) : 1, None for Defendant(s) : 1,

=========================================

 

CORAM

:

 

HONOURABLE

MS.JUSTICE HARSHA DEVANI

 

 

 

Date

: 07/09/2011

 

ORAL

ORDER

 

 

 

Mr.

Harshil Shukla learned advocate for the appellant has invited attention to the impugned judgments and decrees passed by the lower appellate court as well as by the trial court to submit that the courts below have granted the decree of divorce on the ground of irretrievable break down of marriage. It was submitted that under the provision of section 13 of Hindu Marriage Act, 1955, irretrievable break down of marriage is not a ground for dissolution of marriage by a decree of divorce. It was submitted that before the lower appellate court, the learned advocate has specifically pointed out that the trial court has no power to pass a decree for dissolution of marriage on the ground of irretrievable break down of marriage and that of the Supreme Court in the decision on which reliance had been placed upon, had granted decree of divorce in exercise of powers under Article 142 of the Constitution of India. It was submitted that in the circumstances, the present appeal does give rise to a substantial question of law and deserves to be admitted.

 

 

Having

regard to the submissions advanced by the learned advocate for the appellant, it, prima-facie, appears that both the courts below have granted divorce solely on the ground of irretrievable break down of marriage. In the circumstances, the matter requires consideration. Hence, ADMIT. The following substantial question of law arises for determination.

 

 

 

Whether

the lower appellate court was justified in holding that decree of divorce under section 13 of the Hindu Marriage Act, 1955 could be granted on the ground of irretrievable break down of marriage?

 

 

(HARSHA

DEVANI, J.)

 

(ashish)

 

 

 

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http://indiankanoon.org/doc/887720/

Categories: Judgement

Wife appears party in person in HC but HC confirms Husband is the absolute owner of flat :)

Anwar @ Arvind Ramkrishna … vs Shehnaz Sani on 16 September, 2011
Bench: A.M. Khanwilkar, R.Y. Ganoo

1

pps

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

FAMILY COURT APPEAL NO. 131 of 2009

Anwar @ Arvind Ramkrishna Mudbhatkal

Age 71 years, Indian Inhabitant,

res. at A-702, Milton Apartments,

Juhu Tara Road,

Koliwada, Mumbai 400 049 .. Appellant (Original Petitioner/Plaintiff)

Versus

Shehnaz Sani

Age 58 years, Indian Inhabitant,

residing at A-702, Milton Apartments,

Juhu Tara Road, Koliwada,

Mumbai 400 049 …Respondent (Original Respondent/Defendant)

Ms. Neeta Karnik for Appellant.

Respondent, in person.

WITH

FAMILY COURT APPEAL NO. 148 of 2009

Shehnaz Sani

Adult, Indian Inhabitant,

Aged around 56 years,

Occupation: Temporary Service

2

residing at A-702, Milton Apartments,

Juhu Tara Road, Koliwada,

Santa Cruz (West)

Mumbai 400 049 .. Appellant Versus

Dr. Anwar @ Arvind Ramkrishna Mudbhatkal

Adult, Indian Inhabitant,

Aged around 70 years,

Occupation Professional,

Permanent Residence at

C/o. Mr.Ajit Balse,

Vijaynagari, Ghodbandar Road,

Thane, District Mumbai ..Respondent Appellant in person.

Ms. Neeta Karnik for Respondent.

CORAM:- A.M.KHANWILKAR &

R.Y.GANOO, JJ.

RESERVED FOR JUDGMENT ON: 21st June. 2011

JUDGMENT PRONOUNCED ON:

JUDGMENT (PER R.Y.GANOO, J):

 

1. These two appeals are filed by the respective appellants so as to challenge the judgment and decree dated 1st June, 2009 passed by the learned Judge of the Family Court No.2, Mumbai, (hereinafter referred to as “Family Court”), in Petition No.B-153 of 2008. These 3

two appeals can therefore be conveniently disposed of by a common judgement. Arvind Anwar @ Arvind Ramkrishna Mudbhatkal shall hereinafter be referred to as “husband” and Shehnaz Sani shall hereinafter be referred to as “wife”.

 

2. The wife had filed petition for divorce and other reliefs in the Family Court at Bandra, Mumbai, being M.J.Petition No.A-1945 of 1992. The said petition was decided by the learned Judge of the Family Court by judgment and order dated 30th September, 2005.

3. Being aggrieved by the said judgment and decree dated 30th September, 2005, the wife filed Family Court Appeal No.38 of 2006 in this Court. In the course of hearing of the said Family Court Appeal No.38 of 2006, it was brought to the notice of this Court that the suit filed by the husband against the wife, being Suit No.2065 of 1995 is pending. This Court, therefore, considered the point as to whether the said suit should continue to remain on Original Side or it should be transferred to the Family Court for decision on merits. After hearing the Advocate for husband and the wife, this Court by its Order dated 16th July, 2008 came to the conclusion that the said 4

Suit No.2056 of 1995 should be transferred to the Family Court at Bandra, Mumbai and accordingly passed an order thereby transferring the said Suit No.2056 of 1995 to the Family Court, Mumbai, for disposal in accordance with the provisions of law. The said suit contains various prayers. This Court, by order dated 16th July, 2008 observed that the prayer clause (a) in the said suit has become redundant and therefore the Family Court is not required to decide the same. That order has been allowed to attain finality. This will mean that on transfer of the said suit to the Family Court, the Family Court was required to decide the prayers commencing from prayer clause (b) onwards.

 

4. The husband had prayed for following reliefs in the said Suit which was renumbered as Petition No.B-153 of 2008 :

“(b) that this Hon’ble Court be pleased to declare that the defendant has no right, title or interest of any nature whatsoever in the flat being Flat No.A-702, Milton Apartments, 7th Floor, Juhu Tara Road, Koliwada, Bombay 400 049.

5

(c) that this Hon’ble Court be pleased to order and decree the deletion of the name of the Defendant from the records of the Milton Co-operative Housing Society Limited with regard to the said flat being Flat No.A-702, Milton Apartments, 7th Floor, Juhu Tara Road, Koliwada, Bombay 400 049, from the membership of the said society, from the shares bearing distinctive numbers 71 to 75 of Rs.50/- each issued by the said society in the Share Certificate No.15 dated 18th October, 1988 and from the Agreement for Sale dated 26th June 1985, being Exhibit “F” hereto:

(d) that this Honourable Court be pleased to restrain the Defendant by a mandatory order and injunction from entering into, remaining upon, using, occupying and/or possessing the said flat being Flat No.A-702, Milton Apartments, 7th Floor, Juhu Tara Road, Koliwada, Bombay 40 049 or any part or portion thereof:

(e) that this Hon’ble Court be pleased to restrain the Defendant, her servants, agents and/or representatives and/or any person or persons claiming under or through her by a perpetual order and injunction from in any manner dealing with, disposing of, mortgaging, transferring, assigning, selling, conveying and/or creating any third party right or interest in the said flat No.A-702, Milton 6

Apartment, 7th Floor, Juhu Tara Road, Koliwada, Bombay 400 049 or any part or portion thereof:

(f) that this Hon’ble Court be pleased to restrain the defendant, her servants, agents, and or representatives and/or any person or persons claiming under or through her by a perpetual order and injunction from in any manner interfering with, stopping, preventing, obstructing and/or intermedling with the use, occupation, enjoyment and possession of the plaintiff of the said flat being Flat No.A-702, Milton Apartments, 7th Floor, Juhu Tara Road, Koliwada, Bombay 400 049 or any part or portion thereof: (g) that this Honourable Court be pleased to restrain the defendant, her servants, agents and/or any person or persons claiming under or through her by a perpetual order and injunction from in any manner removing and/or taking away any of the articles of furnitures, fittings electronic items like washing machine, cooking range, air- conditioners, mixtures, grinders, vacum cleaners, telephones, items of cutlery, items of crockery etc, including the items mentioned in Exhibit “G” hereto lying and being in the said flat being Flat No.A-702, Milton Apartments, 7th Floor, Juhu Tara Road, Koliwada, Bombay 400 049:

7

(h) that this Hon’ble Court be pleased to declare that the defendant has no right, title or interest of any nature whatsoever in the air-conditioned motor car of Maruti make bearing Registration Nos.BLN 5165:

(i) that this Hon’ble Court be pleased to order and direct the defendant to deposit in this Hon’ble Court all the papers pertaining to and connected with the air-conditioned Maruti car bearing Registration No.BLN 5165 along with the transfer papers duly signed by the defendant for transfer of the said car in the name of plaintiff and to handover possession of said car to the plaintiff. (j) that this Hon’ble Court be pleased to restrain the defendant, her servants, agents, representatives and/or any person or persons claiming under or through her by a perpetual order and injunction from in any manner dealing with, disposing of, hypothecating, parting with possession of, selling, transferring and/or assigning the said air- conditioned Maruti car bearing Registration No.BLN 5165 except in favour of the plaintiff.

(k) that the defendant be ordered and directed by this Hon’ble Court to disclose full and complete particulars of all the dealings made by the Defendant from the amounts withdrawn by the Defendant from the Saving Bank 8

Account No.5040 with the Bazaar Branch of the Syndicate Bank at Matunga and/or the NRE Account No.253 with the Main Branch at Matunga of Syndicate Bank and/or the NRE Account No.6684 with the Juhu Tara Road Branch of the Union Bank of India and be further pleased to order and direct the defendant to render true, complete and faithful accounts in that behalf and such accounts be made and taken upon the basis of wilful default committed by the Defendant and after ascertaining what is due to the Plaintiff, a decree for payment of such amount be passed in favour of the Plaintiff with interest thereon at the rate of 18% per centum per annum from the date of the suit till payment and/or realisation:

(l) that the defendant be ordered to disclose all items of jewellery, gold and costly articles purchased by the Defendant from and out of the amounts belonging to the Plaintiff and hand the same over to the plaintiff: (m) that the defendant be ordered and decreed to render true, complete and faithful account of her investments made from out of the amounts of the plaintiff including the investment of US Dollars 27,000/- in the Motel business of the sister/brother-in-law of the Defendant in the United States of America, the Cable Television business run in the name or names by herself and/or with the said Bobby Shah 9

and/or any other person or persons and be further ordered and decreed to pay over to the plaintiff the profits made/interest earned therefrom:

(n) for the purpose aforesaid all necessary enquiries be made, orders be passed, directions be given and accounts be taken as may be necessary.

(o) that pending the hearing and final disposal of the suit the Defendant by herself, her agents, servants, representatives and/or any peson or persons claiming under or through her be restrained by an order and injunction of this Hon’ble Court from in any manner dealing with, disposing of, mortgaging, transferring, assigning, selling, conveying, letting and/or creating any third party right or interest in the said flat being Flat No.A-702, Milton Apartments, 7th Floor, Juhu Tara Road, Koliwada, Bombay 400 049:

(p) that pending the hearing and final disposal of the suit the Defendant by herself, her agents, servants, representatives, and/or any person or persons claiming under or through her be restrained by an order and injunction of this Honourable Court from in any manner dealing with, transferring, assigning, selling, and/or creating any third party right or interest in the said air- 10

conditioned motor car of Maruti make bearing Registration No.BLN 5165:

(q) that pending the hearing and final disposal of the suit the defendant by herself, her agents, servants, representatives and/or any person or persons claiming under or through her be restrained by an order and injunction of this Hon’ble Court from in any manner dealing with, disposing of, pawning, transferring, assigning, selling and/or creating any third party right or interest in the items of jewellery, gold and costly articles in the custody of the defendant:

(r) that pending the hearing and final disposal of the suit the Defendant by herself, her agents, servants, representatives and/or any person or persons claiming under or through her be restrained by an order and injunction of this Hon’b;e Court from in any manner dealing with, disposing of, hypothecating, parting with possession of, selling, transferring , removing and/or creating any third party right or interest in the articles being and lying in the said Flat No.A-702, Milton Apartments, 7th Floor, Juhu Tara Road, Koliwada, Bombay 400 049 including the items mentioned in Exhibit “G” annexed hereto:

11

(s) that pending the hearing and final disposal of the suit the Defendant by herself, her agents, servants, representatives and/or any person or persons claiming under or through her be restrained by an order and injunction of this Hon’ble Court from in any manner interfering with, stopping, preventing, obstructing and/or intermedling with the use, occupation, enjoyment and possession of the plaintiff of the said flat being Flat No.A-702, Milton Apartments, 7th Floor, Juhu Tara Road, Koliwada, Bombay 400 049 and any part or portion thereof with the articles including those listed in Exhibit “G” annexed hereto:

(t) that pending the hearing and final disposal of the suit the Defendant be ordered and directed by the Hon’ble Court to disclose full and complete particulars of and to render true complete and faithful account of all the dealings made by the Defendant from the amounts withdrawn by the Defendant from the Savings Bank Account No.5040 with the Bazaar Branch of the Syndicate Bank at Matunga (C.R.) the NRE Account No.253 of the Main Branch of the Syndicate Bank at Matunga (C.RE.) and the NRE Account No.6684 with the Juhu Tara Road Branch of the Union Bank of India at Juhu with particular reference to the items of jewellery, gold and other costly things purchased by the Defendant from out of the amounts 12

given by the Plaintiff and/or caused to be used by then Defendant:

(u) that pending the hearing and final disposal of the suit the defendant be restrained by a mandatory order and injunction of this Hon’ble Court from entering into, remaining upon, using, occupying and/or possessing the said flat being Flat No.A-702, Milton Apartment, 7th Floor, Juhu Tara Road, Koliwada, Bombay 400 049 or any part or portion thereof:

(v) that pending the hearing and final disposal of the suit the Court Receiver, High Court, Bombay or any other fit or proper person be appointed as the Receiver of the said Air Conditioned Motor Car of Maruti make bearing Registration No.BLN 5165 with all powers under Order XL Rule 1 of the Code of Civil Procedure, 1908 with directions to such Receiver to appoint th Plaintiff as his agent and handover the said Maruti car to the plaintiff without any security and/or premium and/or royalty and/or on such terms and conditions as this Honourable Court may deem fit and proper:

(w) that pending the hearing and final disposal of the suit this Honourable Court be pleased to stay the hearing of M.J.Petition No.A-1945 of 1992 and all interlocutary 13

applications taken out therein pending before the Hon’ble Family Court at Bandra, Bombay:

(x) that ad-interim reliefs in terms of prayer clauses (o), (p), (q), (r), (s), (t), (u), (v) and (w) be granted: (y) that cost of the Suit be provided for:”

 

5. As per the directions given by this Court, the learned Judge of the Family Court decided the suit on merits and passed the following order :

“The petition is partly allowed with costs. The petitioner is declared as absolute owner of flat No.A-702, Milton Apartment, 7th Floor, Juhu Tara Road, Koliwada, Mumbai 400 049 . So far as prayer of mandatory injunction is concerned, it is rejected. The decree be drawn accordingly.”

 

6. As indicated earlier, being aggrieved by this Order, the husband and wife have respectively filed the aforesaid two appeals.

7. The husband has filed present Appeal No.131 of 2009. It is noticed on the basis of the appeal memo that the challenge to the aforesaid 14

order is with reference to that part of the order by which the prayer for mandatory injunction is rejected. So far as the wife is concerned, the wife is aggrieved by the aforesaid judgment on the ground that the claim of the wife that she has 88% of the share in the aforesaid flat is negatived. The wife is also aggrieved as the learned Judge has declined to grant reliefs claimed by her, which were set out in her counter claim. Said reliefs are mentioned at the end portion of the written statement. It is to be noted that the husband has in his examination in chief at paragraph 15 specifically stated that he is pressing prayer clause (b) which reads as under: “(b) that this Hon’ble Court be pleased to declare that the defendant has no right, title or interest of any nature whatsoever in the flat being Flat No.A-702, Milton Apartments, 7th Floor, Juhu Tara Road, Koliwada, Bombay 400 009.”

 

8. In paragraph 16 he has further stated that he is pressing for prayer clauses (f), (g), (i), (m) and (y). A reading of paragraph 16 clearly goes to show that the rest of the prayers have been given up by him and his evidence is restricted in regard to the prayers as mentioned 15

aforesaid. A look to the aforesaid prayer clauses i.e. prayer clauses (b), (f), (g), (i) , (m) and (y) would go to show that the husband had given up his mandatory prayer as regards restraining the wife from entering into, remaining upon, using, occupying and or possessing the said flat or any part or portion thereof. A reading of other prayers which have been given up by the husband would clearly go to show that he had given up his various mandatory prayers. It is noticed that the learned Judge of the Family Court did not take into consideration the contents of the written statement as regards the prayers made in the written statement in paragraph 95. The learned Judge framed following issues :

(1) Does the petitioner prove that he is the absolute owner of flat No.A-702 Milton Apartments, Juhu Tara Road, Koliwada, Mumbai?

(1A) Whether he is entitled for mandatory injunction restraining her from entering into or using or occupying or possessing Flat No.A-702, Milton Apartments, Juhu Tara Road, Koliwada, Mumbai.

(2) What Order and decree?

16

 

9. We have perused the grounds of appeal put up in Family Court Appeal No.131 of 2009 filed by the husband and it is noticed that the grounds of appeal relate to the prayer clause (d) only. The husband has not made any grievance as regards prayers (f), (g), (i), (m) and (y) of the Petition. In Family Court Appeal No.148 of 2009, the wife has made grievance as regards prayers set out in the written statement.

 

10.With the aforesaid discussion, it would now be convenient to state the case put up by the respective parties. The husband has stated that he came in contact with the wife prior to November 1975 and wife got converted to Hindu religion in 1975 and thereafter they got married on 9.11.1975 as per the Hindu Vedic Rites. There are some averments in the petition whereby the husband has claimed that at the later point of time the husband adopted Islam Religion, and a Nikah was performed between husband and wife. In view of the order dated 16.7.2008 passed by this Court, in Family Court Appeal No.38 of 2006, by which it is observed that relief in terms of prayer clause (a) has become redundant, there is no need for this court to dwell 17

upon the said stand of husband about remarriage with wife. The husband was working as Medical Officer in Central Railway from 1966 to 1983. In the year 1983, the husband could secure a job in the Ministry of Health at Saudi Arabia as Medical Officer. He was posted as Medical officer at Gizan. It is admitted by both the sides that the wife gave birth to a daughter on 9th December, 1976 who was named as Sonia. It is admitted that second daughter was born to the couple on 5th October, 1980. The said daughter was named as Shahzia. Considering the relevant dates Sonia attained majority on 9th February, 1994 whereas Shahzia attained the age of majority on 5th October, 1998. It is admitted by both the sides that husband’s father was a tenant in respect of a flat at Vasudev Sadan, 1/3730 Telang Cross Road No.3. Matunga, Mumbai (hereinafter referred to as “Tenanted Flat”). After the marriage the husband and wife started residing at Railway Quarters. The husband’s brother Anand was staying in the said flat upto 1980. Thereafter the husband, wife and daughters shifted to said flat in January 1980.

11.The husband had a Saving Bank Account with Syndicate Bank at Matunga, Mumbai, being Account No.5040. As the husband joined 18

the service at Gizan, a non resident NRE Account was opened by the husband at Syndicate Bank, Matunga, Mumbai, being Account No.

253. In the year 1986 another NRE Account was opened with Union Bank of India, Juhu, Mumbai, being Account No.6684. According to the husband , in the year 1984 the husband decided to purchase a flat at Juhu and accordingly M/s. Veena Beena Developers were contacted for the purchase of the said flat. The husband had given due authority to wife to represent him with the Developer. According to the husband, it was decided that Flat No.A-702, Milton Apartments, 7th Floor, Juhu-Tara Road, Koliwada, Bombay – 400 049, (hereinafter referred to as “said flat”), should be purchased. According to the husband, an amount of Rs.3,85,000/- was to be given to the developer in connection with the said flat and it was decided that said amount would be paid to the builder as loan in the first instance and at the time of actual transaction, the consideration would be paid. As per this arrangement, a sum of Rs.3,85,000/- was paid to the said developer as loan from and out of the NRE Account No.253 with Syndicate Bank, Matunga Branch, Mumbai, as follows: Amount Date

Rs. 2,00,000/- 11.12.1984

19

Rs.1,00,000/- 31.01.1985

Rs.50,000/- 20.02.1985

Rs.35,000/- 19.03.1985

The receipts have been issued in regard to the aforesaid payments and those receipts are at Exhibits 169, 335, 336 and 169A, respectively. According to the husband, the sum of Rs.,3,23,375/- were to be paid by cheque and a sum of Rs.3,38,000/- were to be paid in cash (not to be accounted) towards consideration for the said flat. The stamp duty payable was in the vicinity of Rs.19,500/- i.e. total cost of the flat was Rs.6,89,175/-. According to the husband, on 22.6.1985, the Developer returned the sum of Rs.3,85,000/- by way of cheque in the name of husband and the wife managed to deposit the said cheque in her Account No.24387 Syndicate Bank, Matunga, Mumbai, by adding the name of the husband in the said account. This was done by taking the help of the Branch Manager Mr.Kamat. That is how the sum of Rs.3,85,000/- was credited to the said account. According to the husband a pay order in the sum of Rs. 3,23,375/- was obtained from the said account and the said sum was paid over to the Developer as consideration for the said flat. According to the husband, a sum of Rs.3,37,000 (not to be accounted 20

for) was raised by surrendering the tenanted flat at King Circle. According to the husband, the aforesaid sum of Rs.3,37,000/- so received was utilized for paying the amount to the Developer. The wife had no right in respect of the said tenanted flat and hence the total consideration payable in respect of the said flat came from the husband and that is how the husband claims that he is the absolute owner of the said flat and that the wife has no right whatsoever in the said flat.

 

12.According to the husband, as the husband had to leave India before the actual possession could be taken in respect of the said flat, the Developer had given him one agreement to be duly signed by the husband and to be kept with the wife so that at the time of actual execution, the Developer could sign and fill in the blanks. According to the husband, at the time of execution of the said agreement the wife had added her name in the said agreement, however it is noticed that in letter dated 7th March, 1989, Exhibit 90, the wife came out with the stand that her name was added by the Developer.

13.According to the husband, wife addressed letter dated 29th June, 1985 21

at Exhibit 73 to him and sent the said letter to Gizan. According to the husband, in the said letter at Exhibit 73 dated 29th June, 1985 full details as to how the transaction regarding surrendering possession of the tenanted flat and taking possession of the said flat took place was mentioned. According to the husband, little before surrendering possession in respect of the tenanted flat, Mr. Anand, brother of the husband had executed affidavit whereby he had expressed his desire to surrender the tenancy right in respect of the tenanted flat.

14.Looking to the points raised in the Family Court Appeal No.131 of 2009 as also Family Court Appeal No.148 of 2009, it is not necessary to refer to various averments. Those averments relate to : (1) car being purchased by the wife from and out of the funds of the husband. (2) Investment made by the wife in U.S.A. by utilizing the funds of the husband. (3) After 1989 the husband finding a change in the wife and the wife withdrawing large amounts from NRE Account disproportionate to the needs and requirements of the wife and children. (4) Wife purchasing lot of jewellery from the monies earned by the husband. (5) Wife having illicit relations with one Mr. Bobby Shah. (6) Issuing draft of USD 17,000 in the name of sister of wife. 22

 

15.The husband has in para 48 to 52 of Petition stated as to how the wife treated him with cruelty. In para 53 of the said Petition, the husband has indicated that he gave Talak to wife as per Muslim Law. In para 58 of the said Petition, the husband has admitted that the wife had filed M.J.Petition A-1945 of 1992 at Family Court at Mumbai for divorce under Section 13(1)(ia) and (ib) of the Hindu Marriage Act and had claimed maintenance and sought orders regarding the said flat.

 

16.According to the husband, between 1975 to 1978 the wife was earning sum of Rs.700/- by working in Centaur Hotel and that subsequently she joined Saudi Airlines and was earning salary of about Rs.2,000/-. According to the husband she was dismissed from the service in 1985. It is also the case of the husband that since 1991-1992 the wife is earning a sum of Rs.15,000/- to Rs.20,000/- by running cable T.V. Business. It is also the case of the husband that the wife had invested U.S.Dollars 28,000 in United States of America in Motel Business and that the said amount was forcibly taken by the wife from the husband. According to the husband, she was earning 23

further income of Rs.15,000/- to Rs.20,000/- per month from Motel business. The husband claims that the wife had made investment locally, from which she is earning substantial amount.

17.The husband has in paragraph 62 specifically averred that the outgoings of the society are paid by him. According to the husband, the wife has no right in respect of the said flat and that wife should account for the gold jewellery and costly items and she should return the same to the husband. The husband wants that the record of the society is liable to be rectified. Similarly, agreement made with the Developer is also liable to be rectified by deleting the name of the wife from the said agreement. He also claims that the Maruti Car is liable to be transferred from the name of the wife in his favour. He also claims that the wife is not entitled to enter into or use, occupy and or possess the said flat or any part thereof. On the basis of the aforesaid averments, the husband has prayed for diverse reliefs as set out in the prayer clauses. We have already indicated that the husband has clearly indicated in his evidence affidavit that he is pressing for prayer clause (b), (f), (g), (i), (m) and (y) only. 24

 

18.The wife has filed written statement. She admits that she embraced Hindu Religion and she got married with the husband on 9th November, 1975. She also admits that the husband worked with Central Railway from 1966 to 1983. She admits that the husband worked with Ministry of Health, Gizan, Saudi Arabia, from 1983 to 1992. She denies the stand of the husband that he embraced Muslim Religion and Nikah was entered into. She admits that in 1977 she embraced Muslim Religion. She denies that the plaintiffs brother Anand left the said premises in 1980. The opening of the two NRE Accounts to which the reference is made by the husband is admitted. She denies having spent monies on gold and other items. She has denied the averments as regards her brother residing with the husband in or about 1972. She admits that her brother came to reside with her after her marriage with the husband in the year 1975 and claims that his boarding and lodging charges were paid by the said elder brother.

 

19.The wife has denied the story put up by the husband as regards purchase of flat from the funds of the husband, advancement of loan to the Developer only by husband. It is the stand of the wife that the 25

tenanted flat was in dilapidated condition and it required heavy repairs and renovation. According to the wife, she spent about Rs.1 lakh out of her own earnings and monies from her brother who was working as Manger in a Five Star Hotel to renovate the tenanted flat. According to her, on account of renovation done by her, the landlord of the tenanted flat agreed to pay sum of Rs.3,38,000/- to the husband as well as his brother Anand. According to her the husband’s brother Anand was required to be paid monies towards his share in the tenanted flat and that said Anand had agreed to execute a bond on getting Rs.1,68,000/- being 50% of his share of the total amount which was to be received from the landlord. It is her case that she had a right in the said tenanted flat and that is why instead of paying a sum of Rs.1,68,000/- to Anand, a sum of Rs.1,00,000/- was paid and a sum of Rs.18,000/- was not paid. According to the wife, the balance sum of Rs.50,000/- was not paid as said amount was towards her share in the tenanted flat. According to the wife, if the flat would have been surrendered without renovation it would have fetched sum of Rs.2,00,000/- only and that is how she claims that on account of renovation of the tenanted flat at her cost, an extra amount of Rs.1,37,000/- was received. According to the wife, it was decided 26

between the husband and the wife in the year 1983 itself that savings of the husband would be utilized for the purpose of purchase of the flat. The wife has admitted payment of Rs.3,85,000/- to the developer as loan from December, 1984 to March, 1985. The wife has reiterated that the 4 receipts issued for the above payments were issued in the joint names of husband and wife and name of wife was first in the said receipts. According to wife, these facts go to show that she had a right in the said flat. According to wife, since the transaction regarding said flat was to be in the joint names, there was no question of wife obtaining receipts from the developer in the name of husband only.

 

20.It is admitted by the wife that at or about the time when the transaction in regard to the said flat was to be finalized, the developer issued a cheque in the name of the husband in the sum of Rs. 3,85,000/- towards the repayment of the amount advanced earlier as loan. The defendant admits that she had an Account No.24387 with Syndicate Bank, Matunga Branch, Mumbai. She admits that with the help of the Branch Manager, Mr. Kamat, of Syndicate Bank, Matunga Branch, Mumbai, the name of the husband was inserted in 27

the said bank Account No.24387 though the husband was not the Account holder and thereafter the said cheque was cleared and a sum of Rs.3,23,375/- was paid to the developer for the purchase of the said flat by drawing a pay order. It is further admitted by the wife that the landlord of the tenanted premises handed over the sum of Rs. 3,37,000/- to the builder and that the possession of the said flat was delivered to the wife. It is the case of the wife that the husband suggested to the wife that if the said flat is purchased from his NRE Account, then there would be no Income Tax hassles and it is in these circumstances the wife agreed with the husband’s suggestion and started saving the amount in the husband’s NRE Account. She claims that she spent all her earnings upto July 1985 towards household expenses for the maintenance of herself and the two daughters and did not withdraw any amount from the husband’s NRE Account from March 1983 to April 1985 except Rs.8000/-, although she had full authority to do so. It is also her stand that she wanted to educate her two daughters in USA for which she was in need of foreign currency and that is how she saved foreign currency in her husband’s NRE Account. According to her, on account of efforts made by her to accumulate monies in the NRE account of the 28

husband, purchase the said flat was possible. With this stand she claims that she has contributed Rs.2,16,000/- to the husband’s NRE account within the period of 27 months i.e. from March 1983 to June 1985 at the rate of Rs.8000/- per month. She claims that she was earning Rs.5000/- per month as salary and allowances from M/s. Saudi Arabian Airlines. It is also her stand that she used to get sum of Rs.3000/- per month by way of two months extra salary as bonus and leave travel allowance and by selling certain imported items which she received as gifts from friends and relatives, which they used to bring from abroad. It is also her case that her brothers and sisters used to send her gifts on account of birthday in the form of U.S.Dollars through the husband by depositing in husband’s NRE account because they were knowing about her desire to accumulate the foreign currency. The wife has, in paragraph 26 of written statement, indicated her contribution for purchase of the said flat which is as follows:

29

i) Amount paid by the defendant to the Rs.1,00,000/- plaintiff’s brother Anand Mudbhatkal in March

1985 for surrendering his tenancy rights in the rented premises.

ii) Excessive Surrender Value paid by the Rs.1,37,000/- Landlord for the rented premises in lieu of the premises being renovated from A to Z and given

a posh look at the expense of the Defendant and her relatives

iii) Amount accumulated by the Defendant in the Rs.2,16,000/- plaintiff’s N.R.E.Account No.253 from mid

March 1983 till the purchase of the flat in June 1985 (27 months) at the rate of Rs.8000/- per

month as per the Agreement and understanding

between the plaintiff and the defendant that the flat would be purchased through a foreign

currency account to avoid Income-tax querries

and hassles

iv) Surrender value’s share amount to be paid to Rs. 50,000/- the plaintiffs brother forfeited on account of the Defendant claiming her tenancy right in the

rented premises

v) Total contribution by the Defendant Rs.5,03,000/- vi) Total purchase amount of the flat Rs.6,61,675/- Balance Amount Rs.1,58,675/-

21. In said paragraph 26 at the end, wife has claimed that out of the 30

balance amount of Rs.1,58,675/-, 50% of the same is her rightful share as according to her this amount was earned by the husband through the job in Saudi Arabia for which she had to struggle a lot. In addition to her contribution towards purchase of the flat at Rs.5,03,000/- she claims a contribution of Rs.79,337/- being 50% of Rs.1,58,675/-.

 

22.The wife has stated that her services came to be terminated in or about June, 1985 and that she had to file a case in the Labour Court for reinstatement being Case No.IDA-439 of 1986. It is admitted by the wife that as per the award dated 16th April, 1996 the Court ordered her reinstatement. It is the contention of the wife that on account of her major contribution towards the purchase of the said flat, in the letter dated 28th March, 1985 Exhibit-47 addressed to the Developer, her name stands first in the signatories of the said letter. According to her the very fact that the husband has signed below her signature shows that the husband has accepted her major contribution. According to her in the flat purchase agreement her name should have been first. She claims that the flat purchase agreement ought to be amended accordingly.

31

 

23.It is the case of the wife that prior to the purchase of the said flat, the husband was fully aware about the wife’s major contribution and share in the purchase of the said flat, and even then, he addressed three contrary letters to the said society. According to her by letter dated 7th March, 1992 Exhibit 341, the husband informed the society that her name was added for the sake of convenience, since he was out of India when the flat was purchased. By letter dated 25th April, 1992 at Exhibit 173, the husband informed the said society that the wife inserted her name in the flat purchase agreement as well as share certificate in his absence and therefore, her name is shown as joint holder of the said flat. By letter dated 3rd May, 1992 at Exhibit 172, the husband informed the said society that wife got her name inserted in the flat purchase agreement by fraud and without the knowledge or consent of the plaintiff. The wife has stated in para 27 that on account of the aforesaid correspondence, her reputation in the society was brought down and her two children suffered tremendous mental agony and that is how she expects that she should be compensated to the tune of Rs.50 lakhs and has prayed accordingly. 32

 

24. So far as the membership of the said society, the wife has relied upon the provisions of Section 2(19)(a) of the Maharashtra Co- operative Societies Act and the bye laws of the Co-operative society. According to her, on account of the information supplied to the Co- operative Society at the time of the formation of the society, her signatures are appearing on the necessary applications. She claims that persons concerned with the society instructed her to fill up the details in the said form as per the flat purchase agreement and since the name of the husband stood first in the said agreement, they instructed her to sign on his behalf. According to her, she followed the said instructions. According to her as the husband was not residing in the said flat and as the signature was not appearing on the said form, there was no question of his name appearing in the share certificate. She claims that the said share certificate ought to be cancelled. In para 30 of her written statement she has narrated the fact and acts of the office bearers of the society. She has submitted that on account of the high handed, oppressive, insulting and contumacious behaviour of the members of the society, namely Mr. Hansel D’Souza and Mr. G.P.Singh who were representing the said society, she suffered damage, pain and injury. She has therefore 33

claimed Rs.25,00,000/- as damages from the society. The defendant, in para 31 has admitted that she had full authority to operate the NRE Account of the husband. She has stated that the she had written a letter dated 29th June, 1985 at Exhibit 73 in which she had given complete details as regards purchase of flat.

 

25.In paragraph 32 of the written statement wife has indicated as to how the document titled as Agreement to Sale came to be executed. She states that the husband had to return to Saudi Arabia by 31st March, 1985 and the agreement could not be executed prior to that. She states that the printed agreement was in the custody of the partners of the Developer and the said agreement was never in her possession. It is the case of the wife that the husband suggested to the builder that he would sign on a printed agreement and the same can be executed on the payment of money to Developer. According to the wife, if at that time the husband was to be the only signatory to the agreement then he would have very well refused to sign on the blank printed agreement and/or he could have suggested that the same be sent to him to Saudi Arabia by Courier for signature after all payments were made. According to wife, if husband was to be the only signatory to 34

the agreement, he should have and would have filled up and insisted on filling up his name at page 1 of the agreement and if he had done so, his name is as long as ‘Arvind Ramkrishna Mudbhatkal’ it would have covered the entire space, leaving no space for any addition of the name. According to wife, it is evident that husband signed on the printed agreement and left the space blank because it was to be filled up in the joint name. According to her, it was the suggestion of the husband and that he volunteered to sign on the printed agreement, he could not use this stand to grab the rightful share of the wife in respect of the said flat. According to her, the case of the husband that the printed agreement was kept with the wife after the husband’s signature is false. She claims that the said agreement was in the custody of the Developer. She denies the claim of the husband that she added her name in the said agreement after his departure to Saudi Arabia. The allegation levelled by the husband against wife, that the wife practised fraud in the matter of execution of agreement is denied by her. The wife has no doubt referred to letter dated 7 th March, 1989 Exhibit-90, sent by her to the husband where she has stated “Even for this flat, I never told them to put my name. They did it themselves. You can even ask them about it.” An explanation is 35

sought to be offered so far as the contents of these words by saying that while writing the said letter she was angry and upset. She has further claimed that the aforesaid words show that she was not materialistic and that she did not bother about the flat being in her name despite her major contribution in the flat as stated herein before. She has clarified that by the said words she meant that she never bothered to remind the developers to ensure that they entered her name also in the agreement as per the receipts of the payment of the entire white amount being in the joint name , in accordance with letter dated 28th March, 1985, Exhibit-47.

 

26.According to the wife, all the articles in the said flat, except Pioneer Music System were purchased by her. According to her, out of the total sum of Rs.1,27,000/- on the interior of the house, a sum of Rs. 25,000/- only was contributed by the husband.

 

27.In paragraph 34 the wife has given explanation about the Maruti Car. It is not necessary for us to mention about the said explanation as the question regarding the car is not required to be decided by this court in the aforesaid two appeals. Same is the case as regards the the loan 36

arrangement with M/s. Apple Leasing for the purchase of the car.

28.Since the husband had levelled the allegations against the wife in regard to the matters such as purchase of car, illicit relationship with Bobby Shah, investment of money in motel business in USA, the wife was required to deal with those allegations. Considering the scope of dispute raised in these two appeals, it is not necessary to mention wife’s stand as regard those allegations. The wife has, in paragraph 78 of the written statement, claimed that when the husband returned to India from Saudi Arabia for work, he had over Rs.50 lakhs as accumulated wealth in various fixed deposits in the Bank of America, City Bank, in India and abroad. According to her, as per her contribution and the understanding that was existing between she and her husband that she could maintain his job and share 50% of the salary, the wife is entitled to 50% of the plaintiffs accumulated wealth. On this basis, she has claimed a sum of Rs.25 lakhs on this count along with interest from March 1992 onwards.

29.It is the case of the wife that in or around October 1988, the husband and wife had applied for 12 NRI Bonds of U.S.Dollars each of 37

U.S.Dollars 500 totalling U.S.Dollars 6000 in Mumbai issued by State Bank of India and the said bonds were issued in the joint names of the husband and wife. According to her, the husband managed to cancel the said bond certificates issued in the joint names of the husband and wife and the husband got re-issued the bond certificates in his sole name and on maturity arranged to receive Indian rupees equivalent to U.S.Dollars 13124.28. The wife claims that she is entitled to receive 50% of the said amount along with interest from 15th March, 1996.

 

30.According to the wife, the total purchase value of the said flat was Rs.6,61,675/- and that she had contributed Rs.5,82,337/- and the husband’s contribution towards the said flat is only Rs.79,338/-. She has therefore sought a declaration that she has 88% share in the said flat. She further claims that the Flat Purchase Agreement should be revised as per the ratio aforesaid. She also claims that as she was the only signatory to the list of members submitted to the Registrar of the Society, therefore she should be declared as the founder member of the said society. She also claims that the said society wrongly and illegally issued share certificate in the name of the husband and the 38

wife when the husband was not present and did not apply for the said share. According to her, Share Certificate No.15 dated 18th October, 1988 could be cancelled and a fresh Share Certificate should be issued in accordance with her rightful share of herself and the husband. She also claims that her name should stand first in the Flat Purchase Agreement as well as in the Share Certificate. In paragraph 90 of the written statement, she has come out with the case that husband has deliberately and intentionally lowered her dignity and prestige in the society and that is how she is entitled to damages for the harm and damage to her reputation and for the mental agony suffered by her. In paragraph 91 she has narrated as to how Mr. Hansal D’Souza and Secretary, Mr. J.P.Singh intimidated and harassed her. She claims that she should be compensated by the said society to the tune of Rs.25 lakhs. In paragraph 92 she has stated as to how the husband conspired with her employers M/s. Saudi Arabian Airlines to defeat her case, filed by her. According to her, the husband submitted her personal letters of marital confidence along with other fabricated stories and documents to M/s. Saudi Arabian Airlines and caused tremendous embarrassment. She claims damages for the said embarrassment, injuries suffered by her. In 39

paragraph 93 the wife has alleged that the husband caused irreparable loss and damage to her reputation. She further claims that he caused grave injury to her. She further claims that the husband spread false stories about her having illicit relationship with others. She claims compensation to the tune of Rs.93 lakhs by way of damages as per the particulars of claims which are as follows :

1. Damage caused due to the plaintiff informing the Rs.25,00,000/- society that the Defendant inserted her name in the Flat Purchase Agreement by fraud and without the plaintiff’s knowledge or consent

2. Damage caused due to the conspiring with Rs.10,00,000/- Milton Society’s Management to falsely acquire the Defendant’s share of the flat

3. Damage caused due to conspiring with Saudi Rs.15,00,000/- Arabian Airlines and giving the defendant’s

personal letters of marital confidence to them.

4. The defendant’s 50% share of accumulated Rs.43,00,000/- wealth earned by the plaintiff in Saudi Arabia along with interest thereon with effect from February 1992 in view of the Defendant’s contributions

Total Rs.93,00,000/-

40

 

31.The wife has, at the end of the written statement, prayed as under: “a) that this Hon’ble Court be pleased to declare that the Defendant has 88% share in the flat at Milton Apartments and in consequence thereof, the Flat Purchase Agreement be revised accordingly?

b) that this Share Certificate No.15 dated 18th October, 1988 issued by Milton Apartments Co-operative Housing Society Limited be quashed and set aside, and that it be declared that a fresh Share Certificate be issued in accordance with the Defendant’s share in the flat.

c) that it be declared that the Defendant’s name to stand first in the Flat Purchase Agreement and the Share Certificate of the Society in accordance with letter dated 28.3.1985 addressed to the Builders of Milton Apartments.

d) that this Hon’ble Court be pleased to declare the Defendant as the “Primary/Founder Member” of Milton Apartments Co-operative Housing Society Limited, Juhu Tara Road, Santa Cruz (West), Mumbai 400 049.

e) that the plaintiff be ordered and decreed to pay to the 41

Defendant the sum of Rs.93,00,000/- (Rupees Ninety-three lakhs) with interest thereon @ 24% p.a. from the date of the filing of the written statement till payment.

f) that Milton Apartment Co-operative Housing Society Limited be ordered and decreed to pay to the Defendant the sum of Rs. 25,00,000 (Rupees Twenty five Lakhs) with interest thereon @24% p.a. from the date of filing of the written statement till payment. g) that the State Bank of India, Mumbai, be ordered and decreed to pay to the defendant her share of the NRI bonds amounting to equivalent of U.S. $ 6,562/- with interest thereon with effect from 15.3.1996.

h) that the present suit and all proceedings thereon be stayed till the trial of the proceeding in the Family Court. i) that the plaintiff be restrained from entering the matrimonial home of the Defendant where she is residing with her two daughters and/or coming anywhere near it.

j) that pending the hearing and final disposal of the suit, the plaintiff be restrained from entering the matrimonial home of the Defendant where she is residing with her two daughters and/or coming anywhere near it.

42

k) that pending hearing and final disposal of this suit, the plaintiff be restrained from in any manner dealing with, disposing of, mortgaging, transferring, assigning, selling, conveying, leting and/or creating any third party right or interest in the said flat being flat No.A/702, Milton Apartments, Juhu Tara Road, Mumbai 400 049. l) that pending the hearing and final disposal of the suit, the plaintiff be restrained from using, removing, selling and/or mortgaging any of the articles and furnitures and fixtures in the said flat as all stand in the name of the Defendant. m) that ad-interim reliefs in terms of prayer clauses (j), (k) and (l) above be granted.

n) that the Hon’ble Court be pleased to award costs of the suit and Notice of Motion in favour of the Defendant.

o) that such order and further reliefs be granted as the nature and circumstances of the case may require.”

 

32.It is required to be mentioned that the husband has not filed any formal written statement to the various monetary claims put up by the wife which are set out as aforesaid.

 

33.On the basis of the aforesaid pleadings, as indicated earlier, 43

following issues came to be framed:

ISSUES FINDINGS 1) Does the petitioner prove that he is

the absolute owner of Flat No.A-702,

Milton Apartments, Juhu Tara Road,

Koliwada, Mumbai? In the affirmative 1A) Whether he is entitled for mandatory

injunction restraining her from entering into

or using or occupying or possessing Flat No.

A-702, Milton Apartments, Juhu Tara Road,

Koliwada, Mumbai. ? In the Negative 2) What Order and Decree? As per final order

34.The learned Judge of the Family Court answered issue No.1 in the affirmative thereby holding that the husband is the absolute owner of the said flat. He answered issue no.1A in the negative and consequently refused to grant mandatory injunction restraining the wife from entering into or using or occupying or possessing the said flat. The issue no.2 was answered as per the final order. The final order is as follows:

” The petition is partly allowed with costs.

44

The petitioner is declared as absolute owner of the flat No.A-702 , Milton Apartment, 7th Floor, Juhu Tara Road, Koliwada, Mumbai 400 049.

So far as his prayer for mandatory injunction is concerned, it is rejected.

Decree be drawn up accordingly.”

 

35.At the stage of trial, the husband stepped into the witness box as P.W.

1. No other witness was examined on behalf of the husband. Wife gave evidence as P.W.1 and no other witness was examined on her behalf in the said suit.

 

36.It is required to be mentioned that both the sides had led evidence in the divorce petition which was filed by the wife, being Petition No.A/1945/1992. In the said petition evidence was given by witnesses of respective sides. It is required to be mentioned that in the course of hearing of these two appeals, both the sides relied upon various documents which were produced before the learned Judge of the Family Court, Mumbai, in Petition No.A-1945/1992. Hence those documents will have to be referred for the purpose of deciding 45

the aforesaid appeals.

 

37.It would be convenient to mention in the first place the agruments advanced by the learned Advocate for the husband. Learned Advocate Ms.Karnik had taken us through the impugned judgment dated 1st June, 2009. She had also taken us through the necessary pleadings and notes of evidence as well as various documents relied upon by the parties. She submitted that the learned Judge accepted the case of the husband that he is the absolute owner of the said flat. According to her, in the prayer clause (d) the husband had prayed for mandatory order and injunction restraining the wife from entering into, remaining upon, using, occupation and or possessing the said flat or any part or portion thereof. Learned Advocate Ms. Karnik took us through the reasoning furnished by the learned Judge in regard to the issue no.1A which deals with the question whether the husband should be granted injunction as prayed by him in terms of prayer clause (d). She submitted that the marriage between the husband and wife came to be dissolved by a decree passed in Petition No.A/1945/1992 on 30th September, 2005. According to her, once the competent Court had declared that the marriage between the 46

parties is dissolved and that the husband is the owner of the said flat, the learned Judge should have granted the mandatory injunction sought in terms of prayer clause (d), According to her, the finding rendered by the learned Judge that the said flat is the matrimonial home of the wife, is incorrect. She further submitted that once it is observed that the marriage between the husband and wife is dissolved, the said flat is not matrimonial home of the wife, and the wife had no right to reside in the said flat and that she should have been asked to vacate the said flat. She, therefore, submitted that the reasoning rendered by the learned Judge while dealing with the issue no.1A is contrary to the well established principles of law and as such the relief in terms of prayer clause (d) should be granted. The learned Counsel appearing on behalf of the husband submitted that she reserves her right to reply to the arguments advanced by the wife in connection with her case that she has a share in the said flat as well as her case by which she has sought monetary compensation.

38.The wife, appearing as party in person had taken us through the entire record, so as to substantiate her case on two grounds (i) she has 88 percent share in the said flat (ii) she is entitled to damages as 47 demanded by her, more particularly set out in particulars of claim. The wife had also taken us through the prayers concerning the said flat. The wife had taken us through the notes of evidence and the other exhibits. She submitted that the husband was working in Central Railway upto 1983 and on the basis of the efforts made by her, the husband got employment in the Ministry of Health, Saudi Arabia as Medical Practitioner and he was posted to work as Medical Officer at Gizan. She submitted that she had two goals before her, namely (1) to arrange for accommodation at Mumbai and (2) to save substantial amount for educational expenses of the two daughters. She submitted that when the husband decided to go to Saudi Arabia, it was agreed that the husband’s salary would be utilized for purchase of flat and that by spending monies from her salary she would look after herself and the two daughters and eventually assist the husband to save more amount of monies from and out of the income which he would get by working as Medical Officer in Saudi Arabia. According to her, between March 1983 and June 1985 substantial amount came to be accumulated by her in husband’s NRE Account No.253 at the rate of Rs.8000/- per month for 27 months, as per the agreement and understanding between herself and the husband. She 48

submitted that the said flat was agreed to be purchased through the foreign currency account to avoid Income tax queries and hassles. She submitted that from the NRE Account No.243 with Syndicate Bank, Mumbai she has withdrawn not more than Rs.8000/- for maintenance of herself and the two daughters. According to her, that facilitated the husband to save substantial amount in NRE Account and eventually pay to the developer towards purchase of the said flat. She submitted that the husband had agreed for this arrangement and therefore there is no question of husband now turning and claiming that she has no right in respect of the said flat.

39.The wife submitted before us that the consideration for the said flat to be mentioned in the agreement was Rs.3,23,375/- and the sum of Rs.3,38,000/- was to be paid to the developer in cash and not to be accounted. She submitted that since the sum of Rs.3,38,000/- was to be paid in cash till such time the said amount is paid, the developer was not prepared to execute the agreement and he was not prepared to book the flat. She submitted that in order to overcome this difficulty, it was decided to pay Rs.3,85,000/- to the developer and show it as loan. She submitted that the following amounts were paid 49

to the developer on the respective dates. The said particulars are as follows:

Date of payment Amount Rs.

11.12.1984 2,00,000/-

31.01.1985 1,00,000/-

20.02.1985 50,000/-

19.03.1985 35,000/-

Total 3,85,000/-

She pointed out that receipts were issued by the Developer in the joint names of wife and husband and her name was first. The said receipts are at Exhibit 169, 335, 336 and 169A respectively. She submitted that the very fact that these receipts were issued in the joint name of herself and the husband clearly supports her case that the flat was to stand in the joint name of herself and her husband. She took us through Exhibit 320, being letter dated 28th March, 1985 addressed by her and the husband to M/s. Veena Beena Developers regarding the advancement of loan of Rs.3,85,000/-. She pointed out in the said letter that she was the first signatory and husband’s signature was at serial no. 2. According to her, this arrangement clearly supports her case that the flat was to be jointly purchased by herself and the husband.

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40.The wife, in person, further submitted that as the date for taking possession of the flat was nearing, the Developer issued a cheque in the name of the husband on 22nd June, 1985 and that the said cheque was deposited by her in her Account No.24387, Syndicate Bank, Matunga branch, Mumbai. She pointed out that the Branch Manager obliged her to insert husband’s name in the said account and arranged to have the pay order for the sum of Rs.3,23,375/- in favour of the builder. She therefore submitted that it is in these circumstances, the amount payable on the basis of the Agreement to Sale at Exhibit 82 dated 26th June,1985 came to be paid.

 

41.She, thereafter advanced her submissions as regards the manner in which the sum of Rs.3,38,000/- was to be paid to the Developer. She submitted that after the death of the father of husband, Mr. Anand, brother of husband and her husband had right in the tenanted flat. She further submitted that as at the relevant time when the said flat was to be surrendered she was residing in the said flat and therefore she also had tenancy right in the said tenanted flat. She submitted that the said tenanted flat required repairs in order to enhance its 51

surrender value i.e. to say if the tenanted flat was surrendered to the landlord in the condition in which it was, the landlord would have paid an amount of Rs.2,00,000/- only. She submitted that she spent Rs.1,37,000/- to have the said flat repaired and improve its surrender value. She submitted that on account of the monies spent by her, the surrender value of the said flat got increased to Rs.3,38,000/-, which amount was paid to the Developer towards the construction of the said flat. She therefore submitted that the amount of Rs.1,37,000/- spent by her for renovating the said flat to give a posh look should be treated as her contribution in the consideration which was paid to purchase the said flat.

 

42.She pointed out that Mr.Anand Mudbhatkal, husband’s brother had a share in the tenancy rights and he was not prepared to execute affidavit cum indemnity bond which was required to be handed over to the landlord at the time of receiving the said amount of Rs. 3,38,000/-, unless the said Anand is paid his share in the sum of Rs. 3,38,000/-. She submitted that she had promised to pay to Anand his share and for that she raised the funds with the assistance of her brother and paid to Mr. Anand a sum of Rs.1,00,000/- . She pointed 52

out that on receipt of the aforesaid sum of Rs.1,00,000/- Anand executed affidavit cum indemnity bond at Exhibit 175 on 25th March, 1985. She submitted that if Mr. Anand would not have been paid the sum of Rs.1,00,000/-, he would not have executed the affidavit cum indemnity bond. She, therefore, submitted that in the circumstances mentioned aforesaid, the payment made by her to Mr.Anand to the tune of Rs.1,00,000/- should be considered as her contribution for the purchase of the said flat.

 

43.She had further submitted that as she claimed tenancy right in respect of the said flat, she was entitled to receive a sum of Rs.50,000/- out of the sum of Rs.3,38,000/- which were payable by the landlord. She submitted that the plaintiff’s brother Anand forfeited the sum of Rs. 50,000/- on account of she claiming tenancy rights and therefore the sum of Rs.50,000/- should be considered as her contribution towards the purchase of the said flat in addition to the earlier contributions.

44.She submitted that the husband had authorized her to withdraw money from the NRE Account No.253 from time to time. She submitted that she did not withdraw any amount from the said 53

account for maintenance of herself and the two daughters. She submitted that at the relevant time her salary as Air hostess was Rs. 5000/- and she used to get a sum of Rs.3000/- per month by way of bonus and by way of two months extra salary as bonus, leave travel allowances and selling imported items which she received as gifts from friends and relatives and which she used to bring from abroad, within the permissible limits. She, therefore, submitted that she was utilising nearly Rs.8000/- per month to maintain the children and herself which amount, otherwise she could have saved in her own name, had she withdrawn the said amount from the plaintiff’s NRE account. She submitted that due to the agreement that the flat would be purchased with the foreign currency, she spent all her Indian currency on the household expenses and that is how the monies could be raised to advance loan to the Developer and consequently book the said flat. She submitted that from March 1983 till the purchase of the flat in June 1985, she arranged to save a sum of Rs. 8000/- per month from the NRE Account No.253 and therefore the sum total of the amount saved turns out to Rs.2,16,000/- i.e. 27 months x Rs.8000/-. The wife, in person, submitted that in the circumstances mentioned aforesaid, her contribution turns out to be 54

Rs.5,03,000/- out of the total consideration for purchase of the said flat being Rs.6,61,675/-. She submitted that the difference between the cost of the said flat and the contribution made by her towards the purchase of the said flat turns out to be Rs.1,58,675/-. She submitted that she has 50% share in the aforesaid sum of Rs.1,58,675/- as the said amount was earned by husband through the job in Saudi Arabia as she had struggled to get him the said job and she had struggled to see that he gets a comfortable posting and maintains his job for a period of nine years. She submitted that taking into consideration the aforesaid figures, namely Rs.5,03,000/- and Rs.79,337/- (50% of Rs. 1,58,675/-) she has contributed for purchase of said flat to the tune of Rs.5,82,337/- and that is how she has 88% share in the said flat.

45.The wife submitted that it is in these circumstances, the finding given by the learned Judge of the Family Court, Mumbai that the husband is the owner of the said flat to the exclusion of the wife is wrong. She submitted that the learned Judge of Family Court has not considered the case put up by her through the evidence placed by her on record and to that extent the learned Judge of the Family Court has erred. She submitted that her case that she has 88% share in the 55

flat is required to be accepted.

 

46.The wife had taken us through the record to submit that after 1992 as the husband came back to India after leaving his job in Saudi Arabia, the husband changed his attitude and started claiming that she has no right in respect of the said flat. She pointed out to the court that she was working as Joint Secretary of the Milton Apartment Co- operative Housing Society Ltd., (hereinafter referred to as the said society). She submitted that after the husband raised dispute about her share in the said flat and after the husband addressed letters to the society dated 7.3.1992 Exhibit 341, 25th April, 1992 Exhibit 173, and 23rd May, 1992 Exhibit 172 she was harassed by the office bearers of the society Mr.D’Souza and Mr.Singh. Eventually, she resigned from the said post. She pointed out that her name figured in the Share Certificate issued by the said society. She pointed out that the very fact that her name was inserted in the Share Certificate of the said society clearly supports her stand that she had a right in respect of the said flat. She pointed out her evidence and submitted that in the year 1986 the occupants of Milton Apartment got together and registered the said society. She submitted that she was residing 56

in the said flat and her signature existed in the list of members which was submitted to the Registrar. According to her, as per the provisions of Section 2 (19)(a) of the Maharashtra Co-operative Societies Act, 1960 r/w. Bye law No.17 (note 2) because she was signatory to the application for registration of the society, she should be deemed to be the member of the society. According to her, the Society decided to issue share certificates to all share holders and gave them Form No.1216 being application form for membership along with Share Certificate data slip and asked her to fill it. As the name of the husband stood first in the flat purchase agreement they asked her to sign on his behalf. She has stated in her evidence that she blindly followed the instructions and that is how Share Certificate No.15 dated 18th October, 1988 was prepared and issued in their joint names. She, therefore, submitted that on the basis of the aforesaid material she be declared as primary/founder member of the said society.

 

47.She took us through the Agreement to Sale dated 25th June, 1985, Exhibit 82 and submitted that as her name appears in the said Agreement to Sale, it is clear that she had right in the said flat. 57

 

48.On the basis of the aforesaid submissions she submitted that her claim in the said flat to the extent of 88% be accepted.

49.Turning to her prayers in terms of compensation she had taken us through the evidence led by her. She submitted that the husband wrote false letters to the said society stating that she had inserted her name in the flat purchase agreement by fraudulent means and without her knowledge or consent. According to her, the husband spread various allegations in the society alleging affairs with the other persons. She submitted that all this not only lowered her image in the society, but also caused irreparable loss, damage and injury to her character and reputation, as well as, it affected her children. She submitted that the husband colluded with the then Chairman and Secretary of the Society, namely Mr. Hansel D’Souza and Mr. Gajendrapal Singh, and she suffered harrassment and torture. To submit this, she had taken us through paragraphs, 12 and 13 from her evidence. According to her, on account of the damage suffered by her, she is entitled to receive sum of Rs.25 lakhs. She also submitted that she is entitled to receive a sum of Rs.10 lakhs on account of 58

damage caused due to conspiracy with the said society Management by falsely acquiring her share in the said flat.

50.The wife had taken us through the necessary record and had contended that the husband parted with the personal and confidential documents to her employer, such as copy of M.J.Petition, copy of her personal letters of marital conflicts in the Labour Court without obtaining permission from her. According to her, her husband colluded with her employers namely Saudi Arabian Airlines and that is how she had to suffer tremendous embarassment and injury to her feelings. She took us through paragraph 14 of her evidence and submitted that on account of such overtacts on the part of the husband, she is entitled to receive compensation to the tune of Rs. 15,00,000/-.

 

51.The wife, thereafter took us through the necessary record to contend that she has 50% of the share in the earnings of her husband while he was working at Saudi Arabia. She had submitted that she had to struggle a lot to see that the job of the husband in the Saudi Arabia is maintained and that he is not removed from his service. According 59

to her, on account of the special efforts taken by her to see that husband retains his job in the Ministry of Health and maintains his easy posting, she had to make special efforts. According to her, there was an understanding between herself and the husband that 50% of the income earned by the husband would be that of wife. In paragraph 15 of her examination in chief, she has stated that as of 31st December, 1988 the husband had accumulated wealth of Rs.60 lakhs in his possession. She has therefore claimed that she is entitled to receive 50% of the said accumulated wealth. The wife has mentioned in her particulars of claim a sum of Rs.43 lakhs to be received on this count. She submitted that an order in that behalf should be made.

52.The wife, thereafter took us through the necessary evidence at paragraph 23 of her evidence affidavit. She submitted that in the year 1988, 12 NRI bonds of State Bank of India, each of the face value of U.S.Dollars 500 totalling to U.S.Dollars 6000 were purchased in the joint names of herself and the husband. She has stated in her evidence that the State Bank of India deleted her name. She further submitted that as the name of the plaintiff alone appeared on the said bonds, the maturity proceeds of the said bonds to the 60

extent of Rs.13,124.28 were paid to the husband. According to her, the manner in which the husband took away the total proceeds of the said bond was illegal as the same was done with the help of State Bank of India. She, therefore, submitted that she is entitled to receive an amount equal to U.S.Dollars 6562 alongwith interest thereon from 15th March, 1996.

 

53.The wife in person also submitted before us that since she has 88% share in the said flat, the husband should be restrained from entering the said flat where she is residing alongwith her daughters.

54.The wife drew our attention to prayers at (i) in her counterclaim whereby she has asked for an injunction against the husband restraining him from the matrimonial home i.e. said flat. She had submitted that she is entitled to an injunction in terms of prayer clause (i). She had in support of submission relied upon following judgements.

i) S.P.Chengalvaraya Naidu (Dead) By L.Rs. vs. Jagannath (Dead) by Lrs & Others reported in (1994) 1 SCC 1. (ii) A vs.B. Reported in 1976 BLR (LXXX) 3 & 4

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(iii) Gurasz v. Gurasz, (1969)3 All E.R. 822

(iv) Jones v. Jones, 1971 2 ALL ER 737

(v) Shehnaz Sani vs. Arvind Mudbhatkal Review Petition No. 1108 in Family Court Appeal 38 of 2006, Order dated 19th January, 2009

 

55.Ultimately, she submitted that her contention that she is the owner of the said flat to the extent of 88% should be accepted. She also submitted that her other prayers set out in the written statement, more particularly stated in prayers be granted.

 

56.Learned Advocate Ms. Karnik appearing on behalf of the husband opposed the submissions advanced by the wife in person as regards her claim that she has 88% share in the said flat. She also opposed the submissions advanced by the wife as regards her monetary claim and claim regarding share certificate and other reliefs.

57.Learned Advocate Ms. Karnik submitted that it is true that the monies were advanced from NRE Account to the developer to the tune of Rs.3,85,000/- and the sum of Rs.3,38,000/- was to be paid to 62

the builder in cash as not to be accounted for. She submitted that it is true that the builder repaid the said loan amount of Rs.3,85,000/- by a cheque drawn in favour of her client and that the wife arranged to deposit the said cheque in the bank account where the wife was the sole account holder. She pointed out, that the wife, in her letter dated 29th June, 1985 at Exhibit 73 admitted that with the help of the Bank Manager Mr. Kamat, the husband’s name was added in the said account and it is admitted by her that pay order in the name of the builder for the sum of Rs.3,23,375/- was drawn so as to defray the full consideration of the said flat. She pointed out that in the very letter dated 29th June, 1985 it is admitted by the wife that the sum of Rs.19,500/- was paid to the builder by pay order for payment of stamp duty by withdrawing monies out of Rs.3,85,000/-. She further pointed out that in the said letter it is admitted by the wife that a sum of Rs.8000/- was paid to the developer by way of pay order towards society deposit. She pointed out that the wife had withdrawn a sum of Rs.5000/- by cash. Learned Advocate Ms. Karnik submitted, the text of the aforesaid letter clearly goes to show that the total consideration payable in respect of the said flat as also other charges payable towards purchase of the said flat were paid from and out of 63

the husband’s monies which originally were paid to the developer from his NRE Account. According to her, because the developer had drawn the cheque in the name of the husband and as the said cheque could not be deposited in the NRE Account, the wife in order to tie over the said situation arranged to deposit the cheque in her account by joining name of the husband with the help of the concerned Branch Manager. She submitted that merely because the consideration of the said flat and other charges were paid by drawing pay orders from the bank account of the wife, would not mean that the consideration was paid by the wife.

 

58.Learned Advocate Ms. Karnik submitted that the sum of Rs.3,38,000/- was to be received from the landlord of the tenanted flat on account of surrender of the said tenanted premises. She submitted that the wife has admitted in her letter dated 29th June, 1985 that the landlord Girishbhai paid a sum of Rs.3,37,000/- in cash to Mr.Champalal, a representative of the Developer. She pointed out that in the aforesaid letter dated 29th June, 1985 the wife has admitted that the balance of Rs.1300/- was paid by her. She pointed out that the wife had already withdrawn the sum of Rs.5000/- in cash from 64

and out of the cheque of Rs.3,85,000/- deposited in the account of the wife. She further submitted that the sum of Rs.3,38,300/- came from the husband’s side and the wife did not contribute towards the payment of the said amount of Rs.3,38,000/-. She therefore submitted that the entire consideration to acquire the said flat was paid by the husband and as such the husband will have to be treated as the owner of the said flat.

 

59.Learned Advocate Ms. Karnik further pointed out that the case of the wife that she had paid the sum of Rs.1,00,000/- to Mr.Anand i.e. his brother is not proved at all. The bare word of the wife that she paid the sum of Rs.1,00,000/- in cash to Mr. Anand cannot be accepted. She submitted that in the said letter there is no mention of wife paying the sum of Rs.1,00,000/- to Mr. Anand. She further pointed out that the sum of Rs.3,37,000/- were paid by Mr.Girishbhai to Champalal and therefore there is no question on any monetary transaction between the wife and Mr.Anand, at or about the time when the premises were surrendered. She submitted that at the time when the tenanted flat was surrendered, Mr.Anand was not staying in the said flat. She pointed out that the affidavit cum indemnity bond 65

dated 25th March, 1985 at Exhibit 175 indicates that Mr. Anand had surrendered the premises without any condition. Learned Advocate Ms.Karnik, therefore, submitted that the claim of the wife that she had contributed to the extent of Rs.1,00,000/- by paying the said sum to Mr.Anand is not proved and as such that contention must be rejected.

 

60.As regards the claim of the wife that wife arranged to repair the tenanted flat by spending Rs.1,37,000/- and arranged to enhance the surrender value of the tenanted flat to Rs.3,38,000/- it was submitted that the wife has not produced any evidence to show that she spent Rs.1,37,000/- to renovate the flat, that the surrender value of the flat was increased from Rs.2,00,000/- to Rs.3,38,000/- and that is why it should be treated that the wife has contributed Rs.1,37,000/- towards consideration to purchase the said flat. Ld. Advocate Ms, Karnik submitted that in the absence of proper evidence the claim of the wife that she had spent Rs.1,37,000/- to enhance the surrender value of tenanted flat and it resulted in contribution towards consideration should not be accepted.

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61. Learned Advocate Ms. Karnik submitted that the purchase of the said flat by the husband is reflected in the Income Tax Returns of the husband for the Assessment Year 1986-1987. She further submitted that the wife has failed to prove that she had tenancy rights in respect of the tenanted flat, because no document is executed in that behalf in favour of the landlord. The affidavit-cum-indemnity bond is executed by plaintiff and his brother Mr.Anand, and that the landlord felt satisfied with the said document. She submitted that the wife has not produced any document to show that she had surrendered her tenancy right in respect of the Tenanted flat. Learned Advocate Ms. Karnik submitted that mere claim that wife had tenancy right is not sufficient to accept that she has right in the said tenanted flat. Learned Advocate Ms. Karnik pointed out that the wife claimed tenancy right in the tenanted flat because at one point of time she stayed in tenanted flat. According to Ms. Karnik mere residence by wife for some time in the tenanted flat would not confer right on the wife. Learned Advocate Ms. Karnik therefore submitted that the claim of the wife that she was entitled to receive Rs.50,000/- from and out of Rs.3,38,000/- and as such she has contributed to the extend of Rs.50,000/- should not be accepted.

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62.Learned Advocate Ms. Karnik took use through the evidence led by the husband as well as wife as regards the manner in which the agreement to sale was executed. She pointed out that the husband had to leave India by 31st March, 1985 and therefore the document “Agreement to Sale”, blank copy, was made available to the husband and that the husband had tendered his signature at the relevant portion and had left the other spaces blank to be filled in by the Developer at the appropriate time. She pointed out that at the time of taking possession of the said flat and execution of the Agreement to Sale, the wife had added her name in the said Agreement to Sale without permission of the husband and that is how the wife tried to create right in respect of the said flat.

 

63.Learned Advocate Ms. Karnik pointed out that the wife has taken a stand that it is the builder who asked her to include her name in the said agreement to sale at Exhibit 82. In support of this, she took us through the text of the letter dated 7th March, 1989 at Exhibit 90 written by the wife to the husband, where such a stand has been taken. The relevant sentence is as under : ” Even for this flat I never 68

told them to put my name. They did it themselves. You can even ask them”. According to learned Advocate Mrs. Karnik this would clearly go to show that the flat was to be purchased only in the husband’s name. Learned Advocate Ms. Karnik therefore submitted that the stand taken by the wife that she has a right in respect of the said flat is an afterthought and that such a stand is taken after disputes between husband and wife arose.

 

64.Learned Advocate Ms. Karnik further submitted that it has been the stand of the wife that from March 1983 to June 1985 every month, the wife contributed a sum of Rs.8000/- towards the purchase of the said flat. Learned Advocate Ms. Karnik pointed out that the wife has admitted that her income from her salary at the relevant time i.e. June 1984 to 1985 was Rs.5000/- per month. She further submitted that it is the case of the wife that the wife used to get a sum of Rs.3000/- by way of bonus and leave travel allowances and by selling various foreign articles. According to her, there is no evidence to show that the wife was earning a sum of Rs.3000/- by way of bonus etc. She submitted that even if the said stand of the wife is accepted, still the stand taken by the wife that the sum of Rs.8000/- per month got 69

accumulated for 27 months i.e. from March 1983 to June 1985 in the NRE account No.253 of the husband and that the same should be treated as the contribution made by the wife towards the purchase of the said flat as per the understanding between the husband and the wife should not be accepted. Learned Advocate Ms. Karnik submitted that the stand of the wife that it was agreed that the flat should be purchased from foreign currency account to avoid Income Tax querries and hassles, should not be accepted. She submitted that the flat was to be purchased from the earning of husband and that is how consideration was paid by arranging funds from NRE Account. She further submitted that the wife could not deposit any amount which she had earned in Indian Rupees in the NRE Account. She submitted that even if it is accepted that the wife, at the relevant time was earning Rs.8000/- and that she has spent whole amount to maintain herself and two daughters, it cannot be considered as contribution by her towards the purchase of the said flat. According to her, since wife was working, she was obliged to spend her earning to maintain herself and two daughters by utilizing said amount earned by her. She, therefore, submitted that the claim of the wife that she had contributed the sum of Rs.2,16,000/- being an amount 70

arrived at, at the rate of Rs.8000/- per month, for 27 months cannot be accepted.

 

65.Learned Advocate Ms. Karnik further submitted that the claim made by the wife as regards the compensation on various counts cannot be granted. She took us through the evidence of the wife by which she wanted to prove that she is entitled to various amounts as per the particulars of claim set out in Exhibit A of written statement. Learned Advocate Ms. Karnik submitted that the wife claims that on account of correspondence between the husband and the office bearers of the society, namely Mr. D’Souza and Mr. Singh and on account of the high handed oppressive, insulting and contumacious behaviour of the society, namely Hansel D’Souza and Mr.G.P.Singh, she is entitled to a sum of Rs.25,00,000/-. Learned Advocate Ms. Karnik submitted that in the first place, the wife has not been able to place on record in clear terms as to in what manner the wife suffered high handed insulting, contumacious behaviour of Mr.D’Souza and Mr. Singh. She further submitted that, in any case, the claim is made by the wife against the Co-operative Society. She submitted that there is no cogent evidence placed by the wife before the Court in 71

support of her case. According to Ms. Karnik, the bare word of wife should not be accepted to hold that she has proved that she has suffered damage as alleged. She further submitted that the wife has claimed damages against the society and as the said society is not a party to the proceeding, in the Petition No.B-153 of 2008 the said claim will have to be dismissed.

 

66.Learned Advocate Mrs. Karnik submitted that the wife is claiming damages to the tune of Rs.10,00,000/- from the husband as according to her, she has suffered damage due to the conduct of the husband, as the husband conspired with the Management of the society by writing letters to the society. Learned Advocate Ms. Karnik took us through the evidence adduced by the wife and pointed out that there is no evidence placed by the wife in support of such a stand and as such her claim is required to be rejected.

67.Learned Advocate Ms.Karnik submitted that the wife has claimed that she suffered damage as the husband conspired with the Saudi Arabian Airlines and gave wife’s personal letters of marital confidence and on account of that the wife had to suffer and that she 72

suffered damage to the tune of Rs.15,00,000/-. She pointed out the evidence of the wife consists of bare assertion only. She submitted that it was necessary for the wife to lead cogent evidence and prove that she suffered damage as alleged. Ms. Karnik submitted that the bare word of the wife should not be accepted. She, therefore, submitted that the wife’s claim on the above point be rejected.

68.Learned Advocate Ms. Karnik submitted that it is the case of the wife that she had arranged to get a job to the husband in the Ministry of Health, Government of Saudi Arabia, and that the husband could continue the said job on account of the special efforts made by the wife to see that his services are continued and that he gets a comfortable posting. Learned Advocate Ms.Karnik has submitted that in the written statement the wife has contended that there was understanding between herself and the husband that the wife would arrange to maintain his job and share 50% of the husband’s salary. She pointed out that the wife has claimed the sum of Rs.25 lakhs on this count alongwith interest from March 1997 onwards. Learned Advocate Ms. Karnik submitted that in the particulars of claim the wife has claimed a sum of Rs.43 lakhs being wife’s 50% share of 73

accumulated wealth earned by the husband in Saudi Arabia along with interest thereon w.e.f. February 1992. She submitted that except putting up such case in her evidence affidavit, there is no other evidence to come to the conclusion that the wife managed to see that the husband could retain his job and his posting in the services of Saudi Arabian Government. Ms Karnik submitted that the wife has not been able to place any evidence to support her claim that there was an understanding as alleged by the wife. She further submitted that there is no evidence to show that the wife exerted to protect the job of the husband. She submitted that the husband had applied with the appropriate department and by following recruitment procedure, the husband was selected to work as Medical officer in the Ministry of Health, Saudi Arabian Government. She submitted that the claim of the wife on this count also be rejected and the same be dismissed.

69. As regards claim of the wife concerning 50% share in the N.R.I. Bonds it was submitted that the wife had not contributed towards purchase of the said bonds. According to learned Advocate Ms. Karnik, the husband was the purchaser and owner of bonds and State Bank of India could issue duplicate bonds to the first name NRI joint 74

holder, if bonds were misplaced/lost. According to her first name NRI Joint holder could delete or add second Resident Joint Holder as pre conditions governing the NRI Bonds. According to Ms. Karnik, Order dated 21.11.1995 passed by Family Court does not decide the rights of the parties. It was submitted that point as regards NRI Bonds was rightly decided by the Family Court. Ms. Karnik, therefore, submitted that the wife’s claim as regards N.R.I. Bonds be rejected.

 

70.As regards the prayer for injunction in terms of prayer clause (i), learned Advocate Ms. Karnik submitted that since the husband is declared as owner of said flat and since marriage between the husband and wife has been dissolved by judgment and order dated 30.9.2005 passed in Petition No.A-1945 of 1992 the said flat cannot be treated wife’s matrimonial home and as such she is not entitled to injunction in terms of prayer clause (i) of wife’s counter claim. Learned Advocate Ms. Karnik submitted that the judgments relied upon by wife would not be applicable to the facts of this case.

71.Learned Advocate Ms. Karnik therefore submitted that the court 75

should hold that the husband is full owner of the flat and that the wife has no right in respect of the said flat. She submitted that the learned Judge erred in rejecting the mandatory injunction sought by the husband against the wife. She, therefore, submitted that the appeal filed by the wife being Family Court Appeal No.148 of 2009 be dismissed and that the Appeal filed by the husband be Family Court Appeal No.131 of 2009 be allowed.

 

72.On the basis of the aforesaid submission, following points do arise for our determination:

1) Whether the husband is entitled to mandatory injunction as per prayer clause (d) of Petition No.B-153/ of 2008? 2) Whether the claim of the wife that she is the owner of the said flat No.702 . Milton Apartment, 7th Floor, Juhu Tara Road, Koliwada, Mumbai 400 049 to the extent of 88% is proved?

3) Whether the monetary claims put up by the wife in terms of prayers in the written statement and more particularly set out in particulars of claim at Exhibit A should be granted? 4) Whether the wife is entitled to relief concerning State Bank of India bonds?

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5) Whether the wife is entitled to a fresh Share Certificate in her name as claimed in prayer clause (b) and (c) of the prayers set out in the written statement?

6) Whether the wife is entitled to a declaration that her name should stand first in the Agreement to Sale?

7) Whether the wife is entitled to injunction in regard to said flat in terms of prayer clause (i)?

8) What Order?

The answer to the above points are as follows:

1) In the negative.

2) In the negative.

3) In the negative.

4) The wife is not entitled to relief concerning State Bank of India Bonds in this proceeding.

5) The wife is not entitled to reliefs in terms of prayers (b) and (c) in this proceeding.

6) The wife is not entitled to relief in terms of prayer clause (d) in this proceedings.

7) In the negative,

8) Both the appeals are dismissed with no order as to costs. 77

 

73.We have perused the entire record with the assistance of learned Advocate Ms. Karnik for the husband and the wife in person. We have considered the judgments relied upon by wife. The husband’s stand that he is the absolute owner of the said flat has been accepted by the learned Judge. The learned Judge has refused the mandatory injunction prayed for by the husband in terms of prayer clause (d) of the petition. In the appeal memo, the husband has put up the grievance about the said refusal. We have perused the evidence affidavit filed by the husband. It is pertinent to note that in paragraph 15 of the said affidavit the husband has specifically stated that he is pressing for prayer clause (b) in the said petition. Prayer clause (b) pertains to declaration with regard to the ownership of the said flat and that the said declaration has been granted. The husband has, in paragraph 16 of the evidence affidavit stated that he is pressing for prayers (f), (g), (i), (m) and (y). This would clearly go to show that the husband had made it clear to the learned Judge of the Family Court in terms of evidence affidavit that the husband is not pressing for prayer (d) of the said petition. It is true that the learned Judge has rejected the mandatory relief as sought in prayer clause (d). The 78

reasons given by the learned Judge are not acceptable to us. The learned Judge has not taken into consideration the fact that the husband has given up prayer clause (d) at the stage of recording of evidence.

 

74.The learned Judge has recorded the finding that the said flat continues to be the matrimonial home. The learned Judge, has in paragraph 97 has observed as follows:

“I have already held that it is her matrimonial home and therefore she has right of residence and therefore he is not entitled for grant of mandatory injunction restraining her to stay or enter the matrimonial home and therefore I answer issue no.2 in the negative” This judgment and order came to be passed on 1.6.2009. It is required to be mentined that prior to passing of this order, the marriage between the husband and the wife was dissolved by judgment and order dated 30.9.2005 in the Petition No.A-1945 of 1992. It is true that the appeal against the judgment and order dated 30.9.2005 was filed. However, the learned Judge ought to have taken into consideration the fact that the marriage between the husband and wife was dissolved on 30.9.2005. In our view, since the husband had 79

made it very clear that he is pressing certain reliefs as mentioned aforesaid, it clearly showed that he had given up prayer clause (d). The learned Judge should have noted that aspect of the matter and should have recorded reasons accordingly. We are of the view that the final answer given by the learned Judge in the nature of refusal of grant of mandatory injunction is right, though the reasons are incorrect. The point No.1 is therefore answered in the negative. As indicated earlier, in the Family Court Appeal No.131 of 2009 filed by the husband, no other point was raised and as such the said appeal is required to be dismissed.

 

75.Now, we proceed to discuss to the claim of the wife in regard the said flat and other prayers set out in the written statement. The learned Judge of the Family Court has not framed proper issues. So far as the issue concerning the flat, only one issue was framed by the learned Judge of the Family Court at issue no.1. The wife had taken the specific stand that she has 88% share in the said flat and she has advanced her submissions on the basis of evidence placed before the Court.

80

 

76.It has been the stand of the wife that after the husband got job at Saudi Arabia to work as Medical Officer in the Ministry of Health, it was agreed between the husband and wife that the husband would earn monies in Riyals and save substantial amount so that said amount can be utilized for purchase of the flat. It was also the stand of the wife that the wife would work in India, earn salary and use it for the maintenance of herself and for the two daughters. It is true that the husband had opened NRE Account at Mumbai with Syndicate Bank of India and that the said account was opened on or about April 1983. Surely the said account was opened to facilitiate the transfer of monies from Saudi Arabia to India so that the wife would be able to use the monies in India. Perusal of the said Bank Pass Book at Exhibit 157 shows that monies have been transferred from Saudi Arabia to the said account from time to time. The said account is closed in or about October 1986. A perusal of the said pass book, no doubt shows that the wife has not withdrawn substantial amounts from the said account. However, that by itself does not show that it was agreed between the parties that monies would be saved in the said account for the purpose of purchase of the flat. Except the bare word of the wife, there is no other evidence to 81

show that it was agreed that the wife would save monies in the said NRE Account and it would be used for purchase of flat.

77.The husband has come out with the case that in or about 1984, the husband and the wife thought of purchasing a flat in Mumbai and that is how the Developer, namely M/s. Veena Beena were approached for the purpose of booking the said flat. It is common ground that in all, a sum of Rs.3,85,000/- was advanced to the Developer as and by way of hand loan. It is clear that the first instalment of Rs.2,00,000/- was advanced to the Developer on or about 11.12.1984. The husband has stated in his evidence that he had a plan to purchase the flat by end of 1984 and the said evidence is found in paragraph 12(e) of his evidence affidavit. As against this, it is the case of the wife that the couple had decided to acquire a flat in Mumbai in or about 1983. So far as the evidence of the husband as regards his desire to have a flat in the year 1984, is not contraverted in his cross examination. The bare word of wife that the flat was agreed to be purchased in the year 1983 cannot be accepted. This point will undoubtedly have some bearing on the stand taken by the wife as regards her contribution to purchase the said flat. 82

 

78.It is a common ground that the husband and wife decided to purchase the said flat from M/s. Veena Beena Developers and because cash component was to be handed over to the Developer at the time of taking possession, an arrangement was arrived at between the Developer and the husband and that the Developer would not formally book the flat, but receive an amount by way of hand loan and at the time of actual transaction, the consideration for the flat would be received and the possession would be handed over on receipt of the cash amount. This arrangement is apparent on the basis of evidence of both the sides. The record shows that the sum of Rs. 3,85,000/- was paid to the Developer by way of Demand Drafts from the NRE Account as follows:

Date of payment Amount Rs.

11.12.1984 2,00,000/-

31.1.1985 1,00,000/-

20.2.1985 50,000/-

19.3.1985 35,000/-

Total 3,85,000

 

79.The Developer has issued receipts in support of these payments and the said receipts are at Exhibit 169, 335, 336, 169A. These receipts 83

are standing in the name of the wife and the husband. It has been the stand of the husband that these receipts are obtained by the wife in the joint name though it was never contemplated that the said flat would be purchased in the joint name. According to the husband, the sum of Rs.3,85,000/- was paid from the NRE Account of the husband and in the normal course the receipts should have been issued in the name of husband alone. Much capital is made by the wife so far as these joint receipts. As to what is the effect of the issuance of these joint receipts would be discussed later. The Developer had agreed to sale the flat at price of Rs.3,23,375/-. It was also agreed between the parties that a sum of Rs.3,38,000/- would be paid in cash and that the said amount would not be accounted for. After the loan came to be advanced as aforesaid, in or about June 1985 the flat was ready for occupation. It is a common ground that the sum of Rs.3,38,000/- was to be raised by surrendering the tenanted flat to the landlord. The record shows that the said tenanted flat was surrendered to the landlord and the sum of Rs.3,37,000/- was paid by the landlord directly to the Developer and that is how the cash component was adjusted. The record also shows that the sum of Rs.19,500/- were paid to the Developer towards the stamp duty. It is admitted by both 84

the sides that a sum of Rs.8000/- was paid to the Developer towards the society charges. It is admitted by wife in letter dated 29.6.1985, Exhibit 73 addressed to the husband that these amounts were withdrawn by her as against the cheque of Rs.3,85,000/- which was issued by Developer and which cheque was deposited by wife in her account.

 

80.It is admitted by the wife that the tenanted flat stood in the name of the father of the husband and after his death, the tenancy in respect of the said flat devolved upon the husband and his brother Mr. Anand. In addition to this admission, at one stage it was claimed by the wife that she had a right in the said tenanted flat on the ground that she was staying in the said tenanted flat for some time. It is the stand of the wife that the landlord required affidavit cum indemnity bond to be executed by the persons who were claiming tenancy in respect of the said flat. The wife has come out with the case that Mr.Anand, brother of the husband executed affidavit cum indemnity bond at Exhibit 175 dated 25.3.1985 along with the husband and at the time of execution of the said bond she had paid a sum of Rs.1,00,000/- to Mr. Anand. A sum of Rs.68,000/- was required to be paid making it 85

together Rs.1,68,000/-. Except her bare word, the wife has not placed before the court any evidence to prove that she had paid a sum of Rs.1,00,000/- to Mr. Anand. It is pertinent to note that the wife had addressed a detail letter dated 29.6.1985 to the husband being Exhibit 73, wherein she had explained as to how the transaction as regards surrender of the tenancy right took place and as to how the sum of Rs.3,37,000/- were paid by Girishbhai, the landlord to Mr. Champalal, representative of the Developer on 26.6.1985, and the transaction of surrendering the tenanted flat and taking over possession of the said flat took place. Perusal of said letter shows that wife, she had disclosed to the husband all the details in regard to the said flat. If this was the stand of the wife, surely, she would have mentioned about the payment of Rs.1,00,000/- to Mr. Anand in lieu of affidavit cum indemnity bond. Absence of such a mention in the letter dated 29.6.1985 at Exhibit 73 clearly militates against the wife. The wife had not placed before the Court particulars of date, time and place, when this amount of Rs.1,00,000/- was handed over to Mr. Anand. Except the bare word about payment of Rs.1,00,000/- there is no evidence to support such payment. We are inclined to observe that the stand taken by the wife that she had contributed towards the 86

purchase of the flat to the extent of Rs.1,00,000/- by way of handing over the said amount to Mr. Anand cannot be accepted.

81.At one stage, the wife has contended that she had a tenancy right in respect of the tenanted flat and as such she was entitled to Rs. 50,000/- from the amount which the landlord was supposed to pay for surrendering tenancy rights. The wife has taken up such a stand while accounting for her total contribution. This stand of the wife cannot be accepted on two counts, firstly the tenancy in respect of the tenanted flat was held by the father of the husband. After his death the tenancy rights in respect of the tenanted flat devolved upon the husband and Mr. Anand. The stand taken by the wife that because she was residing in the said tenanted flat for sometime, she secured tenancy rights, cannot be accepted. Such stand is contrary to the manner in which the tenancy right can devolve upon persons after the death of a tenant. Secondly, it was necessary for her to execute document in favour of the landlord to surrender the tenancy rights which she claimed to be holding. The wife has not produced any document to show that she had surrendered her tenancy right in favour of the husband. As such, the wife’s contention that she had 87

tenancy rights in the tenanted flat is required to be rejected. Consequently, the stand of the wife that she was entitled to appropriate Rs.50,000/- out of the monies paid by landlord cannot be accepted. Hence, her stand that she contributed Rs.50,000/- to purchase the flat cannot be accepted.

 

82.The text of letter dated 29.6.1985, Exhibit 73 sent by the wife to the husband clearly shows that the landlord did not pay the sum of Rs. 3,38,000/- but the landlord paid a sum of Rs.3,37,000/- directly to the representative of the Developer.

 

83.The wife had admitted that she had taken Rs.5000/- from the Branch Manager Mr. Kamat. Surely that amount must have been withdrawn by her from Savings Bank Account where cheque for Rs.3,85,000/- was deposited, i.e. A/c. No.24387, Syndicate Bank, and out of the said amount of Rs.5000/- a sum of Rs.1300/- was paid to the Developer.

 

84.The wife has taken the stand that the landlord had agreed to pay a sum of Rs.3,38,000/- upon surrender of tenanted flat. According to 88

the wife, the tenanted flat required repairs and in order to see that the landlord pays higher amount, she arranged to have the said flat repaired and that she had spent monies for the said repairs. The wife has not been able to place evidence on record in support of this proposition.

 

85.It has been the stand of the wife that if the flat would have been surrendered to the landlord without repairs, the flat would have fetched a sum of Rs.2,00,000/-, in that case the landlord would have paid a sum of Rs.2,00,000/- only. According to her, because she got the flat repaired, the surrender value of the said flat was enhanced to Rs.3,38,000/-. According to her, the enhanced amount of Rs. 1,37,000/- should be treated as her contribution to purchase the said flat. We are not in agreement with this proposition because the wife has not placed before the Court any evidence to show that she carried out repairs, and on account of the said repairs the surrender value of the flat got enhanced to Rs.3,38,000/-. The wife has failed to prove that a sum of Rs.1,37,000/- was received towards enhanced value of the flat and that amount was utilised for the purpose of paying the price of the said flat. In our view, a mere assertion that she repaired 89

the said flat, got the price enhanced and the landlord agreed to pay Rs.3,38,000/- instead of Rs.2,00,000/- cannot be equated with proof of said facts. No other documentary or oral evidence has been produced by the wife to substantiate this plea. It was easily possible for the wife to examine the landlord who had agreed to pay a sum of Rs.3,38,000/-. If the landlord would have been examined, he would have stated as to under what circumstances he showed willingness to pay a sum of Rs.3,38,000/-. With that, we reject the claim of the wife she had contributed to the purchase of the said flat to the extent of Rs.1,37,000/-.

 

86.The wife has come out with the case that she was earning a sum of Rs.8000/- per month in India and that she had spent the whole amount of Rs.8000/- towards her maintenance and the maintenance of the two daughters. It has been her stand that between March 1983 to June 1985 i.e. for 27 months she spent Rs.8000/- per month for her maintenance and maintenance of the two daughters and that is how the amount equivalent to Rs.2,16,000/- (Rs.8000/- x 27 months) got accumulated in the NRE Account of the husband. We have considered this point. It is true that between the period March 1983 90

to June 1985, the wife has not withdrawn substantial amounts for her personal expenses from the NRE Account No.253. The evidence on record shows that at the relevant time i.e. between March 1983 to June 1985 the wife was earning a sum of Rs.5000/- by way of her salary. This stand of the wife can be accepted. The wife has also come out with the case that she was getting a sum of Rs.3000/- per month in addition to the aforesaid salary by way of two months extra salary as bonus and leave travel allowance, as also by selling certain imported items which were received as gifts from friends and relatives and which she used to bring from abroad within permisible limits. The wife has admitted that she has no proof to show that every month she was earning Rs.3000/- . It was argued on behalf of the husband that in absence of such a proof, the claim of the wife that she was earning Rs.3000/- per month should be rejected. We are inclined to accept this stand of the husband. Even if it is accepted that the wife was earning in all a sum of Rs.8000/- ( Rs.5000/- + Rs. 3000/-) as claimed by the wife and was spending the same to maintain herself and for the maintenance of the two daughters, we are not inclined to accept the stand of the wife that this spending of Rs.8000/- or any lesser amount by the wife should be treated as her 91

contribution for the purchase of the said flat. The wife, at the relevant time was working and in such a case, it was not expected of the husband to provide for the maintenance of the wife in its entirety as the matrimonial relations between them were healthy. Since the wife was working, it was expected that she would spend for her maintenance from her earning. Similarly, spending of money by the wife from her income for maintenance of daughters was also an obligation to be discharged by the wife. The wife has not been able to place on record as to whether she was required to spend the amount in excess of Rs.8,000/-. Her oral testimony shows that she spent Rs.8000/- per month and that is how she looked after herself and the two daughters in India. The wife has not placed before the court her bank passbook to show as to in what way she dealt with her monies which she received and as to whether she could save monies from her earnings. In any case, spending of Rs.8000/- by the wife towards her maintenance and maintenance of the two daughters cannot be considered as her contribution for the purchase of the said flat. In our view, the contention raised by the wife to that extent cannot be accepted. The record shows that the husband worked in Saudi Arabia. He spent certain amount of monies in Saudi Arabia for 92

his sustenance and went on remitting monies in the NRE Account and that is how the funds came to be accumulated in the said account and those funds were used for the purchase of the said flat.

87.It is not the case of wife that she advanced/paid any money to the husband during the period prior to purchase of said flat from her sources of income. It is admitted by the wife that her entire income has been spent by her to maintain herself and her daughters. Admittedly, the amount lying in NRE Account No.283 was used to purchase said flat. In the absence of any payment by her to the husband her stand that she contributed towards purchase of said flat cannot be accepted as her entire income has been spent by her to maintain herself and her daughters.

 

88.For the aforesaid reasons, the stand taken by the wife that the sum of Rs.2,16,000/- got accumulated in the NRE Account No.253 from March 1983 to June 1985 at the rate of Rs.8000/- per month for 27 months cannot be accepted.

 

89. It is pertinent to note that the wife has come out with the stand that 93

the flat was agreed to be purchased in the foreign currency account to avoid Income tax querries and hassles. This stand of the wife cannot be accepted. The husband was in a position to save amount out of his earnings from Foreign currency and out of the amount so saved, the said flat was purchased. In any case, the stand of the wife that the flat was to be purchased from foreign currency account to avoid Income Tax queries and hassles just cannot be accepted. If at all the Income Tax authorities were to investigate about the purchase of the flat, no concession would have been offered by the Income Tax department to the husband on the ground that the flat was purchased in foreign currency. If at all the Income Tax department would have questioned the transaction relating to the said flat, they would have considered all aspects of the matter and attended to it. It is in these circumstances, we are not inclined to accept the stand of the wife that she facilitated the husband to save the sum of Rs.2,16,000/- in the NRE Account and that is how she contributed for the purchase of the said flat. In this connection, we would also like to place on record that certain amount of money lying in the NRE account was transferred by the wife to various fixed deposits. This will also show that the husband had sufficient funds lying in the said NRE Account 94

and the said fact was noted by the wife and that is how she managed the funds of the husband in NRE Account and paid the consideration to the Developer to the tune of Rs.3,23,375/- from the said NRE Account. The record shows that the entire amount of consideration, as per the Agreement to Sale dated 25.6.1985 at Exhibit 82 was paid from and out of the funds earned by the husband. To that extent, the stand of the wife that she had contributed to the extent of Rs. 2,16,000/- is required to be rejected.

 

90.It has been the case of the husband that upto June 1985 the husband has been sending monies with some persons or that the wife was borrowing monies from certain persons in India and the husband used to repay those monies in Saudi Arabia. This stand has been taken in order to show that upto June 1985 the husband was contributing towards maintenance of the wife and two daughters. We are not inclined to accept this submission as there is no evidence placed before the Court in that behalf. In support of this stand, it was necessary for the husband to place on record evidence of those persons who paid monies in India to wife. The husband has not examined those persons from whom the wife had borrowed monies. 95

To that extent the stand of the husband is required to be rejected.

91.The wife has contended that the total cost of the flat was Rs., 6,61,675/- and that she had contributed to purchase the said flat, on various counts to the extent of Rs.5,03,000/-. According to wife, taking into consideration the aforesaid figures, a sum of Rs. 1,58,675/- remained balance. According to her, she had rightful share to the extent of 50% in this amount because this amount was earned by the husband from the job in Saudi Arabia. According to wife she had struggled to get the job for her husband and maintain it for 9 years and, in the absence of her efforts the husband would not have earned amount of Rs.1,58,675/-. So far as this stand is concerned, we propose to deal with this stand at the time when we would test the case of the wife where she has claimed a sum of Rs.43 lakhs as set out in the particulars of claim, item no.4, namely 50% of the share of the accumulated wealth earned by the husband by working in Saudi Arabia, upto February 1992.

 

92. It has been the stand of the wife that pay order for Rs.3,23,375/- was paid by drawing the said pay order from her account. One will 96

not be able to dispute this fact. That however does not mean that the consideration set out in agreement dated 26.6.1985 at Exhibit 82 viz. Rs.3,23,375/- was paid by wife. We have already indicated that the sum of Rs.3,85,000/- was advanced to the Developer by way of loan. The record shows that the said amount was paid from the NRE Account No.253 of husband. The wife has admitted that the Developer handed over to her a cheque drawn in favour of the husband to the tune of Rs.3,85,000/- so as to square off the loan transaction. It is clear that the said amount of Rs.3,85,000/- was to be used for paying the consideration reflected in the Agreement to Sale. The wife has admitted that she had an account with Syndicate Bank, Matunga Branch, Mumbai being Account No.24387 standing in her name alone. She has admitted that Mr. Kamat, Manager of the Bank, added husband’s name as joint holder and the said cheque of Rs.3,85,000/- was deposited in the said account and after realisation of the said cheque, the Pay Order to the tune of Rs.3,23,375/- was obtained in the name of the Developer and was paid to the Developer on or about 26.6.1985 i.e. the day when the possession of the flat was taken. The wife has mentioned the aforesaid transaction in her letter dated 29.6.1985 at Exhibit 73. All this will clearly go to show that 97

the monies from NRE Account were entrusted to the Builder in the beginning as and by way of loan, the said amount was repaid by the Builder in Indian Currency and the said cheque was deposited in the joint account by the wife and the consideration of Rs.3,23,375/- as per the agreement dated 26.6.1985 was paid to the Builder. All this will clearly go to show that the consideration for the said flat as mentioned in the Agreement to Sale came from the monies which were lying in the said NRE Account. It is common ground that the monies in the said NRE Account were the one which were remitted by the husband from Saudi Arabia out of his earnings in Saudi Arabia. The sum of Rs.3,37,000/- was raised by surrendering the rights in the tenanted flat which rights were once held by the husband and his brother. This will show that the sum of Rs.3,37,000/- paid in cash (not to be accounted for) was also paid by the husband. The wife has admitted in letter dated 29.6.1985 Exhibit 73 that she had paid a sum of Rs.1,300/- to the Developer from and out of the amount of Rs.5000/- which she had withdrawn from her account, where the cheque for Rs.3,85,000/- was deposited. This will also go to show that even the small sum of Rs.1,300/- was paid from and out of the earnings of the husband.

98

 

93.In the circumstances mentioned aforesaid, we hold that the wife has not contributed towards purchase of the said flat and consequently, the claim of the wife that she has a share in the said flat cannot be accepted. We have gone through the impugned judgment dated 1st June, 2009 and for the aforesaid reasons we are inclined to hold that the order passed by the learned Judge in terms of the impugned judgment dated 1st June, 2009 so as to declare the husband as the absolute owner of the said flat need not be interfered.

94.From the arguments which are advanced across the bar, we take it that it has been the case of the wife that because her name appears in the Agreement to Sale, and because her name appears in the Share Certificate issued by the Co-operative Society, in the name of the husband and wife jointly, she has a share in the said flat. We propose to discuss this aspect of the matter hereafter.

95.On the basis of the evidence given by the wife as well as by the husband, it is clear that the husband could not have waited to complete the transaction in regard to the execution of the Agreement 99

to Sale, beyond 31st March, 1985 consequently the husband was absent on or about 26.6.1985 when the transaction took place. The husband has given evidence that the Agreement to Sale, duly prepared with the relevant portion including the name of the purchaser was made available to the husband and the husband had signed the said document and handed over the same to the wife. According to the husband, the wife added her name as purchaser alongwith the husband and tendered her signature. This evidence is not seriously challenged by the wife while conducting cross examination of the husband, however, the wife has disputed this contention of the husband, and according to the wife her name was sought to be incorporated at the instance of the builder. She has mentioned this in her letter dated 7th March, 1989 at Exhibit 90. The relevant words are “Even for this flat I never told them to put my name. They did it themselves.”. Surely, the reference to the word “they” is to the Developers. This will negative the case of the wife that the flat was intended to be purchased jointly in the name of husband and wife. If it was so agreed between husband and wife that the flat was to be purchased jointly in the name of husband and wife , the wife would not have admitted that her name was inserted in the 100

flat at the instance of the Developer.

 

96.It is seen that the Share Certificate No.15 dated 18th October, 1988 came to be issued jointly in the name of the husband and wife. It is the stand of the husband that the name of the wife was added in the said Share Certificate by fraudulent means and without his consent and knowledge. As against this, the wife has given evidence as to the circumstance in which the Share Certificate came to be issued. The wife has stated that in the year 1986 the Society concerning Milton Apartment was decided to be registered. She has signed on the Original Application Form being No.12161, being the application for membership along with Share Certificate Data Slip, as she was asked to do so. According to her, she was instructed to fill up the details as per the flat purchase agreement and since the name of the husband stood first in the flat purchase agreement, they instructed her to sign on his behalf. She states that she blindly followed their instructions without finding out correct position as per law and that is how she explained as to how the Share Certificate No.15 dated 18th October, 1988 was prepared and issued under the joint names. According to her, as per Section 2 of the Maharashtra Co-operative Societies Act, 101

the person who at the time of joining makes an application for registration of the society and which is subsequently registered is a member. According to her, bye law No.17 of the Bye Laws of the Co-operative Society stipulates that the signatory to the application for registration of the society was deemed to be member of the society after its registration. On this count she claims that her name was rightly incorporated in the share certificate and that because proxy signature was totally unlawful as per Section 27(1) of the Maharashtra Co-operative Societies Act, the name of the husband ought not to have been incorporated as the share holder. In this connection, it would be convenient to refer to the three documents at Exhibit 100 collectively and thereafter test the case of the wife. On record, we find in all three documents which are at Exhibit 100 collectively. They are as under:

i) Share Certificate Data Slip, shows that the name of the husband as the person from whom said data is sent. It also shows that the membership form and nomination form duly filled in came to be signed by the wife for the husband. The signature on this share certificate data slip is that of the wife.

ii) The next document is application for membership being 102

Application No.12167. In this application, the name of the husband at serial no.1 and name of the wife at serial no.2 appear as the persons who are requesting the society to admit them as members. The other particulars such as age, occupation, office address and the Income are filled in and they pertain to the husband only. The signature on this application is nodoubt of the wife, but it is for the husband. Below the signature, following words are found. Mrs. S. Mudbhatkal for (Dr.A.R.Mudbhatkal).

iii) The third document is Form J, where name of the husband is shown as a member.

Additional document is Form I, Register of Members. Here the name of the husband appears. The other particulars such as occupation, age, are filled in and there the said particulars pertain to the husband. Column no.8 pertains to nomination and the name of the nominee is Ms. Sonia Mudbhatkal (daughter of husband). So far as these documents are concerned, the correctness of these documents are not under challenge. If this is the position, the record clearly goes to show that at the time of registration of the society, the necessary particulars were filled in keeping in view the idea that the membership of the said society should stand in the name of the 103

husband alone. If at all it was intended by the husband and wife that the membership of the said society should stand jointly in the name of the husband and wife, the particulars in the various forms as mentioned aforesaid would have indicated accordingly. Except the name of the wife appearing in the application for membership alongwith the husband, there is no other place where the name of the wife is shown as a member. In fact, on the application for membership also, as mentioned earlier, the wife has signed for the husband. If at all the wife wanted to enroll herself as member, nothing prevented the wife from tendering the signature for herself as a member and also for the husband as member. These forms are undoubtedly filled in, in September 1988 when the husband was not in India. All these forms read together would clearly go to show that it was decided between the husband and wife that the membership of the said society would stand in the name of the husband alone.

97.Mr.G.P.Singh was examined on behalf of the husband in the course of trial of M.J.Petition No.A-1945/1982. Mr.Singh stated in his evidence that on the list of persons to be included as members, names of the husband and wife appear as against the name of the wife the 104

signature of the wife is noted. Whereas against the name of the husband, the signature is not noted. This evidence was sought to be used by the wife in support of her stand that she was entitled to become a member.

 

98.It has been the stand of the wife that the letter at Exhibit 320 was executed by the husband and wife dated 28th March, 1985, addressed to the Developer and in the said letter there is a reference about the advancement of loan to the developer and the first signature is that of the wife and the second signature is that of the husband. The wife has pressed this letter in service to contend that she has a share in the flat.

 

99.We have considered the aforesaid material appearing on the record. The record shows that the Share Certificate came to be issued in the joint name of the husband and wife and the name of the husband was at serial No.1 on the basis of various applications filed by the wife at the time when the husband was out of India. Signatures of wife at appropriate places clearly go to show that at the time when the application was made to the society for registration, the wife herself 105

wanted that the husband should be shown as a member of the said society. There is no satisfactory explanation coming from the Office bearer of the society as to why the name of the wife came to be incorporated as a member of the said society when the various forms filled in show that the name of the husband was to be mentioned as member. For the aforesaid reasons we are inclined to observe that though the name of the wife appears in the Share Certificate issued by the society, the husband had not accepted the said arrangement. It is required to be mentioned that after the husband came down to Mumbai in the year 1992, he realised that the name of the wife has been added in the Share Certificate and that is how the husband wrote three letters. They are as under:

i) By letter dated 7th March, 1992 at Exhibit 341, the husband informed the society that name of the wife was added as and by way of convenience.

ii) By letter dated 25th April, 1992 at Exhibit 173 the husband informed the society that the wife inserted her name in the flat agreement as well as shares in his absence.

iii) By letter dated 23rd May, 1992 at Exhibit 172 he informed the society that the wife has entered her name in the flat purchase 106

agreement by fraud and without the knowledge or consent of the busband.

All these three letters would clearly go to show that the husband had not authorised the wife to have her name entered in the Agreement to Sale, as also in the Share Certificate. He, therefore, at the earliest opportunity made representation for correction of society’s record. Thus, it is clear that the wife’s name was added in the agreement to sale as well as the Share Certificate without the knowledge and consent of the husband.

 

100. The question is whether on account of the insertion of the name of the wife in the Agreement to Sale, and Share Certificate, whether the wife can claim that she has a right in respect of the said flat. We have considered this aspect of the matter. We have already observed that the total consideration payable in regard to the said flat has been paid from and out of the NRE Account. Even the sum of Rs. 3,38,000/- paid in cash were arranged by surrendering tenancy rights in respect of the tenanted flat, over which the wife had no right. To put it differently, the wife has not paid any consideration for purchase of the flat from her earning or savings. That evidence is lacking. 107

Hence, on the basis of this finding, it will have to be held that merely because the name of the wife stands in the Share Certificate and Flat Purchase Agreement, by itself will not confer any right upon her.

101.The husband has filed Income Tax Returns for the Assessment year 1986-1987. A copy of which is at Exhibit 377. A perusal of the said Income Tax Return goes to show that the husband had placed before the Income Tax Authorities that the flat was owned by him and this aspect is not challenged by the wife. If it was the stand of the wife that she had a share in the flat, she should have filed Income Tax Return disclosing her share in the said flat. No such income tax return is filed. This is one more reason to hold that the wife has no right in the in the said flat.

 

102.Reliance was placed by the wife on letter dated 28th March, 1985 at Exhibit 320 being letter addressed to M/s. Veena Beena Developers, by which the wife and husband had indicated to the Developer that the sum of Rs.3,85,000/- would be given to him by way of loan. According to the wife, the very fact that her signature appears at serial no.1 in the said letter, she was privy to the transaction relating 108

to the said flat. Looking to the various developments which took place as regards purchase of the said flat, which are discussed in the earlier part of this judgment, merely because the letter dated 28th March, 1985 was signed by the wife would not give her any right in the said flat.

 

103.In view of the aforesaid discussion, we hold that the claim of the wife that she has a share in the said flat, much less 88% share in the said flat cannot be accepted and accordingly the point no.2 is answered in the negative. The finding recorded by the learned Judge that the husband is the absolute owner of suit flat need not be interfered with. Hence point no.2 is answered in the negative.

104.The wife, after filing the written statement to the petition No.B-153 of 2008 filed by the husband has put up certain claims in the nature of her counter claim and has prayed for certain reliefs which are set out in the prayers. We now propose to discuss whether such claim made by the wife can be granted. The wife has claimed a sum of Rs. 25 lakhs from the society on the ground that after the husband informed the society that the wife inserted her name in the flat 109

purchase agreement by fraud and without the husband’s knowledge and consent, she was subjected to high handed abusive, insulting and contumacious treatment by Mr. Hansel D.Souza and Mr. G.P.Singh. According to her said members were representing the said society and therefore she has claimed the sum of Rs.25 lakhs as and by way of compensation for damage, and injury suffered by her from the said society. After having considered the relevant portion of the evidence on this aspect, we are inclined to observe that the wife has not proved her case to support her claim for damages to the tune of Rs.25,00,000/- or any part thereof. Except the bareword of the wife, there is no other evidence placed before the Court in support of the claim made by her. In any case, as per prayer (f) of counter claim, she claims compensation from the said society. The relief of such a nature cannot be granted in favour of the wife in the present proceedings as the said society was not and could not have been made a party to the petition before the Family Court.

105.It is pertinent to note that neither Mr.D’Souza nor Mr.Singh, nor the said society is a party to the proceedings. This is one more ground to reject the claim of the wife against the society. In the counter claim 110

filed against the husband, the wife has also claimed a sum of Rs.10 lakhs on account of damage suffered by her as the husband conspired with Milton Society management. The wife has not adduced evidence in support of this claim. Bare word of the wife is not sufficient to accept the claim that the husband caused damage to wife by conspiring with the office bearers of the society. We hold that the wife has failed to prove her claim and as such same cannot be granted.

 

106.The wife has alleged that the husband conspired with Saudi Arabian Airlines and arranged to deliver to them confidential documents, personal letters and marital documents to Saudi Arabian Airlines and that the said handing over of the said documents caused tremendous embarassment and injuries to the feelings of the wife. She has claimed compensation in that behalf. Insofar as this aspect is concerned, the wife has not produced any evidence in support of this stand. She has not been able to prove that it is the husband who handed over certain documents as alleged by her to the Saudi Arabian Airlines. She has also not been able to prove that on account of the said handing over of documents she had to suffer 111

embarassment. Accordingly, even this claim of the wife cannot be granted.

 

107. It has been the contention of the wife that on account of the specific efforts made by the wife, the husband could secure a job in Ministry of Health of Saudi Arabian Government. It is also her case that because of the efforts made by her, the husband could maintain his clinic posting. The wife has come out with the case that there was understanding between her and the husband that the income earned from the job at Saudi Arabia would be shared by her on 50-50 basis. She has stated in paragraph 15 of the evidence affidavit that as of 31.12.1988 the husband had accumulated wealth of Rs.60 lakhs in his possession. She has also stated that the said amount has appreciated to Rs.100 lakhs presently. She has claimed that in lieu of her contribution in getting and maintaining his Saudi job and in view of the said understanding she is entitled to receive 50% share of the said accumulated wealth.

 

108. In the particulars of claim, so far as this item is concerned, she has claimed sum of Rs.43 lakhs, whereas in the affidavit at para 15 she 112

has claimed that the amount standing to the credit of the husband as and by way of accumulated wealth is about Rs.60 lakhs and she has claimed 50% of the said wealth.

 

109.After having gone through the entire record it is difficult to accept the claim of the wife that there was understanding between the husband and wife that the wife would be entitled to 50% of the salary earned by the husband while he was with the Ministry of Health of Saudi Arabia. The wife has claimed that she was responsible in securing the job and she made strenuous efforts to see that favourable atmosphere is maintained with the superiors of the husband and that she persuaded his superiors to see that he is not relieved from his service. According to the wife, the husband did not have adequate experience in all fields of medicine and because of her efforts and words placed by her with the superiors of the husband, those superiors did favour the husband by retaining him in the place where he could do his job comfortably. In support of this claim, the wife has given evidence and it is found in paragraph 3 and 15 of her examination. In paragraph 3 the wife has named bosses of the husband with whom she maintained good relations to see that the 113

husband is retained in service and he is given a comfortable posting. The names of the bosses are Mr.Abdul Rahim Ageel, Dr.Ibrahim Kasim, Dr.Jamat Ashraf and Dr.Fazlur Rehman. The wife has even gone to the extent of saying that she maintained good relations with the families of these bosses to see that the husband retains his job so that he could earn good salary.

 

110.We have perused the evidence and considered the submission made by wife. We are not inclined to accept the wife’s claim referred to above. It is noted that the husband did possess necessary qualification to work as a Medical Officer. There is nothing to show that his appointment as Medical Officer was without following normal recruitment procedure. He joined the services in 1983 and continued to work till 1992. Thus, the husband worked with Ministry of Health for about 12 years. Reading of paragraph 13 of the examination in chief, one gets an impression that the husband was incompetent in discharging of his duties and it is only because of wife’s efforts the husband was retained on pay roll of Ministry of Health. It is difficult to accept the submission made by wife. The oral evidence in paragraph 13 is not supported by any other evidence. 114

The bare word in the behalf cannot be accepted. The wife has not proved that the persons referred to by her as bosses of husband were in fact in a position to shower mercy on the husband merely because the wife intervened. It is difficult to accept that the husband was incompetent to discharge his duties and merely because the wife persuaded the persons named by her, the Ministry of Health tolerated husband and permitted him to work in a responsible job as a Medical Officer.

 

111.Even if it is accepted that the husband could retain his job on account of efforts made by wife, it could be treated as a personal obligation shown by wife upon husband. On that count, in law, the wife would not be able to claim share in the income of the husband.

112.The wife has claimed 50% share in the income of the husband on the basis of understanding between the wife and husband. Except the bare word, there is no evidence to support such a demand. The bare word of the wife as mentioned in examination in chief cannot be accepted to grant her claim.

115

 

113.In view of the above, we are inclined to reject the claim of the wife as regards the sum of Rs.43 lakhs referred to at serial no. 4 in the particulars of claim.

 

114.We must mention that we are conscious of the fact in regard to the various claims for compensation pressed by the wife in the nature of counter claim, the husband has not filed formal written statement to the counter claim/averments made in the written statement, nor conducted proper cross examination to dispute such claims. At the same time, we are of the view that merely because certain facts are referred to in the evidence affidavit and certain assertions are made in support of such claims, it would not be proper to accept the claims and grant it. In our view, each of the claim was required to be corroborated by appropriate evidence. The bare word of the wife cannot be accepted. Notably, the said claim of the wife is in the nature of claim for damages. The claim can succeed only if it is pleaded and proved. In the present case the wife has failed to prove her claim for damages. For the reasons mentioned aforesaid, the monetary claim of the wife as set out in the particulars of claim at Exhibit A cannot be granted. For the reasons mentioned above, point 116

no.3 is answered in the negative.

 

115.It has been the stand of the wife that in October, 1988 the husband and wife applied for 12 NRI bonds issued by State Bank of India, each of U.S.Dollar 500, totalling to U.S.Dollars 6000/- and that the State Bank of India had issued the said bonds in the joint name of husband and wife. According to wife, in August 1995 when she made enquiries regarding the said bonds, she was informed by the Bank Officer Mr. Prabhu that the Bond Certificates which were in possession of the wife stood cancelled and bond certificates were re- issued in the sole name of the husband. According to the wife, on 16.4.1996 the said bonds got matured and the husband received U.S.Dollars 13124.28. According to the wife, the State Bank of India arbitrarily committed illegal action and that they should be ordered to pay U.S.Dollars 6562/-. This claim of the wife is refutted by the husband. According to him, name of the wife was added in the nature of nominee. Be that as it may, it is required to be noted that State Bank of India was not a party to the petition No.B-153 of 2008 and the prayer clause (g) as set out in the prayers is directed against the State Bank of India asking State Bank of India to pay to 117

her, her share of NRI Bonds to the extent of US Dollars 6562 with interest thereof from 16.3.1996. In our view, looking to the facts involved, as also looking to the fact that the State Bank of India is not a party to the Petition No.B-153 of 2008, there was no question of Family Court passing an order in favour of the wife. The claim of the wife cannot be granted in the present proceedings. Point No.4 is answered accordingly.

 

116.The wife has claimed reliefs in terms of prayer clauses (b), (c) and (d). They relate to the name of the wife/husband appearing in the share certificate and name of the wife and the husband appearing in the flat purchase agreement dated 26.6.1985 at Exhibit 82. In support of the claim, the wife has levelled allegations against the husband, the said society, the office bearers of the said society and the Developer. It is pertinent to note that the said society, the office bearers of the said society and Developer are not parties to the Petition No.B-153 of 2008. Hence, it will not be possible for this court to entertain those prayers and grant any relief in this proceeding in terms of prayer clauses (b), (c) and (d). Points no.5 and 6 are answered accordingly.

118

 

117.We have considered prayer (i) asked in the counter claim. We have also gone through the judgments relied upon. The learned Judge of the Family Court has accepted the claim of the husband that he is the absolute owner of the said flat. We have already indicated with detailed reasons that we are not inclined to interfere in the said finding. Reverting to the judgments relied upon by the wife in the case of S.P.Chengalvaraya Naidu vs. Jagannath supra, the Apex Court dealt with the case where it was alleged that the Opposite Party had committed fraud on the court by non disclosure of relevant and material documents with a view to obtain advantage to himself. We fail to understand as to how this judgment is of any avail to the wife to butress the relief in terms of clause (i). Moreso, in view of finding of fact reiterated by us that the husband is the absolute owner of the said flat. So long as the decree of divorce operates, the relationships of parties i.e. husband and wife would be snapped. Thus the wife does not continue to be wife and she has no ownership right in the said flat, it is not possible to accede to her prayer in terms of prayer (i) against husband who is held to be absolute owner of the said flat. For the same reasons the decision in the case of i) A vs.B 119

supra or for that matter Gurasz vs Gurasz Supra will be of no avail. In the case Jones vs. Jones, supra, during the pendency of divorce proceedings the husband installed mistress in the matrimonial home shortly after wife’s departure. In the present case, after the decree of divorce between the parties, it will not be open to the wife to claim that said flat continues to be her matrimonial home. The fact that she continues to reside in the said flat and the husband having given up his prayer to oust the wife from the suit flat cannot create right in favour of wife to seek relief in terms of prayer clause (i). As the husband is held to be the absolute owner of the said flat, we hold that the wife is not entitled to relief in terms of prayer clause (i). .

118.In view of the aforesaid discussion, we hold that the wife has not been able to make out the case in her favour so as to allow the First Appeal No.148 of 2009.

 

119.In view of the above, the aforesaid two appeals are disposed off by passing the following order.

120

ORDER

i) Family Court Appeal No.131 of 2009 is dismissed with no order as to costs.

ii) Family Court Appeal No.148 of 2009 is dismissed with no order as to costs.

(R.Y.GANOO, J.) (A.M.KHANWILKAR, J.)

http://indiankanoon.org/doc/1606283/

Categories: Judgement

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Categories: Judgement

Allahabad HC: Defaulter cannot take advantage of his default in divorce proceeding

HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. – 40 AFR
Case:- First Appeal No. 37 of 1992
Petitioner :- Dr. Tara Charan Agarwal
Respondent :- Smt. Veena Agarwal
Petitioner Counsel :- B. Dayal
Respondent Counsel :-

Hon’ble Yatindra Singh,J.
Hon’ble Yogesh Chandra Gupta,J.

1. Marriages–be it for love or arranged–are demanding as well as fragile institution. It takes patience, effort, and faith to preserve them. Yet, they do fail. And if that happens then ‘are the defaulters entitled to take advantage of their own fault in divorce proceeding’–is the main question involved in this appeal.

THE FACTS
2. Dr. Tara Charan Agarwal (the Appellant) and Smt. Dr. Veena Agarwal (the Respondent) are allopathic doctors. They knew each others from the school days. They went to the same medical college, fell in love, and married on 17.1.1967, while completing their studies.

3. A son was born to them in June, 1970 but he died young within a few of days of his birth. A daughter was born on 21.12.1971. At present, she is married.

4. The Respondent was operated twice in 1973 and 1984 before the proceeding started and for the third time in 1988 during the proceeding.

5. Initially, the relations between the parties were happy. However, they started deteriorating after second operation, when the Respondent came to know about a letter (paper 39-Ka) said to be written by the Appellant to Shashi, the younger sister of the Respondent.

6. The relations came to an end when the Respondent discovered the two letters (photostat copies are 30-Ga and 31-Ga) said to be written by Shashi to the Appellant.

7. The Appellant filed matrimonial petition no. 618 of 1987 under section 13 of the Hindu Marriage Act, 1955 (the Act) for divorce on the ground of cruelty. It was after husband-wife relations came to an end. The specific instances of cruelty were also alleged in paragraph 9 of the plaint.

8. The Respondent filed the written statement contesting the proceeding. She denied the specific instances alleged by the Appellant. She alleged that there was cruelty on the part of the Appellant in as much as,
The Appellant was carrying on an affair with Shashi;
The Appellant insisted that the Respondent should accommodate Shashi in the same house. This proposal was neither accepted by the Respondent nor by their daughter, who was student of intermediate at that time;
The Appellant tortured and threw tantrums on rejection of his proposal to accommodate Shashi in the house.

9. The Appellant examined the following witnesses:
Dr. Tara Charan Agarwal (PW-1): the Appellant himself. He deposed about the cruelty and the specific instances;
Sri Chandra Veer Singh (PW-2): an advocate and friend of the Appellant. He deposed about the incident dated 25.1.1987, when the Respondent is said to have refused to make tea;
Sri Ram Prakash Goyal (PW-3): the brother of the Appellant’s brother-in-law (Jijajee). He deposed about the incident dated 26.1.1987, when the Respondent is said to have used foul language for the Appellant;
Sri AS Kapoor (PW-4): the hand writing expert. He proved his report and opined that the hand writing in paper no. 39-Ka, the alleged love letter, is not in the Appellant’s hand writing.

10. The Respondent examined the following witnesses:
Dr. Veena Agarwal (DW-1): the Respondent herself. She denied the incidents narrated by the Appellant. She deposed about the affair of the Appellant with Shashi and cruelty on his part;
Sri Risal Uddin (DW-2): clerk in the Physiology Department. He proved the leave application given by the Respondent for granting leave from January 24th to 26th, 1987 for going to Gwalior;
Sri Suresh Chand (DW-3): the brother of the Respondent and Sashi. He had found the letter 39-Ka and deposed about the affair of the Appellant with Shashi;
Sri JP Tiwari (DW-4): the tax assistant in the Income Tax Department. He produced the income tax records for the year 1980-81 and 1981-82;
Sri Deepak Kashyap (DW-5): the hand writing expert. He proved his report and opined that hand writing in the paper no. 39-Ka is the Appellant’s handwriting.

11. Apart from other documents, the following documents were also filed:
Paper no. 39-Ka: The alleged love letter by the Appellant to Shashi;
30-Ga and 31-Ga: The photostat copies of the alleged love letters by Shashi to the Appellant.

12. The trial court dismissed the suit after recording the following findings:
The Respondent has no illicit relationship with any another man;
It is not proved that the Respondent had set the daughter against the Appellant;
The specific instances of abuse and insult by the Respondent (said to be cruelty) were not proved;
There is no cruelty on part of the Respondent;
The Appellant has illegal relationship with Shashi;
There is cruelty on the Appellant’s part.
Hence the present appeal by the plaintiff.

13. In this appeal, initially a counsel had put up appearance on behalf of the Respondent. Subsequently, he was elevated to the High Court at Uttarakhand and notices were sent to the Respondent to engage another counsel. The notices were served but no one put up appearance her behalf. Subsequently, the notices were again served personally through CJM Agra on the Respondent but she has chose not to put up appearance through any advocate.

POINTS FOR DETERMINATION
14. We have heard Shri B Dayal, counsel for the Appellant. The following points arise for determination in the case:
(i)Whether there is any cruelty on the Respondent ‘s part;
(ii) Whether the marriage has broken down irretrievably;
(iii)Whether divorce should be granted, as there is no purpose in continuing the marriage.

1st POINT: NO CRUELTY ON RESPONDENT’S PART
15. The counsel for the Appellant submits that cruelty on the Respondent’s part is proved in as much;
(i)The Respondent had misbehaved and used foul language on 25.1.1987 and 26.1.1987;
(ii)She has withdrawn from husband-wife relationship.

1st Submission: Incidents Not Proved
16. The Appellant in paragraph 9 of his petition has alleged some specific incidents to show misbehaviour and cruelty on part of the Respondent. The counsel for the Appellant has emphasised about two incidents said to have taken place on 25.1.1987 and 26.1.1987.

The First Incident
17. On the first occasion, Sri Chandra Veer Singh (PW-2) is said to have come to their house and it is said that the Respondent refused to make tea for him.

18. The aforesaid incident was deposed by the Appellant as well as by Sri Chandra Veer Singh (PW-2); whereas it was denied by the Respondent (DW-1).

19. The Respondent (DW-1) and Sri Suresh Chand (DW-3) have deposed that at present Sri Chandra Veer Singh is an advocate but earlier he was compounder of the Appellant. Sri Chandra Veer Singh has admitted that he gave injunction and glucose to the patients referred to him by the Appellant and earned some money in this process. This gives credence to the statement of the Respondent that earlier he was compounder of the Appellant.

20. Sri Chandra Veer Singh is not only a friend of the Appellant but is obliged to him. He has reason to depose in his favour.

The Second Incident
21. The other incident is said to have taken place on 26.1.1987. The Appellant (PW-1) and Sri Ram Prakash Goyal (PW-3) have deposed that:
On 26.1.1987, the Appellant’s sister, her husband (Jijajee of the Appellant), and Sri Ram Prakash Goyal (younger brother of the Appellant’s Jijaji) (PW-3) had come to the house for reconciliation;
The Respondent used foul language for the Appellant in front of them.

22. The Respondent denied both the incidents. She deposed that she had gone to Gwalior to meet her sister and was not present at Agra on those dates.

23. The Respondent also examined Sri Risal Uddin (DW-2) clerk in the Physiology Department of the medical college where she worked. He proved the application for leave filed by the Respondent in the Medical College for grant of leave from January 24 to 26, 1987. The leave was sanctioned.

24. Sri Suresh Chand (DW-3), brother of the Respondent, also deposed that he had gone to the station to drop the Respondent. It is also not disputed that the Respondent’s sister lives in Gwalior.

25. The trial court has held that the Appellant has not been able to prove the incidents dated on 25th and 26th January, 1987 or that the Respondent misbehaved or used foul language on those days or on any other day. Considering the evidence on the record, there is no illegality in this finding.

2nd Submission: There is Justification
26. The parties no longer have husband-wife relationship. The Appellant claims that it came to end in 1986; whereas, the Respondent claims it to have lasted till March 1987. However, this variance is not material.

27. The matrimonial petition was filed on 21.5.1987 after March 1987. The parties did not have husband-wife relationship prior to the filing of the matrimonial petition and this void still continues.

28. Withdrawal from husband-wife relationship is a serious matter. In case there is no justification for the same, it may be mental cruelty entitling the other party for divorce. Let us consider, if there is any justification.

Love Letters Proved: Paper 39-Ka
29. According to the Respondent, she came to know about love affair between the Appellant and her young singer Shashi through paper no. 39 Ka in 1984. It is a love letter said to be written to a lady called Chand. This letter was found by Sri Suresh Chand, brother of the Respondent (DW-3), at the time of Respondent’s second operation. It was shown to her subsequently.

30. The Appellant has denied writing the aforesaid letter. He has also examined Sri AS Kapoor (PW-4), a hand writing expert. Shri Kapoor compared it with the Appellant’s specimen hand writing and gave a report. He proved his report where he had opined that the letter was not in the Appellant’s hand writing.

31. The Respondent has examined herself as DW-1. She has also examined her brother Sri Suresh Chand (DW-3) and Sri Deepak Kashyap (DW-5), the hand writing expert. DW-1 and DW-3 stated that:
Their sister Shashi, is also known as Chand;
They have seen the Appellant’s writing and recognise his hand-writing;
The hand writing on 39-Ka is that of the Appellant.

32. Sri Deepak Kashyap (DW-5) gave a report. He proved his report and opined that the hand writing on 39-Ka is of the Appellant. The hand writing experts of the parties differ in their opinion.

33. It is admitted case that Shashi was married in 1984 but the Respondent (DW-1) as well as her brother (DW-3) have deposed that Shashi had left her matrimonial home and was living in Agra in a rented house. DW-3 has further deposed that this house was taken on rent by the Appellant for Shashi

34. The hand writing experts have given reasons for their different opinions. The trial court has agreed with the reasons given by the expert of the Respondent and has held that the letter was in hand writing of the Appellant. On this finding, he should have exhibited the documents. Perhaps, this is an inadvertent mistake.

35. We affirm the finding recorded by the trial court that paper no. 39-Ka was written by the Appellant on the following considerations:
Sri Suresh Chand (DW-3) deposed that he caught the letter (paper no. 39-Ka);
He (DW-3) as well as the Respondent (DW-1) have deposed that they recognise the hand writing of the Appellant and it is his hand writing;
The reason given by Shri Kashyap (DW-5) are more convincing;
Nothing has been pointed out to show that this finding is incorrect.

Paper no. 30-Ga and 31-Ga
36. The Respondent has also filed two photostat copies of two letters 30- Ga and 31-Ga. A reading of these letters indicate that they are love letters written by Chand. The Respondent deposed that:
She had found two letters written by Shashi to the Appellant;
She got photostat done of the letters;
When the Appellant came to know about it, he took away the originals but could not take the photostat copies as he did not know about them.

37. The Respondent (DW-1) and Sri Suresh Chand (DW-3) have also deposed that:
They recognise handwriting of their sister Shashi;
The writing in the photostat copies (30-Ga and 31-Ga) is that of Shashi;

38. There is no suggestion or any material to show that originals of 30-Ga and 31-Ga were not taken back by the Appellant or they were not written by Shashi: in fact during argument it was accepted. In view of this as the original letters were with the appellant, they were also formally proved– they should have been also exhibited: this also appears to be inadvertent mistake.

Appellant’s Affair with Shashi
39. The Trial court has recorded a finding that the Respondent was not having an affair with any person. Nothing has been pointed out that any other inference is possible. This is upheld.

40. The Appellant (PW-1) had denied his relationship with Shashi. However, the Respondent is elder sister of Shashi. Sri Suresh Chand (DW-3) is real brother of the Respondent as well as of Shashi. Both of them deposed about illicit relationship between the Appellant and Shashi. In case, there was no such relationship then there was no reason for the Respondent or Sri Suresh Chand to depose against Shashi, their own sister. No brother or sister would depose against their sister.

41. Any wife would be loath to accept any other women in her husband’s life–more so or even though, the other women might be her sister. This is valid justification for withdrawing from husband-wife relationship.

42. We have already indicated (paragraph 33 of the judgement) the evidence of the Respondent (DW-1) and her brother (DW-3) that Shashi has left matrimonial home and was living in Agra; perhaps in the house rented by the Appellant. The Trial Court has recorded a finding that the Appellant had sexual relations with Shashi and was having an affair with her. Considering the evidence on record, this finding is also upheld.

43. In our opinion:
The Appellant has not been able to prove specific instances of misbehaviour;
The Appellant was having a love affair with Shashi;
There was justification for the Respondent to withdraw from husband-wife relationship;
There is no cruelty on the part of the Respondent.

2nd & 3rd POINT: THE APPELLANT CANNOT TAKE ADVANTAGE
OF HIS FAULT
44. The counsel for the Appellant submits:
There is no husband-wife relationship for 25 years;
The marriage has broken down;
There is no justification for the marriage to continue; and
The Appellant should be granted divorce.

45. Under the Act, if he parties agree for the divorce then it can be granted on mutual consent: there cannot be any objection to it. However, In case there is no consent, then divorce can only be granted on the grounds mentioned in section 13 of the Act.

46. Section 13(I)(a) provides that divorce can be granted if the other party has treated the petitioner with cruelty: it has to be by the person other than the one seeking divorce.

47. While discussing the second submission of the previous point, we have discussed the evidence and have held that the Appellant was having an affair with Shashi, the younger sister of the Respondent. The Respondent also deposed that:
The Appellant insisted that Shashi should be permitted to live in the same house;
He used to torture and throw tantrums, when his proposal was refused by the Respondent;
She was willing to resume relationship if the Appellant dropped the proposal/ condition.

48. The aforesaid part of the oral testimony of the Respondent (DW-1) appears credible and worth accepting, if seen in the light of the evidence and finding recorded while dealing with the first point. This amounts to cruelty on part of the Appellant on the Respondent. This is also finding of the trial court. We affirm it.

49. The Appellant cannot be granted divorce on the ground of cruelty on his part. But can divorce be granted on the ground that marriage has broken down irretrievably.

50. We have our doubts whether marriage has broken down irretrievably or not as the Respondent is willing to resume husband-wife relationship, if the Appellant drops the immoral compromise. However, it is not necessary to decide whether marriage has broken down irretrievably or not, as even if it has so broken, divorce cannot be granted. For the purpose of the appeal, we assume that the marriage has broken down irretrievably.

51. Incompatibility in marriage or irretrievability of a marriage, or marriage being broken down irretrievably is not a ground for divorce though recommended by the Supreme Court in Naveen Kohli vs. Neelu Khli: AIR 2006 SC 675 for consideration to amend the Act. It may amount to mental cruelty entitling a party to divorce but it should be without any fault or at least fault of both sides. This is not the case here. In this case, the fault is of the Appellant: he has been cruel to the Respondent by insisting for the immoral compromise.

52. In case, divorce is granted in this case, then it would mean that a party can take advantage of his misdeed; it is not permissible under the Act. Had there been some fault of the Respondent also then the matter would have been different–the relief could have been considered.

53. In view of above, the third point is decided against the Appellant.

AN OBSERVATION
54. In view of our findings, the appeal has to be dismissed. However, this does not preclude the parties to settle their differences by mutual consent. After all, life has to go on: forgive and forget are essential part of the same. We hope that this may happen.

CONCLUSIONS
55. Our conclusions are as follows:
(a)There is no cruelty on part of Dr. Veena Agarwal (the Respondent);
(b)The cruelty is on part of Dr. TC Agarwal (the Appellant);
(c)The Appellant cannot take advantage of his own fault.
In view of our conclusions, the appeal is dismissed.
Order Date :- 5.7.2011
BBL

Categories: Judgement

HC directs Family Court to finish trial of divorce within 6 months, considering the provisions of Section 21-B of the Hindu Marriage Act

Giresh Mittal vs Smt. Nishi Mittal on 19 July, 2011

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Writ Petition (M/S) No. 1460 of 2011

Giresh Mittal S/O Shri Ramesh Chandra Mittal, R/O 105 Vivek Vihar Colony, Aawas Vikas Ranipur Morh, Jwalapur, Thana Kotwali Jwalapur, District Haridwar. … Petitioner.

Versus

Smt. Nishi Mittal W/O Sri Giresh Mittal D/O Mahendra Singhal, D.P. Gaur Residence, Vishnu Gard Thana Kankhal, District Haridwar.

… Respondent.

Mr. Pankaj Chaturvedi, Advocate, learned counsel for the petitioner. Date July 19, 2011.

Hon’ble B.S.Verma, J.

Heard learned counsel for the petitioner. The only prayer made in this writ petition is that the Judge, Family Court, Haridwar be directed to decide the Suit No. 313 of 2009, Giresh Mittal Vs. Smt. Nishi Mittal, within a time frame, which is pending before that Court. The petitioner herein is the petitioner in the suit, which has been filed for a decree of divorce. It appears that the issues in the suit were framed on 28-1-2011 and the suit is pending at the stage of evidence. The suit is pending since the year 2009. Considering the provisions of Section 21-B of the Hindu Marriage Act, the learned Judge, Family Court, Haridwar is directed to decide the Suit No. 313 of 2009 on merits in accordance with law after hearing both the parties, expeditiously, preferably within a period of six months from the date of production of a certified copy of this order and unnecessary adjournments shall be avoided. Both the parties shall co-operate in the speedy disposal of the aforesaid case before the court concerned. With the above direction, the writ petition is disposed

of finally.

(B.S.Verma, J.)

RCP

Categories: Judgement

HC: Husband’s divorce rejected, ordered to buy a 1BHK house for wife, 25 Lakh Lumpsum and 15thousand cost

Sanjeev Vyankatesh Ranade vs Meghna Sanjeev Ranade on 21 July, 2011
Bench: A.M. Khanwilkar, R.Y. Ganoo

1 1603

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

FAMILY COURT APPEAL NO. 16 OF 2003

Sanjeev Vyankatesh Ranade,

Age 41 years, Occ:-Business,

Residing at 17/A/6, Vijay Bunglow,

Near Ashwamedh Hall, Erandwana,

Karve Road, Pune- 411 004. …Appellant Versus

Meghna Sanjeev Ranade,

Age 39 years, Occ:Housewife,

Residing at C/o.M.P.Sidhya (M.B.B.S.),

Survey No.10/3-A/1,

Near Kailash Jeevan Company,

Dhayari, Pune – 411 041. …Respondent WITH

FAMILY COURT APPEAL NO. 85 OF 2003

WITH

CIVIL APPLICATION NO.28 OF 2004

WITH

CIVIL APPLICATION NO.79 OF 2007

WITH

CIVIL APPLICATION NO.87 OF 2007

Meghana Sanjeev Ranade,

Age 39 years, Occ:Housewife,

R/o. C/o.M.P.Sidhya (M.B.B.S.),

Survey No.10/3-A/1,

Near Kailash Jeevan Company,

Dhayari, Pune – 411 004. …Appellant Versus

Sanjeev Vyankatesh Ranade

Age 41 years, Occ:-Business,

Residing at 17/A/6, Vijay Bunglow,

Near Ashwamedh Hall, Erandwana,

Karve Road, Pune- 411 004. …Respondent 2 1603

WITH

CIVIL APPLICATION NO.262 OF 2008

IN

CIVIL APPLICATION NO.16 OF 2006

IN

FAMILY COURT APPEAL NO.85 OF 2003

Meghna Sanjeev Ranade …Appellant Versus

Sanjeev Venkatesh Ranade …Respondent And

Suvarna Sahakari Bank Ltd. …Applicant ……

Mr. A.V. Anturkar for Sanjeev Ranade-husband.

Mr. P.R Arjunwadkar for Meghna Ranade-wife.

Mr. R.V. Govilkar for the Applicant in Civil Application No. 262 of 2008.

……

CORAM: A.M. KHANWILKAR AND

R.Y. GANOO, JJ.

RESERVED ON: JUNE 14, 2011

DELIVERED ON: JULY 21, 2011

JUDGMENT (Per A.M. Khanwilkar, J.):-

1. By this common judgment, we propose to dispose of both the appeals together. For the sake of convenience, we will refer to the parties as ‘husband’ and ‘wife’.

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2. Family Court Appeal No. 16 of 2003 has been filed by the husband against the judgment and decree passed by the Judge, Family Court No. 3, Pune, dated 13th December, 2002, dismissing the petition filed by him for divorce under Section 13 (1-A) (ii) of the Hindu Marriage Act, 1955 (hereinafter referred to as ‘HMA’, for the sake of brevity), being Petition A-No. 28 of 2000. The companion Family Court Appeal No. 85 of 2003, has been filed by the wife against the judgment and decree passed by the Judge, Family Court, Pune, dated 13th December, 2002 for enhancement of maintenance amount under Section 18 of the Hindu Adoptions and Maintenance Act, 1956 (hereinafter referred to as ‘HAMA’, for the sake of brevity), higher than the maintenance amount determined by the Family Court in petition filed by her, being Petition C – No. 55 of 2001. Besides these appeals, there are four civil applications filed during the pendency of Family Court Appeal No. 85 of 2003, being Civil Application No. 28 of 2004, 79 and 87 of 2007 filed by the wife and Civil Application No.262 of 2008 filed by a third party, Suvarna Sahakari Bank Ltd. Even the said applications will be disposed of by this common judgment.

4 1603

3. We shall first deal with the appeal filed by the husband. The relevant facts for considering the said appeal are that, marriage was solemnised between the parties on 8th February, 1993. No issue is born out of the said wedlock. On account of some differences, the parties started staying separately. It is the case of the wife that she was sent to her parental house by her husband, and was not allowed to return to the matrimonial house and to cohabit with the husband. As a result, she filed petition for restitution of conjugal rights in the year 1998, being No. PA.813 of 1998. The said application was contested by the husband. The husband filed cross petition for a decree of divorce. However, the Court decreed the petition for restitution of conjugal rights filed by the wife and rejected the cross petition filed by the husband for a decree of divorce, vide decision dated 26th November, 2000.

4. It is the case of the wife that, in spite of the abovesaid decree, the husband did not permit her to return to her matrimonial house and to cohabit with him. She had no source of income of her own, and was fully dependent on her father. For that reason, she filed Petition C- No. 55 of 2001 for maintenance under Section 18 of HAMA on 29th May, 2001. While that petition was pending, the husband filed petition for divorce under Section 13 (1-A)(ii) of HMA before the Family Court on 5 1603

10th January, 2002, being Petition A No. 28 of 2002. The husband’s petition came to be dismissed by the Family Court vide impugned judgment and decree dated 13th December, 2002. The Family Court negatived the relief of divorce claimed by the husband on the finding that he has taken advantage of his own wrong. The Family Court exercised its discretion against the husband on recording the above satisfaction in terms of Section 23(1)(a) of HMA. For that, the Family Court noted two aspects: Firstly, that the husband did not allow the wife to enter his house for resuming cohabitation and frustrated all efforts made by the wife in that behalf. Secondly, he was in arrears of an amount of interim alimony of Rs.30,000/-. This decision is the subject-mater of challenge in the appeal filed by the husband.

5. We shall first revert to the pleadings of the parties. In the petition for divorce filed by the husband, he has stated that the wife, in spite of the decree of restitution of conjugal rights, or even prior to the filing of the said petition for such relief, had not cohabited together. Further, the wife did not make any sincere effort for restitution, apart from sending letter to him for restitution. The wife never visited him after the decree of restitution of conjugal rights. That shows that the wife was not at all interested in cohabitation / restitution. The husband 6 1603

further asserted that no execution proceedings were filed by the wife after the decree in her favour for restitution of conjugal rights dated 26th November, 2000. Whereas, she chose to file petition for maintenance under Section 18 of HAMA. This conduct of the wife reveals her greedy attitude. The husband further alleged that, during the pendency of the application for restitution filed by the wife, she took away all her ornaments through Court Commissioner, which fact is also indicative of her intention that she did not want to reside with him. The husband asserted that there has been no restitution of conjugal rights between the parties to the marriage for a period of more than one year after the passing of decree for restitution of conjugal rights in a proceeding to which they were parties. In this backdrop, the husband prayed for a decree of divorce under Section 13 (1-A) (ii) of HMA. He further asserted that his business was running in heavy losses, and property belonging to him has been mortgaged to the bank. Further, the movables in the hotel premises have been attached by the Sales Tax Department for non-payment of dues. He has also received electricity bills from M.S.E.B. for Rs.5,04,000/-. Besides, he owes Rs.50,000/- to E.S.I., for which the E.S.I. Department has attached his bank account. He has further stated that, on account of these developments, he is under severe mental stress and is not in a position to take any further steps, which may 7 1603

cause some harm to his health. He has asserted that his marriage has been irretrievably broken down, and there are no chances of reconciliation.

6. The wife contested the said petition by filing Written Statement. In substance, she denied the allegations made in the petition. Instead, consistent with her case stated in the Petition filed by her for maintenance which was earlier in point of time, she asserted that the husband has failed and neglected to maintain her, and refused her entry in the matrimonial house. It is her case that attempts made by her to resume cohabitation after the decree for restitution were frustrated by the husband. The husband refused her entry in the matrimonial house. She has given specific details of such unsuccessful attempts made by her to resume cohabitation with the husband. She has denied that she demanded money from the husband when she visited his house after the decree for restitution of conjugal rights in her favour. She has also denied that she was not interested in cohabitation and restitution. She has asserted that, under compelling circumstances, she was required to file petition for maintenance, and not out of greed for money, as is alleged by the husband. She has also denied the allegation that she has taken away all her belongings from the matrimonial home as alleged. 8 1603

She has clarified that she has taken away some of her belongings. That, however, contends the wife, would not mean that she has no desire or intention to reside with the husband. She has asserted that the plea of financial difficulties and heavy business losses has sprung only after she filed application for restitution of conjugal rights. She has denied that the marriage has irretrievably broken down as has been suggested by the husband. It is her case that the husband successively thwarted all her attempts to resume cohabitation. She has asserted that, in the first place, she tried to contact the husband on telephone. She also sent letters to the husband, which remained un-replied. Then she went along with her father to her matrimonial home on 30th December, 2000. The husband was present in the house, but did not allow her to enter the house on the pretext that he intends to file appeal against the decision of the Family Court granting decree for restitution of conjugal rights in her favour. She had to come back, totally dejected, and could not resume cohabitation with her husband, who has, in fact, deserted her. It is her case that the husband was not even providing any maintenance to her, in spite of the decree for restitution of conjugal rights in her favour. The cheques tendered by the husband for interim maintenance were dishonoured, and he remained in arrears, thereby compelling her to remain at the mercy of her father. According to the wife, the husband not only failed to abide by 9 1603

the decree for restitution of conjugal rights, but prevented her from resuming cohabitation and to discharge their marital obligations. According to the wife, therefore, the husband has disentitled himself for a decree of divorce within the meaning of Section 23(1)(a) of HMA.

7. On the basis of the pleadings in the Petition for divorce filed by the husband, the Family Court framed two points: (1) Does the respondent (wife) prove that the petitioner (husband) is taking advantage of his own wrong?

(2) What order?

8. The parties examined themselves on oath. The husband did not examine any other witness. The wife, in addition to herself, examined her father as her witness.

9. In the examination-in-chief, the husband reiterated his case made out in the petition. He stated that, after the marriage, he stayed with his wife together for about five years. On 13th December, 1998, the wife asked him to leave her parental house. He, accordingly, left her at her parents’ place. The wife, thereafter, did not return to the matrimonial home. Later on, she filed application for restitution of 10 1603

conjugal rights, which was decreed on 26th November, 2000. After giving these details, he has stated that the wife did not file any execution petition for restitution of conjugal rights. She did not come to his house after passing the decree for restitution, and hence, he prayed for a decree of divorce in his favour. This is the gist of husband’s examination-in- chief.

10. The husband was extensively cross-examined by the wife. He admitted that he did not file any appeal against the decree for restitution of conjugal rights. He denied having received any phone calls from the wife after the decree for restitution. He also denied that the wife had visited his house on 30th December, 2000 or that he refused her entry in the house on the pretext that he wanted to prefer appeal against the decree for restitution. He, however, admitted that he received letter sent to him by the wife, whereby the wife had shown her willingness to resume cohabitation. He has clarified the assertion made by him in paragraph 3 of his petition that the wife continued demanding money. He has said that it means that she demanded money of interim alimony granted to her. He has admitted that he did not deposit interim alimony regularly, but asserted that he could not do so because of his financial condition. He has admitted that, when the decree for restitution was 11 1603

passed, he was in arrears of interim alimony of Rs. 30,000/-. He has also admitted that he has not paid any amount to the wife after the decree for restitution was passed till she filed maintenance petition. He has stated that the outstanding amount against him with regard to his hotel business payable to Suvarna Sahakari Bank since November, 2000 to July, 2002 was Rs.1,85,00,000/-, and he did not deposit any amount to satisfy that loan. He has admitted that he did not execute the decree for restitution of conjugal rights. He has admitted that he had preferred writ petition against order of maintenance (interim) passed by the Family Court on the earlier occasion. That writ petition was dismissed. He has then stated about the reason for not filing appeal against the decree for restitution of conjugal rights, as he could not afford fees of the advocate. He has denied the suggestion that he had decided to wait for a period of one year after the decree for restitution and intentionally did not pay the interim maintenance regularly so as to harass the wife and weaken her financially.

11. The wife examined herself as witness No. 1 in support of her plea. In her evidence, she has stated that she tried to make a phone call to her husband to inform him that she was coming to cohabit with him, but the husband was not available on phone. She has then stated 12 1603

that on 25th December, 2000, she, along with her father, had visited her matrimonial house, but they found that the house was locked. The car belonging to her husband was however seen parked outside the house, for which reason, they waited near the house for almost one hour, but, since the husband did not arrive, they had to return back. She has then stated that, on 30th December, 2000, she, along with her father, once again, visited the matrimonial house when the husband was at home. However, the husband stood at the door, and told her that he will not take her in the house, and she should not enter his house. She has stated that her husband further told her that he was intending to prefer appeal to the High Court against the decree for restitution, and hence, she should not enter his house. She has further stated that, thereafter, for about two to three months, she tried to make phone calls to her husband to request him to allow her to cohabit with him, but the husband did not give any reply. She showed willingness to produce the telephone bills. She has stated that the husband used to tell her on phone that he would not cohabit with her and she should not speak to him. She has stated that she made phone call to her husband on 22nd December, 2000. Thereafter, she sent letter to her husband on 5th January, 2001, informing him that she wanted to come back to the matrimonial home. She produced copy of the said letter and Registered Post A/D. She has then stated that on 28th January, 2001, she 13 1603

had made phone call to the husband, but he did not reply. She has then deposed that her husband was not depositing amount of interim alimony regularly. She has stated that her husband had not provided her any further maintenance. She has stated that on 6th February, 2001, she made phone call to her husband, but he did not respond. She has asserted in her evidence that she was not ready to give divorce to her husband. She has further stated that her husband never made any enquiry after the decree for restitution, though she made efforts for cohabitation with him. She has stated that the financial condition of her husband is sound. Notably, the cross-examination of the wife conducted by the husband is very cryptic and brief. It reads thus:-

“(Cross-Exam. on behalf of the petitioner by Shri. Ranade Advocate)

4. I had not filed an execution petition to execute the decree for restitution of conjugal rights. The contents of PE No. 6(d) of my written statement Exh. 5 are correct.”

12. The wife examined her father in support of her case as Witness No. 2. Her father, Mukund Prabhakar Sidhaye, deposed that, after the decree by the Family Court for restitution of conjugal rights, he, along with his daughter, visited the residence of the husband on 25th December, 2000. At that time, nobody was present in the house. He 14 1603

visited, for the second time, along with his daughter, on 30th December, 2000 to the house of the husband. At that time, the husband did not allow them to enter his house. He has further stated that, after filing Darkhast for recovery of the amount by his daughter, he, along with his daughter, had gone to the residence of the husband. The nephew of the husband was present, who told him that the husband was not at home. One hour after their arrival, the husband came to see them, and told them that he does not want the wife to enter his house.

13. This witness has been cross-examined by the husband. The cross-examination reads thus:-

“Cross Examn. on behalf of the petitioner by Shri. Ranade Advocate.

2. On 25.12.2000, when petitioner was not found in his house, we made his enquiry with his neighbours. We made his enquiry with one Mr. Walimbe. My daughter had gone at the house of Walimbe and I was standing outside. It is not true to say that we had not gone to the house of petitioner on 25.12.2000. After 30.12.2000, we did not give the notice to the petitioner. It is not true to say that on 30.12.2000, we had not gone at the place of petitioner. It is not true to say that I depose falsely upon the say of my daughter.”

14. The Family Court analysed the above referred pleadings and evidence brought on record by both the parties. It accepted the plea of the wife that the husband did not allow her to enter the matrimonial 15 1603

house. Moreover, the husband did not respond to the letters sent by the wife or attended her phone calls. The Court opined that the husband frustrated all the attempts of the wife to resume cohabitation. Besides, the husband did not deposit the amount of interim alimony awarded to the wife regularly in the earlier proceedings. The Court found that the husband has not even asserted that he himself made any effort or made a single attempt to cohabit with the wife after the decree for restitution of conjugal rights, which shows that he was not willing to cohabit with his wife. On the above findings, the Family Court proceeded to dismiss the petition on the ground that the husband disentitled himself for a decree of divorce, as he had taken advantage of his own wrong.

15. The husband has challenged this decision on the argument that mere disinclination of the husband to respond to the letters or to attempt to cohabit with the wife after the decree for restitution of conjugal rights, ipso facto, would not amount to taking advantage of one’s own wrong. To buttress this submission, reliance has been placed on the decision of the Apex Court in the case of Dharmendra Kumar v. Usha Kumar, reported in (1977) 4 SCC 12, and of this Court in the case of Sunita Rajendra Nikalje v. Rajendra Eknath Nikalje, reported in 1996 (1) 16 1603

Mh.L.J. 572, and Hari Dattatraya Shitole v. Meena Hari Shitole, reported in 2000(1) Mh.L.J. 398.

16. It is further argued on behalf of the husband that mere non-payment of maintenance, by itself, cannot be considered as a ‘wrong’ within the meaning of Section 23(1)(a) of HMA. Reliance is placed on the decision of the Supreme Court in the case of Hirachand Srinivas Managaonkar v. Sunanda, reported in (2001) 4 SCC 125. According to the husband, out of maintenance amount of Rs.1,40,000/-, an amount of Rs.1,10,000/- has been paid. Even the amount of interim alimony, which was granted with effect from 29th May, 2001 at the rate of Rs.2,000/- per month, has been regularly paid. Further, the outstanding amount could not be paid due to financial stringency. Thus, it cannot be said that the husband was taking advantage of his own wrong. Further, even if the default was committed by the husband, that was much before the decree for restitution of conjugal rights was passed on 26th November, 2000. That default cannot be reckoned and held against the husband to refuse relief of divorce to him under Section 13 (1-A)(ii) of HMA. Whereas, the relevant period during which the wrong committed by the husband could be taken into account is one year period from the date the 17 1603

decree for restitution of conjugal rights is passed, and not anterior thereto.

17. On the other hand, the counsel for the wife would argue that the act of the husband of not obeying the decree for restitution of conjugal rights is itself a “wrong”. In any case, obstructing the wife’s entry in the matrimonial house is a “serious wrong”. It was argued that till today, the wife has not been allowed to resume cohabitation. Moreover, there was no just reason to deprive the wife of the maintenance amount, which was awarded by the Court. The outstanding maintenance amount of Rs.30,000/- was in relation to the order of the Court which operated during the pendency of application for restitution of conjugal rights. During the pendency of the said application, the Family Court had granted interim maintenance only in the sum of Rs. 1,000/- per month vide order dated 3rd August, 1999. The husband, however, chose to challenge that decision before the High Court by way of Writ Petition No. 5672 of 1999, which was eventually rejected. This Court, instead enhanced the interim maintenance amount to Rs.10,000/- per month from October, 1999. The husband, no doubt, paid the amount at that rate for only 11 months, but remained in arrears for around three months when the application for restitution of conjugal rights came to be 18 1603

disposed of on 26th November, 2000. After disposal of the said application, the husband “intentionally” did not pay the balance amount to the wife.

18. Having considered the pleadings and the evidence produced by the parties, the first question is: Whether the finding of fact reached by the Family Court, that the husband has taken advantage of his own wrong, can be said to be manifestly wrong? From the evidence of the husband, there is nothing to indicate that he himself made any attempt to resume cohabitation with his wife after the decree for restitution of conjugal rights was passed by the Family Court. Indeed, such disinclination of the husband, by itself, may not be a wrong of such gravity so as to deny him decree of divorce. However, the wife, besides cross-examining the husband, has also examined herself and her father so as to establish the fact that, she repeatedly made attempts to return to her matrimonial house after the decree for restitution of conjugal rights was passed. However, each of those attempts were frustrated by the husband. Significantly, on one occasion when the husband was present in the house on 30th December, 2000, he refused her entry in the house by standing at the door. He informed the wife and her father that he intends to prefer appeal against the decree for restitution of conjugal rights and 19 1603

rejection of his prayer for divorce. But, admittedly, such appeal was never filed. The only justification for not filing appeal is on account of unaffordable legal fees. This justification, to say the least, is a ruse and afterthought, nay, false to the knowledge of the husband. As is noticed from the cross-examination of the wife conducted by the husband, the only material question put to the wife was: Whether she attempted to execute the decree for restitution of conjugal rights? To which, the wife has answered that she did not file any execution proceedings. That does not mean that the case asserted by the wife has been challenged by the husband. Nor does it belie the claim of the wife that she had made all possible attempts to return to her matrimonial house so as to resume cohabitation after the decree for restitution of conjugal rights was passed by the Family Court; but the husband frustrated the same. Rather, that plea of the wife has gone unchallenged. Notably, the wife has proved that she had gone to her matrimonial house, accompanied by her father, but even after refusing entry, she kept on requesting the husband by her letters as well as phone calls to allow her to resume cohabitation. This version of the wife has been supported by her witness No.2, viz., her father. This evidence has remained unchallenged and unshaken. As a corollary, it follows that the husband, by his overt act and act of commission, succeeded in denying entry to the wife in her matrimonial 20 1603

house to enable her to resume cohabitation with him. This, in substance, is the finding of fact recorded by the Family Court. It is not a case of simpliciter disinclination of the husband to respond to the letters and phone calls, but a positive overt act by him of not allowing the wife to enter the matrimonial house to resume cohabitation with him. This conduct of the husband would be covered by the expansive provision in Section 23(1)(a) of HMA. This finding recorded by the Family Court, in our opinion, needs no interference.

19. However, the argument of the counsel for the husband was that, even if the said finding of fact were to remain as it is, that was not sufficient to attract Section 23(1)(a) of HMA. To buttress this legal argument, reliance is heavily placed on the dictum of the Apex Court in the case of Dharmendra Kumar (supra). We have carefully gone through the said decision. In our opinion, the said decision is of no avail to the husband in the fact situation of the present case. In that case, the spouse (wife) in whose favour decree for restitution of conjugal rights was passed, failed and neglected to respond to the letters sent by the other spouse (husband) asking to resume cohabitation. Thus, the plea of the other spouse (husband), while opposing the petition for a decree of divorce filed by the wife, was that the petition must be dismissed as the 21 1603

wife had disentitled herself for a decree of divorce as she would get advantage of her own wrong within the meaning of Section 23(1)(a) of the Act. While rejecting this argument, the Apex Court observed that decree should not be denied to the spouse, who does not insist on compliance with the decree passed in his or her favour. Further, in order to be a ‘wrong’ within the meaning of Section 23(1)(a), the conduct alleged has to be something more than a mere disinclination to agree to an offer of reunion, and must be misconduct serious enough to justify the denial of the relief to which the husband or the wife is otherwise entitled. Thus, merely because the spouse does not respond to the invitation by the other spouse to come and live with him, it would not disentitle the former to get a decree of divorce. Suffice it to note that, in that case, there was no allegation of obstruction caused by the other spouse. It was a simpliciter case of disinclination of the wife to respond to the letters sent by the husband calling upon her to resume cohabitation, which conduct of the wife was only akin to an act of omission. No positive act was done by the wife to create a situation so as to make it impossible for the husband to resume cohabitation.

20. It will be useful to refer to the decision of the Apex Court in Hirachand Srinivas Managaonkar (supra). The decision in 22 1603

Dharmendra Kumar’s case has been explained in paragraph 15 therein. It has been held that the said decision cannot be read to be laying down a general principle that a petitioner in an application for divorce is entitled to the relief merely on establishing the existence of the ground pleaded by him or her in support of the relief; nor that the decision lays down the principle that the Court has no discretion to decline relief to the petitioner in a case where the fulfillment of the ground pleaded by him or her is established. The Court, while rejecting the argument that the right conferred by Section 13(1-A) is absolute and unqualified, proceeded to hold that the object of the amended provision of Section 13 (1-A) was merely to enlarge the right to apply for divorce and not to make it compulsive that a petition for divorce presented under that provision must be allowed on a mere proof that there was no cohabitation or restitution for the requisite period. The Court went on to observe that, on conjoint reading of Sections 13 (1-A) and 23(1)(a), it would appear that the petitioner does not have a vested right to get the relief of a decree of divorce. The Court ordained that, before granting the prayer to permanently snap the relationship between the parties to the marriage, every attempt should be made to maintain the sanctity of the relationship which is of importance not only for the individuals or their children, but also for the society. The Court has expounded that the answer to the 23 1603

question depends on the facts and circumstances of the case and no general principle or straitjacket formula can be laid down. It has been noted that even after the decree for “judicial separation” is passed by the Court, it is expected of both the spouses to make sincere efforts for a conciliation and cohabitation with each other.

21. It is also useful to recall the settled legal position that the approach of the Court of law in matrimonial matter is much more constructive, affirmative and productive rather than abstract, theoretical or doctrinaire. Matrimonial matters must be considered by Courts with human angle and sensitivity. Delicate issues affecting conjugal relations have to be handled carefully and legal provisions should be construed and interpreted without being oblivious or unmindful of human weakness. [See Jagraj Singh v. Birpal Kaur, (2007) 2 SCC 564.]

22. Even the decision relied by the counsel for the husband of Sunita Nikalje (supra) will be of no avail. In that case, the husband had filed petition for restitution of conjugal rights. After the decree was passed in the said petition, he filed another petition for divorce under Section 13 (1-A) (ii). The Family Court granted a decree of divorce, which was challenged by the wife before the High Court. The High 24 1603

Court, after analysing the oral evidence, found, as of fact, that there was no manner of doubt that the wife had gone to the house of the husband immediately after the decree for restitution of conjugal rights was passed, but the husband’s mother drove her out. On this finding the High Court eventually held that the husband was not entitled for a decree of divorce, as he cannot be allowed to take advantage of his own wrong. This decision has considered the other reported cases, including the decision in Dharmendra Kumar’s case. In paragraph 23 of this decision, it has been held that Section 23(1)(a) is couched in negative terms, and burden lay upon the petitioner, who prays for decree of divorce – to prove that he was not taking advantage of his own wrong. The Court restated the legal position that mere disinclination or reluctance to accept the other spouse is not sufficient. There should be attempt of making it impossible for a spouse to resume cohabitation after the decree for restitution of conjugal rights is passed. The Court should not grant the decree of divorce lightly or defeat it when the marriage is broken down completely. In the present case, the husband has failed to plead as well as prove that he was not taking advantage of his own wrong.

23. In the case of Hari Dattatraya Shitole (supra), the Court found, on facts, that the husband had merely shown disinclination to 25 1603

submit to a decree by not responding to the efforts made by the wife and her relatives. In the same case, however, the Court has noted that a wrong would be to drive an innocent party to a situation where it cannot fight back and then a person who has created such situation will try to take advantage. The decision in Hari Dattatraya Shitole was, therefore, on the facts of that case.

24. Considering the settled legal position, we have no hesitation in holding that, in the present case, the husband has disentitled himself for a decree of divorce, having taken advantage of his own wrong by obstructing the wife from entering her matrimonial house to resume cohabitation with him. He made it impossible for the wife to resume cohabitation after the decree for restitution. It is not a case of mere disinclination or reluctance of the husband to resume cohabitation after the decree for restitution of conjugal rights was passed.

25. There is yet another aspect, to which the Family court has adverted to. It has held that the husband disentitled himself for a decree of divorce within the meaning of Section 23(1)(a) of HMA, as he intentionally failed and neglected to pay the arrears of interim maintenance to the wife and was waiting only for completion of statutory 26 1603

period to file a Petition for divorce. Even that finding of fact deserves no interference. In cases of intentional non-payment of interim maintenance amount, the Apex Court has dealt with similar argument in Hirachand Managaonkar’s case (supra). It may be useful to reproduce paragraph 12 of the said decision, which reads thus:-

“The next contention that arises for consideration is whether the appellant by refusing to pay maintenance to the wife has committed a “wrong” within the meaning of Section 23 and whether in seeking the relief of divorce he is taking advantage of his own “wrong”. In Mulla’s Hindu Law (17th Edn., at p.121) it is stated:

“Cohabitation means living together as husband and wife. It consists in the husband acting as a husband towards the wife and the wife acting as a wife towards the husband, the wife rendering house wifely duties to the husband and the husband supporting his wife as a husband should. Cohabitation does not necessarily depend on whether there is sexual intercourse between husband and wife. If there is sexual intercourse, it is very strong evidence – it may be conclusive evidence – that they are cohabiting, but it does not follow that because they do not have sexual intercourse they are not cohabiting. Cohabitation implies something different from mere residence. It must mean that the husband and wife have begun acting as such and have resumed their status and position as husband and wife.”

After having extracted the quotations from Mulla’s, the Court held that even after decree for judicial separation is passed, both the spouses were obliged to make sincere contribution for the purpose of successful cohabitation. And if the husband refuses to pay maintenance to the wife, he fails to act as a dutiful husband and thus, commits a “wrong” within the meaning of Section 23 of HMA. Later, in Paragraph 15 of the 27 1603

reported decision, the Court specifically dealt with the question as to what is a “wrong” withing the meaning of Section 23(1) of the HMA. While considering the facts of that case, wherein the husband failed and neglected to pay the meagre amount of Rs.100/- as maintenance to the wife and he was found to be only marking time for expiry of the statutory period of one year after the decree so that he may easily get a decree of divorce. The Court held that such conduct of the husband results in committing matrimonial “wrong” in refusing to maintain his wife and also trying to take advantage of the said wrong. This decision applies on all fours to the case on hand.

26. In paragraph 14 of the same decision, the Court observed thus:- ” In this connection it is also necessary to clear an impression regarding the position that once a cause of action for getting a decree of divorce under Section 13(1-A) of the Act arises the right to get a divorce crystallises and the Court has to grant the relief of divorce sought by the applicant. This impression is based on a misinterpretation of the provision in Section 13(1-A). All that is provided in the said section is that either party to a marriage may present a petition for dissolution of the marriage by a decree of divorce on the ground that there has been no resumption of cohabitation between the parties to the marriage for a period of one year or more after the passing of a decree for judicial separation in a proceeding to which they were parties or that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or more after the passing of a decree for restitution of conjugal rights in a proceeding to which both the spouses were parties. The section fairly read only enables either party to a marriage to file an application for dissolution of the marriage by a decree of divorce on any of the grounds stated therein. The section does not provide that once the applicant makes an application alleging fulfillment of one of the conditions specified therein the Court has no 28 1603

alternative but to grant a decree of divorce. Such an interpretation of the section will run counter to the provisions in Section 23(1)(a) or (b) of the Act.”

………………………

“If the provisions in Section 13(1-A) and Section 23(1)(a) are read together the position that emerges is that the petitioner does not have a vested right for getting the relief of a decree of divorce against the other party merely on showing that the ground in support of the relief sought as stated in the petition exists. It has to be kept in mind that relationship between the spouses is a matter concerning human life. Human life does not run on dotted lines or charted course laid down by statutes. It has also to be kept in mind that before granting the prayer of the petitioner to permanently snap the relationship between the parties to the marriage every attempt should be made to maintain the sanctity of the relationship which is of importance not only for the individuals or their children but also for the society. Whether the relief of dissolution of the marriage by a decree of divorce is to be granted or not depends on the facts and circumstances of the case. In such a matter it will be too hazardous to lay down a general principle of universal application. ” (emphasis supplied)

27. The explanation offered by the husband is that, due to financial difficulties, he was not in a position to pay the arrears. This explanation is preposterous. The husband, pursuant to the order passed by this Court in Writ Petition No. 5672 of 1999, started paying the interim maintenance amount, as directed, in the sum of Rs.10,000/- per month from October, 1999. He paid such amount (except for three months) until the dismissal of petition for divorce. Once that petition was disposed of, as no other proceedings were pending between the parties before any Court, he, therefore, did not pay the arrears of maintenance amount till now. The evidence on record is not enough, much less, substantiate the position that suddenly, after 26th November, 29 1603

2000, the financial position of the husband had changed so drastically that he could not pay the balance maintenance amount till date. Not to pay the arrears of maintenance for so long is nothing short of a recalcitrant and revengeful attitude of the husband. Suffice it to note that it is not possible to countenance that the husband was completely disabled to pay the arrears of maintenance, as is contended. Nay, there is no legal evidence to establish that fact. Understood thus, even this overt act or positive act of commission of the husband would disentitle him for a decree of divorce, as he cannot be allowed to take advantage of his own wrong within the meaning of Section 13(1-A) (ii) read with Section 23(1)(a) of HMA. Indeed, the husband has made a feeble attempt to bring on record that his financial position is still precarious by filing affidavit during the pendency of these appeals. The averments in the said affidavit cannot be the basis to reverse the finding of fact recorded by the Family Court, which, in our opinion, is unexceptionable for the reasons already stated by us hitherto.

28. The next argument of the husband is that the said default had occurred prior to the date of decree for restitution of conjugal rights, and, for that reason, the same cannot be reckoned for deciding his petition under Section 13(1-A)(ii) of HMA. The argument, though attractive at 30 1603

the first blush, clearly overlooks that the act of intentional non-payment of arrears of maintenance is not a one-time act of commission, but it is a recurring one and would continue until the amount is fully paid. Even if the arrears pertain to period prior to 26th November, 2000, that would not absolve the husband of his liability to pay the outstanding amount after the decree for restitution of conjugal rights was passed. It would have been a different matter if the husband had taken initiative to resume cohabitation with the wife soon after the decree was passed. However, in the present case, the evidence points out to the contrary. It is the husband who refused to cohabit with the wife, and at the same time, intentionally continued to remain in arrears of maintenance merely because the application for restitution of conjugal rights was disposed of by the Court. Suffice it to observe that the fact that the maintenance amount was outstanding for the period prior to 26th November, 2000 would make no difference, as the liability of the husband to pay the said amount would not cease but continue until the amount was fully paid.

29. In view of the above, we have no hesitation in taking the view that the appeal filed by the husband challenging the decision of the Family Court rejecting his petition for divorce is devoid of merits, and the same deserves to be dismissed.

31 1603

30. That takes us to the appeal filed by the wife for enhancement of maintenance amount granted in Petition No. C-55 of 2001 under Section 18 of HAMA. This petition was filed on 29th May, 2001 after decree for restitution of conjugal rights was passed on 26th November, 2000, and after exhausting all possibilities of resuming cohabitation with the husband. More so, when the wife realised that the husband was not taking her back in the matrimonial house, and at the same time, providing no maintenance to her, which left her with no other choice but to depend upon the mercy of her father. In the petition, reference is made to the harassment caused to the wife at the matrimonial home while she was staying there. It is not necessary to elaborate on those matters for the purpose of considering the present appeal. Suffice it to observe that it is her case that she was meted out cruel treatment not only by the husband but by her mother-in-law as well. Further, the husband was ignoring her and used to come home late. He did not even acknowledge or appreciate the sentiments of the wife that on his birth day, she wanted to celebrate. But instead, she was humiliated by the husband. Later on, she was sent to her matrimonial home by the husband and, when she came back, she found the matrimonial home locked. Therefore, she could not enter the house. She tried to contact the husband several times at his restaurant, 32 1603

but of no avail. Eventually, her father and sister- in-law met the husband personally and pleaded him to take her back, but the husband was not in a mood to pay any heed to that request as well. The wife was, therefore, forced to stay in her father’s house.

31. It is further alleged that in this backdrop, she had to file an application for restitution of conjugal rights. In the said application, the husband filed counterclaim praying for decree of divorce. The said proceedings were disposed of by the Family Court by allowing the application preferred by the wife. Thus, decree for restitution of conjugal rights was granted and the petition for divorce preferred by the husband was dismissed. She has then adverted to the efforts made by her to resume cohabitation by going to the matrimonial house, along with her father, as also by sending letters and making phone calls. It is her case that her husband thwarted all her efforts to resume cohabitation. Thus, the husband deserted her and was also not providing her maintenance even after decree for restitution of conjugal rights in her favour. Further, the husband was in arrears of interim maintenance to the extent of Rs. 30,000/- ordered to be paid by the Court, for which, she had to take out execution application. It is further stated that the husband offered maintenance amount by cheques, which were dishonoured. It is the case 33 1603

of the wife that she felt as if she was left high and dry and required to run from pillar to post to recover the amount towards maintenance. She has asserted that she has been abandoned by her husband without her consent and she was being willfully neglected by the husband. It is stated that the husband has sufficient means to pay maintenance. He has business establishments. Besides, he belongs to an affluent family. The family is conducting hotel business at Mahabaleshwar and is situated in sprawling premises. The husband has his own air-conditioned hotel with total capacity to accommodate about 150 persons at a time. The said hotel is situated at a strategic location and is doing roaring business. The wife also asserted that the husband is also engaged in transport business. The volume of business of the husband is so high that he enjoys huge credit facilities from banks, to the tune of almost over Rs. 1 crore. According to the wife, the income of the husband was not less than Rs.1,00,000/- per month. The petition also gives details of other family properties. It is the case of the wife that the husband stays in a big bungalow and even his joint family has a palatial house at Mahabaleshwar. On this basis, the wife asserted that she is entitled to be provided with suitable comfortable house and also maintenance amount to include expenses for food, clothing, maintenance and other facilities suited to the lifestyle of 34 1603

the husband. The income of the wife, however, is very limited, of only Rs.600/- per month, as she was doing the job of honorary teacher.

32. It is then stated that, instead of providing for monthly maintenance amount towards accommodation and other expenses, it would be appropriate to provide her lump-sum amount, as she may not be then required to pursue for recovery of monthly maintenance from the husband, who is bent upon to harass her and has not paid the already ordered monthly maintenance amount regularly. Accordingly, the wife prayed for direction against the husband to pay Rs.15,00,000/- in lumpsum to the wife for purchasing a house and Rs.10,00,000/- in lieu of monthly maintenance by investing the said amount in Fixed Deposit.

33. The husband, by filing Written Statement, denied the allegations made by the wife.

34. Considering the rival pleadings, the Family Court framed three points: Firstly, does the petitioner (wife) prove that the respondent (husband) is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wish or of 35 1603

willfully neglecting her? Secondly, what would be the quantum of maintenance to the petitioner (wife)? And, thirdly, what order?

35. The wife examined herself as Witness No. 1 and also examined her father as Witness No. 2. The husband examined himself in his defence.

36. The Family Court, on analysing the pleadings and evidence, while dealing with Point No.1, adverted to the outcome in the previous proceedings between the parties in Application No. PA.813 of 1998, which was filed by the wife for restitution of conjugal rights. It noted that, even in the said proceedings, the question whether the husband deserted the wife was specifically addressed and was answered in favour of the wife. In addition, the Family Court considered the oral evidence given by the wife and her father as well as the husband, and eventually concluded that it was clear that the husband was guilty of desertion, that is to say, of abandoning the wife without reasonable cause and without her consent or against her wish or of willfully neglecting her. The conclusion so reached by the Family Court, in our opinion, is unexceptionable. The fact whether the husband had deserted the wife was specifically put in issue in the proceedings before the Family Court 36 1603

for restitution of conjugal rights filed by the wife. That issue was answered in favour of the wife. That finding has been allowed to attain finality by the husband. For, no appeal against the decision of the Family Court granting decree for restitution of conjugal rights has been filed by him. In that sense, the circumstances which obtained prior to granting of decree for restitution of conjugal rights on 26th November, 2000 need not be re-considered in the present proceedings. The finding recorded by the Family Court in that regard will bind the parties.

37. The question is: Whether, after granting of decree for restitution of conjugal rights, there is any changed circumstance? For that, we will have to now examine the evidence regarding events unfolded thereafter. That can be culled out from the evidence of the wife, wherein she has stated that, after the decree for restitution of conjugal rights was passed in her favour, she attempted to go and live at her matrimonial house. As a mater of fact, the evidence regarding events unfolded after 26th November, 2000 have already been adverted to while considering the petition / appeal filed by the husband for decree of divorce. Be that as it may, even in the petition filed by the wife for maintenance under Section 18 of HAMA, she has asserted that, after the decree for restitution of conjugal rights was passed in her favour, she tried to go and live at her 37 1603

matrimonial house. On 22nd December, 2000, she made phone call to the husband, which was not attended by him. On 25th December, 2000, she had gone to her matrimonial house, but the house was found locked. Again, on 30th December, 2000, she and her father had gone to her matrimonial house. The husband was at home, but he did not allow her to enter the house, and told her that he was intending to file appeal in the High Court against the decree for restitution of conjugal rights. She has stated that, thereafter also, she made phone calls, time and again, but the husband did not give any response. Thereafter, she sent letters to her husband, which were not replied.

38. The wife has then stated that, after the disposal of application for restitution of conjugal rights in her favour, the husband did not give her any maintenance. He failed and neglected to deposit the entire amount of interim maintenance awarded by the Court in the said proceedings. She has then given the description of the bungalow where she was staying with her husband, i.e., her matrimonial house. The same was on plot of 10,000 square feet. It has ten rooms. She has then stated that presently, she was staying with her father and was doing job of honorary teacher in a nursery school, drawing salary of only Rs.600/- per month. She produced her salary certificate before the Court. She has then stated that 38 1603

she was required to file petition for maintenance. She has further stated that her husband’s financial position is sound and he owns restaurant in the name of Aram Fast Food, near Saraswatbaug, Pune. He has transport business by name Aram Roadline. Further, at Mahabaleshwar, there is lodging and boarding business of joint family of the husband, by name Aram Lodging And Boarding. Even at Mahabaleshwar, there is a big house of the joint family of the husband. She has stated that, as per her knowledge, the income of her husband was between Rs.1,00,000/- to Rs.2,00,000/- per month. She has denied the allegations made by her husband in the Written Statement. She has stated that a lumpsum amount of Rs.15,00,000/- be awarded to her to enable her to purchase a house and a lumpsum amount of Rs.10,00,000/- be granted by way of permanent maintenance. She has asserted that she has prayed for lumpsum permanent maintenance, as the husband does not pay the alimony regularly.

39. She has been cross-examined by the husband. Suggestions were put to her that she had not sent any letter or attempted to meet the husband, and that she was deposing falsely. In the cross-examination, in the context of facts stated by the wife, which had unfolded after passing 39 1603

of the decree for restitution of conjugal rights, an attempt was made to discredit the wife by putting following questions:- “11. In P.A.No.813/98 the commissioner was appointed to assess the income of the hotel. I again say that the Commissioner was appointed only to see the hotel and articles of the hotel. Approximately I have stated the income of the respondent. It is correct that Vijay Bungalow is in the names of father of the respondent and the cousin of the respondent. After filing the petition by me, Aram Lodging and Boarding was transferred in the name of partnership firm in the father of the respondent, cousin of the respondent and brother of the respondent are the partners. I have not produced documentary evidence to show that the property at Mahabaleshwar is the joint family property of the respondent.

40. The other cross-examination has no bearing on the facts which are required to be examined in the present appeal. The wife also examined her father, who deposed that, after the decree for restitution of conjugal rights was passed, he, along with his daughter, had visited the house of the husband. He tried to contact his son-in-law on phone, but he was not available. He then stated that, on 25th December, 2000, he and his daughter had gone to the house of his son-in-law in the afternoon. They waited for one hour in front of that house. His son-in-law, however, did not return. Therefore, they had to come back. He has then stated that, again, on 30th December, 2000, he had gone to the house of his son-in- law. However, his son-in-law told them not to enter his house. He has then stated that, at the time of Darkhast for recovery of maintenance amount, he had gone to the house of his son-in-law, but he was not at 40 1603

home at that time. After half an hour, his son-in-law came and told him not to come to his house.

41. This witness has been cross-examined by the husband. The cross- examination is very brief if not cryptic. The same reads thus:- “Cross-exam. on behalf of the respondent (husband) by Shri. Ranade, Adv.

5. I have neither good relations nor bad relations with the respondent.”

42. The evidence of the wife and her father leaves no manner of doubt that, after the decree for restitution of conjugal rights was passed, the wife made all efforts to resume cohabitation, but she was prevented from doing so by her husband. Considering this evidence, the finding of fact recorded by the Family Court that the wife has proved that the husband abandoned her without reasonable cause, without her consent and against her wish and willfully neglected her is unexceptionable. As a matter of fact, the said finding of fact has not been challenged by the husband. We may assume that the husband is reeling under an impression that he is entitled to argue those matters in the companion appeal filed by him. However, in the companion appeal, no serious attempt was made to assail the said finding which we have already alluded to earlier. 41 1603

43. In view of the above, the real controversy that remains to be considered in the appeal filed by the wife is: Whether the wife is entitled for enhanced maintenance amount. The Family Court has awarded a sum of only Rs.7,000/- per month to the wife towards her maintenance with effect from 29th May, 2001, i.e. the date of presentation of the petition. The Family Court has not at all dealt with the claim of the wife to provide for suitable residential accommodation to her; and, in lieu thereof, Rs.15,00,000/- to enable her to purchase the house. Similarly, the Family Court has not granted the prayer for lumpsum permanent maintenance amount of Rs.10,00,000/-, instead granted only monthly maintenance of Rs.7,000/- per month to the wife.

44. We shall first deal with the prayer of the wife to grant suitable accommodation, and in lieu thereof, a sum of Rs.15,00,000/- to enable the wife to purchase a house. In view of the finding of fact already recorded against the husband that he has failed and neglected to maintain his wife; and, in fact, has deserted and abandoned her, in law, the wife is entitled for a suitable residential accommodation of her own choice, where she can stay. The relief claimed by the wife, however, is to provide her lump-sum amount of Rs.15,00,000/-, in lieu thereof, so that 42 1603

she can purchase a house of her own choice. The wife has asserted that the husband has sufficient means and is capable of providing her amount demanded by her for purchasing a house. The wife has asserted that the husband is running his own business of hotel at Saraswatbaug, Pune, and is also having transport business. In addition, the joint family of the husband is running hotel at Mahabaleshwar. The wife has further asserted that the joint family has huge immovable property at Mahabaleshwar. Even the husband has a big bungalow in Pune, having about ten rooms. Further, the husband’s income is between Rs.1,00,000/- to Rs.2,00,000/- per month. The husband, in his examination-in-chief, however, has deposed very cryptically as follows:- “Due to my unsound financial condition I could not pay the amount of interim alimony within time. My business is in loss. I have produced certificate from Sales Tax, order of payment receipt, Income Tax Returns, Balance-Sheet. I had obtained loan from Suwarna Sahakari Bank. I am in arrears of the amount of Rs.2,25,00,000/- or more than that, of the same Bank.”

No documentary evidence is produced by the husband to substantiate the stand taken by him or, for that matter, to belie the assertion made by the wife about his financial capacity of his own and from the joint family businesses. The above evidence of the husband, to say the least, is to hood-wink the real issue.

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45. The fact that the wife is virtually dependent on her father has gone unchallenged. The fact that she has no sufficient means of her own to maintain herself has also gone unchallenged. The fact that she was staying at the mercy of her father is also not in dispute. At the same time, the assertions made by the wife in the petition as well as on oath before the Court have not been challenged by the husband at all. Further, he has not deposed anything about those assertions in his examination-in- chief, nor produced any documentary evidence to belie the claim of the wife. The husband has been cross-examined elaborately by the wife with regard to issue of financial position of the husband and his involvement in different businesses, including his own. In the cross-examination, he has admitted that Aram Lodging And Boarding situate at Mahabaleshwar is managed by his brother and father; but he has stated that it is a partnership firm. No document to support that position is forthcoming. What is significant to note is that he admits in the cross-examination that his mother and even wife of his brother are partners in the said firm. Further, he does not know whether the said partnership was registered. He has stated that the said business was started by his father in 1945 and now converted into partnership business. In the first place, the partnership deed has not been produced. Moreover, the father, mother, brother or wife of the brother of the husband has not been examined by 44 1603

the husband in support of his claim. Assuming that the business has been now converted into partnership business, the date on which it is converted assumes significance. That is not forthcoming. Further, it is not explained as to why the partnership is of all other family members including the daughter-in-law (wife of the other son), wife, son, but leaving out only the husband. That makes us infer that it has been done to defeat the claim of the wife or other creditors including to avoid paying even legitimate maintenance amount and accommodation for the wife.

46. Suffice it to observe that the evidence of the husband does not inspire confidence that he has no share in the family business. As has been mentioned above, the assertion made by the wife in that behalf has gone unchallenged. Insofar as his own business at Saraswatbaug in the name and style of Aram Fast Food, he admits that he had invested around Rs.16,00,000/- to Rs.17,00,000/- in year 1992, when it was started. He further asserts that he had taken loan from bank to purchase the shed. In the cross-examination, however, it has come on record that he has employed 15 to 18 persons to work in the said hotel. The monthly salary of each worker is between Rs.1,000/- to Rs. 1,500/- approximately. He has further admitted that the capacity of the said hotel is such that it 45 1603

can accommodate about 150 customers at a time. It is fully equipped and a running hotel. He has asserted that the electricity bill for two months of the said hotel is between Rs.10,000/- to Rs. 15,000/-. But then he has deposed that he had taken cash credit facility from Suvarna Sahakari Bank. Notably, the Cash Credit facility is for a substantial amount of as much as over Rs. 1.5 crores, which could not have been given to a small- time hotel. He has also admitted that there is entry in the account book, which shows that Rs.2,25,000/- was paid to Aram Lodging And Boarding (i.e., family business at Mahabaleshwar). This evidence not only discloses the financial capability of the husband, but also his links with the family business at Mahabaleshwar, which, undoubtedly, is generating huge income for the family.

47. Indeed, in his evidence, he has deposed that his business at Saraswatbaug, Pune, has suffered huge losses and the said hotel has been attached. Assuming that the hotel is attached and even sold, the fact remains that the wife has asserted that, in addition, the husband is engaged in business of transport in the name of Aram Transport. The fact that he was engaged in the said business has been admitted in the cross-examination. Further affidavit now filed in the present appeals does mention that even that business has been closed. It is not the case 46 1603

of the husband that, after the sale of his hotel business, he has been declared insolvent or any such proceedings are started against him. It is not his case that he has been disowned by his joint family consisting of his father, mother and brother. Merely saying that he has suffered losses in the businesses cannot absolve him of his liability to maintain his wife and to provide her accommodation. On analysing the evidence of the husband and the manner in which he has cross-examined the wife and her father the inescapable conclusion is that the husband has sufficient means to support his wife by paying maintenance and providing suitable accommodation. We are inclined to take the view that the husband has failed to substantiate that he has no share in the joint family business or properties at all. The husband has failed to produce the partnership deed or the Income Tax Returns or Balance Sheet of the joint family business or to examine any joint family members i.e. his father, mother, brother or sister-in-law.

48. Taking over all view of the matter, therefore, there is no manner of doubt that the husband has sufficient means and has sufficient income. If it so, he is obliged to provide suitable accommodation to his wife, having deserted her without her consent or against her wish. In lieu of accommodation, the wife has asked for an amount of Rs.15,00,000/-. 47 1603

This amount was claimed by the wife as back as in year 2001. With passage of time and the spiraling rise in the real estate, in all probability the wife would not be able to procure even a decent residential accommodation of her own choice with that amount as of now. For that reason, we would be justified in moulding the relief claimed by the wife by awarding suitable interest on the lumpsum amount of Rs.15,00,000/- to compensate the wife, which we intend to do, in view of prayer clause (d) of her original petition. In our opinion, the wife is entitled to receive interest at the rate of at least 12% per annum on amount of Rs. 15,00,000/- with effect from the date of filing of the petition, i.e., 29th May, 2001, till the same is realized.

49. Thus, so far as prayer clause (b) is concerned, in the first place, we give option to the husband to provide suitable accommodation of not less than one BHK in the nearby vicinity where the matrimonial house is situated or in the location of the choice of the wife, if any. That shall be provided by the husband within three months from today. It will be open to the husband to provide such accommodation to the wife on ownership basis in the name of the wife, or, if it is on lease or leave and licence, that should be valid during the lifetime of the wife. In either case, the husband would be liable to pay all the outgoings therefor from time to 48 1603

time. Failure to provide suitable residential accommodation within three months from today, for whatever reason, the husband shall pay a lumpsum amount of Rs.15,00,000/- to the wife in lieu of accommodation, along with interest thereon at the rate of 12% per annum with effect from 29th May, 2001 till the entire amount is fully realised. Relief of interest, as aforesaid, is being granted by invoking prayer clause (d) to pass any other order in the interest of justice in favour of the wife.

50. With regard to relief (c) prayed by the wife to direct the husband to pay lumpsum amount of Rs.10,00,000/- for keeping it in Fixed Deposit, even this will have to be granted for the reasons already recorded while dealing with prayer clause (b). This relief has been prayed in the light of assertion made in paragraph 13 of the petition filed by the wife that by payment of lumpsum amount, she will be relieved from the agony of running after the husband to recover the monthly maintenance amount from time to time. The basis on which lump-sum amount of Rs. 10,00,000/- has been worked out has not been furnished by the wife. However, it is common ground that, in the earlier round of proceedings, against the order of interim maintenance passed by the Family Court, when the matter was brought before this Court by way of Writ Petition No. 5672 of 1999 by the husband, the said petition was rejected, and the 49 1603

interim maintenance amount was fixed at Rs.10,000 per month to be paid by the husband to the wife. The total aggregate amount thereof per annum would work out to Rs.1,20,000/-. There is sufficient evidence on record to justify the claim of the wife that at the relevant time, she was entitled to receive at least Rs.10,000/- per month towards maintenance. To earn equivalent amount by way of interest on the investment of Rs.10,00,000/-, the interest rate must be around 12% per annum.

51. Considering the above, the Family Court ought to have granted monthly maintenance amount to the wife of not less than Rs. 10,000/- per month. Instead, the Family court has awarded a sum of Rs. 7,000/- per month only. The Family Court has not assigned any reason of its own, but has merely followed the opinion in the earlier proceedings in Application P.A. No. 813 of 1998 that, if monthly maintenance is to be granted to the wife, it should be around Rs.7,000/- per month.

52. It appears that the Family Court has opted for monthly maintenance to be paid to the wife because the husband has suffered losses in his business. That view does not commend to us for the reason already recorded hitherto. On the contrary, we hold that the husband is capable of, and ought to have been directed to deposit a sum of 50 1603

Rs.10,00,000/- for keeping in Fixed Deposit, as prayed by the wife. In any case, if monthly maintenance is to be awarded, that amount should not have been anything less than Rs.10,000/- per month, which amount was already determined by way of interim maintenance in the earlier round of proceedings between the parties by this Court and which the husband had paid at least for eleven months during the relevant period. Therefore, even if we were to follow the approach of the Family Court to direct the husband to pay the monthly maintenance amount to the wife, that ought not to be less than Rs.10,000/- per month, to be paid along with interest thereon at the rate of 12% per annum with effect from 29th May, 2001, i.e., the date of filing of the petition.

53. Accordingly, we direct the husband to pay a sum of Rs.10,00,000/- (Rupees Ten Lakhs) along with interest thereon at the rate of 12% per annum from 29th May, 2001 till it is realised, which amount be invested in the name of wife in appropriate Fixed Deposit Scheme in a bank of her choice, towards lumpsum permanent maintenance amount, in lieu of monthly maintenance. This liability of the husband is in addition to the liability to provide suitable residential accommodation or specified amount in lieu of accommodation. The appeal preferred by the wife would succeed on the above terms. 51 1603

54. It appears that the office is treating Civil Application No. 8 of 2004 in Family Court Appeal No. 85 of 2003 as pending. By the said application, the wife had prayed for creating charge for the decree of maintenance passed in favour of the wife in P.C. No. 55 of 2001 by the Family Court in respect of the property known as Aram Fast Food and Snack Bar, situated at Pune 9. By the order dated 8th July, 2004 passed in the said application, in our opinion, the application is worked out. No further relief is claimed in the said application. Hence, this application be treated as already disposed of.

55. The next application pending on the file is Civil Application No. 28 of 2004. This has been filed by the wife for interim relief during the pendency of the suit. The wife has prayed for direction against her husband to pay Rs.10,000/- per month from the date of the original petition, i.e., 29th May, 2001. In view of the disposal of the appeal, nothing survives for consideration in this application, which was ordered to be heard along with the main appeal.

56. The next civil application pending on the file is Civil Application No. 79 of 2007, again filed by the wife, for direction against 52 1603

the husband to strike off his defence. This application is filed on the assertion that the husband has failed to comply with the order passed by the Family Court of paying Rs. 7,000/- per month towards maintenance amount to the wife. Besides this application, there is one more application, filed by the wife, being Civil Application No. 87 of 2007, praying for direction to arrest the husband and commit him to civil prison for non-compliance of the maintenance order. Both these applications will have to be treated as worked out, in view of the order passed in Civil Application No. 87 of 2007 dated 25th April, 2007. That order was taken to the Supreme Court by the husband being Civil Appeal No.6914 of 2007. That appeal was disposed of by the Supreme Court on December 1, 2008 with the following order:-

“Leave granted.

Heard learned counsel for the parties.

By the impugned order, the appellant has been directed to be put up in civil prison for non-payment of amount of maintenance.

Learned counsel appearing on behalf of the appellant submitted that property belonging to him has been auction sold and sale proceeds are lying in deposit in the Family Court and, out of the same, amount of maintenance may be paid to the wife.

In view of this stand taken on behalf of the husband, the impugned order passed by the High Court is set aside and the Family Court will see that the entire outstanding amount of maintenance is paid to the wife out of the sale proceeds.

The civil appeal is, accordingly, disposed of.”

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The above order has been modified by the Supreme Court on July 24, 2009, which reads as under :

“In the order dated 1st December, 2008, in the third paragraph, the words “Family Court” be read as “Shree Suvarna Sahakari Bank Ltd.”. Ordered accordingly.”

In other words, the amount payable by the husband is now recoverable from the sale-proceeds of the hotel business. In that view of the matter, the reliefs claimed in the above stated two applications will not survive for consideration.

57. The last application pending on the file is Civil Application No. 262 of 2008. This has been filed by the third party, Suvarna Sahakari Bank Ltd., praying that the bank be permitted to complete and finalise the auction sale of the hotel premises of the husband and the sum of Rs. 1,51,00,000/- be permitted to be deposited in this Court. In the alternative, if the husband is able to get a better offer than the said amount, he be directed to get a positive conclusive offer with the Demand Draft for the higher offer in the name of the Registrar General of this Court within the specified time.

54 1603

58. We may point out that, when the appeals came up for hearing before the Court on 14th June, 2010, it was pointed out to the Court that the sale-proceeds of the hotel property have been deposited in the Bank over and above other amounts in Court. As no appearance was made by the Bank, therefore, notice was issued to the Bank in the context of pending Application No. 262 of 2008. Pursuant to the said notice, the advocate for the Liquidator appeared and informed the Court on 2nd July, 2010 that the statement recorded in order dated 14th June, 2010 that the Bank has been taken over is incorrect, and asked for time to take instructions from the Liquidator, as the Bank was under liquidation. The matters were thereafter listed on July 7, 2010, when it was pointed out by the advocate for the Bank that the Division Bench of this Court, by order dated 15th January, 2008 on Civil Application No. 16 of 2006 filed by the Bank, has noted that all interim orders that may have been passed by the Court are vacated. That extricated the Bank from its obligation to deposit the amount of sale-proceeds of the auctioned property in Court. The counsel for the husband, however, invited our attention to the subsequent order passed by the Apex Court dated 1st December, 2008 in Civil Appeal No. 6914 of 2008, read with order dated 24th July, 2009, which obliges the Bank to ensure that the entire outstanding amount of maintenance payable to the wife out of the sale-proceeds is released at 55 1603

the earliest. In view of this development, the limited relief claimed in the application filed by the Bank under consideration does not survive. The Bank will have to abide by the directions of the Apex Court contained in orders dated 1st December, 2008 and 24th July, 2009 passed in Civil Appeal No. 6914 of 2008. Grievance was made before us by the Bank that the said orders have been passed by the Supreme Court without notice to the Bank, and, therefore, the Bank has no legal obligation to release any amount payable by the husband to the wife, from and out of the sale-proceeds. In that, the sale proceeds is subject to preferential rights on which the Bank will have precedence. In view of this submission on behalf of the Bank, in the subsequent order dated 2nd August, 2010, this Court noted that it would be open to the Bank to seek appropriate directions from the Apex Court as may be advised. Suffice it to observe that the limited relief claimed in the application filed by the Bank is worked out on the basis of the order of the Apex Court. In any case, this application cannot be the basis to keep the main proceedings between the husband and wife pending. The application filed by the Bank, therefore, is disposed of, without prejudice to the rights and contentions of the Bank, which the Bank is free to pursue before the appropriate forum, if so advised.

56 1603

59. Accordingly, we proceed to pass the following order:- ORDER

(a) Family Court Appeal No. 16 of 2003 filed by

the husband against the judgment and decree passed by the Judge, Family Court, Pune, dated 13th December, 2002 in Petition A-No. 28 of 2000 is

dismissed. As a result, the decision of the Family Court is upheld, and consequently, the petition for divorce filed by the husband stands rejected.

(b) Family Court Appeal No. 85 of 2003 filed by

the wife for enhancement of amount towards

maintenance under Section 18 of HAMA is

allowed. The impugned judgment and decree of the

Judge, Family Court, Pune, dated 13th December,

2002 in Petition C-No.55 of 2001 is modified in the following terms:-

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(i) The husband shall within three months

from today provide “suitable” residential

accommodation to the wife consisting of not

less than one BHK in the nearby vicinity

where the matrimonial house is situated or in

such other locality “as may be agreed upon by

the wife”. Further, the said accommodation

shall be provided on ownership basis in the

name of the wife, and if on lease or leave and

licence basis it must be so provided during the

lifetime of the wife. In either case, all the

outgoings with regard to the accommodation /

premises to be provided to the wife, shall be

borne by the husband during her lifetime.

(ii) Failure to comply with the direction in

clause (i) above within the time as specified,

for whatever reasons, the husband shall pay

within four months from today, lumpsum

amount of Rs.15,00,000/- (Rupees Fifteen

Lakhs) in lieu of accommodation, along with

58 1603

interest thereon at the rate of 12% per annum

with effect from 29th May, 2001 till the entire

amount is fully realized.

(iii) Insofar as prayer clause (c) of the

original Petition, the husband shall pay to the

wife within three months from today a sum of

Rs.10,00,000/- (Rupees Ten Lakhs) along with

interest thereon at the rate of 12% per annum

with effect from 29th May, 2001 till the date of

its realization, which amount shall be invested

by the wife in her name in appropriate Fixed

Deposit Scheme in a bank of her choice,

towards permanent maintenance amount under

Section 18 of HAMA. The wife would be

free to avail of the interest earned on the said

investment during her life time.

(c) Civil Application No. 8 of 2004 in Family Court Appeal No. 85 of 2003 is already disposed of in

59 1603

terms of order dated 8th July, 2004. The same be

consigned to the record.

(d) In view of the dismissal of Family Court Appeal No. 85 of 2003, Civil Application No. 28 of 2004 in Family Court Appeal No. 85 of 2003 is disposed of. (e) Regarding Civil Applications No. 79 and 87 of

2007 in Family Court Appeal No. 85 of 2003,

nothing survives for consideration in these applications in view of order dated 6th September, 2007 passed by this Court in Civil Application No. 16 of 2006 in Family Court Appeal No. 85 of 2003

and orders dated 1st December, 2008 and 24th July, 2009 passed by the Supreme Court of India in Civil Appeal No. 6914 of 2008.

(f) Civil Application No. 262 of 2008 in Civil

Application No. 16 of 2006 in Family Court Appeal

No. 85 of 2003 is disposed of in view of orders

dated 1st December, 2008 and 24th July, 2009 passed 60 1603

by the Supreme Court of India in Civil Appeal No.

6914 of 2008.

(g) The husband shall pay costs of these

proceedings to the wife quantified at Rs.15,000/-

(Rupees Fifteen Thousand) to be paid within four

weeks from today.

60. At this stage, Counsel for the husband prays that the operation of the impugned Judgment be stayed. We see no reason to accede to this request, as, in terms of the Judgment, the husband has been given sufficient time of three months to comply with the directions contained therein. Hence, request for stay of operation is rejected. R.Y. GANOO, J. A.M. KHANWILKAR, J.

Categories: Judgement

HC: After getting Ex Parte Divorce if husband marries again then first wife only can claim Permanent Alimony

L.MOHAPATRA, J & C.R.DASH, J.

W.P.(C) NO.14412 OF 2008 ( Decided on 11.08.2010).

SIDDHARTH DIXIT .. Petitioner.

.Vrs.

SMT. SUJATA DIXIT Opp.Party.

CIVIL PROCEDURE CODE -1908(ACTNO. 5 OF 1908) ORDER-9 RULE-13

For Petitioner – M/s. Yeesan Mohanty, B.C.Mohanty & G.N.Dash.

For Opp.party – M/s. S.K.Padhi, M.Padhi, G.Misra, & A.Das.

M/s. G.P.Dutta, M.Dutta, A.Ghose, S.K.Mohanty

& B.K.Sahoo.

L.MOHAPATRA, J. This writ application is directed against the order dated 2.9.2008 passed by the learned Judge, Family Court, Rourkela in Misc.Case No.5 of 2008 filed under Order 9, Rule 13 of the Code of Civil Procedure( in short ‘C.P.C.’) for setting aside the ex parte decree of divorce.

2. The petitioner and the opposite party got married on 18.2.1991 as per Hindu rites and customs at Kolkata. Both of them were blessed with two children, a son namely, Siddhant in the year 1994 and a daughter namely, Shraddha in the year 1999. There were differences between both of them during this period and subsequently the relationship became such that they had to remain away from each other. The petitioner thereafter filed Civil Proceeding No.227 of 2005 in the court of the learned Judge, Family Court, Rourkela seeking for divorce. Notice was issued to the opposite party but, the same could not be served. Thereafter, steps for service of notice as provided under Order 5, Rule 20 C.P.C. were taken and in spite of paper publication, the opposite party having not appeared in the case, an ex parte

decree of divorce was passed on 9.3.2006. After waiting for the appeal period, the petitioner contracted second marriage with another woman. The opposite party coming to know about the ex parte decree, filed Misc.Case No.5 of 2008 before the learned Judge, Family Court, Rorurkela under Order 9, Rule 13 C.P.C. to set aside the ex parte decree. In the impugned order, the learned Judge, Family Court having set aside the ex parte decree, this writ application has been filed challenging the same.

3. As it appears from the discussion made by the learned Judge, Family Court in paragraphs 3, 4, 5 and 6 of the impugned order, after filing of the Civil Proceeding, notice was issued to the opposite party, who was staying at Kolkata then. Notice could not be served due to want of time and an application was filed by the petitioner for substituted service under Order 5, Rule 20 C.P.C.. The said petition having been allowed, notice was published in the ‘Times of India’. In spite of publication of notice, opposite party having not appeared, an ex parte decree was passed by the court. In the application filed under Order 9, Rule 13 C.P.C., the learned Judge, Family Court came to hold that there was no material before the court to come to a conclusion that the opposite party was avoiding service of notice on her and in absence of such a finding, the application filed by the petitioner under Order 5, Rule 20 could not have been allowed and, therefore, the substituted service made by the petitioner by way of paper publication cannot be held to be a valid service of notice and, accordingly, the ex parte decree of divorce is liable to be set aside.

4. Shri Yeesan Mohanty, learned Senior Counsel appearing for the petitioner assailed the impugned order stating that after the ex parte decree was passed, the petitioner waited for the appeal period to be over and, thereafter married for the second time. Under these circumstances, application under Order 9, Rule 13 C.P.C. could not have been allowed and the only course open to the opposite party was to pray for permanent alimony. In this connection, reliance is placed by the learned Senior Counsel on a decision of the Allahabad High Court in the case of S.P.Srivastva Vrs. Smt. Premlata Srivastava reported in A.I.R. 1980 Allahabad 336. In the said reported case, the husband filed a suit for divorce under Section 13 of the Hindu Marriage Act. The suit was decreed ex parte on 2.6.1973. The wife filed an application under Order 9, Rule 13 C.P.C. on 15.4.1976 for setting aside the ex parte decree on the allegation that she had never been served with summons on divorce petition. The husband had contracted a second marriage with another woman on 14.4.1976. The trial court having allowed the application filed by the wife under Order 9, Rule 13 C.P.C., the matter was brought before the High Court. The High Court on consideration of different orders passed by the trial court came to a finding that there were some irregularities in service of summons but that would not be a ground for setting aside the ex parte decree and allowed the revision.

5. Though the above decision is silent about the submission of Shri Y. Mohanty, learned Senior Counsel for the petitioner that the only option available to the opposite is to claim for permanent alimony, another decision of Rajasthan High Court supports such a submission. In the case of Surrender Kumar Vrs. Kiran Devi reported in AIR 1997 Rajasthan 63, it was held that after an ex parte decree of divorce is passed, if the husband has contracted a second marriage after expiry of appeal period, the petition filed under Order 9, Rule 13 C.P.C. at the instance of the wife is not maintainable and the wife can file an application under Section 25 of the Hindu Marriage Act claiming permanent alimony.

6. Shri Dutta, learned counsel appearing for the opposite party submitted that the first notice issued by the court admittedly was not served on the opposite party. The subsequent publication of notice in the ‘Times of India’ in pursuance of an order passed by the court for substituted service was on a date on which the opposite party was in China and, therefore, had no scope to know about publication of such notice. This submission of the learned counsel, Shri Dutta was seriously opposed by the learned counsel appearing for the petitioner. There is no material before us to show that on the date of publication of notice in the ‘Times of India’, opposite party was in China. This point was also never taken before the trial court and had such a point been taken, the parties would have been directed to adduce evidence in this regard. Therefore, we decline to entertain a disputed question of fact raised for the first time in this writ application.

7. So far as finding of the learned Judge, Family Court in setting aside the ex parte decree is concerned, we are of the view that such a finding is not sustainable. Admittedly, notice could not be served on the opposite party on the first occasion due to want of time. Therefore, an application was filed by the petitioner under Order 5, Rule 20 C.P.C. and permission having been granted by the court, notice was published in a widely distributed English Newspaper. The court being satisfied with regard to compliance of requirement of Order 5 Rule 20 C.P.C., had permitted the petitioner to take steps for substituted service by way of publication in a widely distributed English Newspaper. Therefore, it is not open for the trial court now to say that grant of permission to the petitioner at that stage was not justified. The ex parte order has not been set aside in any other ground by the trial court in the impugned order.

8. For the reasons stated above, we are of the view that the ground on which the trial court has set aside the ex parte decree is not sustainable and, accordingly, the impugned order is set aside. The petitioner may approach the trial court in an application under Section 25 of the Hindu Marriage Act for permanent alimony in view of the changed circumstances and in the event, such an application is filed, the trial court shall permit the parties to adduce evidence and determine the permanent alimony on the basis of such evidence.

The writ application is accordingly disposed of.

Writ petition disposed of

Categories: Judgement

HC: Threats & attempts to commit suicide & lodging false 498A is ground for divorce

Equivalent citations: AIR 1996 P H 98
Bench: S Saksena

Rama Kanta vs Mohinder Laxmidas Bhandula on 7/2/1995

JUDGMENT

1. The appellant wife has assailed the judgment and decree dated 5-10-1991 passed in H. M. Case No. 67 of 1988.

2. Uncontroverted facts of the case are that the appellant was married to the respondent on 6-5-1987 at Akola. The respondent is a resident of Akola, while the appellant was residing at Ludiana along with her family members. In this wedlock she gave birth to a son on 28-2-1988. Since 8-6-1988 they are living separately. The respondent served a notice Exhibit P. 43 on her to which she replied.

3. The factual matrix of the case is that the respondent filed a divorce petition against the appellant on 6-6-1988 at Akola for annulment of marriage on the ground of fraud and in the alternative for a decree for divorce on the ground of cruelty. In a nut shell the petitioner’s case was that before his marriage, the appellant’s brother Harish Kundan Lal Hora came to Akola to settle the marriage. After initial talks the respondent and his family members were invited to come to Ludhiana to approve the appellant. Thereafter in November, 1986 the respondent and his elder brother came to Ludhiana. They approved the appellant. It was agreed that the marriage will be performed at Akola and at that very time Roka ceremony was performed. In February 1987 engagement was done. Finally on 6-5-1987 they were tied together in the marital tie. On the first nuptial night, he found some scar on her abdomen. On being enquired, he was told by the appellant that many years ago she was operated for apendis. When she was in the family way, he took her to Dr. Asha (P W 5) who also finding the same scar on her abdomen enquired about it. The appellant declined to give any answer. Dr. Asha made queries through the respondent from the appellant’s brothers and sisters. Letters were exchanged, telegrams were sent, but they were only infomed that she was operated for faborid tumour.

4. In the matrimonial home the appellant’s behaviour was not cordial, She insisted that he should live seperately with her. Thus he was compelled to take another apartment on rent for their living. Even thereafter she insisted that he should have no relation with his parents brothers and sisters. She always quarrelled and insulted the respondent and his family members. She refused to do any household work. When the respondent insisted to disclose the reason of scar on her abdomen, she threatened him to commit suicide in case he persisted in asking her about that scar. On many occasions, she threatened to commit suicide. Later on the respondent came to know through Ashok Kumar (PW 9) and Shri Mohan Lal Jhanji, Advocate (Court witness No. 1) that earlier the appellant was married to Ashok Kumar Kalra. She gave birth to a son from his loins and at that time she had undergone a caesarean operation. After obtaining divorce from Ashok Kumar she was married to Kurum Jhanji, but he obtained divorce against her. These facts were not disclosed to him before the settlement of marriage or even thereafter. Thus these material facts were concealed deliberately. Had he known these facts he would not have consented for marriage. Thus a fraud was committed to obtain his consent. On these facts on the ground of fraud, he prayed for annulment of marriage and on the ground of cruelty for a decree of divorce.

5. The appellant in her reply denied that before marriage she had undergone a caesarean operation. According to her, all the facts of her past life were disclosed to the respondent before marriage. When he came to Delhi to meet her, she again disclosed all those facts to him. Thus it is denied that incidents of her past life were concealed. It is also denied that her behaviour was cruel towards the respondent and his family members. No doubt they started living in a separate room, but it was not because of her insistence. The respondent was not happy with the dowry given at the time of marriage. He wanted her brother to purchase a house for him. He maltreated her even after her delivery in the hospital, thereby she had to undergo another minor operation. Thus she denied both the counts on which the petition was filed.

6. The petition was filed at Akola. The appellant filed a petition along with her affidavit in the Supreme Court and prayed that since she is residing at Ludhiana, the case be transferred to that place. Her petition was allowed by their Lordships of the Supreme Court. Hence the case came to the trial Court.

7. Parties adduced evidence in Support of their pleadings. Scanning the evidence minutely, the trial Court came to the conclusion that before marriage those facts that the appellant was married twice earlier and was divorced and she gave birth to a son and had undergone a caesarean operation were not disclosed to the respondent before marriage and thus his consent to marriage was obtained by practising a fraud. On this count, the decree for annulment was granted. Trial Court further held that the respondent has proved that the appellant treated him with cruelty and on this count also in the alternative decree for dissolution of marriage was granted.

8. The appellant’s learned Counsel stressed vehemently that before marriage respondent was informed by appellant’s brother as well as by Mukand Kulkarni and by the appellant herself that the appellant was earlier married to Ashok Kumar Kalra. In that wedlock she gave birth to a son and had undergone a caesarean operation. After obtaining divorce from him she was married to Kusum Jhanji who also divorced her. The respondent belongs to a middle class family He, his brothers and sisters are Teachers in educational institution. The respondent agreed to marry the appellant because she belongs to very rich family of Ludhiana. Her brothers own Cinema Houses and other landed properties. It was agreed that her brother will purchase a house for the respondent at Akola which he did purchase for him. The appellant is a beautiful and double Graduate woman. The respondent had no objection in marrying a divorcee as is evident from the advertisement given for his marriage in the Tribune by Mukand Kulkarni (PW 2) who was a mediator for the settlement of this marriage becuase he is an employee of Chand Threatre owned by appellant’s brothers and his brother is respondent’s neighbour at Akola. Even in the advertisement Ex. RW-2/1 it was made clear that he is willing to marry a divorcee. This advertisement was given for publication by Mukand Kulkarni (RW 2) at the behest of the respondent. Hence he argued that the respondent falsely made an accusation that the incidents of appellant’s past life were not disclosed and his consent was obtained under a fraud. Accordi ng to the petitioner-respondent Shri Mohan Lal Jhanji, Advocate, told him that earlier appellant was married to Ashok Kumar Kalra and in that wedlock she gave birth to a son, but Mohan Lal Jhanji has denied this fact.

9. The appellanl’s learned Counsel also contended that the respondent has utterly failed to prove the ground of cruelty. She was subjected to cruely and beating by the respondent. He also made it clear that the affidavit filed in the Supreme Court along-with the transfer petition bears her signatures, but she signed on blank papers without knowing their contents.

10. The respondent’s learned Counsel supported the judgment and pointed out that Mukand Kulkarni being appellant’s brother’s servant for the last 10 years has falsely stated that on the respondent’s request he got advertisement published in the Tribune about his marriage. According to him, it is proved on record that the matrimonial negotiations were going on between the parties from November 1986. In December, 1986 when the respondent and his brother came to Ludhiana and approved the appellant, at that time Roka ceremony was performed. Thereafter in January, 1987 there was no question of giving matrimonial advertisement. Further even Mukand Kulkarni has admitted that the respondent is Khatri by caste. His biodata is at Ex. R-1 wherein his age is shown as 29-21 years because there is over-writing on it and his height is given as 5′-8″ but in the said advertisement the caste of boy is mentioned as Arora, hight 5′-6″ and age 37 years. On this count, it is also evident that the alleged advertisement does not refer to the respondent.

11. The respondent’s learned Counsel further pointed out that if it would have been a fact that before marriage the respondent was informed that earlier appellant was married to Ashok Kumar Kalra, she gave birth to a son in this wedlock by undergoing a caesarean operation, after divorcing him she was married to Kusum Jhanji who also divorced her, then there was no reason for the appellant not to disclose correctly when being asked by him as well as by Dr. Asha about the scar on her abdomen. In those circumstances she would have told him and to the Doctor clearly that it is a scar of caesarean operation, but from the queries made by the Doctor Asha, (letters written byappellant’s sister and brothers, telegram given which all are on record) it is evident that a positive deliberate attempt was made by the appellant as well as by her siblings not to discose that she had undergone a caesarean operation.

12. He further took me to the evidence on record and argued that the respondent has duly proved that the appellant treated him with cruelty. Her behaviour in the matrimonial home was not cordial and respectful. She abused and insulted her husband and his family members. She insisted that he should live away from them. He acceded to her demand and started living in a separate room. She again persisted in her demand that he should break all his ties with his family members. Whenever they used to come to her she insulted them. She declined to do any household work and whenever the respon dent asked her about the said scar on her abdomen, she was so irritated that on 3/4 occasions on this count she tried to commit suicide. He also pointed out that she lodged a false report against the respondent and his family members and in that case the respon dent’s father was arrested. Her this be haviour also amounts to cruelty, thereby she has made his life miserable. According to him, the trial Court has rightly granted decree of divorce on the ground of cruelty.

13. I find that the trial Court has rightly weighed the panies’ evidence on record and has arrived at correct conclusions. The findings of the trial Court do not call for any interference. Even in her affidavit filed in the Supreme Court as well as in the reply to the respondent’s petition (unamended) she never admitled that she had undergone a caesarean operation or she was earlier married to Ashok Kumar Kalra and Kusum Jhanji or these facts were disclosed to the respondent before the settlement of marriage. After getting positive information about her previous marriage with Ashok Kumar Kalra and Kusum Jhanji and the fact of her undergoing a caesarean operation, he amended his petition accordingly and thereafter in reply, she admitted all these facts. From the letters on record it is evident that there was a positive deliberate attempt made by appellant’s brothers and sisters to conceal the fact of her undergoing a caesaren operation. If before marriage the respondent would have been informed about her previous marriages with Ashok Kumar Kalra and Kusum Jhanji and her giving birth to a son from the loins of Ashok Kumar Kalra, there was no necessity of hiding that fact of caesarean operation. The respondent as PW I has clearly stated that when his marriage with the appellant was settled he was not informed of these facts. If he would have known these facts he would not have consented to marry her. He is duly corroborated by his brother Sataya Pal (PW 8), Mukand Kulkarni (RW 2) is servant of appellant’s brother in the Cinema House for the last 10 years. The appellant as RW 1, Mukand Kulkarni (RW 2) and Harish Chander (RW 3) have testified that when the negotiations about the marriage of the parties were going on, the respondent and his brother were told about the post life of the appellant. The respondent agreed to marry a divorcee and hence the marriage was settled. These witnesses have named certain independent persons who were present when the alleged disclosure was made, but the appellant has failed to examine those witnesses. Harish Chander (RW 3) is her brother and Mukand Kulkarni is paid employee of her family. Hence they are bound to corroborate her.

14. Witnesses may tell lies, but circumstances never tell lie. As mentioned above, the appellant and her brothers and sisters made a persistent positive attempt to hide the fact that the appellant had undergone a caesarean operation. So many documents are on record to prove this query and their evasive replies. This circumstance by itself proves that before marriage the respondent was not informed that the appellant was married twice earlier and she gave birth to a son in the first wedlock by undergoing a caesarean operation. The alleged matrimonial advertisement, as is pointed out above, does not relate to the respondent. The appellant has admitted on oath that she was married to Ashok Kumar Kalra, she gave birth to a son by undergoing a caesarean operation. Then they executed an agreement and got mutually divorced. Thereafter she was married to Kusum Jhanji who also obtained a decree of divorce against her. Thus I find that the trial Court has rightly held that these facts were not disclosed to the respondent before marriage and thus a fraud was practised on him. On this count, under Section 12 of the Hindu Marriage Act, 1955 the marriage of the parties was rightly annulled.

15. So far as the ground of cruelty is concerned, from the statements of the respondent, his father Laxmi Dass (PW 6) and his brother Satya Pal (P W 8) it is evident that after marriage the appellant’s behaviour in the matrimonial home was not cordial. She never cared to do household chores. She was disrespectful towards her in-laws. On her insistence, the respondent took a separate residence. She again insisted that he should sever all ties from his family members. The respondent has also proved that when she was asked to disclose the cause of scar on her abdomen, she became so much annoyed that she threatened to commit suicide. Such attempts were made by her on 2/3 occasions. On this point, he is duly corroborated by Siri Krishan (PW 2), Krishan (PW 3) and Babu Rao (PW 4). It is also proved on record that earlier she lodged a complaint against her former husband Ashok Kumar Kalra under Sections 307, 498A, IPC and again she lodged a false report against the respondent and his family members. The respondent’s father Laxmi Dass (PW 6) was arrested and other persons obtained anticipatory bail orders from the Court. After full trial, all these persons were acquitted.

16. Cruelty implies and means harsh conduct of such intensity and persistence which would make it impossible for the spouse to operate the marriage. Cruelty is not defined in the Act. Jt is to be determined on the basis of proved facts and circumstances of the case. No fixed formula can be had for cruelty. It is to be determined keeping in view the culture, temperament and status in life of the parties and many other factors. In a case of similar facts in Gurdip Kaur v. Balbir Singh, 1990 (2) HLR 109 it is held that the wife is guilty of cruelty and on this count, decree of divorce was granted.

17. In the case in hand, herabove conduct in the matrimonial home, her threats and attempts to commit suicide, her act of lodging false complaint against her husband and his relations under Section 498A/ 34, IPC (which ended in acquittal) are incidents of cruel behaviour towards the respondent. Her this conduct made it impossible for the respondent to live peacefully with her in the conjugal home. Thus according to me, the trial Court has not fallen into error in holding her guilty of the offence of cruelty and on this ground granting a decree of divorce in favour of the respondent in the alternative. No other point is pressed before me.

18. Consequently finding no reason to interfere with the trial Court’s findings, the appeal is hereby dismissed with costs.

19. Appeal dismissed.

Categories: Judgement

HC: Exclusive property – when can be divided u/s 27 of the Hindu Marriage Act

HIGH COURT OF JUDICATURE AT ALLAHABAD

Reserved
First Appeal No. 582 of 1998
Hemant Kumar Agrahari … Appellant
Vs
Laxmi Devi … Respondent

Hon’ble Yatindra Singh, J
Hon’ble Mukteshwar Prasad, J.

(Delivered by Hon’ble Yatindra Singh J.)
1. This case involves diverse emotions–from happiness to disappointment and then determination to start new life. It also involves the interpretation and scope of section 27 of Hindu Marriage Act (the Act) as well as jurisdiction of the matrimonial courts to dispose of exclusive property of the spouses.

FACTS
2. Smt. Laxmi Devi (the wife) was married with Sri Hemant Kumar (the husband) on 30th April 1996. The marriage was not successful. It did not last long; it was not even consummated. According to wife her husband was already having physical relationship with one Sushri Sunita Pathak and continued to have it even after the marriage. Few meetings were held for settlement of dispute between the parties but were unsuccessful. The wife filed a petition for divorce under section 13 of the Act on the ground of adultery and cruelty. She also prayed for relief for return of the goods/amount given at the time of marriage and apart from her husband, impleaded her father-in-law and Sunita Pathak in the suit. The defendants denied the case of the wife. The court below framed necessary issues. The wife examined herself (PW-1) and produced two witnesses namely her brother Sri Ram (PW-2) and one Shri Mool Chand Gupta (PW-3). The defendants examined Hemant Kumar (DW-1), one Juggi Lal (DW-2) real Mausa of the husband and one Shri Shiv Prakash Kushwaha (DW-3) cousin of the husband. The court below recorded the following findings;
The husband was having relationship of husband and wife with Sunita Pathak since before the marriage and has continued the same even after it.
The marriage was not consummated.
The husband is guilty of cruelty
The wife has justifiable reasons to live separately from the husband.
The goods mentioned in item nos. 4 and 5 of the plaint and Rs. 75,000/- cash were given at the time of marriage.
On the basis of aforesaid finding, the court below decreed the suit for divorce and for return of Rs. 75,000/- in cash and goods mentioned at item numbers 4 and 5 of the plaint.

3. The husband and his father have filed this appeal against that part of decree by which the court below has ordered return of cash and goods mentioned at item nos. 4 and 5 of the plaint. The wife has filed cross-objection against that part of decree by which the court has refused to grant decree for the return of the cash and goods mentioned at item nos. 1 to 3 and 6 of the plaint. Neither the finding of the court below that the husband continued to have husband-wife relationship with Sunita Pathak has been challenged in this appeal, nor any one has challenged the decree of divorce granted by the court below.

POINTS FOR DETERMINATION
4. We have heard Sri Salil Kumar Rai counsel for the appellants and Sri RN Bhalla, counsel for Laxmi Devi (Plaintiff-respondent). Following points arises for determination in this case:
(i) Whether the wife is entitled to return of cash and goods? Whether the return of cash and the goods (mentioned at item nos. 4 and 5 of the plaint) has been decreed on the basis of inadmissible evidence?
(ii) Whether the goods ordered to be returned are not specific and no decree ought to have been passed?
(iii) Whether the cash/goods were exclusive property of the wife? Whether the court below had jurisdiction to decree return of the cash/goods?

POINT NO. 1: THE FINDING REGARDING CASH/GOODS IS CORRECT
5 Th Sri Salil Kumar Rai counsel for the appellants and Sri RN Bhalla, counsel for Laxmi Devi (Plaintiff-respondent). Following points arises for determination in this case:
(i) Whether the wife is entitled to return of cash and goods? Whether the return of cash and the goods (mentioned at item nos. 4 and 5 of the plaint) has been decreed on the basis of inadmissible evidence?
(ii) Whether the goods ordered to be returned are not specific and no decree ought to have been passed?
(iii) Whether the cash/goods were exclusive property of the wife? Whether the court below had jurisdiction to decree return of the cash/goods?

POINT NO. 1: THE FINDING REGARDING CASH/GOODS IS CORRECT
5 The counsel for the appellants submitted that the court below has decreed the return of cash and goods on the basis of photostat copy of minutes of panchayat dated 15.7.1997: it is secondary evidence and can not be relied upon.

6. The wife had produced photosat copy of minutes of panchayat. It is alleged to be signed by father of the husband, brother of the wife and is attested by the witnesses. Moolchand Gupta PW-3 is one of the witnesses of this document. He has stated that the origina1 was given to the father of the husband. He has also deposed as to what was agreed in the panchayat. Neither the husband, nor any of his witnesses have stated anything about this panchayat. They have also not stated whether father of the husband signed this document or not. Nevertheless the document produced was a photostat copy of the original and secondary evidence. It was not admissible under section 65 of the Evidence Act unless notice to produce as contemplated under the Evidence Act was given to the other side. There is no evidence that any such notice was given. It seems an inadvertent mistake on part of the counsel of the wife. However the photostat copy is inadmissible. But the decree may not be set aside if this finding is supported by other evidence on record.

7. The court can take judicial notice of the fact that in our society parents present gifts to their daughters and son-in-laws. Unfortunately some time it is forced, but often it is voluntary for the bright future of the newly weds. There is presumption that gifts must have been given from girl’s side during marriage. In this case the wife produced herself and made a statement about the goods gifted to her during marriage. She has also stated that cash of Rs. 75,000 was given at ”tilak’. The witnesses produced on behalf the defendant-appellants accepted having received many items, though the gift of Rs. 75000/- was disputed. According to them only Rs. 5000/- in cash was given. The trial court had the opportunity to watch the demeanor of the witness and found the statement of the wife trustworthy on this aspect. We see no reasons to doubt it. The court below has rightly held that the goods mentioned in item nos. 4 and 5 of the plaint and cash Rs. 75000/- were given and this finding is upheld.

8. The court below has mentioned that no specific thing is mentioned in item nos. 1 to 3 and item no. 6 and has not ordered for the return of the same. We agree with the findings recorded by the trial court in this respect also. There is no justification to decree the suit for the item other than those decreed by the court below.

POINT NO. 2: MONEY DECREE SHOULD BE PASSED
9. The counsel for the appellants submitted that in item nos. 4 and 5 of the plaint no details of the specific goods have been mentioned and decree can not be executed.

10. It is correct that specific details of the goods i.e. model, year of manufacturing, size, brand and other specification have not been given in the petition. The wife also did not disclose them in her evidence. The husband disclosed that the TV, which was given to him in the marriage, was black & white. On the other hand, the wife stated that colour TV was given. Dispute may arise at the time of execution of decree and a number of objections may be raised in the execution proceedings regarding condition of the goods and brand etc. This may cause further delaythe cash given at the time of marriage, we assess the value of the goods mentioned in the item nos. 4 and 5 at Rs. 1 lac. The appellants are liable to return Rs. 1 lac (value of goods in item nos. 4 and 5) and Rs. 75,000/- given in cash (total one lac and seventy five thousand) to the wife. As the appellants are using the goods/cash since marriage between the parties; they are liable to pay simple interest at the rate of 6 per cent on this amount from the date of judgment of the court below till the date of actual payment.

12. We would like to clarify that no arguments were advanced before us regarding maintenance to the wife and we have not considered it. It would be open to her to claim the same if permissible under the Act.

POINT NO. 3: COURT BELOW HAD JURISDICTION
13. Counsel for the appellants brought to our notice section 27 of the Act (see below)2 and submitted that two conditions are necessary under this section:
(i) The property must have been gifted at or about the time of marriage.
(ii) It must jointly belong to the husband and wife.
According to him, most of the property is exclusive property of the wife and no decree can be passed for their return.

14. Section 27 of the Hindu Marriage Act is similar to section 42 of the Parsi Marriage and Divorce Act. Both of them provide that the matrimonial courts have power to deal with the property presented at or about the time of marriage. There is some conflict among the High Courts about the true interpretation and area of operation of these sections. The High Courts disagree whether the courts are entitled to deal with exclusive property of the parties or not. The Delhi High Court, Orissa High Court, Jammu and Kashmir High Court, and Punjab and Haryana High Court (see below for citation of these cases)3 have held that exclusive property of the parties can not be dealt by the matrimonial courts under section 27 of the Act and they should seek remedy before regular civil courts.

15. The Allahabad, High Court, Bombay High Court, and MP High Court (see below for citation of these cases)4 have taken a contrary view and have held that exclusive property of the parties can also be dealt by the matrimonial courts. The Allahabad and MP High Court were concerned with the ornaments (stridhana) given to the wife at the time of marriage. The Bombay High Court was concerned with the ornaments given at the time of marriage and some other property that the wife had purchased from her own earnings during marriage i.e. property not presented at or about the time of marriage and exclusively belonging to the wife. This view has been taken on the basis that section 27 of the Act does not prohibit the disposal of the exclusive property belonging to one of the parties and matrimonial courts can deal with it under inherent powers of the courts.

16. The decision from the Bombay High Court was taken in appeal to the Supreme Court. It was partly overruled in Balkrishna R Kadam vs. Sangeeta B Kadam (AIR 1997 SC 3652=1997 (7) SCC 500) (the Balkrishna case). The Supreme Court held:
‘It [Section 27 of the Act] includes the property given to the parties before or after marriage also, so long as it is relatable to the marriage. The expression “at or about the time of marriage” has to be properly construed to include such property which is given at the time of marriage as also the property given before or after marriage to the parties to become their “joint property”, implying thereby that the property can be traced to have connection with the marriage. All such property is covered by Section 27 of the Act.’

17. In substance the Supreme Court in the Balkrishna case held that property covered under section 27 must be traced to marriage and should be connected with it. In this case cash and goods were presented at the time of ’tilak’ or marriage. The ceremony of ’tilak’ is normally held at boy’s place: sometimes immediately before marriage and sometimes many days before it; however it is part of marriage. The gifts given at ’tilak’ are also property given at or about the time of marriage, they are connected with it. Cash or goods in dispute are property within meaning of section 27 of the Act as explained in the Balkirshna case.

18. The counsel for the husband submitted that it was not enough that property should have connection with marriage but should jointly belong to the parties. According to him though some of them (sofa, almirah or TV etc.) could be joint property of the parties, but others (jewelery etc.) though presented at the time of marriage were exclusive property of the wife and no decree could be passed in respect of them. With due respect, the Supreme Court did not lay down any such proposition in the Balkrishna case.

19. Matrimonial cases are tried by the District Court and if Family Court has been established then by the Family Court. They are decided by the senior Judges at the district level and civil procedure code is applicable. The entire proceeding is like a regular suit; though court is required to conciliate between the parties. The Judges manning matrimonial courts are senior enough to decide about exclusive property on the regular side. Same procedure is applicable in the matrimonial cases. It is correct that section 13 of the Family Courts Act declares that a party shall not have right to legal representation, but court can always permit legal representation . In case complicated questions are involved, permission for legal representation in the family court is normally granted; more so in a case where complicated questions regarding disposal of property are involved. In case the matter is before matrimonial court, then it is proper that all disputes relating to the parties should be settled by one court at the same time: leaving a part of the dispute to be decided in future in another suit would prolong acrimony and agony. Life should be spent in a fruitful way, rather than wasting it in constant bickering. There seems to be no reason as to why joint property presented at the time of marriage can be disposed of, but exclusive property presented at the time of marriage should be disposed of separately. This will not only result in multiplicity of the proceedings, but will also cause delay in final settlement and start of new life by the parties.

20. Lord Denning in Allen vs. Alfred Mc Alpine; 1968(1) AllER 543 said:
”Law’s delays have been intolerable. They have lasted so long as to turn the justice sour.’
It is truer in our country. We must adopt such interpretation as to avoid delay and multiplicity of proceedings.

21. Section 27 uses the phrase ‘property presented at the time of marriage, which may belong jointly to both the husband and the wife’ This section has one prerequisite as laid down in the Balkrishna case: the property must be connected with the marriage. So far as the question of property being jointly owned by the parties is concerned, suffice to say that the section nowhere uses mandatory word ‘must’ as being suggested by the counsel of the husband; it uses the word ‘may’. The phrase ‘which may belong jointly’–because of the use of the word may–includes within it penumbra the property which may not belong jointly to the parties. In our opinion, section 27 of the Act does not confine or restrict the jurisdiction of matrimonial courts to deal only with the joint property of the parties, which is presented at or about the time of marriage but also permits disposal of exclusive property of the parties provided they were presented at or about the time of marriage.

AN OBSERVATION
22. Generally wife is a house maker and stays at home and the husband is the earning member. He earns and acquires property in his own name: it is treated as his separate property. There is no decision in our country that separate properties of the spouses may be pooled and divided among them: at least we are not aware. However, in some parts of the world exclusive property of the parties is treated as community property or family asset and is divided between the two at the time of divorce.5 The reason is that house makers also work but they cannot acquire property as they are not paid in terms of money. It is for this reason that such laws were enacted and upheld in other parts of the world. Should we enact such a provision? Should section 27 be amended to include joint and exclusive property of the parties that are not presented at or about the time of marriage? Should the matrimonial courts have power to deal with entire dispute? Will the courts adopt procedure and interpret the law as done in some other parts of the world under their inherent powers even in absence of such provision? We have to wait for the future to disclose.

CONCLUSION
23. Our conclusions are as follows:
(a) Under section 27 of the Hindu marriage Act, Matrimonial courts have jurisdiction to dispose exclusive property of the spouses provided it was presented at or about the time of marriage.
(b) Photostat copy of the minutes of the panchayat was secondary evidence and was not admissible in absence of notice under section 66 of the Evidence Act. However, the finding regarding cash and goods mentioned in item no. 4 and 5 of the plaint is not vitiated as it can be sustained on other evidence.
(c) The court below, instead of return of the goods, ought to have decreed the suit for return of their value in terms of money.

24. In view of our conclusions, the appeal filed by the husband and the cross objection filed by the wife are dismissed. However, the decree passed by the Court below is modified to the extent that the marriage between the parties (Smt. Laxmi Devi and Sri Hemant Kumar) stands dissolved by a decree of divorce. The wife (plaintiff -respondent) shall be entitled to recover a sum of Rs. 1.75 lacs from the appellants (value of the goods mentioned at item nos. 4 & 5 of the plaint and Rs. 75,000/- given in cash) alongwith simple interest at the rate of 6 per cent per annum from 6.10.1998 (date of judgment passed by the court below) till the actual date of payment. Costs on the parties.
Date:14.5.2003
BBL

Categories: Judgement

HC:Wife gang raped – husband not entitled to divorce

HIGH COURT OF JUDICATURE AT ALLAHABAD

2005 AllLJ 102
AFR
IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
First Appeal No. 1084 Of 2003

Sri A …………………………….. Appellant
Versus

Smt. A …………………………………….. Respondent

Sri TP Singh … Advocates for the appellant
Sri Siddharth Singh

Sri Sher Singh
…. Advocate for the Respondent

Coram
Hon’ble Yatindra Singh, J
Hon’ble VS Bajpai, J
Date of Judgement: 5.8.2004
Judgement

HON’BLE YATINDRA SINGH, J
HON’BLE V.S.BAJPAI, J

(Delivered by Hon’ble Yatindra Singh, J)
1. This is an unfortunate case and we are deciding it with heavy heart.
THE FACTS
2. The appellant is the husband of the contesting respondent. The appellant and his two brothers are in Defence Services. However they are not in the officer category. His father was in defence services and has now retired. They have rural background. The appellant has a married sister who resides in the city of the same district. The father of the contesting respondent resides in the adjoining district. The contesting respondent also has rural background and has studied upto High School. Their residences are within the distance of 20 Kms from each other.

3. The parties were married on 11th May 1999 and lived together for some days after their marriage. The appellant joined his duties but could not take the contesting respondent alongwith him. The parties again lived together for some time in the month of October-November, 1999 when the appellant had come to his home district. The time when they were not together, the contesting respondent has been residing at her father’s residence and was visiting her in-laws off and on. The appellant was to come to take the contesting respondent with him but an unfortunate incident took place during 11-13 April 2000. Immediately thereafter the present suit for divorce has been filed by the appellant.

4. The plaint allegations are that:
The contesting respondent has illicit relationship with respondent no. 2.
She had been missing from 11 to 13 April, 2000 for which an FIR was lodged by the father of the contesting respondent on 12.4.2000. She was found in unconscious state on 13.4.2000 near a railway track.
She had left her father’s residence on 11.4.2000 with respondent no. 2 for abortion but later on respondent no. 2 duped her and she was gang raped during 11-13 April, 2000.

5. The contesting respondent filed her written statement. She did not deny that she was missing from 11-13 April, 2000 however she alleged that:
She does not know anyone by the name of respondent no. 2. She neither has any illicit relationship with respondent no. 2 nor anyone else.
Her in laws used to ill-treat her and the appellant had promised to take her with him. She was informed that the Appellant was coming and she was to meet him at the residence of the appellant’s sister.
She had gone to meet the appellant on 11.4.2000 at the residence of the appellant’s sister where the appellant’s father and husband of the appellant’s sister’s were present. They gave her tea mixed with some intoxicant. She became unconscious after taking it. Thereafter she was left near the railway track.
She does not know what had happened with her during 11-13 April, 2000 as she was unconscious.

6. The Trial court held that:
(i)The contesting respondent has no illicit relationship with respondent no 2 or anyone.
(ii)There is no cruelty on part of the appellant or his family members.
(iii)Rape is not a ground for divorce.
On these findings, the suit was dismissed hence the present appeal.

POINTS FOR DETERMINATION
7. We have heard counsels for the parties. Following points arises for determination.
(i) Whether the contesting respondent has illicit relationship with Respondent no. 2.
(ii)Whether the contesting respondent has treated the appellant with cruelty.

POINT NO. 1: NO ILLICIT RELATIONSHIP
8. The appellant, in order to prove his case, has produced himself as PW1 and his father as PW2. The appellant in his cross examination does not doubt about the conduct of his wife; on the other hand he has stated that her conduct was good. He further states that he neither knows respondent no. 2 nor can he recognise him. The father of the appellant has stated in his cross-examination that the contesting respondent has always paid respect to him and the other family members. He has further stated that her character is good and he has never seen the contesting respondent doing anything improper or wrong.

9. The appellant has filed some original documents as well as photostat copies of some letters. The original documents are neither proved nor exhibited. The counsel for the appellant did not refer to the original documents but has referred to the photostat copies of the letters alleged to be written by the contesting respondent. She was not confronted with these copies. They are neither proved nor exhibited. These letters appear to be written in different hand writing and perhaps created for the purposes of this case. No reliance can be placed upon them.

10. The counsel for the appellant also placed reliance on the FIR lodged by the father of the contesting respondent on 12.4.2000. It merely shows that the appellant was missing since 8 pm from 11.4.2000. The fact that the contesting respondent was missing is not disputed. The FIR does not throw any light as to why she was missing or what has happened to her. It is not relevant in deciding the question whether the contesting respondent has any relationship with respondent no. 2 or not.

11. The contesting respondent in order to support her case has produced herself and her father. She has stated in her statement that she neither knows Respondent no. 2, nor has any illicit relation with him or anyone else. There is nothing to show that her statement in this regard is false. There is nothing on record to show that there is anyone by the name of respondent no. 2. There is also nothing on record to show that the contesting respondent has illicit relationship with respondent no. 2 or anyone else. The trial court had occasion to see the demeanour of the witnesses. It has recorded a finding that the contesting respondent has no illicit relationship with respondent no. 2 or any one else and we affirm it.
POINT NO. 2: NO CURETLY
12. No issue on the ground of cruelty was framed by the trial court. The judgement was reserved by the trial court on 6.9.2003 and 9.9.2003 was fixed for the judgement. An application was filed by the appellant on 8.9.2003 that the case may be decided considering the cruelty on the part of the contesting respondent. This was objected by the contesting respondent. The court below while recording a finding on issue no. 2 has expressed its opinion on cruelty also. In these circumstances we also consider it appropriate to express our opinion on the question of cruelty. But first–a few words regarding incident during 11-13 April 2000.

Incident–11-13 April 2000
13. The case alleged by the appellant is that the contesting respondent has run away with respondent no. 2 on 11.4.2000 to have abortion and was later duped and gang raped.

14. The fact that the contesting respondent was missing during 11-13 April, 2000 is not disputed. The dispute is about the reasons for going out on 11.4.2000 and what has happened to the contesting respondent during this period.

15. There is no evidence that the contesting respondent had gone out with respondent no. 2. Apart from it, the contesting respondent was married and had spent some time with her husband. More than nine months had already elapsed since they had lived as husband and wife. The incident is of 10th month. There was no necessity for getting abortion. In case the contesting respondent wanted an abortion then she would have informed her husband and gone with her family members. Apart from it, the contesting respondent would have gone for abortion in the morning so that she may come back by the evening but she would not have gone late in the evening. The case set up by the appellant is not only without evidence but improbable.

16. The contesting respondent in her statement has explained it as follows:
‘The appellant was coming to take her. She was asked to meet him at the residence of the appellant’s sister since the conduct and behaviour of her in-laws was not good. She had gone to the residence of the appellant’s sister where husband of the appellant’s sister and father of the appellant were present. They gave her tea mixed with some intoxicant and she became unconscious after taking it. She has no knowledge as to what has happened to her thereafter.’

17. The Trial court has held that there was neither any demand of dowry nor her in-laws ill-treated her. We have no reason to come to any other conclusion. So part of the case set up by the contesting respondent is wrong. The counsel for the appellant submitted that in case the contesting respondent was not ill treated by the appellant or his family members then there was no occasion for her to go to the residence of the appellant’s sister and the entire case set up by the contesting respondent is false.

18. Merely because a part of the case set up by the contesting respondent is not believed does not mean that the entire case set up by the contesting respondent is false. According to the contesting respondent, she had gone to house of her sister-in-law. It is strange that the appellant’s sister or her husband have not been examined to prove whether the contesting respondent went to their house or not. If the version of the contesting respondent was not true then why did they not support the appellant? They are the appellant’s sister and her husband; closer to the appellant than to the contesting respondent.

19. According to the contesting respondent, her father in-law was also at her sister in-law’s house. The father in law has not stated that whether he went there or not and whether he met the contesting respondent there or not. The appellant’s sister stays in the city. It has come in evidence that he sometimes used to stay at her sister’s house. It is possible that the contesting respondent was given information that the appellant was to meet her there and she went there. It is also possible that while she was going there on 11.4.2000 she met some acquaintance on the way, or she met some acquaintance in the evening of 11.4.2000 who played the dirty trick. Any version may be true: there is more to the case than that what has come before the court. We will never know; both sides seem to be hiding something and the truth seems to be in between.

20. Irrespective of the versions put forward by the parties, one thing is certain: an unfortunate incident has happened with the contesting respondent during 11- to 13 April 2000. In case plaint allegations are to be believed then the contesting respondent was gang raped. There is no evidence for the same but it seems probable and the persons responsible seem to be a known acquaintance and not a stranger. The contesting respondent may not be disclosing the entire picture; it is natural: any girl would be hesitant to talk about it. It is not necessary to probe further in this regard because adultery is a ground for divorce, rape isn’t. There is fundamental difference between the two: one is with consent and the other is without consent. There is no evidence that the contesting respondent was a consenting party or she has committed adultery.

21. The counsel for the appellant placed reliance on the observations of the conciliation committee where it records that the contesting respondent is inconsistent and is not telling the truth. He submitted that her entire story be disbelieved. In order to understand it, we should also understand psychology behind rape and reaction of a rape victim.

22. It is often said that rape is primarily a sexual act and due to this belief the victim is put on trial. Her motives, her dress, and her actions become suspect not only to the police but also to her family and friends. Her credibility is questioned and her sexual activity and private life is made public. Some studies in the western world indicate that rape is a crime of violence, often regarded by the woman as a life-threatening act in which fear, embarrassment and humiliation are her dominant emotions. No wonder the victim is unwilling to talk about it, or is hesitant, or is inconsistent in recalling it. The conciliation committee has not considered this aspect; and if its observations are seen in this light then the entire story of the contesting respondent can not be disbelieved.
Regarding Cruelty
23. The counsel for the appellant submitted that:
The contesting respondent has falsely alleged that his family members had demanded dowry and harassed the contesting respondent.
This is cruelty and
He is entitled to get divorce on this ground.

24. It is true that the contesting respondent has alleged harassment on the part of her in-laws and we have upheld the finding of the trial court negating it. The trial court has negated it on the ground that the contesting respondent had not mentioned it prior to filing of the suit. This can never be cruelty. The allegations in the case should be considered in the background of the case.

25. A sad incident had taken place with the contesting respondent. After this incident, she stayed in her in laws residence for 2-3 months. Her husband was also there for the short time. Thereafter she was sent to her father’s place. One should consider her plight; she went through a trauma; then rejections by her in-laws; thereafter this divorce suit by her husband. If her allegations are seen in these circumstances, then they do not amount to cruelty on her part; perhaps it is the appellant who is being unfair.
26. The counsel for the appellant suggested that:
It is not possible for the appellant move in the society with a person who has been gang raped.
It is a kind of cruelty on him and
He is entitled to get divorce on this ground.
We have no words to describe this submission. The least we can say: we are appalled. It is beyond our comprehension that anyone can even make such suggestion. It shows lack of understanding regarding rape, trauma, and emotional needs of a rape victim.

27. Rape leaves physical as well as emotional scars on the victim. Her physical wounds may be healed but the emotional scars, though less visible, are more difficult to treat. A rape victim goes through a life threatening situation and will need time and support to recover. She feels varying degrees of fear, guilt, embarrassment, and anger. It is important for all those close to her to understand her feelings and support her through the crisis. She is likely to be fearful about the routine activities of her daily life. She may approach strangers and even friends and acquaintances with a new caution. She may feel guilt, wondering why she was the victim. She may question whether she really did ‘ask for it’ or led someone to the wrong impression. She may also be embarrassed about what other people think of her. In such a situation, she needs moral support.

28. What was fault of the contesting respondent in this episode; perhaps she trusted people more than they deserved. Merely for this misjudgement, should she be given this kind of treatment? We don’t think so.

29. A rape victim doesn’t require our condemnation; it is the person who commits rape deserves it. The rape victim doesn’t require divorce suit slapped on her; she doesn’t require court room: she requires counselling, understanding, compassion, and moral support. She is not to be deserted. The appellant’s family has shown some compassion. The father of the appellant has stated good things about the contesting respondent but it is not sufficient; they have to lend moral support and accept her.
CONCLUSION
30. Our conclusions are as follows:
(i)The contesting respondent has no illicit relationship with Respondent no. 2 or anyone else.
(ii)Rape is not a ground for divorce.
(iii)The husband can not claim cruelty because he has to live with a rape victim.
(iv)There is no cruelty on the part of the contesting respondent.
On our findings, the appeal is dismissed with costs.

31. All well that ends well and we hope it will end well. We wish that the appellant and his family members will accept the contesting respondent. We are sure they will have happy, normal life.

Date: 5.8.2004
SKS

End Note-1: Considering the facts of the case we have not disclosed identities of the parties.

Categories: Judgement, Judgement

SC: Divorce rejected even tough staying eprately from 11 years

Bench: D Jain, H Dattu

IN THE SUPREME COURT OF INDIA

CIVIL APPEALATE JURISDICTION

CIVIL APPEAL NO. 6288 OF 2008

Hitesh Bhatnagar ………….. Appellant versus

Deepa Bhatnagar …………..Respondent J U D G M E N T

H.L. Dattu, J.

1) Marriages are made in heaven, or so it is said. But we are more often than not made to wonder what happens to them by the time they descend down to earth. Though there is legal machinery in place to deal with such cases, these are perhaps the toughest for the courts to deal with. Such is the case presently before us. 2) The appellant-husband and the respondent-wife got married according to the Hindu Marriage Act, 1955 [hereinafter referred to as `the Act'] in 1994, and are blessed with a daughter a year thereafter. Some time in the year 2000, due to differences in their temperaments, they began 1

to live separately from each other and have been living thus ever since. Subsequently, in 2001, the parties filed a petition under Section 13B of the Act before the District Court, Gurgaon, for dissolution of the marriage by grant of a decree of divorce by mutual consent. However, before the stage of second motion and passing of the decree of divorce, the respondent withdrew her consent, and in view of this, the petition came to be dismissed by the Ld. Addl. District Judge, Gurgaon, though the appellant insisted for passing of the decree. The appellant, being aggrieved, has filed appeal No. F.A.O. No. 193 of 2003, before the High Court of Punjab and Haryana. The Learned Judge, by his well considered order, dismissed the appeal vide order dt. 08.11.2006. Being aggrieved by the same, the appellant is before us in this appeal.

3) We have heard the learned counsel for the parties and since the parties wanted to ventilate their grievances, we have heard them also. 4) The issues that arise for our consideration and decision are as under: (a) Whether the consent once given in a petition for divorce by mutual consent can be subsequently withdrawn by one of the parties after the expiry of 18 months from the date of the filing of the petition in accordance with Section 13B (1) of the Act.

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(b) Whether the Court can grant a decree of divorce by mutual consent when the consent has been withdrawn by one of the parties, and if so, under what circumstances. 5) In order to answer the issues that we have framed for our consideration and decision, Section 13B of the Act requires to be noticed :-

13B. Divorce by mutual consent. – (1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976, (68 of 1976.) on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.

6) Admittedly, the parties had filed a petition for divorce by mutual consent expressing their desire to dissolve their marriage due to temperamental incompatibility on 17.08.2001. However, before the 3

stage of second motion, the respondent withdrew her consent by filing an application dated 22.03.2003. The withdrawal of consent was after a period of eighteen months of filing the petition. The respondent, appearing in-person, submits that she was taken by surprise when she was asked by the appellant for divorce, and had given the initial consent under mental stress and duress. She states that she never wanted divorce and is even now willing to live with the appellant as his wife.

7) The appellant, appearing in-person, submits that at the time of filing of the petition, a settlement was reached between the parties, wherein it was agreed that he would pay her `3.5 lakhs, of which he states he has already paid `1.5 lakhs in three installments. He further states in his appeal, as well as before us, that he is willing to take care of the respondent’s and their daughter’s future interest, by making a substantial financial payment in order to amicably settle the matter. However, despite repeated efforts for a settlement, the respondent is not agreeable to a decree of divorce. She says that she wants to live with the appellant as his wife, especially for the future of their only child, Anamika.

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8) The question whether consent once given can be withdrawn in a proceeding for divorce by mutual consent is no more res integra. This Court, in the case of Smt. Sureshta Devi v. Om Prakash, (1991) 2 SCC 25, has concluded this issue and the view expressed in the said decision as of now holds the field.

9) In the case of Sureshta Devi (supra.), this Court took the view: “9. The `living separately’ for a period of one year should be immediately preceding the presentation of the petition. It is necessary that immediately preceding the presentation of petition, the parties must have been living separately. The expression `living separately’, connotes to our mind not living like husband and wife. It has no reference to the place of living. The parties may live under the same roof by force of circumstances, and yet they may not be living as husband and wife. The parties may be living in different houses and yet they could live as husband and wife. What seems to be necessary is that they have no desire to perform marital obligations and with that mental attitude they have been living separately for a period of one year immediately preceding the presentation of the petition. The second requirement that they `have not been able to live together’ seems to indicate the concept of broken down marriage and it would not be possible to reconcile themselves. The third requirement is that they have mutually agreed that the marriage should be dissolved.

10. Under sub-section (2) the parties are required to make a joint motion not earlier than six months after the date of presentation of the petition and not later than 18 months after the said date. This motion enables the court to proceed with the case in order to satisfy itself about the genuineness of the averments in the petition and also to find out whether the consent was not obtained by force, fraud or undue 5

influence. The court may make such inquiry as it thinks fit including the hearing or examination of the parties for the purpose of satisfying itself whether the averments in the petition are true. If the court is satisfied that the consent of parties was not obtained by force, fraud or undue influence and they have mutually agreed that the marriage should be dissolved, it must pass a decree of divorce.” On the question of whether one of the parties may withdraw the consent at any time before the actual decree of divorce is passed, this Court held:

“13. From the analysis of the section, it will be apparent that the filing of the petition with mutual consent does not authorise the court to make a decree for divorce. There is a period of waiting from 6 to 18 months. This interregnum was obviously intended to give time and opportunity to the parties to reflect on their move and seek advice from relations and friends. In this transitional period one of the parties may have a second thought and change the mind not to proceed with the petition. The spouse may not be a party to the joint motion under sub-section (2). There is nothing in the section which prevents such course. The section does not provide that if there is a change of mind it should not be by one party alone, but by both. The High Courts of Bombay and Delhi have proceeded on the ground that the crucial time for giving mutual consent for divorce is the time of filing the petition and not the time when they subsequently move for divorce decree. This approach appears to be untenable. At the time of the petition by mutual consent, the parties are not unaware that their petition does not by itself snap marital ties. They know that they have to take a further step to snap marital ties. Sub-section (2) of Section 13-B is clear on this point. It provides that “on the motion of both the parties. … if the petition is not withdrawn in the meantime, the court shall … pass a decree of divorce …”. What is significant in this provision is that there should also 6

be mutual consent when they move the court with a request to pass a decree of divorce. Secondly, the court shall be satisfied about the bona fides and the consent of the parties. If there is no mutual consent at the time of the enquiry, the court gets no jurisdiction to make a decree for divorce. If the view is otherwise, the court could make an enquiry and pass a divorce decree even at the instance of one of the parties and against the consent of the other. Such a decree cannot be regarded as decree by mutual consent.”

10) In the case of Ashok Hurra v. Rupa Bipin Zaveri, (1997) 4 SCC 226, this Court in passing reference, observed:

“16. We are of opinion that in the light of the fact-situation present in this case, the conduct of the parties, the admissions made by the parties in the joint petition filed in Court, and the offer made by appellant’s counsel for settlement, which appears to be bona fide, and the conclusion reached by us on an overall view of the matter, it may not be necessary to deal with the rival pleas urged by the parties regarding the scope of Section 13-B of the Act and the correctness or otherwise of the earlier decision of this Court in Sureshta Devi case or the various High Court decisions brought to our notice, in detail. However, with great respect to the learned Judges who rendered the decision in Sureshta Devi case, certain observations therein seem to be very wide and may require reconsideration in an appropriate case. In the said case, the facts were: The appellant (wife) before this Court married the respondent therein on 21-11-1968. They did not stay together from 9-12-1984 onwards. On 9-1-1985, the husband and wife together moved a petition under Section 13-B of the Act for divorce by mutual consent. The Court recorded statements of the parties. On 15-1-1985, the wife filed an application in the Court stating that her statement dated 9-1- 1985 was obtained under pressure and threat. She prayed for withdrawal of her consent for the petition filed under Section 13-B and also prayed for dismissal of the petition. 7

The District Judge dismissed the petition filed under Section 13-B of the Act. In appeal, the High Court observed that the spouse who has given consent to a petition for divorce cannot unilaterally withdraw the consent and such withdrawal, however, would not take away the jurisdiction of the Court to dissolve the marriage by mutual consent, if the consent was otherwise free. It was found that the appellant (wife) gave her consent to the petition without any force, fraud or undue influence and so she was bound by that consent. The issue that came up for consideration before this Court was, whether a party to a petition for divorce by mutual consent under Section 13-B of the Act, can unilaterally withdraw the consent and whether the consent once given is irrevocable. It was undisputed that the consent was withdrawn within a week from the date of filing of the joint petition under Section 13-B. It was within the time-limit prescribed under Section 13-B(2) of the Act. On the above premises, the crucial question was whether the consent given could be unilaterally withdrawn. The question as to whether a party to a joint application filed under Section 13-B of the Act can withdraw the consent beyond the time-limit provided under Section 13-B(2) of the Act did not arise for consideration. It was not in issue at all. Even so, the Court considered the larger question as to whether it is open to one of the parties at any time till a decree of divorce is passed to withdraw the consent given to the petition. In considering the larger issue, conflicting views of the High Courts were adverted to and finally the Court held that the mutual consent should continue till the divorce decree is passed. In the light of the clear import of the language employed in Section 13-B(2) of the Act, it appears that in a joint petition duly filed under Section 13-B(1) of the Act, motion of both parties should be made six months after the date of filing of the petition and not later than 18 months, if the petition is not withdrawn in the meantime. In other words, the period of interregnum of 6 to 18 months was intended to give time and opportunity to the parties to have a second thought and change the mind. If it is not so done within the outer limit of 18 months, the petition duly filed under Section 13-B(1) and still pending shall be adjudicated by the Court as provided in 8

Section 13-B(2) of the Act. It appears to us, the observations of this Court to the effect that mutual consent should continue till the divorce decree is passed, even if the petition is not withdrawn by one of the parties within the period of 18 months, appears to be too wide and does not logically accord with Section 13-B(2) of the Act. However, it is unnecessary to decide this vexed issue in this case, since we have reached the conclusion on the fact-situation herein. The decision in Sureshta Devi case may require reconsideration in an appropriate case. We leave it there.” 11) These observations of this Court in the case of Ashok Hurra (supra) cannot be considered to be ratio decidendi for all purposes, and is limited to the facts of that case. In other words, the ratio laid down by this Court in the case of Sureshta Devi (supra) still holds the field. 12) In the case of Smruti Pahariya v. Sanjay Pahariya, (2009) 13 SCC 338, a bench of three learned judges of this Court, while approving the ratio laid down in the case of Sureshta Devi (supra), has taken the view :-

“40. In the Constitution Bench decision of this Court in Rupa Ashok Hurra this Court did not express any view contrary to the views of this Court in Sureshta Devi. We endorse the views taken by this Court in Sureshta Devi as we find that on a proper construction of the provision in Sections 13-B(1) and 13-B(2), there is no scope of doubting the views taken in Sureshta Devi. In fact the decision which was rendered by the two learned Judges of this Court in Ashok Hurra has to be treated to be one rendered in the facts of that case and it is also clear by the observations of the learned Judges in that case.

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41. None of the counsel for the parties argued for reconsideration of the ratio in Sureshta Devi.

42. We are of the view that it is only on the continued mutual consent of the parties that a decree for divorce under Section 13-B of the said Act can be passed by the court. If petition for divorce is not formally withdrawn and is kept pending then on the date when the court grants the decree, the court has a statutory obligation to hear the parties to ascertain their consent. From the absence of one of the parties for two to three days, the court cannot presume his/her consent as has been done by the learned Family Court Judge in the instant case and especially in its fact situation, discussed above.

43. In our view it is only the mutual consent of the parties which gives the court the jurisdiction to pass a decree for divorce under Section 13-B. So in cases under Section 13-B, mutual consent of the parties is a jurisdictional fact. The court while passing its decree under Section 13-B would be slow and circumspect before it can infer the existence of such jurisdictional fact. The court has to be satisfied about the existence of mutual consent between the parties on some tangible materials which demonstrably disclose such consent.”

13) The appellant contends that the Additional District Judge, Gurgaon, was bound to grant divorce if the consent was not withdrawn within a period of 18 months in view of the language employed in Section 13B(2) of the Act. We find no merit in the submission made by the appellant in the light of the law laid down by this Court in Sureshta Devi’s case (supra).

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14) The language employed in Section 13B(2) of the Act is clear. The Court is bound to pass a decree of divorce declaring the marriage of the parties before it to be dissolved with effect from the date of the decree, if the following conditions are met:

a. A second motion of both the parties is made not before 6 months from the date of filing of the petition as required under sub- section (1) and not later than 18 months;

b. After hearing the parties and making such inquiry as it thinks fit, the Court is satisfied that the averments in the petition are true; and

c. The petition is not withdrawn by either party at any time before passing the decree;

15) In other words, if the second motion is not made within the period of 18 months, then the Court is not bound to pass a decree of divorce by mutual consent. Besides, from the language of the Section, as well as the settled law, it is clear that one of the parties may withdraw their consent at any time before the passing of the decree. The most important requirement for a grant of a divorce by mutual consent is free consent of both the parties. In other words, unless there is a 11

complete agreement between husband and wife for the dissolution of the marriage and unless the Court is completely satisfied, it cannot grant a decree for divorce by mutual consent. Otherwise, in our view, the expression `divorce by mutual consent’ would be otiose. 16) In the present fact scenario, the second motion was never made by both the parties as is a mandatory requirement of the law, and as has been already stated, no Court can pass a decree of divorce in the absence of that. The non-withdrawal of consent before the expiry of the said eighteen months has no bearing. We are of the view that the eighteen month period was specified only to ensure quick disposal of cases of divorce by mutual consent, and not to specify the time period for withdrawal of consent, as canvassed by the appellant. 17) In the light of the settled position of law, we do not find any infirmity with the orders passed by the Ld. Single Judge.

18) As a last resort, the appellant submits that the marriage had irretrievably broken down and prays that the Court should dissolve the marriage by exercising its jurisdiction under Article 142 of the Constitution of India. In support of his request, he invites our attention to the observation made by this Court in the case of Anil 12

Kumar Jain v. Maya Jain, (2009) 10 SCC 415, wherein though the consent was withdrawn by the wife, this Court found the marriage to have been irretrievably broken down and granted a decree of divorce by invoking its power under Article 142. We are not inclined to entertain this submission of the appellant since the facts in that case are not akin to those that are before us. In that case, the wife was agreeable to receive payments and property in terms of settlement from her husband, but was neither agreeable for divorce, nor to live with the husband as his wife. It was under these extraordinary circumstances that this Court was compelled to dissolve the marriage as having irretrievably broken down. Hence, this submission of the appellant fails.

19) In the case of Laxmidas Morarji v. Behrose Darab Madan, (2009) 10 SCC 425, a Bench of three learned Judges (of which one of us was a party), took the view:

“25. Article 142 being in the nature of a residuary power based on equitable principles, the Courts have thought it advisable to leave the powers under the article undefined. The power under Article 142 of the Constitution is a constitutional power and hence, not restricted by statutory enactments. Though the Supreme Court would not pass any order under Article 142 of the Constitution which would amount to supplanting substantive law applicable or 13

ignoring express statutory provisions dealing with the subject, at the same time these constitutional powers cannot in any way, be controlled by any statutory provisions. However, it is to be made clear that this power cannot be used to supplant the law applicable to the case. This means that acting under Article 142, the Supreme Court cannot pass an order or grant relief which is totally inconsistent or goes against the substantive or statutory enactments pertaining to the case. The power is to be used sparingly in cases which cannot be effectively and appropriately tackled by the existing provisions of law or when the existing provisions of law cannot bring about complete justice between the parties.”

20) Following the above observation, this Court in the case of Manish Goel v. Rohini Goel, (2010) 4 SCC 393, while refusing to dissolve the marriage on the ground of irretrievable breakdown of marriage, held: “19. Therefore, the law in this regard can be summarised to the effect that in exercise of the power under Article 142 of the Constitution, this Court generally does not pass an order in contravention of or ignoring the statutory provisions nor is the power exercised merely on sympathy.” 21) In other words, the power under Article 142 of the Constitution is plenipotentiary. However, it is an extraordinary jurisdiction vested by the Constitution with implicit trust and faith and, therefore, extraordinary care and caution has to be observed while exercising this jurisdiction.

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22) This Court in the case of V. Bhagat v. Mrs. D. Bhagat, (1994) 1 SCC 337 held that irretrievable breakdown of a marriage cannot be the sole ground for the dissolution of a marriage, a view that has withstood the test of time.

23) In the case of Savitri Pandey v. Prem Chandra Pandey, (2002) 2 SCC 73, this Court took the view:

“17. The marriage between the parties cannot be dissolved only on the averments made by one of the parties that as the marriage between them has broken down, no useful purpose would be served to keep it alive. The legislature, in its wisdom, despite observation of this Court has not thought it proper to provide for dissolution of the marriage on such averments. There may be cases where, on facts, it is found that as the marriage has become dead on account of contributory acts of commission and omission of the parties, no useful purpose would be served by keeping such marriage alive. The sanctity of marriage cannot be left at the whims of one of the annoying spouses…….”

24) This Court uses its extraordinary power to dissolve a marriage as having irretrievably broken down only when it is impossible to save the marriage and all efforts made in that regard would, to the mind of the Court, be counterproductive [See Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511].

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25) It is settled law that this Court grants a decree of divorce only in those situations in which the Court is convinced beyond any doubt that there is absolutely no chance of the marriage surviving and it is broken beyond repair. Even if the chances are infinitesimal for the marriage to survive, it is not for this Court to use its power under Article 142 to dissolve the marriage as having broken down irretrievably. We may make it clear that we have not finally expressed any opinion on this issue.

26) In the present case, time and again, the respondent has stated that she wants this marriage to continue, especially in order to secure the future of their minor daughter, though her husband wants it to end. She has stated that from the beginning, she never wanted the marriage to be dissolved. Even now, she states that she is willing to live with her husband putting away all the bitterness that has existed between the parties. In light of these facts and circumstances, it would be travesty of justice to dissolve this marriage as having broken down. Though there is bitterness amongst the parties and they have not even lived as husband and wife for the past about 11 years, we hope that they will give this union another chance, if not for themselves, for the future of their daughter. We conclude by quoting the great poet 16

George Eliot “What greater thing is there for two human souls than to feel that they are joined for life – to strengthen each other in all labour, to rest on each other in all sorrow, to minister to each other in all pain, to be one with each other in silent, unspeakable memories at the moment of the last parting.”

27) Before parting with the case, we place on record our appreciation for the efforts made by Shri. Harshvir Pratap Sharma, learned counsel, to bring about an amicable settlement between the parties. 28) In the result, the appeal fails. Accordingly, it is dismissed. No order as to costs.

……………………………J.

[ D. K. JAIN]

……………………………J.

[ H. L. DATTU]

New Delhi,

April 18, 2011.

Categories: Judgement

Divorce reported SC/HC Judgements on the grounds of mental cruelty

In N.G. Dastane v. S. Dastane reported in (1975) 2 SCC 326 at page 337, para 30 observed as under :-

“The enquiry therefore has to be whether the conduct charges as cruelty is of such a character as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or injurious for him to live with the respondent_.”

In the case of Sirajmohmedkhan Janmohamadkhan v. Haizunnisa Yasinkhan & Anr. reported in (1981) 4 SCC 250, this Court stated that the concept of legal cruelty changes according to the changes and advancement of social concept and standards of living. With the advancement of our social conceptions, this feature has obtained legislative recognition, that a second marriage is a sufficient ground for separate residence and maintenance. Moreover, to establish legal cruelty, it is not necessary that physical violence should be used. Continuous ill-treatment, cessation of marital intercourse, studied neglect, indifference on the part of the husband, and an assertion on the part of the husband that the wife is unchaste are all factors which lead to mental or legal cruelty.

In the case of Shobha Rani v. Madhukar Reddi reported in (1988) 1 SCC 105, this Court had an occasion to examine the concept of cruelty. The word ‘cruelty’ has not been defined in the Hindu Marriage Act. It has been used in Section 13(1)(i)(a) of the Act in the context of human conduct or behaviour in relation to or in respect of matrimonial duties or obligations. It is a course of conduct of one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical, it is a question of fact and degree. If it is mental, the enquiry must begin as to the nature of the cruel treatment and then as to the impact of such treatment on the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other, ultimately, is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. There may, however, be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted. The absence of intention should not make any difference in the case, if by ordinary sense in human affairs, the act complained of could otherwise be regarded as cruelty. Intention is not a necessary element in cruelty. The relief to the party cannot be denied on the ground that there has been no deliberate or wilful ill-treatment.

In Rajani v. Subramonian AIR 1990 Ker. 1 the Court aptly observed that the concept of cruelty depends upon the type of life the parties are accustomed to or their economic and social conditions, their culture and human values to which they attach importance, judged by standard of modern civilization in the background of the cultural heritage and traditions of our society.

Again, this Court had an occasion to examine in great detail the concept of mental cruelty. In the case of V. Bhagat v. D. Bhagat (Mrs.) reported in (1994) 1 SCC 337, the Court observed, in para 16 at page 347, as under:

“16. Mental cruelty in Section 13(1)(i-a) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made.”

This Court aptly observed in Chetan Dass v. Kamla Devi reported in (2001) 4 SCC 250, para 14 at pp.258-259, as under:

“Matrimonial matters are matters of delicate human and emotional relationship. It demands mutual trust, regard, respect, love and affection with sufficient play for reasonable adjustments with the spouse. The relationship has to conform to the social norms as well. The matrimonial conduct has now come to be governed by statute framed, keeping in view such norms and changed social order. It is sought to be controlled in the interest of the individuals as well as in broader perspective, for regulating matrimonial norms for making of a well-knit, healthy and not a disturbed and porous society. The institution of marriage occupies an important place and role to play in the society, in general. Therefore, it would not be appropriate to apply any submission of  “irretrievably broken marriage” as a straitjacket formula for grant of relief of divorce. This aspect has to be considered in the background of the other facts and circumstances of the case.”

In Savitri Pandey v. Prem Chandra Pandey reported in (2002) 2 SCC 73, the Court stated as under:

“Mental cruelty is the conduct of other spouse which causes mental suffering or fear to the matrimonial life of the other. “Cruelty”, therefore, postulates a treatment of the petitioner with such cruelty as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the other party. Cruelty, however, has to be distinguished from the ordinary wear and tear of family life. It cannot be decided on the basis of the sensitivity of the petitioner and has to be adjudged on the basis of the course of conduct which would, in general, be dangerous for a spouse to live with the other.”

This Court in the case of Gananath Pattnaik v. State of Orissa reported in (2002) 2 SCC 619 observed as under:

“The concept of cruelty and its effect varies from individual to individual, also depending upon the social and economic status to which such person belongs. “Cruelty” for the purposes of constituting the offence under the aforesaid section need not be physical. Even mental torture or abnormal behaviour may amount to cruelty and harassment in a given case.”

The mental cruelty has also been examined by this Court in Parveen Mehta v. Inderjit Mehta reported in (2002) 5 SCC 706 at pp.716-17 [para 21] which reads as under:

“Cruelty for the purpose of Section 13(1)(i-a) is to be taken as a behaviour by one spouse towards the other, which causes reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with the other. Mental cruelty is a state of mind and feeling with one of the spouses due to the behaviour or behavioural pattern by the other. Unlike the case of physical cruelty, mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of inference to be drawn from the facts and circumstances of the case. A feeling of anguish, disappointment and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. The inference has to be drawn from the attending facts and circumstances taken cumulatively. In case of mental cruelty it will not be a correct approach to take an instance of misbehaviour in isolation and then pose the question whether such behaviour is sufficient by itself to cause mental cruelty. The approach should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the petitioner in the divorce petition has been subjected to mental cruelty due to conduct of the other.” In this case the Court also stated that so many years have elapsed since the spouses parted company. In these circumstances it can be reasonably inferred that the marriage between the parties has broken down irretrievably.

In A. Jayachandra v. Aneel Kaur reported in (2005) 2 SCC 22, the Court observed as under: “The expression “cruelty” has not been defined in the Act. Cruelty can be physical or mental. Cruelty which is a ground for dissolution of marriage may be defined as wilful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. The question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society to which the parties belong, their social values, status, environment in which they live. Cruelty, as noted above, includes mental cruelty, which falls within the purview of a matrimonial wrong. Cruelty need not be physical. If from the conduct of the spouse, same is established and/or an inference can be legitimately drawn that the treatment of the spouse is such that it causes an apprehension in the mind of the other spouse, about his or her mental welfare then this conduct amounts to cruelty. In a delicate human relationship like matrimony, one has to see the probabilities of the case. The concept proof beyond the shadow of doubt, is to be applied to criminal trials and not to civil matters and certainly not to matters of such delicate personal relationship as those of husband and wife. Therefore, one has to see what are the probabilities in a case and legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the complainant spouse because of the acts or omissions of the other. Cruelty may be physical or corporeal or may be mental. In physical cruelty, there can be tangible and direct evidence, but in the case of mental cruelty there may not at the same time be direct evidence. In cases where there is no direct evidence, Courts are required to probe into the mental process and mental effect of incidents that are brought out in evidence. It is in this view that one has to consider the evidence in matrimonial disputes.

This Court in Vinita Saxena v. Pankaj Pandit reported in (2006) 3 SCC 778 aptly observed as under: “As to what constitutes the required mental cruelty for the purposes of the said provision, will not depend upon the numerical count of such incidents or only on the continuous course of such conduct but really go by the intensity, gravity and stigmatic impact of it when meted out even once and the deleterious effect of it on the mental attitude, necessary for maintaining a conducive matrimonial home.  If the taunts, complaints and reproaches are of ordinary nature only, the court perhaps need consider the further question as to whether their continuance or persistence over a period of time render, what normally would, otherwise, not be so serious an act to be so injurious and painful as to make the spouse charged with them genuinely and reasonably conclude that the maintenance of matrimonial home is not possible any longer.”

In Shobha Rani’s case (supra) at pp.108-09, para 5, the Court observed as under:

“5. Each case may be different. We deal with the conduct of human beings who are no generally similar. Among the human beings there is no limit to the kind of conduct which may constitute cruelty. New type of cruelty may crop up in any case depending upon the human behaviour, capacity or incapability to tolerate the conduct complained of. Such is the wonderful (sic) realm of cruelty.”

In this case, the Court cautioned the lawyers and judges not to import their own notions of life in dealing with matrimonial problems. The judges should not evaluate the case from their own standards. There may be a generation gap between the judges and the parties. It is always prudent if the judges keep aside their customs and manners in deciding matrimonial cases in particular.

In a recent decision of this Court in the case of Rishikesh Sharma v. Saroj Sharma reported in 2006 (12) Scale 282, this Court observed that the respondent wife was living separately from the year 1981 and the marriage has broken down irretrievably with no possibility of the parties living together again. The Court further observed that it will not be possible for the parties to live together and therefore there was no purpose in compelling both the parties to live together. Therefore the best course was to dissolve the marriage by passing a decree of divorce so that the parties who were litigating since 1981 and had lost valuable part of life could live peacefully in remaining part of their life. The Court further observed that her desire to live with her husband at that stage and at that distance of time was not genuine.

This Court observed that under such circumstances, the High Court was not justified in refusing to exercise its jurisdiction in favour of the appellant who sought divorce from the Court.

This Court in Naveen Kohli v. Neelu Kohli reported in (2006) 4 SCC 558 dealt with the similar issues in detail. Those observations incorporated in paragraphs 74 to 79 are reiterated in the succeeding paragraphs.

74. We have been principally impressed by the consideration that once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be harmful to society and injurious to the interests of the parties. Where there has been a long period of continuous separation, it may fairly be surmised that the matrimonial bond is beyond repair. The marriage becomes a fiction, though supported by a legal tie. By refusing to sever that tie the law in such cases does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties.

75. Public interest demands not only that the married status should, as far as possible, as long as possible, and whenever possible, be maintained, but where a marriage has been wrecked beyond the hope of salvage, public interest lies in the recognition of that fact.

76. Since there is no acceptable way in which a spouse can be compelled to resume life with the consort, nothing is gained by trying to keep the parties tied for ever to a marriage that in fact has ceased to exist.”

77. Some jurists have also expressed their apprehension for introduction of irretrievable breakdown of marriage as a ground for grant of the decree of divorce. In their opinion, such an amendment in the Act would put human ingenuity at a premium and throw wide open the doors to litigation, and will create more problems then are sought to be solved.

78. The other majority view, which is shared by most jurists, according to the Law Commission Report, is that human life has a short span and situations causing misery cannot be allowed to continue indefinitely. A halt has to be called at some stage. Law cannot turn a blind eye to such situations, nor can it decline to give adequate response to the necessities arising therefrom.

79. When we carefully evaluate the judgment of the High Court and scrutinize its findings in the background of the facts and circumstances of this case, it becomes obvious that the approach adopted by the High Court in deciding this matter is far from satisfactory.” On proper analysis and scrutiny of the judgments of this Court and other Courts, we have come to the definite conclusion that there cannot be any comprehensive definition of the concept of ‘mental cruelty’ within which all kinds of cases of mental cruelty can be covered. No court in our considered view should even attempt to give a comprehensive definition of mental cruelty. Human mind is extremely complex and human behaviour is equally complicated. Similarly human ingenuity has no bound, therefore, to assimilate the entire human behaviour in one definition is almost impossible. What is cruelty in one case may not amount to cruelty in other case. The concept of cruelty differs from person to person depending upon his upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and their value system.


 

SC: Samar Ghosh vs Jaya Ghosh on 26 March, 2007

Apart from this, the concept of mental cruelty cannot remain static; it is bound to change with the passage of time, impact of modern culture through print and electronic media and value system etc. etc. What may be mental cruelty now may not remain a mental cruelty after a passage of time or vice versa. There can never be any strait-jacket formula or fixed parameters for determining mental cruelty in matrimonial matters. The prudent and appropriate way to adjudicate the case would be to evaluate it on its peculiar facts and circumstances while taking aforementioned factors in consideration.

No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of ‘mental cruelty’. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive.  

(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.

(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.

(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable.

(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.

(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.

(vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.

(vii Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.

(viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty.

(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day to day life would not be adequate for grant of divorce on the ground of mental cruelty.

(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill-conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.

(xi) If a husband submits himself for an operation of sterilization without medical reasons and without the consent or knowledge of his wife and similarly if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty. (xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.

(xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.

(xiv)Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.

In Sirajmohmedkhan Janmohamadkhan v. Haizunnisa Yasinkhan & Anr., (1981) 4 SCC 250, this Court stated that the concept of legal cruelty changes according to the changes and advancement of social concept and standards of living. It was further stated that to establish legal cruelty, it is not necessary that physical violence should be used. Continuous cessation of marital intercourse or total indifference on the part of the husband towards marital obligations would lead to legal cruelty.

Harendra Nath Burman vs Sm. Suprova Burman And Anr. on 11/7/1988 – Calcutta High Court – AIR 1989 Cal 120, (1989) 1 CALLT 104 HC, 93 CWN 102

It has been held in the said decision that cause of action arising subsequent to the filing of the suit in consequence with the allegations in the written statement can be taken into consideration by the trial Court including the Court of appeal and the Court can grant relief on such consideration of the subsequent events. It has been held that ordinarily a lis has to be determined on the cause of action made in the pleadings. It is nevertheless will settled that it is open to the court including the court of appeal to take notice of the events which have happened after the institution of the suit and to afford relief to the parties where it is necessary to do complete justice of the case.

 

Mrs. Abha Gupta vs Rakesh Kumar Gupta on 26 September, 1994  Punjab-Haryana High Court – I (1996) DMC 71, (1995) 109 PLR 453

Even if it be taken that the appellant was not remiss in the discharge of her matrimonial obligations, I am still of the view that the respondent husband was entitled to a decree of divorce on the ground of cruelty. The broad admitted facts as noticed from the evidence are that the appellant left for USSR on November 4, 1989 without knowledge, consent or permission of her husband. She did not write to him from USSR and did not bother to see him by visiting him or talking him on three/four occasions when she visited India while studying in the USSR. She did not even inform her husband about her visits to India. If there was no resentment or objection to her going abroad she would not have behave the way she has done. She even went to England during one of her visits to India. This, in my view, clearly gives a cause to the husband to seek divorce on the ground of cruelty. The acts of the appellant are such which would cause mental agony and torture to the husband amounting to cruelty. She finally came to .India on August 18,1990 and she came to know of the divorce petition only in December, 1990. Even during this period i.e., August 18, 1990 to December, 1990 she made no effort to contact her husband either by visiting him or otherwise. From her statement and the statement of her father, it is clear that she was not interested to see her husband even before the filing of the divorce petition as it had been mentioned to her during one of her visits to India that her husband was thinking of marrying again. Her conduct during the pendency of the divorce petition also leads me to believe that she is not interested to settle in the matrimonial home. There is a complete neglect on her part. It is abundantly clear from what has been discussed above that marriage between the parties has broken down irretrievably and there is no chance of their coming together or living together again. The inevitable conclusion therefore, is that the husband is entitled to a decree of divorce.

In S. Hanumantha Rao v. S. Ramani, , said :

“Mental cruelty broadly means, when either party causes mental pain, agony or suffering of such a magnitude that it severs the bond between the wife and the husband and as a result of which, it becomes impossible for the party who has suffered to live with the other party. In other words, the party who has committed wrong is not expected to live with the other party.”

In Chanderkala Trivedi (Smt.) v. Dr. S.P. Trivedi (1993) 4 SCC 232 it was held that if a marriage was dead and there was no chance of its being retrieved it was better to bring it to an end.

 

Ms. Jordan Diengdeh vs S.S. Chopra on 10 May, 1985 – 1985 AIR 935, 1985 SCR Supl. (1) 704

(3) In the instant case, the marriage appears to have broken down irretrievably. If the findings of the High Court stand, there is no way out for the couple. They will continue to be tied to each other since neither mutual consent nor irretrievably break-down of marriage is a ground for divorce, under the Indian Divorce Act. There is no point or purpose to be served by the continuance of a marriage which has so completely and signally broken down. The parties are bound together by a marital tie which is better untied. [717 B-C]
 

The legal position in that behalf is settled by the judgment of this Court Smt. Sumanbai v. Anandrao Onkar Panatil. I myself had occasion to follow the said Judgment in the case of Jaishree Mohan Otavnekar v. Mohan Govind Otavnekar, F.A. No. 2547/83, decided on 12-11-1986. The principle underlying these authorities relate to one specie of mental cruelty which is capable of being inflicted even by the statements made in letters and documents, including the written statement. If a scurrilous allegation is made by one of the spouses against the other spouse, in, say, a letter, causing to him pain and anguish of such excrutiating character that he cannot be reasonable expected to live with the responding spouse after suffering such heinous humiliation, similar allegation giving rise to similar effect upon the petitioning spouse, made in the written statement by the responding spouse, would have the same legal effect of furnishing an independent ground for divorce. Such a painful allegation would constitute a fresh cause of action in favour of the petitioning spouse for divorce on the ground of cruelty resulting from such allegation itself. This is precisely the ratio of the above mentioned two judgments.

S.P. Trivedi (Dr.) vs Chandrakala Trivedi (Smt.) on 20 June, 1989 – 1990 (1) BomCR 715, (1989) 91 BOMLR 449 – Mumbai HC

40. Let me now set out the total perspective as Mperceived by this Court from the totality of evidence. This will automatically lead to setting out the resultant conclusions arrived at by this Court:—

(1) The respondent has been excessively nagging an excessively suspicious spouse.

(2) The Society takes for granted normal spouses (who are at the receiving end in those matters) take these attitudes and behaviours of the other half as part of the game; as something that comes with the matrimonial tie. But everything has its limit, transgression of which makes the case a pathological one. This is the grievance of the petitioner, viz. that the respondent as excessively suspicious and that she indulged in excessive nagging of the petitioner. The wanton allegations about the petitioner’s extra-marital relations with all his female associates strengthen the Court’s belief that the respondent indulged in excessive suspiciousness and the consequent excessive nagging.

(3) This must have made the petitioner’s life quite miserable.

(4) But, while embittering the matrimonial life in this manner, the respondent herself indulged in quite free, liberal, uninhibited emancipated life incompatible with her orthodox stance. This was done, sometimes, quite overtly as in the case of Sajjan Sultania and some other times, on the sly.

(5) In all probability, her habit of going to and staying at her parents place even on crucial occasions when the wife was needed at the matrimonial home is sufficiently proved not only by the petitioner’s evidence but even by virtue of the other evidence on record. It shows that even on such days as the eve of the petitioner’s departure for U.K. in 1980, she went to her parental house and did not go to the Airport to see the petitioner off even in the company of her father who did go to the Airport to see him off. These small stray incidents of pain and anguish must have gone on mounting up.

(6) The photographs were the last straw which broke the camel’s back. The mental turmoil that the petitioner suffered therefrom is in keeping with the orthodox way of life and matrimonial philosophy that both the spouses claim.

(7) There is nothing in the evidence on record which should disuade the Court from accepting the petitioner’s evidence relating to the mental agony and anguish caused to him by the revelations that dawned upon him by the sight of the photographs. It was torment and tension. This belief that any more association with the respondent would be suicidal for him was firmly rooted, in his mind, whether the Court likes it or not.

(8) This was supplemented by the wanton allegations made by the respondent in open public against the petitioner’s moral character vis-a-vis the opposite sex. The person of his status and reputation is justified in being modified and in complaining that he was made a laughing stock and a target of ridicule and calumny in the eyes of the society jeopardising his professional career.

(9) Admittedly, since 1980, the spouses have never lived together or come together. Their minds have drifted leagues away from each other and the matrimonial bond has been torn as under at least for the continuous period of 9 years. The marriage has gone irretrievably on the rocks.

Supreme Court in Saroj Rani v. Sudarsan Kumar, – Supreme Court

Apex Court endorsed the view that a marital tie should not remain alive as the Court found that the marriage had broken down whatever might have been the reason as the parties could no longer live together as husband and wife.

 

Kerala High Courl in Abeebacker v. Mamu, 1971 Ker LT 663 where it was observed thus :–

“Daily trivial differences get dissolved in the course of time and may be treated as the teething troubles of early matrimonial adjustment. While the stream of life, lived in married mutuality, may wash away smaller pebbles, what is to happen if intransigent incompatability of minds breaks up the flow of the stream ? In such a situation we have a breakdown of the marriage itself and the only course left open is for law to recognise what is a fact and accord a divorce.”

 

Calcutta HC:In Amerandra Nath Sanyal v. Krishna Sanyal, 1993 (1)Cal HN 213, it has been held by a Division Bench of this Court that it is now well-settled that false allegation against the character of any spouse made by the other spouse constitutes mental cruelty and that such mental cruelly will be a valid ground for passing a decree of divorce under Section 13(1)(ii) of the Hindu Marriage Act and that even post-suit allegations or events may be taken into consideration to shorten litigation and to do complete justice between the parties. In the said case the Division Bench found that respondent-wife made baseless and false allegations against her husband to the effect that he had love affair and illicit connection with another girl and having regard to the facts and circumstances of the case the Division Bench was of the opinion that the petitioner-husband was entitled to a decree of divorce on the ground of cruelty.

 

Calcutta HC: In Sanatan-Banerjee v. Sachindra Nath Banerjee, , a Division Bench of this Court granted decree of divorce inter alia on the ground of making false allegation by the wife against husband of illicit sexual relationship made in the written statement and also in deposition.

 

Calcutta HC: In Annapurna Ganguly v. Dipak Ganguly, (1991) 95 Cal WN 806 it has been held that a suspicion harboured and expressed by the wife about the character of the husband would undoubtedly amount to cruelty if it is established that the said conduct is likely to harm or injure the health, reputation, working career or the like of the other spouse.

Calcutta HC: In catena of decisions, namely, Sm. Krishna Sarbadhikary v. Alok Ranjam Sarbadhikary, reported in, , Nemai Kumar Ghosh v. Smt. Mita Ghosh, reported in, , Harendra Nath Burman v. Smt. Suprova Burman, reported in, , Sm. Santana Banerjee v. Sachindra Nath Banerjee, reported in, and Amarendranath Sannyal v. Smt. Krishna Sannyal, reported in, 1993 (1) Cal HN 213 various Division Benches of this Court settled, as a proposition of law, that unfounded or baseless allegation of adultery by one spouse against the other constituted mental cruelty of the gravest character to warrant divorce. Allegations made in the written statement itself and in the deposition could and should be taken note of in matrimonial proceedings without driving the petitioner to another proceeding on the ground of such cruelty.

Supreme Court : In Durga Prasanna Tripathy v. Arundhati Tripathy, this Court further observed that marriages are made in heaven. Both parties have crossed the point of no return. A workable solution is certainly not possible. Parties cannot at this stage reconcile themselves and live together forgetting their past as a bad dream. We, therefore, have no other option except to allow the appeal and set aside the judgment of the High Court and affirming the order of the Family Court granting decree for divorce.”

 

In Vinod Kumar Sharma v. Nutan Sharma (supra), this Court held as under; “The court have had occasion to consider the effect of complaints made to the employer, to persons in authority, and to the police, in F.A.O. No 124/84 and Shakuntala Kumari v. Om Parkash Ghai, 1981 (1) DMC 25 ; N.G. Dastane v. S. Dastane, AIR 1975 SC 1534; Lajwanti Chandhok v. O.N. Chandhok, 1981 (II) DMC 97 ; Kiran Kapur v. Surinder Kumar, 1982 RLR (Note) 37 at page 36 ; Sharda Nand Sharma v Kiran Sharma, 28 (1985) DLT (SN) 32; Girdhari Lal v. Santosh Kumari, (1982) I DMC 180; and Jorden Dlengdoh v. S.S. Chopra, (1982) I DMC 224. Such complaints, which are found to be baseless and to have been made by one of the spouses, have in these cases led to a finding of cruelty against the person complained against. I see no reason why a complaint by a person other than the spouse, who his identified himself with the spouse on whose behalf or at whose behest he has complained, should not be equated to the spouse, and the act of such a person be not deemed to be the act of the spouse. Here the person complained against was the husband. I note from the judgment of the court below that none of these judgments have been noticed by him, and he is of the view that these complaints do not amount to cruelty. In view of the aforesaid judgments of this court, and of the Supreme Court there has to be a finding of cruelty by the wife towards the husband. She made complaints or got the complaints made to the employers and the police which were found to be baseless on enquiry. Cruelty of the wife being established, the husband would be entitled to a divorce on that ground.”

In Smt. Mayadevi v. Jagdish Prasad, (supra), the Apex Court has observed as under; “The Court dealing with the petition for divorce on the ground of cruelty has to bear in mind that the problems before it are those of human beings and the psychological changes in a spouse’s conduct have to be borne in mind before disposing of the petition for divorce. However insignificant or trifling, such conduct may cause pain in the mind of another. But before the conduct can be called cruelty, it must touch a certain pitch of severity. It is for the Court to weigh the gravity. It has to be seen whether the conduct was such that no reasonable person would tolerate it. It has to be considered whether the complainant should be called upon to endure as a part of normal human life. Every matrimonial conduct, which may cause annoyance to the other, may not amount to cruelty. Mere trivial irritations, quarrels between spouses, which happen in day-to-day married life, may also not amount to cruelty. Cruelty in matrimonial life may be of unfounded variety, which can be subtle or brutal. It may be words, gestures or by mere silence, violent or non-violent.

Chandhok (Lajwanti) vs Chandhok (O.N.) on 26/8/1981 – ILR 1982 Delhi 689, 1981 RLR 619

(9) I am of the view that there was evidence plain and sufficient enough to justify a finding that the life of the husband has been subjected to cruelty and has become unendurable even for a man who has carried on with it right into his sixties. There is limit to endurance. Howsoever, one may wish, society cannot scrap marriage. It is compulsion of creation. It was rather sanctified and hallowed so that couples live in peace, in fear of God and help retain calmness in the community. Yet, it had to devise doors of exit as and when it becomes unreasonably unbearable and converges into sheer bondage. I, therefore, find no ground for altering the decision of the court below. There remained nothing in the marriage except the name. The vows were forgotten. Incantations lost in their spell. The learned Judge below was right in formally snapping the ties which had ceased to be binding happy or purposeful.

 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY – CIVIL APPELLATE JURISDICTION – FAMILY COURT APPEAL NO. 66 OF 2006 – Ajay Ashok Khedkar …. ….. ….. ….. Appellant. – V/s – Sou. Laleeta Ajay Khedkar….. …. ….. ….Respondent.

We fail to understand the logic behind the reasoning adopted by the family court to hold that a singular complaint of this nature under section 498A of IPC resulting in arrest and detention of the family members and relatives thereby causing utmost embarrassment, humiliation and suffering does not constitute mental cruelty. It is illogical that more than one complaint are necessary to be filed to constitute mental cruelty. In our view, embarrassment, humiliation and suffering that is caused on account of arrest and detention of appellant and his family members and relatives in a false case does constitute mental cruelty to enable the husband to seek decree of divorce on this sole ground. In our considered opinion, the approach of the family court is wholly perverse and the reasoning cannot be sustained in law. 


 

Categories: Judgement

Rs.2,01,000/- is settlemet amount not Rs.2,00,000/- :))

CR.RA/228/2008 1/1 ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL REVISION APPLICATION No. 228 of 2008

=========================================================

DEVASHISH NIRANJAN BHATT – Applicant(s)

Versus

STATE OF GUJARAT & 1 – Respondent(s)

========================================================= Appearance :

MR EKANT G AHUJA for Applicant(s) : 1, MR LR PUJARI, APP for Respondent(s) : 1, MR M.IQBAL A SHAIKH for Respondent(s) : 2, =========================================================

CORAM :

HONOURABLE MR.JUSTICE MD SHAH

Date : 09/09/2008

ORAL ORDER

It is submitted by learned advocate that the dispute between the parties has been settled on payment of permanent alimony of Rs.2,01,000/- (Rupees Two lacs one thousand only) by the petitioner husband to respondent No.2-wife and with consent decree of divorce is also passed by the Court. Learned advocate places on record a xerox copy of the judgment and order passed by the 4^th Addl.Senior Civil Judge, Bhavnagar, dated 14.8.2008, in HMP No. 97 of 2008, which is taken on record.

In view of the above, learned advocate for the petitioner seeks permission to withdraw this petition. Permission as sought for is granted. Petition stands disposed of as withdrawn. Notice is discharged.

Sreeram. (M.D.Shah, J.)

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Categories: Judgement

HC:Wife beats husband with CHAPPAL. Divorce to husband. 4 Lakh to wife

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

First Appeal No. 36 of 2010

Smt. Jaishree

W/o Sri Arjun Singh

Presently R/o C/o Lt. Commander (Retd.) Sri Kamal Singh Chauhan

Kothi No. 6 / 4, Canal Road, Jakhan,

Dehradun, District Dehradun.

… . Appellant

Versus

Sri Arjun Singh

S/o Sri Puran Singh

Presently R/o 71 / 40 Chaudhary Bihari Lal Marg District Dehradun.

Permanently R/o Village Syaluka Revadi, Post Gundiyat, Village & Tehsil Purola, District Uttarkashi.

… . Respondent

Mr. Ramji Srivastava, Advocate, present for the appellant. Mr. Sandeep Tandon, Advocate, present for the respondent.

Coram : Hon’ble Prafulla C. Pant, J. Hon’ble V. K. Bist, J.

Hon. Prafulla C. Pant, J. (Oral)

This appeal, preferred under Section 19 of the Family Courts Act, 1984 read with Section 28 of the Hindu Marriage Act, 1955, is directed against the judgment and order dated 07.06.2010, passed by Principal Judge, Family Court, Dehradun, in Suit No. 2

488 of 2006, whereby said court has allowed the petition under Section 13 of the Hindu Marriage Act, 1955, moved by the respondent (husband), and granted the decree of divorce.

2) Heard learned counsel for the parties and perused the lower court record.

3) Brief facts of the case are that appellant Jaishree got married to respondent Arjun Singh on 20th of June 2005, following Hindu rites, at Dehradun. Out of the wedlock a female child was born on 27.03.2006. The respondent is a teacher. He filed a petition under Section 13 of the Hindu Marriage Act, 1955, alleging that the appellant treated him with cruelty. It is pleaded in the petition that the appellant (wife) left respondent’s house after 20 days of marriage and did not join the company of her husband, even after being persuaded time and again. It is also pleaded in the petition that the respondent kept on going to the parental house of the appellant to persuade her to come to his house, but on one pretext or the other, she avoided it and humiliated him. It is also pleaded that she made unreasonable demands and put unreasonable conditions to come back to her husband’s house, and the respondent made efforts even to fulfill those demands and the conditions, but to no avail. As to the specific incident of cruelty it is stated in the petition that on 06.10.2006, the appellant along with her sisters and other relatives, including her 3

father, came to the house of the respondent. They took whatever belongings (of the appellant) were left in the house of the respondent, and appellant assaulted the respondent with CHAPPALS. It is also pleaded that the respondent got himself medically examined and also filed criminal complaint in the matter. With these pleadings, the respondent sought decree of divorce.

4) The appellant filed her written statement before the trial court and admitted that she was married to the respondent, and female child was born out of the wedlock. However, she denied other allegations made in the petition that she treated the respondent with cruelty. In the additional pleas she made counter allegations of cruelty against her husband, and stated that she was ousted forcibly by her husband from his house. It is also stated by her that her father had given ` 5,00,000/- to the respondent to buy land for himself. It is also pleaded by her that she is ready and willing to live with her husband.

5) On the basis of the pleadings of the parties, the trial court framed following issues:

i) Whether, the marriage between the parties is liable to be dissolved by a decree of divorce on the ground of cruelty, alleged in the petition?

ii) To what relief, if any, the petitioner is entitled?

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6) In support of his case respondent (husband) got himself examined as P.W. 1, and also got examined P.W. 2 Sharmila Khanduri (landlady), and P.W. 3 Sandeep Tomar (who accompanied the respondent to the house of the appellant). The appellant (wife) and respondent got examined herself as D.W. 1, and thereafter his father D.W. 2 Lt. Commander Kamal Singh Chauhan. The parties also filed documentary evidence in support of their cases. After discussing the evidence, the trial court found that the husband has proved his case for divorce on the ground of cruelty, and allowed the petition under Section 13 of the Hindu Marriage Act, 1955. Aggrieved by said judgment and order this appeal is filed by the wife.

7) Admittedly, respondent Arjun Singh got married to appellant Jaishree on 20th of June 2005, at Dehradun. It is also not disputed that a female child born on 27.03.2006, out of the wedlock. The only dispute in this case is whether, the allegations of cruelty are proved on the record, or not, to entitle the husband decree of divorce.

8) P.W. 1 Arjun Singh has filed an affidavit before the trial court in support of his case corroborating all the pleas taken in the petition for divorce. He was subjected to lengthy cross-examination, but nothing has come out in his cross- examination, which creates doubt in his testimony. He has specifically stated as to how he went time and again to his wife’s place to call her, and for one 5

reason or the other, he was humiliated. As to the incident on 15.05.2006, he (P.W. 1) states that he went with Sandeep Tomar (P.W. 3) to the house of his wife, but his wife and her father misbehaved with him, and threatened him that he would be implicated in litigation. P.W. 1 Arjun Singh has further stated that he filed an application under Section 9 of the Hindu Marriage Act, 1955, but when on 30th of September 2006, appellant expressed her desire to join his company, he withdrew the petition. However, his happiness was short lived, and the appellant did not honour the promise made by her. Relating to the incident of 06.10.2006, P.W. 1 Arjun Singh has stated that the appellant along with her sisters Alka, Neetu and some others came to his house took all belongings of the appellant. In the evening, on the same day, it is stated by this witness that the appellant came along with some 15 relatives and gave him beating with CHAPPALS. It is also stated by P.W. 1 Arjun Singh that he got himself medically examined, and also file criminal complaint before the Judicial Magistrate. In support of this incident of cruelty, the respondent (husband) not only filed the copy of the medical report and copy of the criminal complaint, but also got examined P.W. 2 Sharmila Khanduri (landlady).

9) P.W. 2 Sharmila Khanduri has corroborated the incident dated 06.10.2006, and stated that Jaishree (appellant) assaulted Arjun Singh with CHAPPALS. She has also stated that abuses were hurled at him by the appellant and her relatives.

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10) P.W. 3 Sandeep Tomar has corroborated the incident of 15.05.2006, when he accompanied the respondent to the house of the appellant.

11) On behalf of the appellant in her statement she has corroborated the plea taken in the written statement, but her statement when read with her cross-examination does not shake the testimony of the witnesses examined on behalf of the respondent, relating to the act cruelty committed by the appellant. She has admitted in her cross-examination that she filed a case under Protection of Women from Domestic Violence Act, in which her allegations were found untrue, and her petition was dismissed. She has also admitted that in said case the finding was given by the court that it was the husband who was treated with cruelty not the wife. The statement of D.W. 2 Lt. Commander Kamal Singh Chauhan (Retd.) also does not shake the oral evidence adduced on behalf of the respondent (husband), which is supported by the documentary evidence on record. He has admitted that the respondent did file a criminal complaint relating to MAARPEET allegedly committed against him.

12) Having gone through the entire evidence on record afresh, we do not find any illegality in the finding recorded by the trial court that the respondent has proved the allegation that he was treated with cruelty by his wife. As such, we are of the view that the trial court has committed no error of law in decreeing the suit for divorce.

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13) However, we feel it necessary to direct the respondent (husband) to pay a reasonable sum of alimony to the appellant, to do complete justice between the parties. Admittedly, the respondent is a teacher and his monthly income is ` 11,000/- per month. Considering the economic status of the parties, and facts and circumstances of the case, we think it just and proper to direct the respondent to pay a lump sum one time alimony of ` 4,00,000/- (rupees four lakh only) to pay to the appellant.

14) Accordingly, this appeal is disposed of affirming the decree of divorce granted by the trial court dissolving the marriage of the parties to the suit with the further direction that the respondent Arjun Singh (husband) shall pay ` 4,00,000/- (rupees four lakh only) as one time lump sum alimony to appellant Jaishree, within a period of three months from today. No order as to costs.

(V.K. Bist, J.) (Prafulla C. Pant, J.)

Dt. March 17, 2011.

H. Negi

Categories: Judgement

HC: Recorded conversation on CD is admissible evidence in Family Court

February 26, 2011 2 comments
Bench: R S Dalvi

1 NM-8

PGK

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

O.O.C.J.

Notice of Motion No.8 of 2010

IN

Suit No.16 of 2008

Mrs.Havovi Kersi Sethna … … Plaintiff v/s.

Mr.Kersi Gustad Sethna … … Defendant

Mr.Narayan Suvarna i/by Mrs.Ansuya Dutt for Plaintiff.

Ms.Taubon F. Irani for Defendant.

—–

CORAM : SMT.ROSHAN DALVI, J.

Date of reserving the order : 14th January 2011 Date of pronouncing the order : 28th January 2011

ORDER :

1.Parties are wife and husband. The Petition for divorce between the parties and other ancillary reliefs is pending trial. The wife, who is the Petitioner, is under cross-examination. The husband relies upon certain handwritten diaries of the wife as well as Compact Disk (CD) on which conversation between the wife and the husband has been recorded by the husband on certain dates. The husband has produced the transcript of the said conversation. The husband has 2 NM-8

applied for verification of the handwriting of his wife in the diaries and the voice of the wife in the taped conversation on the CDs. The wife admits the handwriting in her diaries. That can be produced in evidence. Hence the husband does not press the relief in that behalf. Aside from the diary, there is one line written by the wife on a certain menu of her catering service which is also admitted by the wife.

2.The parties are at dispute with regard to the taped conversation on the CDs. The husband has not yet filed his affidavit of documents. He has, therefore, not relied upon any specific document. The husband has, however, served upon the wife inter alia the CDs as well as the transcript. These are the documents referred to by the husband in paragraph 22 of his written statement. The reference runs thus:

On several occasions thereafter the Defendant had occasion to record the Plaintiff’s conversation where she has told the Defendant to leave her father s house, as she wanted a divorce.

It is contended on behalf of the wife that the taped conversation is not relied upon as a document. It is not referred to as a document and hence the husband 3 NM-8

cannot use it as a document in evidence. It is also contended by the wife that the affidavit of documents is not filed and the instrument on which the initial conversation was recorded is not produced. The husband could have recorded it on a tape recorder, audio cassette, MP-3 player, Dictaphone, computer or even on his mobile phone. That recording is not produced and inspection of that recording is not given and hence the wife contends that the CD and the transcript cannot be used by the husband.

3.The wife has neither admitted nor denied the conversation. The husband seeks to use it in her cross- examination.

4.The elementary principle of recording evidence must be first considered. Evidence consists of examination-in- chief and cross-examination. A party is required to offer for inspection and produce the documents relied upon by him in support of his case. This is required in his examination-in-chief. This contains the oral and documentary evidence.

5.Order VII Rule 14 of the Civil Procedure Code (CPC) deals with the documents of the Plaintiff and Order VIII Rule 1-A of the CPC with regard to the documents of the Defendant. The aforesaid orders and rules run 4 NM-8

thus:

14. Production of document on which plaintiff sues or relies. (1) Where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in Court when the plaint is presented by him and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint.

(2) Where any such document is not in the possession or power of the plaintiff, he shall, where possible, state in whose possession or power it is.

(3) A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.

(4) Nothing in this rule shall apply to 5 NM-8

document produced for the cross-examination of the plaintiff s witnesses, or handed over to a witness merely to refresh his memory.

1-A. Duty of defendant to produce documents

upon which relief is claimed or relied upon by him.- (1)Where the defendant bases his defence upon a document or relies upon any document in his possession or power, in support of his

defence or claim for set-off or counter-claim, he shall enter such document in a list, and

shall produce it in Court when the written

statement is presented by him and shall, at

the same time, deliver the document and a copy thereof, to be filed with the written statement.

(2) Where any such document is not in the possession or power of the defendant, he shall, wherever possible, state in whose possession or power it is.

(3) A document which ought to be produced in Court by the defendant under this rule, but, is not so produced shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.

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(4) Nothing in this rule shall apply to documents-

(a) produced for the cross-examination of the plaintiff s witnesses, or

(b) handed over to a witness merely to refresh his memory.

Besides this, Order XIII deals inter alia with the production of documents. This relates to production by both the parties, the Plaintiff and the Defendant. Under Order XIII Rule 1 of the CPC, the original documents are required to be produced by the parties and received by the Court. Order XIII Rule 1 runs thus:

1. Original documents to be produced at or

before the settlement of issues.-(1) The parties or their pleader shall produce on or before the settlement of issues, all the documentary evidence in original where the

copies thereof have been filed alongwith plaint or written statement.

(2) The Court shall receive the documents so produced:

Provided that they are accompanied by an 7 NM-8

accurate list whereof prepared in such form

as the High Court directs.

(3) Nothing in sub-rule (1) shall apply to

documents-

(a) produced for the cross-examination of

the witnesses of the other party; or

(b) handed over to a witness merely to refresh his memory.

6.It is important to note that in sub-rule (4) of Order VII Rule 14, sub-rule (4) Of Order VIII Rule 1-A and sub-rule (3) of Order XIII Rule 1 of the CPC, an exception is carved out for documents required to be produced for the cross-examination of the Plaintiff s witness under Order VII Rule 14 and Order VIII Rule 4 and for the cross-examination of the witnesses of the other party (that is either party) under Order XIII Rule 1.

7.This is the most necessary incident of the exercise of cross-examination. The very purpose of the cross- examination will be frustrated, if the documents with which a witness of the other side of the Plaintiff s witness is to be confronted is shown to or inspected by 8 NM-8

that party earlier. The Court is concerned with the determination of the truth. Truth has to emerge from the evidence on record. The skill of the cross-examiner brings forth the hitherto unknown truth on record. This takes place in a cross-examination. It would be a farce to notify the party who is being cross-examined of the questions that may be asked by the cross-examiner. Consequently, in the cross-examination of a party any document can be produced and the witness under cross- examination can be confronted therewith. Similarly any document can be produced to that end for the witness to refresh his or her memory.

8.The Defendant s Advocate seeks to bring out some facts in the cross-examination before the Court Commissioner. It is not known why the Defendant should have at all produced his CDs or even transcript thereof at a stage before his affidavit of examination-in-chief and his affidavit of documents is filed.

9.Of course, the Defendant would have to offer for inspection the documents which he would be relying upon to prove his case in his own evidence. Those are essentially the documents not required for the cross- examination of the Plaintiff or his or her witnesses only. The Defendant, however, has a right and an opportunity to disprove the Plaintiff s case. It is for 9 NM-8

the Plaintiff to prove his or her case. The Plaintiff has to prove that case by oral or documentary evidence. The Plaintiff would, therefore, have to rely upon and produce all the documents in support of such case. But the Plaintiff s witness, who is to be cross-examined upon the evidence of the Plaintiff to prove the case of the Plaintiff, can be shown any document produced by the Defendant for the first time in his or her cross- examination or for refreshing his or her memory. This is the specific allowance in sub-rule (4) of Order VII Rule 14 and Order VIII Rule 1-A.

10.However, the Defendant would have to prove the specific case made out by him in his pleadings which may be other than the case of the Plaintiff. It would be for the Defendant to produce oral and documentary evidence in support of such a case. Those documents would certainly have to be offered for inspection. Those documents would certainly have to be relied upon in the affidavit of documents. The Defendant would then alone be entitled to rely upon those documents in support of his case. This would apply to those issues, onus on which lies entirely on the Defendant.

11.But the Defendant has an additional right. That is the right of cross-examination of the Plaintiff and the Plaintiff s witnesses to disprove the case of the 10 NM-8

Plaintiff without proving his own case. The Defendant may not lead his oral evidence. The Defendant may not have to refer to rely upon, produce and offer for inspection his own documents, if he has no specific case that he might want to prove. The case of the Defendant would come up for proof after the Plaintiff has completed his or her evidence along with the evidence of his or her witnesses in support of the Plaintiff s case.

12.In this case, the Defendant may or may not have to prove the conversation to obtain any relief. He may require to only prove the conversation to disentitle the Plaintiff from obtaining the reliefs claimed by the Plaintiff.

13.For that purpose, the Defendant would be required to produce the taped conversation. The Defendant would be entitled to ask such question as he deems fit to the Plaintiff. It would be dependent upon the Plaintiff s answers that the Defendant may consider leading evidence himself or refrain from leading any evidence. The Defendant would then have to produce his oral evidence and the documentary evidence coupled with the affidavit of documents in support of his case. At that stage the Defendant, who requires to have the voice of the Plaintiff verified, would have to produce the CD 11 NM-8

and any other document, including the instrument on which the conversation was recorded. In fact, upon the CD and the transcript offered by the Defendant as his own documents to the Plaintiff, no notice to admit or deny the taped conversation is shown to have been given. That would have cleared the issue. Though Counsel on behalf of the Plaintiff has admitted the handwriting in the handwritten diaries and the menu, she has not made any such statement of admission specifically before the Court with regard to the taped conversation made available on the CD. Under those circumstances, her cross-examination on that aspect cannot be avoided and would have to be undertaken. It would be for the Plaintiff to admit or deny partly or fully the aforesaid averment in paragraph 22 of the written statement of the Defendant to avoid, or accept the cross-examination on that point. So much for the cross-examination of the Plaintiff and the reliance of the Defendant upon the taped conversation on the CDs.

14.So far as the CD itself is concerned as a documentary evidence, Counsel on behalf of the Defendant has relied upon the case of R.M. Malkani vs. State of Maharashtra, AIR 1973 SC 157. In paragraph 14 of the judgment, the tape is held to be primary and direct evidence of what has been said and recorded. However, the CD sought to be relied upon by the 12 NM-8

Plaintiff is a copy obtained by the mechanical/electronic process of having the original tape recorded conversation uploaded on a computer from the original electronic record and copied on the CD. Such copy is, therefore, secondary evidence under Section 63 of the Evidence Act and, therefore, can be used only upon production of the original record of such taped conversation under Section 65B of the Evidence Act.

15.Further in the case of R.M. Malkani (supra), tape recorded conversation is held admissible if it is relevant, if the voice is identified and the accuracy of the tape recorded conversation is proved by eliminating the possibility of erasing the tape recorded conversation. It is observed to be comparable to a photograph of a relevant incident and hence admissible under Section 7 of the Evidence Act. In that case, there was no dispute about the identification of voices. The matter, which was tape-recorded was relevant to the issue. There was no controversy of any portion of the conversation being erased or mutilated. Party whose voice was recorded was given full opportunity to test the genuineness of the tape- recorded conversation. It was considered as a document admissible in evidence.

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16.The three provisos set out in that judgment are important. The conversation has to be relevant; this is a case for divorce in which the taped conversation is alleged to be relating to the Defendant having been told to leave the house of the Plaintiff s father as she wants a divorce. Upon that fact it becomes relevant to consider that document. The identification of the voice can be made initially by the Plaintiff herself by admitting that that was her voice in the conversation. If that is not done, the Defendant can identify the voice himself or through any other witness. If the Defendant or the Court requires, it may get the voice identified through an expert. That would not be required in every case. The forensic evidence, prayed for by the Plaintiff, would be required depending upon the facts of the case which would emerge in the cross- examination and depending upon the requirement of any identification or further identification. The accuracy of the tape-recorded conversation is of utmost importance since the document, which is a CD having tape-recorded conversation, is liable to eraser or mutilation. It would be for the Defendant to show that it was the original recording as mentioned by the Defendant himself. This could be done by producing the initial record or the original electronic record. This original electronic record, which is primary evidence, is the instrument on which the original conversation is 14 NM-8

recorded. The Defendant has not produced that evidence. That document would be contained in such an instrument. The Defendant has not shown the mechanical/electronic process by which the CD was obtained. The Defendant has relied upon the CD per se. That, being a copy, is secondary evidence. At the stage at which the CD is sought to be produced (that is in the cross-examination of the Plaintiff), the Defendant is permitted not to produce the original electronic record. The copy of such record, being the CD, can itself be used for confrontation in the cross-examination. Much will depend upon the answers in the cross-examination by the Plaintiff. If however, the Defendant desires to set up a specific case, for which the evidence is contained in the CD, he would be required to satisfy the aforesaid three tests, more specially the test of accuracy by producing the original electronic record.

17.It may be mentioned that the tape-recorded conversation can be heard by the Court itself by playing it over. It is observed in the case of R.M. Malkani (supra) that the Court would be acting on real evidence if it treats the intonation of the words in such tape-recording being played over to the Court bearing in mind that it could be altered while admitting it in evidence. That, of course, can be done as shall be seen in another case of Kerala High Court 15 NM-8

which shall be considered presently.

18.It may be mentioned that the Defendant could have produced the same evidence by a non-electronic mode by a manual human source. If a witness was present at the time of the conversation between the Plaintiff and the Defendant, the Defendant could have led oral evidence which could have been corroborated by the witness. In a tape-recorded conversation, the electronic mode substitutes the human evidence. This aspect has been well observed in paragraph 18 in the case of R.M. Malkani (supra) thus:

If the conversation were relayed on a microphone or an amplifier from the telephone and the police officers heard the same they

would be able to give direct evidence of what they heard. Here the police officers gave direct evidence of what they saw and what they did and what they recorded as a result of voluntary permission granted by Dr.Motwani. The tape recorded conversation is contemporaneous relevant evidence and therefore it is admissible.

That judgment further held that Articles 20(3) and 21 of the Constitution or Section 162 of the Criminal 16 NM-8

Procedure Code were also not offended by a tape- recorded evidence.

19.In the case of Pootholi Damodaran Nair vs. Babu, V.K., 2005 (2) ILR 145, the Kerala High Court considered the request of a party to play a magnetic tape produced in Court. The request was turned down by the District Munsiff. The order rejecting such request was set aside holding it to be an indiscretion of the Court. The tape and the transcript were marked in evidence upon the Defendant s son having taped the conversation containing discussion between the Plaintiff and the Defendant. The tape was sought to be played in Court for the identification of the voice of the person whose voice it was professed to be and for establishing the authenticity and correctness of the recording. The learned District Munsiff rejected the application on the ground that it came after closing the evidence of the Petitioner, it was not brought out from proper custody and was not deposited in the official record. Holding that electronic record was a document under Section 3 of the Evidence Act in line with the Information Technology Act, 2000 and considering the Supreme Court judgment in the case of Ram Singh vs. Col. Ram Singh, AIR 1986 SC 3, it was held that tape record of the conversation and the transcript, which were rightly admitted and marked in 17 NM-8

evidence, were required to be examined by the Court to see their genuineness as the tape record was admissible under Section 7 of the Indian Evidence Act. The conditions laid down in the judgment of the Supreme Court in Ram Singh (supra) were set out in that judgment. The very first condition is the identification of the voice in the tape record. It is rightly observed that where the voice is denied by the maker, it will require strict proof to determine whether it was really his voice.

20.The Defendant has not called upon the Plaintiff to admit or deny the voice. The Plaintiff has not admitted or denied the voice. Perhaps that would now be done in the cross-examination itself. That can be done even before the CD is marked in evidence because it is a document required to cross-examine the witness of the other side. If it is identified by the Plaintiff and admitted to be her voice, no further exercise need be done. If it is not identified by the Plaintiff, it can be identified by the Defendant. Upon such identification it would have to be marked in evidence. The verification of such identification would have to be done by the Court itself by playing the record, for which no application is yet made, but such an application has been allowed under that judgment. Of course, the accuracy of the statements would have to be 18 NM-8

proved by direct or circumstantial evidence. The proof is in the domain of the Defendant either in the cross- examination of the Plaintiff or in his own evidence. The recorded conversation could be used even to contradict the Plaintiff s case, provided its accuracy is shown.

21.It must be mentioned that evidence is to be considered from three aspects; admissibility of evidence, recording of evidence and appreciation of evidence. It is settled law that tape recorded conversation is admissible in evidence. What must be of importance is how the tape recorded conversation is to be recorded as evidence and appreciated thereafter. Recording can be in the cross-examination of the other side and/or in the evidence of the recorder himself. The appreciation of evidence would require consideration of the aforesaid three requirements; identification, relevancy and accuracy. It is left to the Defendant to pass those tests. If the tests are not passed, the tape recorded conversation would be of no use in effect ultimately.

22.That has been held in the case of Tukaram S. Dighole vs. Manikrao Shivaji Kokate, in Civil Appeal No.2928 of 2008 decided on 5th February 2010. In that case a cassette placed before the Court was discarded from 19 NM-8

evidence. This was the cassette stated to have been produced from the custody of an Election Commissioner s office. It was taken to be a public document. It was held that mere production of the audio cassette even certified by the Election Commissioner is not conclusive of the fact that what is contained in the cassette was true and correct. This is on par with the certified copy of any document produced from public record. Such a document would show that it was a document filed in the public office and is a true production of whatever was filed in the public office. It however cannot prove the truth of the contents of the document merely by the production of even its certified copy by the public office as held in the case of Om Prakash Berlia vs. United Trust of India, AIR 1983 Bombay 1.

23.In the case of Tukaram (supra), the Petitioner produced the VHS cassette on record. The Petitioner produced no evidence to indicate that the record was a true reproduction of its contents. In fact, the Petitioner did not produce any cogent evidence regarding the source and manner of the acquisition of the cassette and the authenticity of its contents. It was, therefore, held that it could not be read in evidence despite the fact that it could be a public document. This was, therefore, in the domain of 20 NM-8

appreciation of evidence. The authenticity of an electronic record such as a CD or a cassette would be determined by the proof of the original electronic record. This proof may be given by production of that record itself which can be compared with the CD produced by the party in a civil litigation such as the Defendant in this case or any other evidence, direct or circumstantial, which the Court would then consider, examine and appreciate. The standard of proof of such authenticity and accuracy of such an electronic record has been held in paragraph 20 of the judgment to be more stringent as compared to the other documentary evidence given its propensity for misuse by alteration, interpolation or mutilation. It is, therefore, directed to be received with caution. Consequently, in that case when the party who produced the record did not lead any evidence to prove that the cassette produced on record was a true reproduction of the original speeches by the Respondent or his agent, which he was incumbent to be proved either himself or through his witness who is the maker of the record, it was held not to be considered in evidence.

24.Counsel on behalf of the Plaintiff has relied upon the case of Lalji s/o Bansanarayan Choubey vs. Jiyalal Chanvan & anr. 2009(2) Maharashtra Law Journal 565 to contend that the actual tape recorder or the instrument 21 NM-8

on which it was recorded had to be produced and the CD had to be sealed and relied upon in the Defendant s affidavit of documents before any relief can be granted in this application. The Defendant has given a copy of the CD and its transcript to the Plaintiff. The exercise of giving inspection of the document, as required by the procedure established under the CPC, is completed. The Defendant is not required to file his affidavit of documents and rely upon any specific document during the Plaintiff s cross-examination. It would be in the discretion, sagacity and wisdom of the Defendant to prove the tape recorded conversation on the CD in the manner he deems fit, provided however that the accuracy of the conversation is proved to the satisfaction of the Court for it to be considered in evidence, the admissibility of the CD notwithstanding.

25.The requirement of sealing the recorded conversation would not be applicable in this case. That requirement is of essence in a criminal case where during investigation the conversation of a party is recorded by the investigating officer. He would certainly be required to seal the tape recorded conversation and keep it in a safe custody so as to play before the Court at the time of trial. When the Defendant himself has recorded the conversation of the Plaintiff as a party in a Civil Suit who is required to keep custody 22 NM-8

of his own documents, there is no question of the requirement of sealing. It has nevertheless to be shown to be accurate and untampered with. This is in line with the only requirement of the Court which is to ascertain the truth of the case of the parties. Once the Court is satisfied about the truth of the tape recorded conversation, it can be used in evidence to determine the case on merits. Consequently, the observation of the Court in paragraph 3 of the judgment in the case of Pootholi (supra) that the conversation of the witness on a tape recorder can be shown to the Court by producing the tape record in support of the assertion that certain statement was made in his presence rules out any further requirements and formalities except for showing the accuracy of the tape recorded conversation. In fact, the observation of the Court in paragraph 7 of the judgment concluding that the tape record was admissible as primary evidence with the aforesaid provisos of accuracy, identification and relevancy shows that it was on par with human evidence once it is replayed in the Court or proved by forensic evidence thus:

Each received it at the same time the one

recording it in the human memory, the other

upon a piece of tape.

23 NM-8

Consequently, it has considered the judgment of the Supreme Court in the case of Rama Reddy vs. V.V. Giri, AIR 1971 SC 1162 in which it was held that the previous statement recorded on tape could be used not only to corroborate the evidence given by the witness but also to contradict the evidence given before the Court as well as to test the veracity of the evidence and also to impeach his impartiality upon holding that it was primary and direct evidence admissible as to what has been said and picked up by the recorder. Further it is observed that the production of the tape recorded conversation to comply with the aforesaid provisos can be made in any mode:

There can be no straightjacket formula .

26.Therefore, it would be vain to suggest that because the CD was not sealed prior to its production, it cannot be admissible or used in evidence. This is a civil trial. The Defendant himself has recorded the conversation and produced the CD thereof. The Defendant could not have recorded it directly on the CD. The Plaintiff had to have an electronic process on an electronic instrument to record the conversation on the CD. It is for the Plaintiff to produce it. It is for the Court to consider and appreciate it. There is no question of sealing of a conversation recorded by a 24 NM-8

party to the civil lis himself. The sealing requirement is only in criminal trials. That is because the investigating officer records certain conversation either on a telephone to which a recorder has been appended or any other instrument to record the voice of a party under investigation. The investigating officer is required to keep such document, obtained in the course of his investigation safe from it being misused or tampered by anyone else until it is produced and used in the criminal trial. He must, therefore, seal what he has recorded and keep it safe from tampering for the examination by the Court. This would be just as he would seal any other property seized by him to be produced as an article in a criminal trial. This entire procedure is not required in a civil trial and hence the argument that because it is not sealed, it cannot be used in evidence is incorrect. The case of Lalji (supra) was of a criminal trial on a dishonoured cheque under Sections 138 and 139 of the Negotiable Instruments Act. In that case origin of the conversation recorded was left doubtful. Consequently, the most important requirement of producing such an electronic record of accuracy was not satisfied. That aspect was in the domain of appreciation of evidence and not admissibility of evidence.

27.In the interesting case of R.K. Anand vs. Registrar, 25 NM-8

Delhi High Court, 2009(10) Scale 164 at page 220, the original electronic materials upon which the sting operation by a journalist was based was held not needed to have been taken in the Court custody. In that case in a sting operation a particular conversation between two persons was recorded. Based upon the electronic tape recorded conversation played before the Court, contempt notices came to be issued for subverting and interfering with the course of justice in a criminal trial. In that case the copies of the original sting recordings were called for and seen by the Court. The original microchips and the magnetic tapes were allowed to be retained in the custody of the journalist of the TV channel. Upon the case that that was an incorrect and fatal procedure, the Supreme Court considered the rationale behind it thus :

If the recordings on the microchips were fake from the start or if the microchips were morphed before notice was issued to the TV

channel, those would come to the court in that condition and in that case the question whether the microchips were genuine or fake/morphed would be another issue. But once the High Court obtained their copies there was no possibility of any tampering with the microchips from that stage. Moreover, the High 26 NM-8

Court might have felt that the TV channel with its well equipped studio/laboratory would be a much better place for the handling and conservation of such electronic articles than the High Court Registry.

The Supreme Court, therefore, concluded that on the facts of the case, there was no lapse on the part of the High Court in leaving the microchips in the safe custody of the TV channel. It is, therefore, seen not to be straightjacket formula. Consequently, holding that all tape recorded conversation must be sealed without considering its intrinsic source or its custody with a party would be an exercise devoid of application of mind.

28.The dispute between the parties is not ambiguous to either of them. The ambit of evidence has, therefore, to be set out. The Defendant is entitled to rely upon the recorded conversation on the CD by the fact of production of the CD in the cross-examination of the Plaintiff. If the Plaintiff admits the contents, it would be read in evidence. If the Plaintiff disputes the contents, the Defendant would have to prove, by direct or circumstantial evidence in his own examination-in-chief, the accuracy of the recorded conversation. For that proof, the Defendant may produce 27 NM-8

the original electronic record itself. The Defendant may seek to play it before the Court to have the voice of the Plaintiff, hitherto disputed, identified in Court. The Defendant may himself identify the voice and get it produced in evidence and apply for playing it on record for the Court to appreciate the identified document being the recorded conversation on the CD. The Defendant may produce any other circumstantial evidence to prove the authenticity of the CD as he would for any other documentary evidence. The Defendant would also be entitled, but as a last resort, to have the forensic evidence to identify the voice of the Plaintiff by having the voice of the Plaintiff recorded as an admitted document and compared by an expert in the forensic laboratory to verify that voice with the voice on the taped conversation on the CDs.

29.It is argued on behalf of the Defendant that the Defendant has taken out the application well in advance for the forensic report to be obtained. The application is, of course, not premature. However, the application involves the requirement of recording of Plaintiff s voice and then comparing it with the already recorded voice on the CDs much as the verification of the admitted and disputed signatures of the parties would be. However, the Plaintiff may choose to admit the contents of the CD or whatever is stated in paragraph 28 NM-8

22 of the Written Statement, the entire exercise sought by the Defendant would be avoided since admitted facts need not be proved. Since much would depend upon the Plaintiff s own evidence, the Plaintiff need not be taken through the exercise of having her voice recorded and then verified by the forensic expert at present. However, after the Plaintiff s cross-examination is completed and the Defendant considers production of CD as his own document and relies upon it in the affidavit of documents, the Defendant would be entitled to prove its accuracy through any of the aforesaid modes. For that purpose, the Defendant shall be entitled to prove the tape recorded conversation through the recording of the voice of the Plaintiff and having it verified by the forensic expert as prayed for by him in prayer (ii) of this Notice of Motion. Order accordingly.

30.The Notice of Motion is disposed of accordingly.

(SMT.ROSHAN DALVI, J.)

Categories: Judgement

HC: Wife to pay 10000/- cost to husband :) : Judgement by women judge

February 26, 2011 2 comments
Bench: R S Dalvi

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

APPELLATE SIDE

Writ Petition No.8124 of 2010

Mrs.Anuradha Ashok Naik .. .. Petitioner v/s.

Mr.Ashok Sagun Naik .. .. Respondent

Mr.V.M. Bhate for Petitioner.

None for Respondent.

—–

CORAM : SMT.ROSHAN DALVI, J.

DATED : 10th February 2011

ORAL ORDER :

1.Notice of this writ petition has been served through office upon the Respondent/husband on 15th November 2010. He has not signed on the notice. The Respondent/husband has remained absent despite notice. Hence only the Petitioner is required to be heard.

2.Rule. Rule is made returnable forthwith.

3.The Petitioner has challenged the order of the learned Family Court, Judge, Bandra, Mumbai, dated 8th June 2010, refusing to condone the delay in filing her petition for setting aside an ex-parte decree of 2 wp-8124

divorce passed by the Court. The husband obtained the ex-parte decree on 6th June 2007. On the Petitioner s own showing, she would have knowledge of the decree at least on 17th April 2009 through her uncle one Premanand Ganesh Naik with whom the Respondent/husband had a dispute in Vengurla Court. The Petitioner, however, contended that she came to know of the passing of the decree only on 16th June 2009 when the uncle came to Goregaon, Mumbai and handed over the photo copies of the judgment and decree. The Petitioner applied for certified copy and that being illegible applied for additional certified copy and obtained it 14 days before she made the application for setting aside the decree. She claims that there was a delay of 10 days. The arithmetical calculation of 10 days is also seen to be incorrect by the learned Judge. The learned Judge has further correctly appreciated that the uncle, who has been cross-examined, admitted in the cross-examination that he was present before the Vengurla Court on 17th April 2009 and that he had given her a copy of the Family Court decree in Vengurla Court. If that was so, the Petitioner would have knowledge of that fact through husband s uncle in April 2009 and not June 2009 as claimed by her.

4.It is seen that the Petitioner/wife filed her application for condonation of delay in filing the 3 wp-8124

application for setting aside the decree passed by the Family Court on a completely false ground. The learned Judge has recorded evidence on that aspect. The learned Judge has framed the issues and passed a detailed, reasoned order.

5.Though the order of the learned Judge is correct, it is seen that the priority of the learned Judge in disposing of the application as she has done is incorrect. An application for condonation of delay, whether it be of 10 days or 14 days, does not deserve evidence to be led, issues to be framed, precedents to be considered, reasons to be given and judgment to be pronounced in the detailed manner that the learned Judge has done, given the enormous arrears of the petitions pending in the Family Court and the spirit of the Family Court s Act to deal with the dispute on merits such as to bring to an end the entire dispute whether by reconciliation or adjudication. The Act, therefore, specifically eschews technical pleas and their adjudication upon strict procedural requirements under the procedural laws applicable to civil courts.

6.It may be mentioned that the Judges of the Family Court must keep in mind the object and spirit of Sections 14 and 15 of the Family Courts Act. These sections essentially apply to the petitions filed before the 4 wp-8124

Family Court for the main reliefs. Even in the case of those petitions, only a memorandum of evidence is required to be recorded and not the entire evidence at length. Even in those matters any report, statement, document, information or material can be considered by the Court even if it is inadmissible in evidence or irrelevant to the issues. For an innocuous application such as the one for condoning delay of 10 or 14 days, the learned Judge could have only seen the appearance of the aforesaid person before the Vengurla Court and the reliance upon the copy of the Family Court decree therein. Nevertheless she has proceeded to record evidence, consider precedents and then give a judgment. In the ultimate exercise the application is rejected. The parties cannot be heard on merits. Spirit of the Family Courts Act is not respected.

7.It is indeed seen that the Petitioner came out with a false case. However, it is also seen that the difference in the dates of knowledge is between April 2009 and June 2009. Such delay could be condoned on payment of compensatory costs, if required. However, non-condonation is not justified.

8.Consequently, the order of the Family Court Judge, Mumbai, dated 8th June 2010 deserves to be interfered with and is set aside. However, that would be on 5 wp-8124

payment of compensatory costs by the Petitioner/wife to the Respondent/husband in view of her initial false case.

9. Hence Rule is made absolute conditionally as follows:

(i) Upon the Petitioner/wife paying the Respondent/husband Rs.10,000/- by way of costs within two weeks from today, the delay of 14 days in filing her application for setting aside the decree of divorce shall be condoned. If the costs are not paid, the Writ Petition would stand dismissed. The decree of divorce would be confirmed. If the costs are paid, the application for setting aside the divorce decree filed by the husband shall be placed on the board of the Court of the learned Judge, Family Court, for disposal on merits.

10.It is hoped that the learned Judge, Family Court, shall follow not only the letter but also the spirit of the Family Courts Act in disposal of petitions as well as applications.

11.Copy of this order shall be served upon all the Family Court Judges in the State.

(SMT.ROSHAN DALVI, J.)

Categories: Judgement

Husband pays 40Lakhs for settlement :(

February 22, 2011 1 comment
Bench: D Bhandari, D Verma

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

TRANSFER PETITION(CRL.)NO.637 OF 2009

S.G.RAJGOPALAN PRABHU & ORS. … PETITIONER(S) VERSUS

VEENA & ANR. … RESPONDENT(S) O R D E R

The matter was referred to the Supreme Court Mediation Centre. By the efforts of the Mediator, the matter has been settled. Parties have entered into a compromise. A Compromise Petition has been handed over to us in Court, which is taken on record. In terms of the compromise arrived at between the parties, the petitioners have agreed to pay a sum of Rs.40 lacs in full and final settlement of all claims of respondent-Mrs.Veena Rao. A Pay Order for a sum of Rs.40 lacs has been given to her in Court. Both the parties have prayed that following cases filed by them be quashed in view of the settlement. The details of cases pending in Courts are reproduced as under :-

i) Criminal Case NO.54/2008 lodged by 1st Respondent accusing the petitioners – pending investigation at Vastrapur Police Station, Ahmedabad (Gujarat),

ii) A petition filed by Respondent No.1 against the petitioners under the provisions of Domestic Violence Act, 2005, being Petition No.887 of 2008 pending before the 2nd Joint Judicial Magistrate Court, Ahmedabad Rural, Mirzapur, Ahmedabad (Gujarat),

iii) A petition for maintenance u/s.125 Crl.P.C., being No.553 of 2009 pending before the 3rd Judicial Magistrate Court, Gandhinagar (Gujarat). 2

In view of the compromise between the parties, we deem it appropriate to quash aforementioned cases pending inter se between the parties. In the facts and circumstances of this case, we deem it appropriate to pass a decree of divorce by mutual consent. In view of this order, the proceedings being HMOP No.111/2009 pending before the 2nd Joint Senior Civil Judge, Gandhinagar (Gujarat) also stand quashed. Parties undertake to abide by the other terms and conditions which have been recorded in the Compromise Deed. No further directions are necessary.

The Transfer Petition is, accordingly, disposed of. ……………….J.

(DALVEER BHANDARI)

……………….J.

(DEEPAK VERMA)

NEW DELHI;

26TH JULY, 2010

Husband willing to pay 10L,Wife demand 50L,SC orders 10 L to settle divorce

Bench: P Sathasivam, B Chauhan
IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO…1467… OF 2011

(Arising out of S.L.P.(C) NO. 19632 of 2007)

Parimal … Appellant Versus

Veena @ Bharti …Respondent J U D G M E N T

Dr. B.S. CHAUHAN, J.

1. Leave granted.

2. This appeal has been preferred against the judgment and order dated 17.7.2007, passed by the High Court of Delhi at New Delhi, in FAO No.63 of 2002, by which the High Court has allowed the application under Order IX Rule 13 of the Code of Civil Procedure, 1908 (hereinafter called CPC), reversing the judgment and order dated 11.12.2001, passed by the Additional District Judge, Delhi.

3. FACTS:

(A) Appellant got married to the respondent/wife on 9.12.1986 and out of the said wed lock, a girl was born. The relationship between 1

the parties did not remain cordial. There was acrimony in the marriage on account of various reasons. Thus, the appellant/husband filed a case for divorce on 27.4.1989, under section 13(1)(i-a) and (i-b) of the Hindu Marriage Act, 1955, against the respondent/wife. (B) Respondent/wife refused to receive the notice of the petition sent to her by the Court on 4.5.1989 vide registered AD cover for the date of hearing on 6.7.1989. Respondent/wife on 28.6.1989 was present at her house when the process server showed the summons to her. She read the same and refused to accept it. Refusal was reported by the process server, which was proved as Ex.OPW1/B. (C) Again on 7.8.1989, she refused to accept the notice for 8.9.1989, sent by the Court through process server. The Court ordered issuance of fresh notices. One was issued vide ordinary process and the other vide Registered AD cover for 8.9.1989. Registered AD was returned to the Court with report of refusal, as she declined to receive the AD notice. Under the Court’s orders, summons were affixed at the house of the respondent/wife, but she chose not to appear.

(D) She was served through public notice on 6.11.1989 published in the newspaper `National Herald’ which was sent to her address, 3/47, 2

First Floor, Geeta Colony, Delhi. This was placed on record and was not rebutted by the respondent/wife in any manner. (E) After service vide publication dated 8.11.1989 as well as by affixation, respondent/wife was proceeded ex- parte in the divorce proceedings. Ex-parte judgment was passed by Addl. District Judge, Delhi on 28.11.1989 in favour of the appellant/husband and the marriage between the parties was dissolved.

(F) Two years after the passing of the decree of divorce, on 16.10.1991, the appellant got married and has two sons aged 17 and 18 years respectively from the said marriage.

(G) The respondent, after the expiry of 4 years of the passing of the ex-parte decree of divorce dated 28.11.1989, moved an application dated 17.12.1993 for setting aside the same basically on the grounds that ex-parte decree had been obtained by fraud and collusion with the postman etc., to get the report of refusal and on the ground that she had not been served notice even by substituted service and also on the ground that even subsequent to obtaining decree of divorce the appellant did not disclose the fact of grant of divorce to her during the proceedings of maintenance under Section 125 of the Code of Criminal Procedure, 1973 (hereinafter called Cr.P.C.). The said 3

application under Order IX, Rule 13 CPC was also accompanied by an application under Section 5 of the Indian Limitation Act, 1963, for condonation of delay.

(H) The trial Court examined the issues involved in the application at length and came to the conclusion that respondent/wife miserably failed to establish the grounds taken by her in the application to set aside the ex-parte decree and dismissed the same vide order dated 11.12.2001.

(I) Being aggrieved, respondent/wife preferred First Appeal No.63 of 2002 before the Delhi High Court which has been allowed vide judgment and order impugned herein. Hence, this appeal. RIVAL SUBMISSIONS:

4. Shri M.C. Dhingra, Ld. counsel appearing for the appellant has submitted that the service stood completed in terms of statutory provisions of the CPC by the refusal of the respondent to take the summons. Subsequently, the registered post was also not received by her as she refused it. It was only in such circumstances that the trial Court entertained the application of the appellant under Order V, Rule 20 CPC for substituted service. The summons were served by publication in the daily newspaper `National Herald’ published from 4

Delhi which has a very wide circulation and further service of the said newspaper on the respondent/wife by registered post. The High Court committed a grave error by taking into consideration the conduct of the appellant subsequent to the date of decree of divorce which was totally irrelevant and unwarranted for deciding the application under Order IX, Rule 13 CPC. More so, the High Court failed to take note of the hard reality that after two years of the ex-parte decree the appellant got married and now has two major sons from the second wife. Therefore, the appeal deserves to be allowed and the judgment impugned is liable to be set aside.

5. On the contrary, Ms. Geeta Dhingra, Ld. counsel appearing for the respondent/wife has vehemently opposed the appeal, contending that once the respondent/wife made the allegations of fraud and collusion of the appellant with postman etc. as he succeeded in procuring the false report, the burden of proof would be upon the appellant and not upon the respondent/wife to establish that the allegations of fraud or collusion were false. The conduct of the appellant even subsequent to the date of decree of divorce, i.e. not disclosing this fact to the respondent/wife during the proceedings under Section 125 Cr.P.C., disentitles him from any relief before this 5

court of equity. No interference is required in the matter and the appeal is liable to be dismissed.

6. We have considered the rival submissions made by learned counsel for the parties and perused the record.

7. Order IX, R.13 CPC:

The aforesaid provisions read as under:

“Setting aside decree ex-parte against defendant In any case in which a decree is passed ex-parte against a defendant, he may apply to the Court by which the de- cree was passed for an order to set it aside; and if he sat- isfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit; xx xx xx Provided further that no Court shall set aside a decree passed ex-parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff’s claim.

xx xx xx” (Emphasis added)

8. It is evident from the above that an ex-parte decree against a 6

defendant has to be set aside if the party satisfies the Court that summons had not been duly served or he was prevented by sufficient cause from appearing when the suit was called on for hearing. However, the court shall not set aside the said decree on mere irregularity in the service of summons or in a case where the defendant had notice of the date and sufficient time to appear in the court.

The legislature in its wisdom, made the second proviso, mandatory in nature. Thus, it is not permissible for the court to allow the application in utter disregard of the terms and conditions incorporated in the second proviso herein.

9. “Sufficient Cause” is an expression which has been used in large number of Statutes. The meaning of the word “sufficient” is “adequate” or “enough”, in as much as may be necessary to answer the purpose intended. Therefore, word “sufficient” embraces no more than that which provides a platitude which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the view point of a reasonable standard of a cautious man. In this context, “sufficient cause” means that party had not acted in a negligent manner or there 7

was a want of bona fide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been “not acting diligently” or “remaining inactive”. However, the facts and circumstances of each case must afford sufficient ground to enable the Court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously. (Vide: Ramlal & Ors. v. Rewa Coalfields Ltd., AIR 1962 SC 361; Sarpanch, Lonand Grampanchayat v. Ramgiri Gosavi & Anr., AIR 1968 SC 222; Surinder Singh Sibia v. Vijay Kumar Sood, AIR 1992 SC 1540; and Oriental Aroma Chemical Industries Limited v. Gujarat Industrial Development Corporation & Another, (2010) 5 SCC 459)

10. In Arjun Singh v. Mohindra Kumar & Ors., AIR 1964 SC 993, this Court observed that every good cause is a sufficient cause and must offer an explanation for non-appearance. The only difference between a “good cause” and “sufficient cause” is that the requirement of a good cause is complied with on a lesser degree of proof than that of a “sufficient cause”. (See also: Brij Indar Singh v. Lala Kanshi Ram & Ors., AIR 1917 P.C. 156; Manindra Land and Building Corporation Ltd. v. Bhutnath Banerjee & Ors., AIR 8

1964 SC 1336; and Mata Din v. A. Narayanan, AIR 1970 SC 1953).

11. While deciding whether there is a sufficient case or not, the court must bear in mind the object of doing substantial justice to all the parties concerned and that the technicalities of the law should not prevent the court from doing substantial justice and doing away the illegality perpetuated on the basis of the judgment impugned before it. (Vide: State of Bihar & Ors. v. Kameshwar Prasad Singh & Anr., AIR 2000 SC 2306; Madanlal v. Shyamlal, AIR 2002 SC 100; Davinder Pal Sehgal & Anr. v. M/s. Partap Steel Rolling Mills (P) Ltd. & Ors., AIR 2002 SC 451; Ram Nath Sao alias Ram Nath Sao & Ors. v. Gobardhan Sao & Ors., AIR 2002 SC 1201; Kaushalya Devi v. Prem Chand & Anr. (2005) 10 SCC 127; Srei International Finance Ltd., v. Fair growth Financial Services Ltd. & Anr., (2005) 13 SCC 95; and Reena Sadh v. Anjana Enterprises, AIR 2008 SC 2054).

12. In order to determine the application under Order IX, Rule 13 CPC, the test has to be applied is whether the defendant honestly and sincerely intended to remain present when the suit was called on for hearing and did his best to do so. Sufficient cause is thus the cause for 9

which the defendant could not be blamed for his absence. Therefore, the applicant must approach the court with a reasonable defence. Sufficient cause is a question of fact and the court has to exercise its discretion in the varied and special circumstances in the case at hand. There cannot be a strait-jacket formula of universal application. PRESUMPTION OF SERVICE BY REGISTERED POST & BURDEN OF PROOF:

13. This Court after considering large number of its earlier judgments in Greater Mohali Area Development Authority & Ors. v. Manju Jain & Ors., AIR 2010 SC 3817, held that in view of the provisions of Section 114 Illustration (f) of the Evidence Act, 1872 and Section 27 of the General Clauses Act, 1897 there is a presumption that the addressee has received the letter sent by registered post. However, the presumption is rebuttable on a consideration of evidence of impeccable character. A similar view has been reiterated by this Court in Dr. Sunil Kumar Sambhudayal Gupta & Ors. v. State of Maharashtra, JT 2010 (12) SC 287.

14. In Gujarat Electricity Board & Anr. v. Atmaram Sungomal Poshani, AIR 1989 SC 1433, this Court held as under: “There is presumption of service of a letter sent 1

under registered cover, if the same is returned back with a postal endorsement that the addressee refused to accept the same. No doubt the presumption is rebuttable and it is open to the party concerned to place evidence before the Court to rebut the presumption by showing that the address mentioned on the cover was incorrect or that the postal authorities never tendered the registered letter to him or that there was no occasion for him to refuse the same. The burden to rebut the presumption lies on the party, challenging the factum of service.”

(Emphasis added)

15. The provisions of Section 101 of the Evidence Act provide that the burden of proof of the facts rests on the party who substantially asserts it and not on the party who denies it. In fact, burden of proof means that a party has to prove an allegation before he is entitled to a judgment in his favour. Section 103 provides that burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any special law that the proof of that fact shall lie on any particular person. The provision of Section 103 amplifies the general rule of Section 101 that the burden of proof lies on the person who asserts the affirmative of the facts in issue.

PRESENT CONTROVERSY:

1

16. The case at hand is required to be considered in the light of the aforesaid settled legal propositions. The trial Court after appreciating the entire evidence on record and pleadings taken by the parties recorded the following findings:

“The applicant/wife as per record was served with the notice of the petition, firstly, on 4.5.89 when she had refused to accept the notice of the petition vide registered AD cover for the date of hearing i.e. 6.7.89 and thereafter on 7.8.89 when again she refused to accept the notice for 8.9.89 and thereafter when the notice was published in the newspaper `National Herald’ on 6.11.89. The UPC Receipt dated 6.11.89 vide which the newspaper `National Herald’ dated 6.11.89 was sent to the respondent/applicant at her address 3/47, First Floor, Geeta Colony, Delhi is on record and has not been rebutted in any manner.

In these circumstances, the application u/o 9 Rule 13 CPC filed by the respondent/applicant/wife on 7.1.1994 is hopelessly barred by time and no sufficient ground has been shown by the applicant/wife for condoning the said inordinate delay.”

17. So far as the High Court is concerned, it did not deal with this issue of service of summons or as to whether there was “sufficient cause” for the wife not to appear before the court at all, nor did it set aside the aforesaid findings recorded by the trial Court. The trial Court has dealt with only the aforesaid two issues and nothing else. 1

The High Court has not dealt with these issues in correct perspective. The High Court has recorded the following findings: “The order sheets of the original file also deserve a look. The case was filed on 1.5.1989. It was ordered that respondent be served vide process fee and Regd. AD for 6.7.1989. The report of process server reveals that process server did not identify the appellant and she was identified by the respondent himself. In next date’s report appellant was identified by a witness. The Retd. AD mentions only one word “refused”. It does not state that it was tendered to whom and who had refused to accept the notice. The case was adjourned to 8.9.1989. It was recorded that respondent had refused to take the notice. Only one word, “Refused” appears on this registered envelope as well. On 8.9.1989 itself it was reported that respondent had refused notice and permission was sought to move an application under Order 5 Rule 20 of CPC. On 8.9.1989, application under Section 5 Rule 20 CPC was moved and it was ordered that the appellant be served through “National Herald”. The presumption of law if any stands rebutted by the statement made by the appellant because she has

stated that she was staying in the said house of her brother for a period of eight months. The version given by her stands supported by the statement made by her brother.”

(Emphasis added)

18. The High Court held that presumption stood rebutted by a bald statement made by the respondent/wife that she was living at different address with her brother and this was duly supported by her brother 1

who appeared as a witness in the court. The High Court erred in not appreciating the facts in the correct perspective as substituted service is meant to be resorted to serve the notice at the address known to the parties where the party had been residing last. (Vide Rabindra Singh v. Financial Commissioner, Cooperation, Punjab & Ors., (2008) 7 SCC 663).

19. More so, it is nobody’s case that respondent/wife made any attempt to establish that there had been a fraud or collusion between the appellant and the postman. Not a single document had been summoned from the post office. No attempt has been made by the respondent/wife to examine the postman. It is nobody’s case that the “National Herald” daily newspaper published from Delhi did not have a wide circulation in Delhi or in the area where the respondent/wife was residing with her brother. In such a fact-situation, the impugned order of the High Court becomes liable to be set aside.

20. The appellate Court has to decide the appeal preferred under Section 104 CPC following the procedure prescribed under Order XLIII, Rule 2 CPC, which provides that for that purpose, procedure prescribed under Order XLI shall apply, so far as may be, to appeals 1

from orders. In view of the fact that no amendment by Delhi High Court in exercise of its power under Section 122 CPC has been brought to our notice, the procedure prescribed under Order XLI, Rule 31 CPC had to be applied in this case. .

21. Order XLI, Rule 31 CPC provides for a procedure for deciding the appeal. The law requires substantial compliance of the said provisions. The first appellate Court being the final court of facts has to formulate the points for its consideration and independently weigh the evidence on the issues which arise for adjudication and record reasons for its decision on the said points. The first appeal is a valuable right and the parties have a right to be heard both on question of law and on facts. (vide: Moran Mar Basselios Catholicos & Anr. v. Most Rev. Mar Poulose Athanasius & Ors., AIR 1954 SC 526; Thakur Sukhpal Singh v. Thakur Kalyan Singh & Anr., AIR 1963 SC 146; Santosh Hazari v. Purshottam Tiwari, AIR 2001 SC 965; Madhukar v. Sangram, AIR 2001 SC 2171; G. Amalorpavam & Ors. v. R.C. Diocese of Madurai & Ors., (2006) 3 SCC 224; Shiv Kumar Sharma v. Santosh Kumari, (2007) 8 SCC 600; and Gannmani Anasuya & Ors. v. 1

Parvatini Amarendra Chowdhary & Ors., AIR 2007 SC 2380).

22. The first appellate Court should not disturb and interfere with the valuable rights of the parties which stood crystallised by the trial Court’s judgment without opening the whole case for re-hearing both on question of facts and law. More so, the appellate Court should not modify the decree of the trial Court by a cryptic order without taking note of all relevant aspects, otherwise the order of the appellate Court would fall short of considerations expected from the first appellate Court in view of the provisions of Order XLI, Rule 31 CPC and such judgment and order would be liable to be set aside. (Vide B.V. Nagesh & Anr. v. H.V. Sreenivassa Murthy, JT (2010) 10 SC 551). 23.In view of the aforesaid statutory requirements, the High Court was duty bound to set aside at least the material findings on the issues, in spite of the fact that approach of the court while dealing with such an application under Order IX, Rule 13 CPC would be liberal and elastic rather than narrow and pedantic. However, in case the matter does not fall within the four corners of Order IX, Rule 13 CPC, the court has no jurisdiction to set aside ex-parte 1

decree. The manner in which the language of the second proviso to Order IX, Rule 13 CPC has been couched by the legislature makes it obligatory on the appellate Court not to interfere with an ex-parte decree unless it meets the statutory requirement.

24. The High Court has not set aside the material findings recorded by the trial Court in respect of service of summons by process server/registered post and substituted service. The High Court failed to discharge the obligation placed on the first appellate Court as none of the relevant aspects have been dealt with in proper perspective. It was not permissible for the High Court to take into consideration the conduct of the appellant subsequent to passing of the ex-parte decree. More so, the High Court did not consider the grounds on which the trial Court had dismissed the application under Order IX, Rule 13 CPC filed by the respondent/wife. The appeal has been decided in a casual manner.

25. In view of the above, appeal succeeds and is allowed. The judgment and order dated 17.7.2007 passed by the High Court of Delhi in FAO No. 63 of 2002 is set aside and the judgment and order of the trial Court dated 11.12.2001 is restored. 1

Before parting with the case, it may be pertinent to mention here that the court tried to find out the means of re-conciliation of the dispute and in view of the fact that the appellant got married in 1991 and has two major sons, it would not be possible for him to keep the respondent as a wife. A lump sum amount of Rs. 5 lakhs had been offered by Shri M.C. Dhingra, Ld. counsel for the appellant to settle the issue. However, the demand by the respondent/wife had been of Rs. 50 lakhs. Considering the income of the appellant as he had furnished the pay scales etc., the court feels that awarding a sum of Rs. 10 lakhs to the wife would meet the ends of justice as a lump sum amount of maintenance for the future. The said amount be paid by the appellant to the respondent in two equal instalments within a period of six months from today. The first instalment be paid within three months.

………………………..J.

(P. SATHASIVAM)

………………………..J.

(Dr. B.S. CHAUHAN)

New Delhi,

February 8, 2011

Categories: Judgement

HC: 125 CrPC dismissed, DV dismissed, Divorce granted: Dream come true for husband :)

Delhi HC: Must read judgement of Divorce

January 14, 2011 1 comment

IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment reserved on: 24.9.2010

Judgment delivered on: 13.01.2011

FAO No. 46/1995

Smt. Vimal Kanta Appellant Through: Mr. Rajat Navet, Advocate.

Vs.

Shri J.M. Kohli Respondent. Through: Ms. Geeta Luthra, Sr. Advocate

with Mr. Abhishek Aggarwal, Adv.

CORAM:

HON’BLE MR. JUSTICE KAILASH GAMBHIR

1. Whether the Reporters of local papers may be allowed to see the judgment? Yes

2. To be referred to Reporter or not? Yes

3. Whether the judgment should be reported

in the Digest? Yes

KAILASH GAMBHIR, J.

*

1. The appellant at this old age of 80 years is before this court in appeal to challenge the judgment and decree of FAO No. 46/1995 Page 1 of 25 divorce passed by the learned trial court vide order dated 30.9.94 on the ground of desertion envisaged under Section 13 (1)(ib) of the Hindu Marriage Act, 1955, thereby dissolving the marriage between the parties.

2. A conspectus of facts of the present appeal is that the marriage between the parties was solemnized on 20.6.1953 as per Hindu rites and ceremonies and a female child was born out of this wedlock on 14.7.1954, who has been living throughout with her mother i.e. the appellant herein. The respondent husband had filed a divorce petition on the grounds of cruelty and desertion as long back as 12.10.1982. The appellant had contested the said petition with all the zeal at her command and both the parties entered the trial with accusations and cross accusations. The respondent examined himself and 10 other witnesses so as to prove the allegations of cruelty as well as desertion while the appellant on the other hand examined herself and three other witnesses to prove her defence. Based on the pleadings and documentary evidence adduced by the FAO No. 46/1995 Page 2 of 25 parties, the learned trial court dismissed the petition of the respondent so far the ground of cruelty was concerned but decreed the divorce petition on the ground of desertion under Section 13 (1) (ib) of Hindu Marriage Act.

3. Feeling aggrieved with the same, the appellant preferred the present appeal on 13.2.95, which was taken up by this court on 23.2.1995. Since there was some delay on the part of the appellant in preferring the present appeal, and possibly taking advantage of the same, the respondent got remarried on 30.12.94 and a female child was also born out of the said remarriage on 31.7.2000. Before finally hearing this matter, a lot of persuasive efforts were made not only by this Court but also by the predecessor judges of this court to bring about an amicable settlement between them but all such efforts turned futile as both the parties remained totally reluctant and rigid to budge from the hostile positions taken by them. In most of the hearings, the appellant remained present with her elderly daughter of 56 years while the respondent, an old man of 83 years, FAO No. 46/1995 Page 3 of 25 remained present with his comparatively young wife of 47 years, contesting the present appeal with great fervour.

4. So far the allegations of cruelty leveled by the respondent against the appellant are concerned, this court need not go into the same as already the learned trial court has held that the ground could not be satisfactorily established by the respondent husband as envisaged under Section 13(1) (ia) of the HMA. So far the challenge to the decree granted by the learned trial court on the ground of desertion is concerned, the main argument advanced by the counsel for the appellant was that the basic ingredients of desertion were not proved by the respondent husband. The contention raised by the counsel for the appellant was that once the respondent husband has failed to prove the acts of cruelty on the part of the appellant wife, then the respondent leaving the matrimonial home due to the cruel acts of the appellant wife could not have arisen. Counsel thus alleged that the respondent husband failed to prove and establish on record that there was any intention on the FAO No. 46/1995 Page 4 of 25 part of the appellant wife to bring cohabitation permanently to an end. Counsel also submitted that the respondent husband in his own statement admitted the fact of his continuous visits to the house at Munirka till September, 1982, besides the fact that he had opened a bank account in the name of the appellant on 25.1.1980 and of attending a Kriya ceremony with the appellant after 24.12.1979. To the same effect was the deposition of RW-2 Mr. R.S. Dohare who also deposed in his evidence that the respondent used to visit Munirka even after 24.12.1979. Counsel also submitted that even the testimony of the appellant testifying that the respondent husband even used to stay overnight after 24.12.1979 remained unrebutted. Counsel also submitted that the learned trial court failed to properly appreciate the dictum of law laid down by the Apex Court in Bipin Chander Vs. Prabhawati AIR 1957 SC 176.

5. Based on these submissions, counsel for the appellant submitted that the respondent failed to prove the ground of desertion or even the constructive desertion on FAO No. 46/1995 Page 5 of 25 the part of the appellant wife. In support of his arguments, counsel for the appellant placed reliance on the judgment of the Division Bench of this court in Kiran Sharma Vs. Shradha Nand 44 (1991) DLT 90.

6. Refuting the said submissions of the counsel for the appellant, Ms. Geeta Luthra, learned Senior Advocate appearing for the respondent fully supported the judgment of the learned trial court. Counsel submitted that the judgment of the learned trial court is a well reasoned judgment and the appellant has failed to point out any illegality or infirmity in the same. Counsel for the respondent also submitted that the respondent was thrown out of the Munirka house on 24.12.1979 and this fact was duly proved on record by the respondent through an affidavit of the appellant dated 24.12.1979 wherein she clearly stated that she along with her daughter asked the respondent to live separately from them temporarily. Besides the said affidavit, the respondent has also proved on record an endorsement on the carbon copy of the said FAO No. 46/1995 Page 6 of 25 affidavit as Ex.R-1 which endorsement would further strengthen the plea of the respondent that he had left the Munirka house as per the desire of the appellant and her daughter. Counsel thus submitted that on the said very date i.e. 24.12.1979, not only there was a separation between the parties but also there was a clear intention on the part of the appellant wife to bring the cohabitation permanently to an end. Counsel thus submitted that the appellant has no case to assail the findings of the learned trial court and the same be accordingly upheld.

7. I have heard learned counsel for the parties at considerable length and gone through the records.

8. It is an unfortunate case of a geezer whose marriage turned ruinous right at the very beginning. As per the respondent, after solemnization of the marriage of the parties on 20.6.1953, the appellant did not stay with him even for a day as the locality where the respondent was residing was not to her liking (Kashmiri Gate). The respondent along with his parents arranged a house in Patel FAO No. 46/1995 Page 7 of 25 Nagar and shifted there in August 1953. Again presence of the parents of the respondent was objected to by the appellant, who then shifted to their old house in December 1953. Both the parties again shifted in a quarter at Lodhi Road in February 1954 which was allotted in the name of the brother of the appellant who was then unmarried , and the said quarter was near to the parental house of the appellant. A female child was born out of the said wedlock on 14.9.1954 and in March 1955 the parties again shifted back to their old house at Kashmiri Gate. In July 1955, the appellant was taken away by her parents on the pretext of her participation in the engagement ceremony of her younger brother when some jewellery items were also alleged to have been borrowed by the parents of the appellant from the parents of the respondent. Since thereafter a crisscross legal battle started between the parties. The respondent had filed a declaratory suit on 20/21.3.1957 to claim that the contents of the locker being maintained in the name of the mother of the appellant belonged to the respondent. The respondent had also filed a FAO No. 46/1995 Page 8 of 25 suit for restitution of conjugal rights under Section 9 of the Hindu Marriage Act in March 1957. The appellant on the other hand had filed a suit for maintenance u/s 488 Cr.P.C, 1898 (the old Act) in March 1957. The respondent had also filed another suit to seek judicial separation under Section 10 of the Hindu Marriage Act in 1960. The respondent had also preferred an appeal after his case seeking restitution of conjugal rights was dismissed on 28.2.62. It is in this appeal, with the intervention of the presiding judges, both the parties were persuaded to stay together and thereafter the appellant had agreed to join the matrimonial home on the condition that the respondent should continue to pay the maintenance amount of Rs.300 per month till she starts getting a salary. Even despite the said compromise, the appellant did not join back the matrimonial home and it was only in the year 1966 that the appellant had agreed to join back the company of the respondent while he was residing at a newly built house at Punjabi Bagh. After the year 1966 both the parties lived together till 24.12.1979 and in this manner both the parties could stay together only for a FAO No. 46/1995 Page 9 of 25 period of thirteen years since their marriage of 29 years till the filing of the petition for divorce on 1982. The narration of aforesaid background as set out by the respondent in his divorce petition is necessary to highlight the fact that both the parties were never at peace and their relations became strained right from the very inception of their marriage and the only silver lining in their relationship was birth of a female child on 14.9.1954. How much trauma and misery the child must have suffered right from the day of coming in her senses watching her parents fight such fierce legal battle cannot even be imagined. However, now 16 years have passed since the filing of the present appeal and the court is confronted to adjudicate upon a mordant situation where the marriage is dead but the parties are fighting the battle, so deadly, for the last 28 years.

9. The appellant has filed the present appeal on the ground that the findings of the learned trial court with regard to desertion are perverse. The question as to what FAO No. 46/1995 Page 10 of 25 precisely constitutes “desertion” has been elaborately discussed in a catena of judgments of the Hon’ble Supreme Court as well as various High Courts and also in several English cases. “Desertion” in a sense means the intentional permanent abandonment of a spouse by the other, without consent and without reasonable cause. It is a settled legal position that desertion is not a physical withdrawal from a place, but from a state of things, from which one can easily draw a conclusion that it is not a physical separation alone but there is a complete withdrawal on the part of the deserting spouse to bring cohabitation permanently to an end between them. The learned trial court referred to the judgment of the Apex Court in Bipin Chander’s case (Supra) where the concept of desertion has been defined in the following words:

“For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. The petitioner for divorce bears the burden of proving those elements in the two spouses respectively.” FAO No. 46/1995 Page 11 of 25

10. The above legal position was reiterated by the Apex Court in the Constitution Bench decision in Lachman UtamChand Kirpalani vs. Meena Alias Mota (1964) 4 SCR 331 and other subsequent judgments. Hence to establish desertion the two essential elements to be proved by the petitioner are the factum of separation and animus deserendi. In the facts of the case at hand, it is the case of the respondent husband that he was forced to leave the company of the respondent on 24.12.79. It is not in dispute between the parties that the parties lived separately thereafter. The factum of separation is thus not disputed. Coming to the second ingredient of animus deserendi, it is to be seen whether the intention of the deserting spouse was to bring the cohabitation permanently to end. The affidavit PW 2/3 proved on record is an affidavit dated 24.12.1979 where the appellant has admitted that she asked the respondent to live separately temporarily. It is important to reproduce the same here:

FAO No. 46/1995 Page 12 of 25 “1. That I am living with my husband, Shri J.M.Kohli, A.S.W. C.P.W.D., New Delhi and my daughter, Renu Kohli at C-1/F, D.D.A Flats, Munirka.

2. That I and my daughter have asked Shri J.M.Kohli to live separately from us temporarily since inspite of the best efforts by us we could not live peacefully together. Therefore, Shri Kohli would shift and would live separately from us temporarily. I have no complaint against him.”

The signatures on the above affidavit have been admitted by the appellant and the veracity of the above document cannot be questioned in the face of the above admission. It is also important to mention that in the document Ex R 1 proved on record, there is a handwritten endorsement by the respondent that he is vacating the said premises as per the desire of the appellant. It would be pertinent to reproduce the same here:

“I am vacating C-1/F DDA Flats today the 24.12.79 as desired by Mrs. Vimla Kohli and Miss Renu for the betterment of all. I shall be paying maintenance/pay monthly personally each month and shall help them as and when required on intimation to me on my office telephone No.611475. The unpaid monthly instalment of C-1/F, Munirka till today to be paid to D.D.A. shall be paid by me.”

sd/ J.M.Kohli.

24.12.79″

FAO No. 46/1995 Page 13 of 25

11. It is evident from the above said affidavit that the cohabitation between the parties ended on 24.12.1979. It is the contention of the appellant that it was a temporary separation and cannot be taken to mean that the intention of the appellant was to bring the cohabitation to end permanently. It is a settled legal position that the factum of separation and animus deserendi are not to always co exist and that the animus can be inferred from the subsequent conduct of the deserting spouse. Here it would be pertinent to refer to the judgment of the Apex Court in the case of Bipin Chander (supra) where it was held that: “Desertion is a matter of inference to be drawn from the facts and circumstances of each case. The inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say, the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation. If, in fact, there has been a separation the essential question always is whether that act could be attributable to an animus deserendi. The offence of desertion commences when the fact of separation and the animus deserendi co-exist. But it is not necessary that they should commence at the same time. The de facto separation may have

commenced without the necessary animus deserendi coincide in point of time..”

FAO No. 46/1995 Page 14 of 25 Therefore, though the parties separated on 24.12.1979 temporarily but the animus for bringing the cohabitation to end was later developed and can be inferred from the subsequent events in the present case as the appellant made no efforts for reconciliation or did any act to restore the wrecked relationship. Also in the case of Savitri Pandey vs. Prem Chandra Pandey (2002) 2 SCC 73 after referring to judgments in Bipin Chander and Lachman Utamchand , the Apex Court held that :

“8. “Desertion”, for the purpose of seeking divorce under the Act, means the intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent and without reasonable cause. In other words it is a total repudiation of the obligations of marriage. Desertion is not the withdrawal from a place but from a state of things. Desertion, therefore, means withdrawing from the matrimonial obligations, ie.., not permitting of allowing and facilitating the cohabitation between the parties. The proof desertion has to be considered by taking into consideration the concept of marriage which in law legalises the sexual relationship between man and woman in the society for the perpetuation of race, permitting lawful indulgence in passion to prevent licentiousness and procreation of children. Desertion is not a single act complete in itself, it is a continuous course of conduct to be determined under the facts and circumstances of each case.

12. Clearly in the present case, the appellant is the deserting spouse and her intention can be inferred from her FAO No. 46/1995 Page 15 of 25 conduct. The very fact that the appellant did not make any efforts to restore the matrimonial relations would show that she did not want to live with the respondent husband after she separated from him temporarily and hence that lent an element of permanence to the temporary separation. This fact is also strengthened by her cross examination where she admitted that since the day she was living separately from the respondent, she never made any effort for reconciliation because there was no such opportunity. Also, PW 6, Sh.Atma Ram Birdhi in his examination stated that when the respondent had met with an accident, and even otherwise when he stayed in the rented premises of PW 6, the appellant never visited him. It is thus clearly borne out from the above that there was animus deserendi on the part of the appellant and she had deserted the respondent without reasonable cause.

13. Coming to the other argument of the counsel for the appellant that the respondent visited the house at Munirka even after 24.12.1979 and that there was no desertion FAO No. 46/1995 Page 16 of 25 before filing of the petition, it is an admitted fact that the respondent husband used to visit the Munirka house to meet his daughter. Much stress was laid by counsel for the appellant on the evidence of RW 2 Shri R.S Dohare, where he stated that the respondent used to live with the appellant whenever he visited her in the flat. Also, the fact that the appellant admitted that he gave an application for opening of a bank account in the name of the appellant on 25.1.1980 and that he attended the Kirya ceremony of a relative of the appellant on 7.2.1981 would go on to prove that there was no desertion even after 24.12.1979, the counsel contended. It is not the case of the appellant that there was any resumption of cohabitation between the parties after 24.12.1979. The visits, as admitted by the respondent were to meet his daughter. Even otherwise, the visits of the respondent cannot be taken to mean that they both lived as husband and wife. Such casual visits, unless otherwise proved, cannot be taken as if the parties had restored their marital relations. Paradoxically, however both the events, that is opening of the bank account and attending the Kriya FAO No. 46/1995 Page 17 of 25 ceremony go on to show that the respondent was fulfilling his duties as a husband and was still willing to live with the appellant and their daughter but it is the appellant who did not respond to his efforts. Here it would be useful to refer to the judgment of the Apex Court in the case of Adhyatma Bhattar Alwar vs. Adhyatma Bhattar Sri Devi (2002) 1 SCC 308 where it was held that :

“The clause lays down the rule that desertion to amount to a matrimonial offence must be for a continuous period of not less than two years immediately proceeding the presentation of the petition. This clause has to be read with the Explanation. The Explanation has widened the definition of desertion to include ‘willful neglect’ of the petitioning spouse by the respondent. It status that to amount to a matrimonial offence desertion must be without reasonable cause and without the consent or against the wish of the petitioner. From the Explanation it is abundantly clear that the legislature intended to give to the expression a wide import which includes willful neglect of the petitioner by the other party to the marriage.

Hence, it would be clear from the law settled by the Apex Court that the explanation to Section 13 talks about willful neglect of the petitioner by the respondent in case of desertion. In the present case as well the appellant never bothered about the whereabouts of the respondent husband and hence such conduct of the appellant further strengthens FAO No. 46/1995 Page 18 of 25 the case of the respondent to claim divorce on the ground of desertion.

14. The court in the case of Adhyatma Bhattar (supra) further observed:

11. This Court in the case of Smt. Rohini Kumari v. Narendra Singh,: [1972]2SCR657 , while considering the case of judicial separation on the ground of desertion under Section 10(1)(a) of the Act read with the Explanation, held:

“…The two elements present on the side of the deserted spouse should be absence of consent and absence of conduct reasonably causing the deserting spouse to form his or her intention to bring cohabitation to an end. The requirement that the deserting spouse must intend to bring cohabitation to an end must be understood to be subject to the qualification that if without just cause or excuse a man persists in doing things which he knows his wife probably will not tolerate and which no ordinary woman would tolerate and then she leaves, he has deserted her whatever his desire or intention may have been. The doctrine of “constructive desertion” is discussed at page 229. It is stated that desertion is not to be tested by merely ascertaining which party left the matrimonial home first. If one spouse is forced by the conduct of the other to leave home it may be that the spouse responsible for the driving out is guilty of desertion. There is no substantial difference between the case of a man who intends to cease cohabitation and leaves the wife and the case of a man who with the same intention compels his wife by his conduct to leave him.

In Lachman Utamchand Kirpalani v. Meena alias Mota, this Court had occasion to consider the true meaning the ambit of Section 10(1)(a) of the Act read with the Explanation. Reference was made in the majority judgment to the earlier decision in Bipin Chander Jaisinghbhai Shah v. Prabhawati, in which all the English decisions as also the statement contained in authoritative text books were considered. After referring to the two essential conditions, namely, the factum of physical separation and the animus deserendi which meant the intention to bring the cohabitation permanently to an end as also the two elements so FAO No. 46/1995 Page 19 of 25 far as the deserted spouse was concerned i.e.(1) the absence of consent and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the intention aforesaid, it was observed while examining how desertion might come to an end:

“In the first place, there must be conduct on the part of the deserted spouse which affords just and reasonable cause for the deserting spouse not to seek reconciliation and which absolves her from her continuing obligation to return to the matrimonial home. In this one has to be regard to the conduct of the deserted spouse. But there is one other matter which is also of equal importance, that is, that the conduct of the deserted spouse should have had such an impact on the mind of the deserting spouse that in fact it causes her to continue to live apart and thus continue the desertion. But where however, on the facts it is clear that the conduct of the deserted spouse has had no such effect on the mind of the deserting spouse there is no rule of law that desertion terminates by reason of the conduct of the deserted spouse.”

(Emphasis supplied)

Hence in the face of the above settled law, it is evident that the conduct of the respondent in visiting the appellant at Munirka would not dislodge the fact of desertion.

15. The counsel for the appellant also placed reliance on the judgment of the division bench of this court in the case of Kiran Sharma (supra) to support his argument that as cruelty could not be established by the respondent hence the circumstances which compelled him to leave the house could not be established which would infer that the respondent left the house on his own will. The contention of FAO No. 46/1995 Page 20 of 25 the counsel is devoid of any merit as the law is clear that there has to be an absence of consent of the deserted spouse. In the endorsement to the affidavit reproduced above, it is distinctly stated that the respondent is vacating the Munirka house as per the desire of the appellant. This is enough to show the absence of consent on the part of the respondent husband. In this regard the learned trial court has relied upon the testimony of PW 6, and rightly so, where he stated that the respondent husband was his tenant from April, 1980 to Feb 1982 at Safdarjung Enclave and that when he occupied the tenanted premises, he had only one box, bedding, some utensils and one coat. Before April 1980 the respondent resided in village Katmarna Sarai. The respondent had also proved the rent receipts on record. Had the respondent left the house on his own will he would have at least made arrangements to live decently beforehand as he had his own house in Punjabi Bagh which was on rent. The circumstances clearly show that the respondent was turned out of the house as otherwise he would not have only meager things when he came to occupy the tenanted FAO No. 46/1995 Page 21 of 25 premises. The other essential with regard to the deserted spouse as held by a plethora of judgments reproduced above is the absence of conduct which would reasonably cause the deserting spouse to form his/her intention to bring cohabitation to an end. In the facts of the present case, in the affidavit PW2/3 reproduced above, the appellant has clearly deposed that she has no complaint from the respondent husband. Had the respondent husband been cruel to the appellant, it was for her to show that the husband had left the house on his own accord and is taking advantage of his wrongs as envisaged under section 23 which would thus create a bar for the respondent to seek a decree of divorce on the ground of desertion. However no such plea has been raised by the appellant in this regard in the pleadings or in the evidence. The judgment in the case of Kiran Sharma thus would not be applicable to the facts of the case at hand as there the husband left the matrimonial home as he had illicit relations with another woman which the wife could successfully establish that the husband was FAO No. 46/1995 Page 22 of 25 trying to take advantage of his wrong in claming the decree of divorce on the ground of desertion.

16. Before parting with the judgment, this court is constrained to observe that this is an unfortunate case where the parties have spent more than half of their lives in the alleys of the courts. Marriage is a union where the husband and wife spend their entire life building a bond of trust, love and friendship which would be their support during the last years of their lives. Having the other spouse by the side at the fag end, to cherish the moments of their times spent together, is an asset which clearly the parties were devoid of in the present case. The parties were involved in mud slinging at each other for so many years that they did not realize that they would not have the time to start their lives afresh. At this juncture of 80 years, the appellant wanted the decree of divorce to be set aside which made me inquisitive to know the reason behind it. Was it because that the appellant wanted to be a legally wedded wife till her last breath with the pride of the red vermillion FAO No. 46/1995 Page 23 of 25 adorning her or was it because she had her eyes on the enrichments that would ensue if she still has the status of the wife of the respondent or was it because there was nothing but pure vengeance to settle the score with the respondent that propelled the appellant to fight this arduous legal battle when practically her marital life turned catastrophic long back. However, the answer to this is still shrouded in mystery. In any case, the irresistible conclusion is that it is a dead and ominous marriage, and adjudicating it has led this court to have a grave concern over the time taken to decide matrimonial cases. This court would not shy away from observing that the years which should have been spent by the parties to start on a clean slate have been spent with the lawyers and in the court rooms. When parties approach the portals of law for dissolving their matrimony, it should be the endeavour of the courts to expeditiously decide these matters so that parties can get on with carving out their future plans. But more often the situation arises, like in the present case, that the grueling litigative voyage leaves the parties helpless and hapless. The vicious circle of FAO No. 46/1995 Page 24 of 25 litigation has contributed to the demise of their hopes, promises and dreams. This case has indeed left me with a bitter aftertaste.

17. In the light of the foregoing, this court is of the view that the respondent has successfully proved the ground of desertion. Hence, in the totality of the facts and circumstances this court does not find any illegality or perversity in the findings arrived at by the learned court below and the same are accordingly upheld. The appeal is hereby dismissed.

January 13, 2011 KAILASH GAMBHIR, J FAO No. 46/1995 Page 25 of 25

Categories: Judgement

Good Judgement by Delhi HC: How a husband proved cruelty by wife.

IN THE HIGH COURT OF DELHI AT NEW DELHI

MAT APP No. 98/2010

Judgment delivered on: 19.11.2010

Smt. Nitu Aggarwal ….. Appellant Through: Mr.Rajiv Shukla, Adv.

Versus

Sh.Gireesh Gupta ….. Respondent Through: Mr.Gyan Prakash, Adv.

CORAM:

HON’BLE MR. JUSTICE KAILASH GAMBHIR,

1. Whether the Reporters of local papers may

be allowed to see the judgment? Yes

2. To be referred to Reporter or not? Yes

3. Whether the judgment should be reported

in the Digest? Yes KAILASH GAMBHIR, J. Oral:

*

1. By this appeal filed under Section 28 of the Hindu Marriage Act, 1955 the appellant seeks to challenge MAT APP No. 98/2010 Page 1 of 11 the judgment and decree dated 27.4.2010, passed by the learned Additional District Judge, Delhi, whereby a decree of judicial separation was passed.

2. Brief facts of the case relevant for deciding the present appeal are that the parties got married on 5.11.03 at Noida according to Hindu rites and ceremonies and a female child was born out of wedlock on 14.9.04. The matrimonial relations between the parties were stained right from the very beginning of their married life and distressed by the behaviour of the appellant, the respondent filed a petition under section 10 of the Hindu Marriage Act, 1955 for a decree of judicial separation on the ground of cruelty which vide judgment dated 27.4.10 was granted. Feeling aggrieved with the same, the appellant has filed the present appeal.

3. Mr. Rajiv Shukla, counsel for the appellant submits that the learned trial court has wrongly assumed that the appellant had consumed some poisonous substance with a view to commit suicide. The contention of the MAT APP No. 98/2010 Page 2 of 11 counsel for the appellant is that the respondent used to compel and force the appellant to consume certain medicines under the pretext that the same were good for her health and for the child in the womb. Counsel further submits that the respondent also failed to prove on record that an attempt of suicide by the appellant was made with a view to coerce the respondent to accede to any of her demands and in the absence of any such assertion on the part of the respondent, no logic or rationale behind the alleged attempt of suicide by the appellant could be established by the respondent. Explaining the contradiction on the part of the appellant in the FIR lodged by her under Section 498A/406/34 IPC, counsel submits that even if the appellant in the said FIR took a stand that the respondent had given her something to drink, the same will not make any difference vis-a-vis her stand in the matrimonial proceedings where she had stated that the respondent used to administer some medicines. Counsel thus submits that there was a minor variation in the stand of the appellant which would not amount to any kind of self contradiction on MAT APP No. 98/2010 Page 3 of 11 her part. Counsel thus states that there is clear infirmity and perversity in the findings of the learned trial court on this aspect and the same should be set aside.

4. Assailing the impugned judgment on another ground, counsel submits that the learned trial court has wrongly observed that the implication of the relatives of the respondent is in itself an act of cruelty against the respondent. The contention of the counsel for the appellant is that the mere fact that the said relatives were not charge sheeted by the police would not show that the allegations leveled by the appellant against the relatives of the respondent were false. The contention of the counsel is that at the stage of framing of charges, it would be for the concerned Criminal Court to see whether based on the allegations leveled by the appellant in her criminal complaint such relatives are required to be proceeded against or not.

5. Counsel for the respondent on the other hand refutes the submissions made by the counsel for the MAT APP No. 98/2010 Page 4 of 11 appellant and submits that the present appeal deserves to be dismissed at the admission stage itself as the appellant has failed to point out any material illegality or perversity in the order passed by the learned trial court.

6. I have heard learned counsel for the parties.

7. The petition under Section 10 of the Hindu Marriage Act was preferred by the respondent husband so as to seek a decree of judicial separation from the appellant on the ground of cruelty. The marriage between the parties was solemnized according to Hindu rites and ceremonies on 5.11.2003 and both the parties are well educated academically. One of the allegations leveled by the respondent against the appellant is that the appellant had consumed some poisonous drink on 18.8.2004 and her condition became very critical in the morning of 18.8.2004 and she was immediately taken to Kailash Hospital, Noida and it is only on account of the timely action taken by the respondent and his parents that life of the appellant and the unborn child could be saved. It is an admitted case of MAT APP No. 98/2010 Page 5 of 11 the parties that subsequent to the filing of the said petition by the respondent husband the appellant wife got registered one criminal complaint under Section 498A/406/34 IPC vide FIR No. 498/2005 not only against the respondent but his parents and some other relatives as well. Some of the relatives implicated by the appellant in the said complaint case were the residents of far off places like Saharanpur and Baroda. It is also an admitted case of the parties that the relatives of the respondent were not charge- sheeted by the police as no incriminating material was found against them during the course of investigation. The respondent has taken this false implication of his relatives on the part of the appellant as a ground of cruelty. Learned trial court has also granted decree of judicial separation in favour of the respondent and against the appellant taking the said two grounds clearly establishing the cruel conduct of the appellant towards the respondent. Before the learned trial court as well as before this court the appellant has failed to disclose as to what kind of medicines were being administered by the respondent to her during the stage of MAT APP No. 98/2010 Page 6 of 11 pregnancy on the pretext of the same being good for her health and that of the unborn child. It is incomprehensible to accept the argument that the appellant who is a well qualified lady having a degree of Chartered Accountancy and Company Secretary would take the medicines without even knowing what kind of medicines she was taking. The appellant has also clearly taken a contradictory stand in her criminal complaint, wherein she stated that she was given something to drink by the respondent and his parents on the pretext that it is good for her pregnancy. The appellant has also not denied the fact that she was admitted to Kailash Hospital in the morning of 18.8.2004 where she was treated after having consumed some poisonous substance. It is also not in dispute that the appellant did not lodge any police complaint against the respondent or his parents complaining about administration of some poisonous medicines by her husband or his parents. The learned trial court has duly taken into consideration all these circumstances into account and thus has arrived at a finding that such an attempt by the appellant to commit MAT APP No. 98/2010 Page 7 of 11 suicide is an act of cruelty on her part upon her husband.

8. The concept of cruelty is of wide amplitude and has not been defined in the act. The Apex Court through various judicial pronouncements has explained the concept and scope of cruelty. It would be useful here to refer to the judgment of the Apex Court in the case of A. Jayachandra vs. Aneel Kaur AIR 2005 SC 534 where it was held as under:

“12. To constitute cruelty, the conduct complained of should be “grave and weighty” so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than “ordinary wear and tear of married life”. The conduct, taking into consideration the circumstances and background has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law. Conduct has to be considered, as noted above, in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions. It is difficult to lay down a precise definition or to give exhaustive description of the circumstances, which would constitute cruelty. It must be of the type as to satisfy the conscience of the Court that the relationship between the parties had deteriorated to such an extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce. Physical violence is not absolutely essential to constitute cruelty and a consistent course of conduct inflicting immeasurable mental agony and torture may well constitute cruelty within the meaning of Section 10 of the Act. Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party.

MAT APP No. 98/2010 Page 8 of 11

13. The Court dealing with the petition for divorce on the ground of cruelty has to bear in mind that the problems before it are those of human beings and the psychological changes in a spouse’s conduct have to be borne in mind before disposing of the petition for divorce. However, insignificant or trifling, such conduct may cause pain in the mind of another. But before the conduct can be called cruelty, it must touch a certain pitch of severity. It is for the Court to weigh the gravity. It has to be seen whether the conduct was such that no reasonable person would tolerate it. It has to be considered whether the complainant should be called upon to endure as a part of normal human life. Every matrimonial conduct, which may cause annoyance to the other, may not amount to cruelty. Mere trivial irritations, quarrels between spouses, which happen in day-to-day married life, may also not amount to cruelty. Cruelty in matrimonial life may be of unfounded variety, which can be subtle or brutal. It may be words, gestures or by mere silence, violent or non-violent.” Cruelty therefore is to be garnered taking the cumulative effect of all the factors into play. The parties are well educated and such an attempt to end her life by the appellant would certainly cause mental agony to the respondent. It would aggravate the case when the appellant tried to commit suicide in the state of pregnancy. A highly educated lady claiming that she was administered poisonous substance which she was unaware of does not help her case. No doubt in the petition the respondent did not give any specific reason or cause behind such suicidal attempt but it goes without saying that such an act even in the absence MAT APP No. 98/2010 Page 9 of 11 of any reason certainly would constitute an act of cruelty on the respondent husband.

9. Even on the second argument of the counsel for the appellant, this court does not find any merit in it. The complaint under Section 498A/406/34 IPC was lodged by the appellant during the pendency of the said petition filed by the respondent for judicial separation. In her complaint the appellant roped in various relatives of the respondent which include his uncle and aunt residing at Saharanpur and brother and sister in law residing at Baroda. The learned trial court is right in taking a view that false implication of relatives who were residing at far off places from the matrimonial home of the appellant and against whom there are no specific allegations of cruelty in itself is an act of cruelty by the appellant towards her husband. However, as these relatives were not charge-sheeted by the police the same would clearly show that the police did not find any incriminating material against these relatives during the investigation and this by itself is sufficient enough to show MAT APP No. 98/2010 Page 10 of 11 that the appellant had roped in and implicated all these relatives with vengeance to cause unnecessary harassment to them and such act certainly would cause cruelty to the husband with whom they are related. Implicating the relatives with a motive to harass the relatives, residing in different parts of the country, is nothing but a ruthless act of harassment. Therefore, the respondent husband has successfully proved cruelty on the part of the appellant on both the counts.

10. In the light of the above, this court does not find any infirmity or illegality in the findings arrived at by the learned trial court. There is no merit in the present appeal and the same is hereby dismissed at the stage of admission itself.

November 19, 2010 KAILASH GAMBHIR, J mg

MAT APP No. 98/2010 Page 11 of 11

http://indiankanoon.org/doc/477931/

Categories: Judgement

Family court judges cannot be considered for high court postings!!

Bench: S Kumar, C K Prasad

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURSIDICTION

WRIT PETITION (CIVIL) NO.598 OF 2008

S.D. Joshi & Ors. … Petitioners

Versus

High Court of Judicature at Bombay & Ors. … Respondents

JUDGMENT

Swatanter Kumar, J.

2

In the present writ petition, under Article 32 of the Constitution

of India, the following simple but questions of some legal significance

and consequences arise for consideration:

(a) What is the scope of the expression `judicial office’ appearing in

Article 217(2)(a) of the Constitution?

(b) Whether a `Family Court’ has the trappings of a Court and the

Family Court Judges, being the Presiding Officers of such

Courts, on the claimed parity of jurisdiction and functions,

would be deemed to be the members of the Higher Judicial

Services of the State?

(c) If answer to the above question is in affirmative, then whether

Family Court Judges are eligible and entitled to be considered

for elevation as Judge of the High Court in terms of Article 217

of the Constitution of India?

The facts giving rise to the above questions fall in a narrow

compass and can be precisely stated as under:

Though the Parliament enacted the Family Courts Act 1984 (for

short, `the Act’) on 14th September, 1984, the same was given effect 3

in the State of Maharashtra from 1st December, 1986 vide notification

No. S.O. 944(E) dated 5th December, 1986. All the petitioners are

presently working as Principal Judges and Judges of Family Courts

at different places in the State of Maharashtra. The Government of

Maharashtra, in consultation with the High Court of Judicature at

Bombay, was pleased to frame Rules under Article 309 of the

Constitution of India read with Sections 4 and 23 of the Act which are

called `Family Court (Recruitment and Service Conditions) Rules,

1990 (for brevity, referred to as `the Rules’). Section 4 of the Act

requires that appointment to the post of a Judge under the Act be

made by nomination from amongst the candidates, who satisfy the

qualifications stated under sub-clause (a) to (c) of sub-section (3) of

this Section. The Bombay High Court issued an advertisement,

which came to be published on 10th December, 1990, inviting

applications for seven posts of Family Court Judge in the State of

Maharashtra. Clause (2) of the advertisement relates to the eligibility

of the candidates who could apply for the post. Clause (3) of the

advertisement mentions about giving of preference to women as well

as to the persons committed to the need to protect and preserve the

institution of marriage and promote welfare of the children and have 4

experience and expertise in settlements of disputes by conciliation

and counseling in appointment to these posts. The advertisement

also contained the restrictions or disqualifications for selection. The

candidate was to be appointed on probation for a period of two years

and could be confirmed on the said post if a permanent vacancy

existed and the work of the candidate was found to be satisfactory.

The candidates were subjected to an interview held by a Committee

constituted by the High Court and selected candidates were

appointed as Judges of the Family Court where after petitioner

Nos.1, 2 and 4 have been appointed as Principal Judges of the

Family Court. The case of the petitioners is that the Judges of the

Family Court hold a `judicial office’ in the territory of India, they

discharge judicial functions and, as such, are entitled to be

considered for elevation to the Bench of the Bombay High Court. To

elucidate this argument, it has been stated that the appointment to

the post of Judge of the Family Court is made under the statutory

rules. Further, the duties and responsibilities of a Judge of the

Family Court are similar to that of the duties and responsibilities of a

Judge of the City Civil Court. Section 8 of the Act provides for

exclusion of jurisdiction of the District Court and the City Civil Court in 5

matters in which the jurisdiction is vested in the Family Court alone.

Section 19 of the Act provides that an appeal against the order

passed by a Judge of the Family Court shall lie to the High Court.

Thus, they hold a `judicial office’ as contemplated under Article 217 of

the Constitution and are at parity with functional jurisdiction, while

satisfying all the trappings of a Civil Court and, as such, they should

be deemed to be qualified for elevation to the High Court. However,

the petitioners claimed to have understood from the practice followed

by the High Court in respect of elevation to the post of a High Court

Judge from service that Family Court Judges appointed under Rule

3(B) of the Rules are not considered for the post of that office.

Aggrieved by this practice, they filed a representation before

the Chief Justice of the Bombay High Court on 30th June, 2003. In

this representation, all these points were considered. The High

Court, vide its letter dated 7th May, 2007, rejected the representation

resulting in filing of the present writ petition.

Reply only on behalf of the High Court of Judicature at Bombay

has been filed which, during the course of arguments, was adopted

by the counsel appearing for the State of Maharashtra. The facts are 6

hardly in dispute. After the representation was addressed to the

Chief Justice of Bombay High Court on 30th June, 2003, the

petitioners had also filed writ petition No.3726 of 2005 praying for a

direction to decide the said representation which was disposed of by

a Bench of the Bombay High Court by passing the order dated 20th

October, 2005 which reads as under:

“P.C. :

Heard learned counsel for the Petitioners and the learned Assistant Government Pleader for the Respondents. Rule. Learned Assistant Government Pleader waives service of Rule on behalf of the Respondents. By consent, Rule made returnable and heard forthwith.

Rule made absolute in terms of prayer

(b) of the petition. Writ Petition is disposed of accordingly.”

Thereafter, the matter was placed before the competent

authorities for consideration. It has been stated in the reply that

pursuant to the recommendations on unification of cadres of judicial

officers in India made by the Shetty Commission, which was

accepted by this Court in the case of All India Judges Association v. [(2002) 4 SCC 247] with some amendments, the issue

Union of India

of unification and integration of the cadres of judicial officers in 7

Maharashtra was considered by a Committee constituted by the High

Court. The Committee submitted its report on 24 th August, 2002,

which was later accepted by the Full Court. It was expressly stated

therein that the category of Family Court Judges has to be kept out of

the process of integration and only benefits of pay-scales are to be

extended to them. Though we may not attach any weightage to this

decision of the Bombay High Court, one very material fact that

cannot be ignored by the Court is that in the recommendations made

by Shetty Commission, which were accepted with some modifications

by this Court, as already stated, in the case of All India Judges

Association (supra) (para 37), the merger of cadre of Family Court

Judges in the general cadre of Judicial Services was never

recommended. They were not treated as part of the regular cadre

and, rightly so, were granted limited benefit (with regard to pay

scale). Correctness of the decision of the Bombay High Court and/or

for that matter of the recommendation of the Shetty Commission was

never questioned by the petitioners. The Shetty Commission had

itself relied upon two judgments of this Court, i.e., State of [(1981) 4 SCC 130] and

Maharashtra v. Chandrakant Anant Kulkarni

S.P. Shivprasad Pipal v. Union of India [(1998) 4 SCC 598] which 8

have some bearing on the controversy raised in the present writ

petition.

In order to consider the representation of the petitioners and/or

the persons placed like them, another Committee was constituted.

The Committee did not find merit in any of the contentions raised in

the representation and required that the matter should be placed

before the Full Court. In furtherance thereto, the matter was placed

before the Full Court on 29th April, 2007, when the following decision

was taken unanimously :

“Having discussed the matter in detail, it was unanimously resolved that the request of the Family Court Judges cannot be accepted.

Registry to inform them accordingly.”

On merits, it is submitted on behalf of the respondents that it is

not enough to discharge judicial functions simpliciter for a period of

ten years to be eligible for elevation as Judge of the High Court.

Merely because an appeal lies to the High Court and they perform

the functions of a Judge under the provisions of the Act, by itself, is

not sufficient to attract the provisions of Article 217 of the

Constitution. On the contrary, on a proper reading of Article 233(2) 9

of the Constitution, which deals with appointment of District Judges, it

is clear that Judges of the Family Court stand excluded from the

ambit of the said Article. The nature of their functioning,

transferability and conditions of service do not justify parity with the

members of the Higher Judicial Services of the State of Maharashtra.

There is no parity in true scope of functioning and performance of

duties. Thus, they pray for the dismissal of the writ petition.

Mr. Shekhar Naphade, learned senior counsel, referred to the

various provisions of the Act to contend that the Judges of the Family

Court are, primarily and in substance, discharging the functions of a

regular Civil Court and, as such, they are holding a `judicial office’

within the meaning of Article 217(1) of the Constitution entitling them

for consideration for elevation to the High Court. He emphasized that

Section 2(a) of the Act defines a `Judge’ to mean the Judge, the

Principal Judge, Additional Principal Judge or other Judge of a

Family Court. `Family Court’ means a Family Court established

under Section 3 of the Act. All other words and expressions, which

have not been specifically defined in the Act, will be assigned the

same meaning as defined under the Code of Civil Procedure, 1908

(for short, `the Code’). While referring to Sections 3 and 4 of the Act 10

it was pointed out that a Family Court can be established by the

State Government after consultation with the High Court and a Judge

of the Family Court can be appointed by the State Government with

the concurrence of the High Court alone. Section 8 deals with

exclusion of jurisdiction of Civil Court in regard to the matters over

which the Family Court has jurisdiction. Section 9 refers to the duty

of the Family Court to make efforts for settlement. Section 10 makes

the provisions of the Code applicable to the proceedings before the

Family Court. Evidence is to be led before the Family Court, oral or

by affidavit, as may be directed. Section 17 of the Act requires the

Family Court to record reasons and make decisions on all points by a

written judgment which is executable as a decree or order of the

Court in terms of Section 18. Section 19 provides that appeals shall

lie to the High Court against the judgment or order of the Family

Court. On the cumulative reading of these provisions, the argument

advanced was that it satisfies all the essentials of a Court, that is, it

has been created by the law of the land and performing the functions

of determination which is binding. It has the trappings of a Court and

lastly has the power to execute its orders as decree or order under

the civil law. Thus, the Presiding Officer of such Family Courts would 11

be deemed to be holding judicial office at parity with the members of

the Judicial Services of the State. Reliance in this regard was placed

by the counsel on Harinagar Sugar Mills Ltd. v. Shyam Sunder [AIR 1961 SC 1669].

Jhunjhunwala

It, certainly, would not matter that the representation of the

petitioners was rejected by different Committees or even by the Full

Court of the Bombay High Court. What this Court has to examine de

hors such decisions or opinions expressed, is whether upon true

interpretation and meaning of the expression `judicial office’, the

petitioners can be treated at parity with or be included as Judicial

Officers belonging to the Higher Judicial Services of the State of

Maharashtra holding a `judicial office’. In order to examine this

issue, we may, while keeping in mind the abovestated provisions of

the Act, also refer to the advertisement issued by the High Court.

The applications were invited for seven posts of the Judges of the

Family Court for Bombay, Pune, Nagpur and Aurangabad in the

specified pay-scale. We will only refer to certain relevant clauses of

the advertisement rather than reproducing the same in entirety:

“2. To be eligible, a candidate must be a person who -

12

(a) has for at least seven years held a judicial office in India or the office

of a Member of a Tribunal or any

post under the Union or a State

requiring special knowledge of

law; or

(b) has for at least seven years been

a practicing Advocate in the High

Court of Bombay or its branches

including one at Panaji or in the

Courts subordinate thereto; or

(c) (1) is a Post Graduate in law

with specialization in Personal

Laws; or

(2) has post Graduate degree in

Social Science such as Master of

Social Welfare, Sociology,

Psychology/Philosophy with a

degree in Law and -

(i) has at least seven years

experience in field work/research

or of teaching in a Government

Department or in a

College/University or a

comparable academic institute

with special reference to problem

of women and children; or

(ii) has seven years experience

in the examination and/or

application of Central/State Laws

relating to marriage divorce

maintenance, guardianship,

adoption and other family

disputes; and

(d) is not less than 35 years of age as 13

on 1st December, 1990.

3. In selecting persons for appointment as Judges of the Family Courts -

(i) preference will be given to women.

(ii) preference will also be given to

persons committed to the need to

protect and preserve the institution

of marriage and to promote the

welfare of children and qualified

by reason of their experience and

expertise in the settlement of

disputes by conciliation and

counseling.

4. A candidate must submit with his/her application copies of certificates

showing -

i his/her age as on 1st December,

1990.

ii his/her standing as Practitioner in Court.

iii That he/she is of good moral

character.

iv That he/she is certified to have

sufficient knowledge of

Marathi to enable him/her to

speak, write and translate

with facility into English and

vice-versa.

v Other certificates in support of the claim to have one or the

other qualifications referred

to above.

14

vi A candidate should express

his/her concept of a Family

Court in not more than 200

words on a separate sheet

of paper to be annexed to

the application.

vii (a) In case the candidate is a

practicing Advocate, two separate

recommendations from Advocates

designated as Senior Advocate or

from practicing Advocates having

more than 20 years standing at

the Bar.

(b) In case the candidate is in

judicial service then two separate

recommendations from judicial

officers not below the rank of

District Judge.

(c) In respect of all other

candidates two separate

recommendations from authorities

under whom the candidate is

working, including the Head of the

Institution in which the candidate

is working.

The persons recommending must

certify that the candidate is

suitable for appointment as Judge

of the Family Court.

The recommendations should be

sent directly under sealed cover

by the recommendations authority

to the Registrar, High Court,

Bombay and marked “confidential-

Family Court’, so as to reach on or

before 21st January, 1991.

15

5. A candidate belonging to a Backward

Class must also produce a certificate to the effect that he/she belongs to a community recognized as Backward for the purpose of recruitment to service under the Government of Maharashtra.

6. Certificates under 4(i) and 5 may be signed by the District Magistrate.

Certificate under 4(ii) may be signed in the case of the High Court by the

Prothonotary and Senior Master, High

Court, Original Side, or the Registrar,

High Court, Appellate Side, Bombay

and the Additional Registrars of the

High Court Benches at Nagpur,

Aurangabad and the Special Officer,

Panaji Bench (Goa) as the case may be

or in case of Courts other than High

Court, in Bombay by the Principal

Judge, City Civil and Sessions Court,

Greater Bombay, the Chief Judge, Court

of Small Causes, Bombay and the Chief

Metropolitan Magistrate, Bombay as the

case may be, and in the case of other

subordinate Courts in the State by the

District Judges or by the Principal Judge of the Court in which the candidate has

practiced, and should state the period

during which the candidate has actually

practiced. Certificate mentioned in 4(iii) may be signed by an Officer of the rank

of Gazetted Class-I under the State of

Maharashtra or Goa. Certificate mentioned in 4(iv) may be signed by the

Presiding Officers of the Courts in which the candidate is practicing or by a

Principal of a College recognized by a

University. Certificate mentioned in 4(v) may be signed by the competent

16

authority concerned.

7. No male candidate who has more than one wife living shall be eligible for

appointment to service under the State

of Maharashtra unless Government,

after being satisfied that there are

special grounds for doing so, exempts

any persons, subject to the provision of any law in force from the operation of

this restriction.

No female candidate who has married a

person having already a wife living shall be eligible for appointment to service

under the Government of Maharashtra

unless Government after being satisfied

that there are special grounds for doing so, exempts her from the operation of

this restriction.

8. The selected candidates will be placed by the Government, previous to their

appointment before a medical board

and will not be appointed unless the

board certifies them to be both mentally and physically fit for the service under Government. They will be required to

pass an examination in Hindi according

to the prescribed rules.

9. At the time of appointment, the selected candidates will have to give an

undertaking that for a period of two

years from the date on which they

cease to be in service, they will not

practice in any Court over which they

had presided.

10. A candidate if selected will first be appointed on probation for a period of

17

two years and if his/her work is not

found satisfactory, the period of

probation may be extended by the High

Court for such further period as it may

deem fit. On the expiry of such period

he/she may be confirmed, if -

(i) there is a permanent vacancy; and

(ii) his/her work is found satisfactory.

During the period of probation and

thereafter until expressly confirmed by a written order, the services of an

appointee shall be terminable by one

month’s notice on either side without

any reason being assigned therefor or

by payment of salary for the period of

notice or the unexpired portion thereof.”

The candidates had submitted their applications in furtherance

to this advertisement which itself was issued in terms of the Rules. It

is implicit that the advertisement has to be in consonance with Rules,

Rules have to be in comity to the provisions of the Act and, in turn,

the Act has to be within the constitutional framework. Thus, all other

laws, essentially, should fall in conformity with the constitutional

mandate contained in Articles 217 and 233 of the Constitution which

are relevant for the purpose of the present case.

Bare reading of the advertisement clearly shows that different

class of persons were eligible to apply for the post in question. 18

Firstly, the persons holding judicial office or office of the member of a

Tribunal or a post under the Union or State requiring special

knowledge of law for a period of seven years were eligible. Other

eligible class was that of lawyers practicing as advocates in the High

Court of Bombay or its branches, including Panaji, or Subordinate

Courts thereto for a period of seven years. Even a person, who is

post-graduate in law with specialization in personal law, was eligible.

Still another class was of the persons who possessed post-graduate

degree in Social Sciences, such as Master of Social Welfare,

Sociology, Psychology with a degree in law and have seven years

experience in the field of research or teaching in a Government

Department or a College or University. All the persons belonging to

these different classes were eligible to be appointed to the post of a

Family Court Judge and preference was to be given to women in the

matter of such appointments. The eligibility criteria, as stated in the

advertisement, therefore, was somewhat distinct and different than

the eligibility criteria provided for selection to the post of District

Judge in the Higher Judicial Services of the State of Maharashtra.

The petitioners, obviously, belong to one of the abovementioned

classes and they, having been found suitable, were 19

selected/appointed to the posts in question by the appropriate

authority constituted by the Government in consultation with the High

Court.

Whether the `Family Courts’ established under the Act are Courts for all intents and purposes generally or otherwise.

First and foremost question that we need to examine is whether

the Family Courts established under Section 3 of the Act is a Court in

general and under the provisions of the Code of Civil Procedure in

particular? It is already noticed that the `Family Court’ has been

defined under Section 2(d) of the Act as a Family Court established

under Section 3 of the Act. In terms of Section 3, the Family Court

can be established for every area in the State, comprising city or

town, whose population exceeds one million, by the State

Government in consultation with the High Court. The `Judge’ of the

Family Court is to be appointed by the State Government with the

concurrence of the High Court. Under Section 4(4), the Act

contemplates that every endeavour shall be made to ensure that

persons committed to the need to protect and preserve the institution

of marriage and to promote the welfare of children and qualified by

reason of their experience in such field and women shall be given 20

preference in appointment as Judges of the Family Courts. These

Family Courts are to exercise special jurisdiction which is limited to

the subject matters spelt out under Section 7(1)(a) and (b) of the Act.

Family Courts have been vested with all jurisdiction exercisable by

any District Court or any Subordinate Civil Court under the law, for

the time being in force, in respect of suits and proceedings of the

nature referred to in the Explanation of sub-section (1) of Section 7.

Such Courts will be deemed, for the purposes of exercising such

jurisdiction under such law, to be a District Court or, as the case may

be, such Subordinate Civil Court for the area to which the jurisdiction

of the Family Court extends. The explanation to sub-section (1) of

Section 7 states as to what kind of jurisdiction is exercisable by such

Court. The explanation reads thus :

“Explanation.–The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature, namely:–

(a) suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring the marriage to be

null and void or, as the case may be,

annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage;

21

(b) a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person;

(c) a suit or proceeding between the parties to a marriage with respect to the

property of the parties or of either of

them;

(d) a suit or proceeding for an order or injunction in circumstance arising out of a marital relationship;

(e) a suit or proceeding for a declaration as to the legitimacy of any person;

(f) a suit or proceeding for maintenance;

(g) a suit or proceeding in relation to the guardianship of the person or the

custody of, or access to, any minor.”

Section 8 further states that no District Court or any

subordinate Civil Court will have jurisdiction over the matters which

have been specifically spelt out under sub-section (1) of Section 7 of

the Act in relation to the area over which, it exercises jurisdiction. It

also excludes jurisdiction of the Magistrate, in relation to such area

over which the Family Court exercises jurisdiction under Chapter IX

of the Code of Criminal Procedure, 1973. Every pending suit or

proceeding of the nature referred to in the Explanation to sub-section

(1) of Section 7 of the Act, as well as every proceeding under 22

Chapter IX of the Code of Criminal Procedure, 1973 was liable to be

transferred to such Family Court. Section 10 requires the Court to

follow the procedure and powers available to the Civil Court under

the provisions of Code of Civil Procedure, 1908 as well as that

available to a Magistrate under Chapter IX of the Code of Criminal

Procedure, 1973. Besides making such provisions applicable to the

Family Court, sub-section (3) of Section 10 further vests large

powers in the Family Court to lay down its own procedure with a view

to arrive at a settlement in respect of the subject matter of the suit or

proceedings. Such Court has further been empowered to take

evidence in accordance with the prescribed procedure and apply the

provisions of the Evidence Act to record oral and/or evidence by way

of affidavits. It has been vested specifically with the power to

examine the truth or otherwise of the allegations made by one party

and denied by another. After the evidence is complete, the judgment

of a Family Court is required to contain a concise statement of the

case, the points for determination, the decision thereto and reasons

for such decision. For the purpose of execution of the decree and

order of the Family Court, the provisions of the Code of Civil

Procedure as well as Chapter IX of the Code of Criminal Procedure 23

have been made applicable to ensure that these orders are given

effect to in the same manner as a decree and/or order of the Court of

competent jurisdiction under the civil and criminal law. Further, the

process of appeal is specifically provided under the Act. Every

judgment and order, not being an interlocutory order, passed by the

Family Court, is appealable to the High Court both on facts and in

law, which has to be disposed of by the High Court in accordance

with the procedure stated under Section 19 of the Act. This Act shall

have the effect notwithstanding anything inconsistent therewith

contained in any other law for the time being in force.

Various provisions of this Act, therefore, clearly demonstrate

that the Family Court, a creature of statute, has been vested with

power to adjudicate and determine the disputes between the parties

which fall within the scope and ambit of Explanation to Section 7(1)

of the Act. The persons, who are appointed as Judge of the Family

Court, perform all duties and functions which are akin to the functions

being performed by the Presiding Officer of a Civil or a Criminal

Court, though to a very limited extent. The expression `Judge’ under

Section 2(a) of the Act means the Principal Judge, Additional

Principal Judge or other Judge of a Family Court. The Presiding 24

Judges of the Family Courts perform all the different statutory

functions as are spelt out above and decide the cases in accordance

with the provisions of the Act. It may be noticed that the primary

object and duty of the Family Court Judges is to endeavour and

persuade the parties in arriving at a settlement in respect of the suit

or proceedings, in which it may follow such procedure, as it may

deem fit.

This question need not detain us any further, as the law in this

regard is no more res integra and stands finally stated by a

Constitution Bench of this Court in the case of Harinagar Sugar Mills

Ltd. (supra). Justice Hidayatullah, as His Lordship then was, while

giving his own reasons concurred with other Judges in allowing the

appeal setting aside the order of the Central Government. While

commenting upon the maintainability of the appeals, he drew a

distinction between a `Court’ and a `Tribunal’ and dealt with the

question as to whether the Central Government, while hearing this

appeal, was a Tribunal and held as under:-

“31. With the growth of civilization and the problems of modern life, a large number of Administrative Tribunals have come into

existence. These tribunals have the authority of 25

law to pronounce upon valuable rights; they act in a judicial manner and even on evidence on oath, but they are not part of the ordinary courts of civil judicature. They share the exercise of the judicial power of the State, but they are brought into existence to implement some administrative policy or to determine controversies arising out of some administrative law. They are very similar to courts, but are not courts. When the Constitution speaks of

“courts” in Article 136, 227 or 228 or in Articles 233 to 237 or in the Lists, it contemplates courts of civil judicature but not tribunals other than such courts. This is the reason for using both the expressions in Articles 136 and 227. By “courts” is meant courts of civil judicature and by “tribunals”, those bodies of men who are appointed to decide controversies arising under certain special laws. Among the powers of the State is included the power to decide such controversies. This is undoubtedly one of the attributes of the State, and is aptly called the judicial power of the State. In the exercise of this power, a clear division is thus noticeable. Broadly speaking, certain special matters go before tribunals, and the residue goes before the ordinary courts of civil judicature. Their procedures may differ, but the functions are not essentially different. What distinguishes them has never been successfully established. Lord Stamp said that the real distinction is that courts have “an air of detachment”. But this is more a matter of age and tradition and is not of the essence. Many tribunals, in recent years, have acquitted themselves so well and with such detachment as to make this test

insufficient. Lord Sankey, L.C. in Shell Company of Australia v. Federal Commissioner of Taxation observed:

26

“The authorities are clear to show that there are tribunals with many of the

trappings of a court, which, nevertheless, are not courts in the strict sense of

exercising judicial power…. In that

connection it may be useful to enumerate some negative propositions on this

subject: 1. A tribunal is not necessarily a court in this strict sense because it gives a final decision. 2. Nor because it hears witnesses on oath. 3. Nor because two or more contending parties appear before it between whom it has to decide. 4. Nor

because it gives decisions which affect

the rights of subjects. 5. Nor because

there is an appeal to a court. 6. Nor

because it is a body to which a matter is referred by another body. See Rex v.

Electricity Commissioners”

32. In my opinion, a court in the strict sense is a tribunal which is a part of the ordinary hierarchy of courts of civil judicature maintained by the State under its constitution to exercise the judicial power of the State. These courts perform all the judicial functions of the State except those that are excluded by law from their jurisdiction. The word “judicial”, be it noted, is itself capable of two meanings. They were admirably stated by Lopes, L.J. in Royal Aquarium and Summer and Winter Garden

Society v. Parkinson in these words:

“The word `judicial’ has two meanings. It may refer to the discharge of duties

exercisable by a Judge or by Justices in court, or to administrative duties which need not be performed in court, but in

respect of which it is necessary to bring to bear a judicial mind — that is, a mind 27

to determine what is fair and just in

respect of the matters under

consideration.”

That an officer is required to decide matters before him “judicially” in the second sense does not make him a court or even a tribunal, because that only establishes that he is following a standard of conduct, and is free from bias or interest.

XXX XXX XXX

Now, in its functions the Government often reaches decisions, but all decisions of the Government cannot be regarded as those of a tribunal. Resolutions of the Government may affect rights of parties, and yet, they may not be in the exercise of the judicial power.

Resolutions of the Government may be

amenable to writs under Articles 32 and 226 in appropriate cases, but may not be subject to a direct appeal under Article 136 as the decisions of a tribunal. The position, however, changes when Government embarks upon curial

functions, and proceeds to exercise judicial power and decide disputes. In those

circumstances, it is legitimate to regard the officer who deals with the matter and even Government itself as a tribunal. The officer who decides, may even be anonymous; but the

decision is one of a tribunal, whether

expressed in his name or in the name of the Central Government. The word “tribunal” is a word of wide import, and the words “court” and “tribunal” embrace within them the exercise of judicial power in all its forms. The decision of the Government thus falls within the powers of this Court under Article 136.”

28

It was held that all tribunals are not Courts though all Courts

are tribunals. This view has been reiterated by this Court, more

particularly, in relation to drawing a distinction between a tribunal and

a Court. A tribunal may be termed as a Court if it has all the

trappings of a Court and satisfies the above stated parameters.

Every Court may be a tribunal but every tribunal necessarily may not

be a Court. The essential features of `Court’ have been noticed by

us above and once these essential features are satisfied, then it will

have to be termed as a `Court’. The statutory provisions of the

Family Court squarely satisfy these ingredients and further Presiding

Officers of Family Courts are performing judicial and determinative

functions and, as such, are Judges.

`Judge’ is a generic term and other terms like, Umpire, Arbiter

and Arbitrator are only species of this term. A Judge, primarily,

determines all matters of disputes and pronounces what is law now,

as well as what will be the law for the future and acts under the

appointment of the Government. Pollock C.B. in Ex parte Davis

[(1857) 5 W.R.523] said, “judges are philologists of the highest

orders. They are not mere administrative officers of the Government

but represent the State to administer justice.” Thus, we have no 29

hesitation in coming to the conclusion that the Family Court

constituted under Section 3 of the Act has all the trappings of a Court

and, thus, is a court and the Presiding Officer, that is, Judge of the

Family Court is a `Judge’ though of limited jurisdiction.

Whether Petitioners can be treated as part of the `Judicial Services’ of the State of Maharashtra?

In exercise of the powers conferred by Articles 233, 234 and

proviso to Article 309 of the Constitution of India read with Article

235, the Governor of Maharashtra, after consultation with

Maharashtra Public Service Commission and the High Court of

Bombay framed the Rules known as `The Bombay Judicial Services

Recruitment Rules, 2008′ (for short, `the Rules of 2008′). These

Rules repealed the Rules known as the Bombay Judicial Services

Recruitment Rules, 1956. The District Judges in Bombay were

earlier being appointed under the Bombay Civil Courts Act, 1869. At

the time of unification of cadres, as we have noticed above, the

matter whether the Family Courts could be treated as part of the

judicial cadre of the State was considered. However, the Committee

recommended that it is only for the purposes of pay scales that they

could be placed at parity and the cadre of the Judges of the Family 30

Court could not be considered for integration into the cadre of the

Judicial Services and they could not be equated with Judges of the

City Civil Court and/or the District Court Judges. This decision had

never been questioned by any person.

After coming into force of the Rules of 2008, appointments

were made to the State Judicial Services including the Higher

Judicial Services strictly in accordance with these Rules. Rule 2

defines `Service’ to mean the Maharashtra Judicial Service. Rule 3 of

the Rules of 2008 states that there shall be constituted a State

Service, known as Maharashtra State Judicial Services and such

services shall be deemed to have been constituted with effect from

the 1st day of July 1996. Rule 3(2) states that the services shall

consist of the cadres specified in column 2 of the Schedule

appended to the Rules of 2008 and the character and number of

posts in each of those cadres shall be as specified in the

corresponding entries in column (3) thereof. Rule 3(3) provided for

that table. The said Table `A’ reads as under:

1 2

(a) District Judges (i) District Judges; (ii) Additional District Judges

Principal Judge, Additional Principal Judge and Judges of City Civil and Sessions Court, 31

Mumbai.

Chief Judge and Additional Chief Judges of Court of Small Causes.

(b) Senior Civil Judges (i) Chief Metropolitan Magistrate; (ii) Additional Chief Metropolitan Magistrates; (iii) Judges of Court of Small Causes and Metropolitan Magistrates;

(iv) Civil Judges, Senior Division.

(c) Civil Judge, (i) Civil Judge, Junior Division. Junior Division

Rule 5 provides for the method of recruitment, qualification and

age limit in relation to different posts including the post of District

Judge. 50% of the posts shall be filled by promotion from the cadre

of Senior Civil Judges on the basis of the principle of merit-cum-

seniority and passing of a suitability test. To be eligible for this 50%,

the candidate must have been in the cadre of Senior Civil Judge after

successful completion of the officiating period. Further, he must

have been officiating as a Senior Civil Judge for five years at least.

25% of the posts shall be filled by promotion strictly on the basis of

merit through limited competitive examination from amongst the

Senior Civil Judges and remaining 25% of the posts shall be filled up

by nomination from amongst the eligible persons practicing as

Advocates on the basis of a written examination and viva-voce test

conducted by the High Court. To be eligible for nomination, a person 32

should have been an advocate or a Government Pleader or Public

Prosecutor for not less than seven years on the date of publication of

the advertisement. The written examination was to carry 200 marks

while the viva-voce test was to carry 50 marks. A candidate should

secure not less than 50% of the marks in each paper in written

examination to qualify for viva-voce and only the candidates, who

obtain a minimum of 40% marks in the viva-voce, shall be entitled for

selection.

A bare reading of the above provisions clearly show that a

person to be entitled to promotion as District Judge has to be a

member of the cadre of Senior Civil Judge. The advocates or other

eligible persons entitled to be considered for appointment under the

nomination category have to satisfy the prescribed qualifications and

to clear the written examination as well as the viva-voce test, as per

the Rules. In other words, a person has to be member of the judicial

service before he could be considered for appointment to the Higher

Judicial Services of the State. The appointment to that cadre has to

be strictly construed and must be made in accordance with the

provisions stated in the Rules. Once the Governor of Maharashtra

has framed the Rules of 2008, in exercise of its constitutional powers 33

and in accordance with the procedure prescribed therein and has

explained who would be a `District Judge’, what would be service and

its constitution and, thereby, excluded the Judges of the Family Court

from the service consciously, then it is neither permissible nor

possible for the Court to direct such inclusion by implication. In fact,

the petitioners have not challenged the Rules of 2008 earlier or even

in the present petition. In order to accept the contention of the

petitioners that they are part of the Judicial Services of the State of

Maharashtra, the Court will have to read into Rule 3 (Table A), the

expression `Family Court Judges’. Once the legislature has framed

the Rules and kept out the Principal or other Family Court Judges

from the cadre of the `Judicial Services’ of the State of Maharashtra,

then they cannot be treated as part of the cadre by inference or on

the doctrine of parity, which we shall shortly deal with in some detail.

Now, we may refer to relevant Articles of the Constitution.

Primarily, under Article 233(1), appointment to the post of District

Judge is to be made by the Governor in consultation with the High

Court exercising jurisdiction in relation to such State. Article 233(2)

states the kind of persons, who are eligible to be considered. The

same reads as under :

34

“A person not already in the service of the Union or of the State shall only be eligible to be appointed a district judge if he has been for not less than seven years an advocate or a pleader and is recommended by the High Court for appointment.”

On fulfilling the above criteria alone, the candidate can be

appointed to the `judicial office’ in accordance with the stated

procedure. Article 236 explains the expression `District Judge’ as

well as `Judicial Service’ for the purposes of Chapter VI which reads

as under:

“236. Interpretation– In this Chapter :

(a) the expression “district judge” includes judge of a city civil court, additional

district judge, joint district judge,

assistant district judge, chief judge of a small cause court, chief presidency

magistrate, additional chief presidency

magistrate, sessions judge, additional

sessions judge and assistant sessions

judge;

(b) the expression “judicial service” means a service consisting exclusively of persons intended to fill the post of

district judge and other civil judicial

posts inferior to the post of district

judge.”

35

A bare reading of the above Article clearly shows that the

expression `District Judge’ includes different kinds of Judges but not

Family Court Judges. Similarly, `judicial services’ means a service

consisting exclusively of the persons intended to fill the post of

District Judge and other civil judicial posts inferior to the post of

District Judge. The expression `judicial service’, therefore, would not

include a Family Court Judge as they are neither persons eligible to

fill up the post of District Judge nor are they holding civil judicial posts

inferior to the post of District Judge.

The learned counsel, appearing for the petitioners, heavily

relied upon the judgment of this Court in the case of State of [(1998) 2 SCC

Maharashtra v. Labour Law Practitioners' Association

688] to contend that the expression `judicial services’ should be given

a wider meaning and since the petitioners are performing judicial

functions by presiding over the Family Court as Judges, they should

be treated as part of the Judicial Services of the State of

Maharashtra. He placed reliance upon the following paragraphs of

the judgment :

“11. Under Article 236(b), the expression “judicial service” is defined to mean “a service 36

consisting exclusively of persons intended to fill the post of District Judge and other civil judicial posts inferior to the post of District Judge”. Judicial service thus postulates a hierarchy of courts with the District Judge as the head and other judicial officers under him discharging only judicial functions.

12. In the case of Chandra Mohan v. State of U.P. this Court was required to consider the question of eligibility of “judicial officers” for appointment as District Judges under Article 233 of the Constitution. Under the U.P. Higher Judicial Service Rules “judicial officers” were eligible for appointment as District Judges and the expression was meant to cover members of the executive department who discharged some revenue and magisterial duties also. When selection of such persons was

challenged, this Court was required to

consider and interpret the provisions of Articles 233 to 236 of the Constitution. The procedure for selection under the said Rules was also challenged as violative of Article

233. The Court said that the Governor could not appoint as District Judges persons from services other than the judicial service. A person who is in the Police, Excise, Revenue or such other service cannot be appointed as a District Judge. Dealing with the definition of “judicial service” in Article 236, this Court said that the judicial service consists only of persons intended to fill up the posts of District Judges and other civil judicial posts and that is an exclusive service only consisting of judicial officers. In so interpreting judicial service in contra-distinction to executive service where some executive officers may also be performing judicial or quasi-judicial functions, this Court was at pains to

37

emphasise the constitutional scheme for

independence of the judiciary. It said that the acceptance of this (i.e. Government’s)

position would take us back to pre-

independence days and would also cut across the well-knit scheme of the Constitution providing for independence of the judiciary. This Court, therefore, defined judicial service in exclusive terms as consisting only of judicial officers discharging entirely judicial duties. It said that having provided for appointments to that service and having

entrusted the control of the said service to the care of the High Court, the makers of the Constitution would not have conferred a

blanket power on the Governor to appoint any person from any service as a District Judge.

13. Reliance has been placed upon this

judgment as showing that judicial service is interpreted narrowly to cover only the

hierarchy of civil courts headed by the District Judge. This Court, however, was not

considering the position of other civil courts, in the context of the extensive definition given to the term “District Judge”. This Court was concerned with preserving independence of the judiciary from the executive and making sure that persons from non-judicial services, such as, the Police, Excise or Revenue were not considered as eligible for appointment as District Judges. That is why the emphasis is on the fact that the judicial service should consist exclusively of judicial officers. This judgment should not be interpreted narrowly to exclude from judicial service new

hierarchies of civil courts being set up which are headed by a judge who can be

considered as a District Judge bearing in 38

mind the extensive definition of that term in Article 236.

XXX XXX XXX

Going by these tests laid down as to what constitutes judicial service under Article 236 of the Constitution, the Labour Court judges and the judges of the Industrial Court can be held to belong to judicial service. The

hierarchy contemplated in the case of Labour Court judges is the hierarchy of Labour Court judges and Industrial Court judges with the Industrial Court judges holding the superior position of District Judges. The Labour Courts have also been held as subject to the High Court’s power of superintendence under

Article 227.”

For a better understanding of the principle of law enunciated

above, reference to the facts of the case would be necessary. The

Labour Law Practitioners Association had filed a writ petition in the

High Court challenging the appointment of the private respondents in

the writ petition as Labour Court Judges. These private respondents

were earlier working as Assistant Commissioners of Labour in the

Department of Labour, State of Maharashtra. It was prayed that the

amended Section 9 of the Bombay Industrial Relations Act and

amended Section 7 of the Industrial Disputes Act insofar as they

authorize the appointment of Assistant Commissioner of Labour as 39

Judges of the Labour Court are void, illegal and contrary to Article

234 of the Constitution. A learned Single Judge of the Bombay High

Court set aside the notification dated 8th March, 1979 and gave a

direction to the State of Maharashtra to comply with the provisions of

Article 234 of the Constitution while making appointments of the

Judges of the Labour Court. This decision of the learned Single

Judge was challenged in the Letters Patent Appeal which also came

to be dismissed and, therefore, the Special Leave Petition before the

Supreme Court was filed.

This Court, while dismissing the appeal commented upon the

expression `judicial service’ and held that `judicial service’ means a

service consisting exclusively of the persons intended to fill the post

of District Judge and other Civil Judges inferior to the Court of District

Judge in terms of Article 236 of the Constitution. Keeping in view the

principle of separation of powers and independence of judiciary,

Judicial Services contemplates the service exclusively of judicial

posts in which there will be a hierarchy headed by a District Judge.

Upholding the view taken by the High Court that persons presiding

over Industrial and Labour Court would constitute `Judicial Service’ 40

as defined and, therefore, compliance of Article 234 of the

Constitution was mandatory.

We fail to understand as to what benefit the present

petitioners can derive from this judgment. Primarily, the Court gave a

wider connotation to the expression `judicial service’ keeping in view

the specialization in different fields required for administration of

justice. In that case, the Government had intended to make the

appointment by itself without following the procedure provided under

Article 234 of the Constitution, which says that appointments were

to be made by the Governor in accordance with the Rules made by

him in that behalf after consultation with the Public Service

Commission and the High Court exercising jurisdiction in relation to

such State in case of appointments made to the posts other than

District Judges to the Judicial Service of the State. This, on a plain

reading and understanding, means that the Judge of the Labour

Court was not a post of the District Judge or equivalent thereto. On

the contrary, in terms of Article 234, the Government was directed to

follow the prescribed procedure before making these appointments.

The methodology adopted by the Government for making

appointments directly, thus, was found to be faulty under the scheme 41

of the Constitutional provisions appearing in Chapter VI of the

Constitution.

A Constitution Bench of this Court in the case of Chandra

Mohan v. State of UP [AIR 1966 SC 1987] was concerned with

appointments to the posts of District Judges which were challenged

by the existing members of the Judicial services on the ground that

judicial officer from executive departments, discharging some

revenue and magisterial duties, are not members of the judicial

services and thus cannot be appointed to such posts. The Court,

while referring to the independence of the judiciary, said that

subordinate judiciary in India is in the closest contact with the people

and thus their independence should be beyond question. Explaining

the words `judicial services’ the Court gave the expression a narrower

meaning and, while setting aside the appointments so made of the

persons other than from judicial services of the State, held as under:

“16. So far there is no dispute. But the real conflict rests on the question whether the Governor can appoint as District Judges

persons from services other than the judicial service; that is to say, can he appoint a person who is in the police, excise, revenue or such other service as a district Judge? The acceptance of this position would take us 42

back to the pre-independence days and that too to the conditions prevailing in the princely States. In the princely States one used to come across appointments to the judicial service from police and other departments. This would also cut across the well-knit scheme of the Constitution and the principle underlying it, namely, the judiciary shall be an independent service. Doubtless if Article 233(1) stood alone, it may be argued that the Governor may appoint any person as a district judge, whether legally qualified or not, if he belongs to any service under the State. But Article 233(1) is nothing more than a

declaration of the general power of the

Governor in the matter of appointment of District Judges. It does not lay down the qualifications of the candidates to be

appointed or denote the sources from which the recruitment has to be made. But the

sources of recruitment are indicated in clause (2) thereof. Under clause (2) of Article 233 two sources are given, namely, (i) persons in the service of the Union or of the State, and (ii) advocate or pleader. Can it be said that in the context of Chapter VI of Part VI of the Constitution “the service of the union or of the State” means any service of the Union or of the State or does it mean the judicial service of the Union or of the State? The setting viz. the chapter dealing with subordinate courts, in which the expression “the service” appears indicates that the service mentioned therein is the service pertaining to courts. That apart, Article 236(2) defines the expression “judicial service” to mean a service consisting exclusively of persons intended to fill the post of district judge and other civil judicial posts inferior to the post of district judge. If this definition, instead of appearing in Article 236, 43

is placed as a clause before Article 233(2), there cannot be any dispute that “the service” in Article 233(2) can only mean the judicial service. The circumstance that the definition of “judicial service” finds a place in a subsequent article does not necessarily lead to a contrary conclusion. The fact that in Article 233(2) the expression “the service” is used whereas in Articles 234 and 235 the expression “judicial service” is found is not decisive of the question whether the

expression “the service” in Article 233(2) must be something other than the judicial service, for, the entire chapter is dealing with the judicial service. The definition is exhaustive of the service. Two expressions in the definition bring out the idea that the judicial service consists of hierarchy of judicial officers starting from the lowest and ending with district Judges. The expressions “exclusively” and “intended” emphasise the fact that the judicial service consists only of persons intended to fill up the posts of district Judges and other civil judicial posts and that is the exclusive service of judicial officers. Having defined “judicial service” in exclusive terms, having provided for appointments to that service and having entrusted the control of the said service to the care of the High Court, the makers of the Constitution would not have conferred a blanket power on the Governor to appoint any person from any service as a district judge.”

Another Constitution Bench of this Court in the case of

Statesman (Private) Ltd. v. H.R. Deb & Ors. [AIR 1968 SC 1495]

spelt out the distinction between Judicial Office and Judicial function. 44

A challenge was made to the appointment of Presiding Officer,

Second Labour Court on the ground that he did not possess

essential qualifications as prescribed in Section 7(3) of the Industrial

Disputes Act, 1947, as he was holding the office of Executive

Magistrate though performing judicial functions as well. The Court

held as under:

“11. Lest our meaning be extended by Government to cases under serving of saving under Section 9, we wish to make it clear that the intention of the legislature really is that men who can be described as independent

and with sufficient judicial experience must be selected. The mention of High Court Judges and District Judges earlier in the same

section indicates that ordinarily judicial officers from the civil judiciary must be selected at least so long as the separation of judiciary from the Executive in the public services is not finally achieved. The

appointment of a person from the ranks of civil judiciary carries with it an assurance which is unique. The functions of a Labour Court are of great public importance and quasi civil in nature. Men of experience on the civil side of the law are more suitable than Magistrates. Persons employed on multifarious duties and in addition performing some judicial functions, may not truly answer the requirement of Section 7 and it may be open in a quo warranto proceeding to

question their appointment on the ground that they do not hold essentially a judicial office because they primarily perform other

45

functions. For it cannot be denied that the expression “holding a judicial office” signifies more than discharge of judicial functions while holding some other office. The phrase

postulates that there is an office and that that office is primarily judicial. Office means a fixed position for performance of duties. In this case the distinction was unsubstantial

because the Magistrate was holding a fixed position for nineteen years and performing functions primarily of a judicial character. The case was not fit for interference by a writ in view of the provisions of Section 9 of the Act.”

The Bench, while dealing with the case of Labour Law

Practitioners’ Association (supra), found that this judgment should

not be interpreted narrowly to exclude from judicial services, new

hierarchy of Civil Courts being set up which are headed by a Judge

who could be considered as a District Judge bearing in mind the

extensive definition of the term in Article 236. We have no hesitation

in noticing that the judgments of the Constitution Bench of this Court

in the cases of Chandra Mohan and H.R. Deb (supra) are binding

and they have taken a view that the expression `judicial service’ has

to be confined to the persons appointed as Judges under the

relevant Rules and the provisions contained in Articles 233 and 234

of the Constitution. We have already noticed that in the case of

Labour Law Practitioners’ Association (supra), the Court was 46

primarily concerned with ensuring that Labour Court Judges who

were performing judicial functions should maintain independence of

judiciary and they should be placed under the control of the High

Court and the appointments to those offices should be made in

conformity with Article 234 of the Constitution. Thus, this judgment

can hardly be cited to support the proposition advanced by the

petitioners. `Judicial service’ as understood in its `generic sense’,

may impliedly include certain other services for limited purposes but

such other services may not be judicial service stricto sensu as

contemplated under Articles 233 and 234 of the Constitution.

In this view of the matter, it is difficult for the Court to hold that

the Family Court Judges will form part of the cadre of the Judicial

Services under the State of Maharashtra as contemplated under

Rule 3 of the Rules of 2008.

Is the claim of parity put forward by the petitioners sustainable in law?

We may examine the preamble and statement of objects and

reasons of the Act at this juncture.

47

In order to clearly understand the object of the Legislature in

establishing Family Courts, reference to the recommendations of the

Law Commission would be useful. In its 59th Report, the Law

Commission emphatically recommended that the court, in dealing

with the disputes concerning family, ought to adopt an approach

radically different from that adopted in ordinary civil proceedings and

that it should make reasonable efforts for an amicable settlement

before the commencement of the trial. The same view was reiterated

in the 230th Report of the Law Commission. Despite the amendment

to the Code of Civil Procedure, it was felt that the matters concerning

family disputes were not being dealt with a conciliatory approach.

Thus, the Bill, inter alia, provided for establishment of Family Courts

by the State Governments. The State Governments were expected

to set up these Courts and family disputes were to be dealt with by

these specially constituted Courts. The most important feature of the

preamble of the Act was, “establishment of Family Courts with a view

to promote conciliation in, and secure speedy settlement of disputes

relating to marriage and family affairs and for matters connected

therewith”. This sufficiently indicates the limited jurisdiction that was

vested in the Family Court under the provisions of the Act. The 48

primary purpose of the Court was to promote conciliation and

amicably settle the matters relating to matrimonial and family

disputes rather than adjudicate on the same.

This analysis gives us a bird’s eye view with regard to

constitution and functioning of the Family Courts. Where the

jurisdiction of the Civil Courts and the Criminal Court in relation to the

matters specified under Section 7(1) of the Act were specifically

excluded, there it also necessarily implies that the Family Courts

have the jurisdiction only to deal with the matters specified in the

Explanation to Section 7(1) and none other. Thus, it is a Court of

limited jurisdiction.

According to the petitioners, they have been performing the

functions of a Judge by presiding over the Family Courts and, thus,

are entitled to be considered as part of the judicial services of the

State and, consequently, would be deemed to have held `judicial

office’ in terms of Article 217 of the Constitution. It is, therefore, of

some relevance to examine the points of similarity and distinction

between the Family Courts on the one hand and Courts presided 49

over by the members of the higher judicial services of the State of

Maharashtra on the other, which are as follows:

Sl.No. District Court Family Court

1. Court of District Judge isIt is created by the statute, that created under constitutionalis, Section 3 of the Act provisions read with the Rules

of 2008 for the Higher

Judiciary.

2. District and Sessions JudgesThe Family Court Judges are are appointed in accordanceappointed in accordance with with the provisions of Articlethe provisions of Section 4 of 233 read with Rules 5 and 6 ofthe Act.

the Rules of 2008.

3. District Judges dischargeJudges of the Family Court also Judicial functions. discharge judicial functions under the Act.

4. The District and SessionsThe Presiding Officer of the Judge exercises and decidesFamily Court exercises a limited all kind of Civil/Criminal cases.jurisdiction and decides matters They also exercise original,which strictly fall within the appellate and revisionalambit and scope of Explanation jurisdiction. In other words theyto Section 7(1) of the Act only. exercise a much widerThus, they exercise a limited jurisdiction jurisdiction.

5. The Civil Courts are expectedThe Family Court in terms of to refer the matter to thethe object of the Act is, appropriate forum inprimarily, required to make accordance with the provisionsefforts of conciliation and every of Section 89 of the Code ofattempt should be made to Civil Procedure. But they havesettle the matter and then alone to decide the matter, primarily,it can travel to the jurisdiction of on merit and by answeringdetermination within the limited each issue of law and fact. scope as spelt out under the provisions of the Act.

6. Under Article 233(2) of theUnder the advertisement issued Constitution, a person in thefor appointment to the Judge of service of Union or the State isthe Family Court as well as 50

not eligible even to apply forunder the provisions of the Act, the post of the District andthe ambit of the persons eligible Sessions Judge. It is primarilyto apply is much wider and advocates with seven years ofeven a person in service of the practice who are entitled toUnion or a State could apply apply for the post. They, inand be appointed to that post. accordance with the terms andIn fact, if they have experience, conditions of Rule 6 of thethrough service or otherwise, of Rules of 2008, have to passsettlement of family disputes, written competitive examinationthey are required to be given by obtaining at least 50%preference in matters of marks in each paper and inappointment. They do not have aggregate and 40% in the vivato compete in any written voce before they can beexamination but, like the considered fit to be appointedpetitioners, are primarily to that post. selected by an interview alone.

7. The persons belonging to theThe Family Court exercises cadre of District and Sessionsjurisdiction only with respect to Judges had earlier dealt with allthe matters specified in Section the cases including family and7(1) of the Act over which the matrimonial cases beforejurisdiction of the Civil Court is Section 8 of the Act came intoexcluded in terms of Section 8 force. Even after exclusion ofof the Act. jurisdiction in terms of Section

8 of the Act, they exercise

jurisdiction on much wider field

and subjects.

8. The District Judge andThe Judge of the Family Court particularly the Principal Districthardly exercises any and Sessions Judge exercisesadministrative jurisdiction and vast administrative as well ashas no administrative control judicial control over the courtsover any other court. subordinate to the District

Court.

9. There is complete freedom toThe right of representation and the lawyers to appear andassistance by lawyers before assist the Court inthe Family Court is totally determination of differentrestricted in terms of Section 13 proceedings before it. Thisof the Act. 51

helps the District and Sessions

Judge to get a better

experience in different fields of

law.

10. The Civil Courts have to workThe Family Court are not strictly in accordance with lawstrictly required to record and adhere to the provisions ofevidence and perform their the Evidence Act, Code offunctions in accordance with Criminal Procedure and Codethe provisions of the Code of of Civil Procedure. Civil Procedure and the Indian Evidence Act. In terms of

Section 14, they can evolve

their own procedure for

deciding the proceedings

pending before it.

In view of the clear points of distinction, which are substantial

and affect the learning, performance and discharge of judicial duties,

the disparity between the Judges of the Family Court and the

members of the Higher Judicial Services of the State of Maharashtra

is discernibly demonstrated. Keeping in view the kind of jurisdiction

they exercise while deciding cases, it is difficult for the Court to hold

that they are at parity and their services are interchangeable to the

extent that the Presiding Officers of the Family Court would be

granted the stature of the members of the Higher Judicial Services of

the State.

52

Proper administration of justice, being one of the main

constitutional goals, has to be in consonance with the expectations of

the society and with definite expertise in all fields of law.

Administration of justice, per se, takes within its ambit, primarily,

judicial experience and expertise by determining disputes between

the parties in accordance with law as well as ensuring proper

administration within the hierarchy of Courts. The members of the

Higher Judicial Services perform duties like maintenance of records

as per Rules, inspection of other Courts, inspection of jails and

ensuring proper adherence to the prescribed procedures. Even the

Judges of the Family Court may be performing such functions but

definitely to a very limited extent. Their experience in the judicial field

as well as in channelizing the administration of justice is

comparatively of a narrower nature.

Therefore, we are unable to hold that by necessary implication

or on the claim of parity, the Presiding Officers of the Family Courts

can be deemed to be the members of the Higher Judicial Services

(District and Sessions Judges) of the State of Maharashtra in terms

of the constitutional provisions and the relevant Rules. 53

`Judicial Office’ within the meaning of Article 217

Even if, for the sake of argument, we accept the contentions

raised on behalf of the petitioners, the most significant question that

would require consideration is whether they hold a `judicial office’

within the meaning of Article 217 which is a condition precedent for

consideration for elevation to the High Court.

For the purpose of examining the issue before us, it will be

appropriate to examine the scheme of Article 233 along with Article

217 of the Constitution. Article 233(2) provides that a person in

service of the Union or the State Government is not eligible to be

considered for appointment as District Judge and who has not been

an advocate or a pleader for not less than seven years. This clearly

shows the constitutional mandate to ensure independence of

judiciary in comparison to other organs of the State. In

contradistinction to this, a person in service of the Union or the State

would be eligible to be appointed as Judge of the Family Court.

Article 217(2) of the Constitution has been worded in a negative

language. It states that a person shall not be qualified for

appointment as Judge of the High Court unless he satisfies all the 54

conditions stated in that Article. In terms of Article 217(2)(a), a

person should have at least for ten years held a `judicial office’ in the

territory of India. Thus, the entire emphasis is on the expression

`judicial office’. The expression `judicial office’ has nowhere been

defined in the Constitution of India unlike `District Judge’ or `Judicial

Service’ which expressions have been explained under Article 236 of

the Constitution of India. Still this expression has come up for

consideration of this Court on different occasions and in different

contexts. In the case of H.R. Deb (supra), this Court considered the

distinction between `judicial office’ and `judicial service’ and held that

expression `judicial office’ signifies more than discharge of judicial

functions. The phrase postulates that there is an office and that

office is primarily judicial. In the case of Shri Kumar Padma Prasad [(1992) 2 SCC 428], this Court was considering

v. Union of India

whether the Legal Remembrancer-cum-Secretary (Law and Judicial)

and Assistant to Deputy Commissioner, having powers analogous to

First Class Judicial Magistrates, was holding a judicial office for the

purposes of appointment as Judge of the High Court. The Court,

while answering the question against the recommendation, held as

under:

55

“21. This Court has thus authoritatively laid down that the appointment of district judges under Article 233(2) can only be from the judicial service of the State as defined under Article 236(b) of the Constitution.

22. It is in the above context that we have to interpret the meaning of expression “judicial office” under Article 217(2)(a) of the Constitution of India. The High Court Judges are appointed from two sources, members of the Bar and from amongst the persons who have held “judicial office” for not less than ten years. Even a subordinate judicial officer manning a court inferior to the District Judge can be appointed as a Judge of a High Court. The expression “judicial office” in generic sense may include wide variety of offices which are connected with the administration of justice in one way or the other. Under the Criminal Procedure Code, 1973 powers of

judicial Magistrate can be conferred on any person who holds or has held any office under the Government. Officers holding various posts under the executive are often vested with the magisterial powers to meet a

particular situation. Did the framers of the Constitution have this type of `offices’ in mind when they provided a source of appointment to the high office of a Judge of High Court from amongst the holders of a “judicial office”. The answer has to be in the negative. We are of the view that holder of “judicial office” under Article 217(2)(a) means the person who

exercises only judicial functions, determines causes inter-parties and renders decisions in a judicial capacity. He must belong to the judicial service which as a class is free from executive control and is disciplined to uphold 56

the dignity, integrity and independence of judiciary.”

In view of the above enunciated law, the expression `judicial

office’ should be construed in a manner which shall be in conformity

with the constitutional scheme. Judicial office may be read in

conjunction with the expression `judicial service’. The expression

`judicial service’ cannot be given a wider meaning than the meaning

given to it under the Constitution itself. To expand that meaning to

the extent that all services dealing with the process of determination

of disputes should be included, would tantamount to introducing

words which have not been used by the Constitution.

Such approach may not be possible and in any case would not

serve the constitutional ends stated in Articles 217(2)(a), 233 and

234 of the Constitution. It is an established practice that for elevation

to the High Court, normally, the members of the Higher Judicial

Services are considered on the basis of merit-cum-seniority.

Keeping in view the limited exposure that is available to the Presiding

Officers of the Family Court, it may not be feasible to hold that such

officers are holding a `judicial office’ in terms of Article 217(2)(a) and

are eligible for consideration for elevation to the High Court. The 57

scheme of Chapter V of Part VI of the Constitution has its own effect

on the meaning of the expressions `judicial office’ as well as `judicial

service’. The Judges are not employees of the State. As members of

the judiciary, they exercise sovereign judicial powers of the State.

The Judges, at whatever level they may be, represent the State and

its authority unlike the bureaucracy or the members of other services.

With the development of law, numerous tribunals and quasi-judicial

bodies have been created to determine the disputes between the

parties. Functions of such tribunals are, primarily, quasi-judicial and

in the realm of civil jurisprudence alone. In other words, such

tribunals or bodies exercise a very limited jurisdiction. It will not be

appropriate to treat them as an inextrical part of State judicial

services or call them Courts as understood in our Constitution,

merely because they give final decision, because they hear

witnesses, because two or more contesting parties appear before

them, because they give decisions which affect the right of the

parties and an appeal might be provided against their decision. Even

the Government, in its hierarchy, is now vested with the powers of

limited adjudication but that does not mean that all such persons

shall be deemed to be the members of the judicial services and 58

would hold judicial office under the Constitution. In the case of

Labour Law Practitioners’ Association (supra), this Court referred to

its earlier judgments and reiterated with approval that `judicial office’

under Article 217(2)(a) must be interpreted in consonance with the

scheme of Chapter V and Chapter VI of Part VI of the Constitution.

So construed, it means a `judicial office’ which belongs to the judicial

services as defined under Article 236(b) of the Constitution. This

Court, in the case of Shri Kumar Padma Prasad (supra), also held

that when a person is not eligible to be appointed as District Judge, it

would be mockery of the Constitution to hold that he is eligible to be

appointed as Judge of the High Court. The constitutional scheme is

clear that independence of the judiciary is the basic feature of the

Constitution. Our Constitution, unlike the Australian Constitution in

which there is rigid separation of powers, does not provide that

judicial powers can be conferred only on the Courts properly so

called. This being the underlining feature of the constitutional

provisions, it would not be in conformity with the constitutional

mandate to designate every institution, determining disputes of civil

nature, a `Court’ or the person presiding over such institution as

holding a `judicial office’.

59

For the reasons afore-recorded, we have no hesitation in

holding that the Principal and other Judges of the Family Court may

be `Judges’ presiding over such courts in its `generic sense’ but

stricto sensu are neither Members/integral part of the `Judicial

Services’ of the State of Maharashtra as defined under Article 236

nor do they hold a `judicial office’ as contemplated under Article 217

of the Constitution of India. Thus, they do not have any jus legitimum

to be considered for elevation to the High Court. Therefore, we find

no merit in this Writ Petition. The same is dismissed.

However, in the facts and circumstances of the case, there

shall be no order as to costs.

……………………………………..J. [Swatanter Kumar]

……………………………………..J. [Chandramauli Kumar Prasad]

New Delhi

November 11, 2010

http://indiankanoon.org/doc/1300797/

Categories: Judgement

Even a mutual consent divorce by family court can be set aside by HC if either party challenges

Bench: B P Dharmadhikari

1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH, NAGPUR.

SECOND APPEAL NO. 40 OF 2009

Sau. Sushama w/o Pramod Taksande,

Aged 30 years, Household,

r/o. C/o. Shri Wasudeo Shendre, Rani

Laxmibai Ward, Pandharkawada,

Tahsil Kelapur, District Yavatmal. … APPELLANT. VERSUS

Shri Pramod s/o Ramaji Taksande,

Age 42 years, occupation Businessman,

Karanji Road, Tahsil Kelapur,

District Yavatmal. … RESPONDENT. ———————-

Mr. R.D. Bhuibar, Advocate for Appellant.

Mr. Anjan De, Advocate for Respondent.

———————–

CORAM : B.P. DHARMADHIKARI, J.

Date of Reserving Order. – 04.02.2009 Date of Pronouncement. – 17.03.2009 2

ORAL JUDGMENT.

1. The appellant before this Court is wife and she challenges judgment dated 6.12.2008 delivered by the District Judge -I, Pandharkawada, affirming the judgment dated 6.10.2008 passed by the Civil Judge, Senior Division, Pandharkawada (Kelapur). The Civil Judge, has in H.M.P. No.24/2008 presented under section 13[B] of Hindu Marriage Petition, dissolved marriage between the parties because of consent and the custody of two sons with father Pramod was continued as wife agreed not to seek the custody. It is also recorded that wife waived her right of maintenance. This order was challenged by wife in Regular Civil Appeal No. 68/2008 inter-alia contending that her signature on said petition and accompanying affidavits were obtained under false pretext and she was compelled to place her signature upon it. She contended that both the parties were residing together and there was no separation for a period of one year which is a mandatory requirement. The Lower Appellate Court has considered this ground and in paragraph no.7 found that petition was presented on 4.4.2008, parties were directed to remain present on 6.10.2008 and from pleadings it appeared that both parties were not ready to continue 3

their marital tie. In their affidavits, both state that they were residing separately from February, 2007 and hence both were residing away from each other for more than one year before the presentation of the Section 13[B] petition. The Appellate Court also found that the affidavit of wife demonstrated that they were residing separately from one year before filing of the petition. It also noted that Advocate for husband submitted that, wife was residing at house of her brother at Karanji itself and this submission was not “refuted” by appellant i.e. wife. In view of this consideration the appeal came to be dismissed.

2. I have heard Advocate Shri Bhuibar, for appellant Wife and Advocate Shri Anjan De, for respondent husband in this background.

3. On 04.02.2009 following three questions were framed and after hearing the parties, the appeal was closed for orders/ judgment. “(1) Whether in present facts and circumstances, there is compliance with provision of Section 23[1][bb] of the Hindu Marriage Act ?

(2) Whether the petitioner Wife could have challenged the judgment and order in

H.M.P.No.24/2008 in Appeal ?

(3) Whether the petitioner-Wife has indulged in perjury?”

4

Then it was felt that an attempt for re-conciliation should have been made even in High Court, accordingly, in consultation with both the Advocates sought time for the said purpose till 02.03.2009 and ultimately both of them expressed their inability and stated that efforts undertaken for re-conciliation failed. The matter was therefore again heard on 02.03.2009 and on that date Advocate Shri De for respondent invited attention to the provisions of Order 41 Rule 25 of C.P.C. to urge that if this Court finds it necessary, a limited issue or question can be framed and finding upon it can be called from the Trial Court. The appeal was finally closed for judgment on 02.03.2009.

4. Advocate Shri Bhuibar, has contended that the requirement of law in this respect is very clear and the Civil Judge, Senior Division has to record a satisfaction under Section 23[1][bb] so as to avoid such contentions and arguments from being raised. He invites attention to the fact that address of both the parties mentioned in the marriage petition is same and their affidavits also mention very same address. There is nothing on record to show that they were residing away from each other and the petition itself did not demonstrates that parties were staying separately for more than one year. He relies upon two judgments of Hon’ble Apex Court reported at AIR 1998 SC 764– 5

Balwinder Kaur .vrs. Hardeep Singh , Sureshta Devi .vrs. Om Prakash– 1991 (1) Mh.L.J. 324, to urge that the Lower Courts have failed to exercise jurisdiction in accordance with the law. AIR 1987 Punjab 191 Smt. Krishna Khetarpal .vrs. Satish Lal, is being pointed out to show that the present appeal is maintainable. Lastly it is argued that in view of the document filed along with the reply by the present respondent/husband need for counseling couple was apparent and Civil Judge, Senior Division has not held any conciliation proceeding in the matter. The learned counsel therefore, prayed for allowing the Second Appeal.

5. Advocate Shri Anjan De, for respondent husband has placed strong reliance upon the documents filed by the respondent on affidavit along with Civil Application No. 130/2009. The said application is also styled as “submissions”. It is for taking action for perjury and for contempt of Court against the appellant. It is pleaded that the documents accompanying it are obtained under Right to Information Act. The first document is report submitted by the S.D.P.O. Pandharkawada on 20.08.2008 to Assistant Superintendent of Police, at Yavatmal after enquiry into the complaint made by Digamber Ramdas Dhote. He is father of present appellant. The second document is the 6

oral statement recorded by S.D.P.O. The fourth document is statement dated 18.8.2008 of present appellant and in that statement she has that she is married with the present respondent and has two sons from him. She has further stated that she has love affair with police constable Surendra Wasnik, since last one year and she has gone out with him and when ever he used to visit her, he used to present her with Saree or some ornaments out of love. This relationship was not liked by her parents and some others and hence complaint came to be filed against Shri Wasnik, She mentioned that she had applied for divorce before the Court and case would be decided within a month. After grant of divorce from court she was going to reside with Shri Wasnik because of their relations. Her father in law and mother in law had agreed to look after her sons and hence custody of sons would be with them. She has further stated that before moving for divorce she had a talk with Shri Wasnik on mobile phone of her husband and as Shri Wasnik promised that they would reside jointly, she had informed accordingly to her husband who was standing by her side. She further stated that she had tried to contact Surendra Wasnik on mobile in last 2/3 months, but contact could not be established. Document no.5, is statement of her husband [present respondent], which shows that he has corroborated the above position. He has further stated that his wife is deeply in love 7

with Shri Wasnik and they also tried to commit suicide by pouring kerosene and because of this ultimately proceedings for divorce were required to be initiated. Annexure-R2 with this reply is copy of application dated 4.4.2008 filed in the court of Civil Judge, Senior Division, Pandharkawada where both the parties to this appeal pointed out that as the applicant no.2 wife therein wanted to marry Surendra Wasnik, waiting period of 6 months should be relaxed. Annexure- R3 is the affidavit dated 6.10.2008 filed by the present appellant before the said Court in which she has mentioned that they have not been residing together as such from February 2007 and as there was no possibility of reconciliation on 4.4.2008, proceedings for divorce by mutual consent came to be filed. She has further stated that she is not going to claim any maintenance from her husband and also waived her right to custody of children. She has further stated that she was not carrying from her husband and as re-conciliation was not possible, though relatives tried to mediate and resolve, she was voluntarily severing the relationship. She has further stated that she is firm on her decision taken 6 months earlier.

6. In view of this document Advocate Shri De, contends that even after filing of the proceedings for grant of divorce on 4.4.2008 the 8

desire and decision of present appellant to separate from the respondent has come on record and he points out that all these statements are recorded also 4 months thereafter. He states that therefore plea of any mis representation or coercion or pressure is clearly by way of after thought and false affidavit has been filed before this Court. According to him it is nothing but perjury and as it interferes with the administration of justice it also constitutes contempt of Court. He has invited attention to statement of Surendra Wasnik recorded on 19.8.2008 by the S.D.P.O in which Surendra Wasnik has stated that he was not knowing the present appellant and he had even never talked with her. He has further stated that because there was some quarrel or misunderstanding between the said lady and her husband, she filed proceedings in the court of law and as she needed some shelter, she was trying to get into his house. He further stated that he is already married and his wife was working in health department as staff nurse and his son aged about 7 years is taking education in school at Yavatmal. He further mentions that because of service of his wife, his wife and children were residing at Yavatmal only. The S.D.P.O has in brief narrated all these statements and in his report, stated that police constable Surendra Wasnik had conducted himself in a manner not becoming of his status and therefore he deserves tobe punished. It is 9

the contention of Advocate Shri De, that because of change in his statement by Shri Wasnik, as it became clear to appellant that he is not going to marry or reside with her, she might have changed her stand. According to him in present circumstances, there is substantial compliance with provisions of Section 23[1][bb] and entire case law cited above is not relevant. He points out that from orders passed on 9.4.2008 it is apparent that the Presiding Officer has heard both of them and then after perusal of the contents of petition adjourned it to 6.10.2008. He therefeore, states that efforts to conciliate were also made on that date and hence no substantial question of law arise in this Second Appeal and the same deserves to be dismissed.

7. The contention of Advocate Shri De, in Civil Application No.130/2009, is to initiate action against the appellant / wife and to punish her for perjury. The said application is also to be treated as submissions of respondent / husband. The documents prepared by Deputy Divisional Police Officer and report submitted by him to the Superintendent of Police, Yavatmal are relied upon to show that, there was no pressure of any type upon the appellant / wife and her contention that her signature on petition for grant of divorce by mutual consent or that on affidavits were obtained by force, are false. It is also 10

alleged that by making false allegations before this Court, she obtained interim order on 30.01.2009. I find it premature to rely on the said documents at this stage and to return any finding on perjury on this basis. The interim order was passed by this Court on 30.01.2009 after hearing both the sides. The report prepared by police or statements recorded by police are still not put to the appellant, as required by law and hence at this stage it cannot be used against her. Perusal of the statements recorded by police and report prepared on its basis, reveal that the appellant / wife wanted to have relations with police Constable Shri Wasnik and wanted to cohabit with him. The statement also discloses that she had made telephone calls accordingly to the said constable by using mobile instrument of her husband and in presence of her husband. The police constable Shri Wasnik assured to cohabit with her and then only she filed the application for divorce along with her husband. But unless and until all these facts are proved on record, no reliance can be placed upon the same at this stage. The prayer to punish the appellant for perjury is therefore premature. Recourse to Order 41 Rule 25, only for this purpose in present matter is not warranted.

8. The provisions of Section 13[B] of Hindu Marriage Act 11

require the parties to live separately for a period of one year before petition for grant of divorce is presented. Perusal of application as moved by the parties jointly on 4.4.2008 reveals that it does not disclose this fact & does not contain any statement in this respect. On 4.4.2008 the petition was presented and the in charge Court directed it to be placed before the regular Presiding Officer. Both the parties were present before the regular court on 09.04.2008. The said court i.e. Trial Court has recorded that it perused the contents of the petition and heard both of them in person. Thereafter it adjourned the matter to 06.10.2008 for further orders. The order therefore clearly shows that the fact whether parties were residing together or were residing separately has not been specifically gone into by the said Court on 09.04.2008. The petition as filed prima facie shows that both of them were residing at same place. Advocate Shri De, has contended that the appellant was residing with her brother in same village. However, the position is to be verified by the Trial Court on very first date, and this exercise ought to have been undertaken on 09.04.2008 itself. Advocate Shri De, has pointed out that on 4.4.2008 the parties had moved application for waiving the requirement of waiting for 6 months and in it, it has been mentioned that wife had to remarry immediately with Shri Wasnik, Police Constable. This application is supported by separate 12

affidavits of both. Dates given by the Trial Court show that no such exemption was granted by it. However, orders if any, passed upon it have not been brought on record. On 6.10.2008 again wife has filed affidavit and in the said affidavit, she has mentioned that there was difference of opinion between the two since beginning and they were residing separately from February 2007. She has stated that she was reiterating her decision to obtain divorce by mutual consent. It is to be noted that the grievance of the appellant is that her signatures were obtained against her wish by her husband.

9. The judgment of Hon’ble Apex Court in the case of Sureshta Devi .vrs. Om Prakash (1991 Mh.L.J. 324), the Hon’ble Apex Court has held that, it is open to the parties to even unilaterally withdraw through consent at any time. In paragraph No. 9 the Hon’ble Apex Court has noted that parties have to make joint motion not earlier than 6 months after the date of presentation of petition and such much enables the Trial Court to find out the genuineness of the averments in the petition and also to find out whether the consent was not obtained by force, fraud or undue influence. The Trial Court can make such enquiry as it thinks fit, including examining parties for that purpose and if it is satisfied that consent of the parties were not obtained by force, 13

fraud or undue influence and that they mutually agreed for dissolution of marriage, the Trial Court must pass a decree of divorce. In Balwinder Kaur .vrs. Hardeep Singh (supra) in paragraph No.15, the Hon’ble Apex Court has held that Section 23 of Hindu Marriage Act mandates that Court before granting decree of divorce has to satisfy itself that grounds for claiming relief exists and petitioner is not taking advantage of his own wrong or disability. Court has to make an effort to bring about re-conciliation between the parties. I find that the provisions of Section 23[1][bb] require the Court to satisfy itself that consent for divorce under section 13[B] has not been obtained by force, fraud or undue influence. This application of mind has to be on very first date when the court adjourns the matter for conciliation or for statutory period and must reveal itself in the court order then passed. The said order must also disclose that the court had satisfied itself that the matter fulfilled all requirements of law relevant at that stage. The earlier order & impugned judgment delivered by the Trial Court or by the Lower Appellate Court does not show that any such satisfaction was reached or recorded by the Trial Court. The final order passed on 16.02.2008 by the Civil Judge, Senior Division, reveals that even the date from which the parties were staying separately has not been mentioned any where in it, and the compliance with Section 23[1][bb] 14

is also not recorded. It only mentions in paragraph no.4 that dispute between the parties could not be settled by their relatives. In paragraph No.5 it has been mentioned that the petition was jointly presented on 04.04.2008 and statutory period of 6 months was given to parties to find out genesis of settlement between them and thee was no fruitful settlement. Thus there was no endeavor by the Court below to find out whether any conciliation was possible or not. The said judgment of trial Court was then questioned by wife by filing Appeal under Section 28 of the Hindu Marriage Act in the Court of District Judge at Pandharkawada. In appeal memo in paragraph no.13 it has been specifically averred that there was no separation and the averment in the application before the trial Court were false. It is also pleaded that false affidavit was prepared and wife was compelled by the husband to put her signature on it. These contentions are not considered by the Lower Appellate Court. It appears that the Advocate who was jointly representing the husband and wife before the Trial Court appeared on behalf of respondent to oppose the appeal of wife. The lower Appellate Court should not have permitted such appearance, particularly in view of the ground of compulsion or force by the wife. Appellate Court has found that in affidavit dated 6.10.2008 both the parties mentioned that they were residing separately from February 2007 and hence condition 15

precedent required under section 13[B] was satisfied. The contentions of appellant / wife that her signature was obtained by pressurizing her or then the averment in their affidavit were false, are ignored and the fact that statutory requirement of recording satisfaction in this respect cast upon the Trial Court by section 23 is not fulfilled, is also ignored. Thus the appeal came to be dismissed only by accepting the disputed affidavit as sufficient compliance.

10. Both the judgments are therefore delivered mechanically without any application of mind to the provisions of Law in the matter. The obligation cast upon court by legislature while dissolving marriage by consent is overlooked and its object has been defeated in this case. The institution of marriage is sacred and marriage tie is not to be easily broken. The requirement to verify the voluntary nature of consent, provision of a period of separation, duty to attempt to conciliate and waiting period of 6 months in court all show the seriousness with which the parties as also the courts of law have to evaluate the facts. Here, both the courts have acted mechanically thereby defeating the statutory protection extended to week spouse by law. The judgments are therefore unsustainable.

16

11. Advocate Shri De, however has also raised contention that as divorce has been obtained by mutual consent, the decree is consent decree and hence appeal is not maintainable. In Smt. Krishna Khetarpal .vrs. Satish Lal (supra), the Hon’ble Division Bench of that High Court has considered the identical challenge in paragraph nos. 3 to 6 and concluded that appeal against such decree is maintainable. It has been held that Section 28[1] of Hindu Marriage Act provides a right of appeal and all original decrees made by the Trial Court under the said Act are appealable. The decree of divorce by mutual consent is one such decree & hence, also appealable. It has been observed that appeal under section 96 of C.P.C. is on different footing and Section 96[3] prescribing a bar of appeal against consent decree has no application. In paragraph no.5, it is observed that a decree for divorce by mutual consent is not based merely on mutuality of the consenting parties, but the courts involvement in the decision making is inextricably a part of such decree. Possibility of an error, legal or factual, in such decision cannot be ruled out, and therefore, appeal under section 28 has been provided for. Another Division Bench of that High Court in the case of Charanjit Singh Mann .vrs. Neelam Maan (AIR 2006 P & H 201), has in paragraph no.25, cited this judgment with approval. AIR 2007 Jharkhand 34 –Smt. Hina Singh .vrs. Satya Kumar Singh, is again the 17

judgment of Division Bench of Hon’ble Jharkhand High Court wherein provisions of Order 23 Rule 3 of C.P.C. are considered and ultimately in paragraph no.3 it has been held that appeal against decree of divorce by mutual consent is maintainable. In view of these judgments which correctly & clearly clinch the issue, I find that appeal against such consent decree is maintainable.

12. Legislature has cast obligations upon Court entertaining the proceedings under section 13[B] to record a finding that consent for divorce has not been obtained by force, fraud or undue influence. Thus legislature has visualised that there may be a case in which consent for divorce may be obtained and decided to provide a safeguard against abuse of this provision. Hence obligation has been cast upon the court to verify the same, and to record a satisfaction that the consent given by the parties is free and voluntary. Thus having visualized abuse of such provision for grant of divorce by mutual consent by use of force, fraud etc., it cannot be accepted that legislature did not provide for a remedy to the spouse aggrieved in such matters. To hold that remedy of appeal is not available to such aggrieved spouse, will be rendering nugatory the exercise of obligation cast upon the trial court by the Legislature. I therefore find that the arguments of Advocate Shri De about tenability 18

of appeal against such consent divorce decree are liable to be rejected.

13. In view of this consideration, it has to be held that the appeal as filed by the appellant / wife before the Lower Appellate Court and before this Court is legally maintainable and question no.2 needs to be answered accordingly in affirmative in her favour. Question no.3 about indulgence in perjury by the appellant wife cannot be answered at this stage in absence of sufficient material, as it is found to be premature. No remand or calling of report from trial court in that respect is necessary as even otherwise the trial court has to look again into the voluntary nature of wife’s consent. Question no.1 is answered in favour of the wife by holding that there is no compliance with provisions of Section 23[1][bb] of the Hindu Marriage Act.

14. In the circumstances, the judgment and decree dated 06.10.2008 delivered by the Civil Judge, Senior Division, Pandharkawada (Kelapur) in H.M.P. No. 24/2008 is hereby quashed and set aside. Similarly, the judgment and decree dated 06.12.2008 delivered by the District Judge-I, Pandharkawada in Regular Civil Appeal No. 68/2008 is also quashed and set aside. H.M.P. No.24/2008 19

is restored back to the file of Civil Judge, Senior Division, Pandharkawada for its further trial in accordance with law. Second Appeal is accordingly allowed. However, in the circumstances of the case there shall be no order as to cost.

JUDGE

Rgd.

Categories: Judgement

Chennai HC-Modified Divorce to Judicial Sepration-Mention of women NGO helpline

DATED: 23.06.2010

CORAM:

THE HON’BLE MRS.JUSTICE R.BANUMATHI

AND

THE HON’BLE MR.JUSTICE B.RAJENDRAN

C.M.A.NOS.3839 AND 3840 OF 2005

AND C.M.P.NOS.1043 AND 1044 OF 2008

Tmt.M.Sundari …. Appellant

Vs.

Dr.A.Chandrasekaran …. Respondent

Prayer: Civil Miscellaneous Appeals in C.M.A.Nos.3839 and 3840 of 2005 are filed under Section 19 of Family Courts Act against the Judgment and decree dated 18.10.2005 in I.D.O.P.Nos.235 of 2003 and 205 of 2004 respectively on the file of Family Court, Coimbatore.

For Appellant : Ms.R.Gowri

in both Appeals

For Respondent : Mr.P.K.Rajagopal

in both Appeals

COMMON JUDGMENT

R.BANUMATHI,J.

C.M.A.No.3839 of 2005 arises out of Judgment dated 18.10.2005 in I.D.O.P.No.235 of 2003, whereby, by a common judgment, the Family Court, Coimbatore has passed decree of divorce dissolving the marriage of Appellant/wife and Respondent/husband. C.M.A.No.3840 of 2005 arises out of the common judgment in I.D.O.P.No.205 of 2004 whereby Family Court dismissed the Petition for restitution of conjugal rights filed by the Appellant/wife.

2. The Respondent is an Anaesthetist and is a medical practitioner. He joined in Senthil Nursing Home, Coimbatore as Junior Doctor, where the Appellant was working as Nurse and both of them had fallen in love. The Appellant was a Roman Catholic Christian and Respondent was a Hindu, who got converted to Christianity. Their marriage was solemnised on 10.6.1983 at Saint Michael’s Church, Big Bazaar Street, Coimbatore and both of them were living together. Out of lawful wedlock, a male child was born to them on 1.12.1984. After marriage, the Respondent pursued his higher studies at Stanley Medical College during the years 1984-1989. During that period, the Appellant and her son were taken care by her parents. After completing his Post Graduation, the Respondent joined the Government Hospital, Pandhalur. Later, the Respondent joined E.S.I.Hospital, Coimbatore, Papanaickenpalayam and then he was transferred to Coimbatore Government Medical College and Hospital. The spouses were living together in Coimbatore and they also constructed a house at Sowripalayam, Coimbatore in 1998.

3. The case of Respondent is that his married life was happy only for a short span of time and that the Appellant is a person of suspicious character and that she would not tolerate his coming late night from the Hospital. According to the Respondent, being an Anaesthetist, he has to attend emergency cases in the Hospital in late hours and the Appellant would question him about the same and use abusive language alleging that he is having illicit intimacy with some other woman and that he was humiliated and insulted by the Appellant in public places. The Respondent further averred that the Appellant would visit the work place and tease him spoiling his reputation in public, which has caused him mental agony. In the Petition for divorce, the Respondent further alleged that the Appellant had also lodged a false complaint before All Women Police Station alleging that he is leading an adulterous life and that no action was initiated by the police and enraged by the same the Appellant sought assistance from an Organisation called Helpline, which threatened the life of Respondent which caused reasonable apprehension in the mind of the Respondent that his life is under threat and that it has become impossible for him to cohabit with the Appellant and on those averments the Respondent has sought for dissolution of marriage.

4. Resisting the petition, Appellant has filed counter alleging that when the Respondent was pursuing his higher studies, the Appellant sold all her jewels to enable the Respondent to pursue his higher studies and she was running her family and also supporting the Respondent to complete his education with the help of her parents’ monetary assistance. According to the Appellant, after the Respondent became a leading Anaesthetist Doctor in the city, his behaviour completely changed and he developed illicit intimacy with a lady Doctor (Bhuvana), which was learnt by the Appellant from reliable sources. When being questioned about the same, the Respondent not only admitted the intimacy, but also insisted the Appellant to accept the same and demanding acceptance ill-treated the Appellant. Appellant averred that being a qualified nurse, she knows fully about the professional value of a Doctor and that she never questioned the Respondent and never used abusive languages as alleged by the Respondent. Appellant further averred that she was locked inside the house several times and even telephone was disconnected and to get the re-connection of phone for the house, she approached the Woman Police Station. Further case of Appellant is that he left the house in 2003 and after mediation the Respondent agreed to come over, but without even giving a notice, the Respondent straight away filed the Petition for divorce making all false allegations.

5. Stating that the Respondent left the matrimonial house without any reasonable cause and that she and her son, who has been studying in B.,E., are longing for the love and affection of the Respondent, the Appellant has also filed I.D.O.P.No.205 of 2004 under Section 32 of Divorce Act seeking for restitution of conjugal rights.

6. In the Family Court, Coimbatore, Respondent examined himself as P.W.1 and one Jeeva was examined as P.W.2. Ex.P.1 was marked on the side of Respondent. Appellant examined herself as R.W.1 and Ex.R.1 was marked. Upon consideration of oral and documentary evidence, trial Court held that when Appellant has alleged illicit intimacy of Respondent, burden of proof lies upon her to prove alleged illicit intimacy of the Respondent and absolutely there is no evidence by the Appellant to substantiate the allegations. Referring to the evidence of P.W.1/Respondent and also the evidence of R.W.1/Appellant, trial Court held that the Appellant has lodged a police complaint and also sought the intervention of Helpline and that the Appellant scolded the Respondent in public places and such making of allegations of illicit intimacy has caused mental cruelty to the Respondent and on those findings the Family Court granted decree of divorce dissolving the marriage of the Appellant and Respondent. Insofar as Petition for restitution of conjugal rights, Family Court held that the Respondent has reasonable cause to live away from the house and dismissed the Petition filed by the Appellant for restitution of conjugal rights.

7. Challenging the findings of Family Court, learned counsel for Appellant/wife contended that when the respondent/husband has alleged mental cruelty burden of proof rest upon him to prove mental cruelty. It was further contended that when the Respondent/husband has developed illicit intimacy with another lady doctor and left the matrimonial house, he cannot be allowed to take advantage of his own wrong. The learned counsel would further submit that merely because the grounds for restitution of conjugal rights is not proved it cannot be said that the grounds for divorce were established. The learned counsel would further contend that the evidence adduced by the Respondent would not be sufficient to establish cruelty as contemplated under Section 10(1)(x) of the Divorce Act that the Appellant has treated the Respondent with such cruelty as to cause a reasonable apprehension in the mind of the Respondent that it would be harmful or injurious for him to live with the Appellant.

8. Countering the arguments, learned counsel for the Respondent submitted that pleadings and evidence would amply substantiate the mental cruelty meted out to the Respondent and that the cruelty had gone to such an extent that the Respondent has to leave the matrimonial house to safeguard himself. It was further argued that making false accusations and abusing in public is of such magnitude, being a responsible doctor, it is impossible for the husband to live with the Appellant/wife and the family Court has rightly passed a decree of divorce.

9. We have carefully considered the contentions and analysed the pleadings and evidence and the judgment of the Family Court. Upon consideration of the submissions and materials on record, the following points arise for our consideration:

“1. Whether the Respondent/Husband has withdrawn from the matrimonial house and deserted the Appellant/wife without reasonable cause?

2. Whether the Appellant/wife is entitled to the relief of restitution of conjugal rights?

3. Whether the Respondent/husband has established that he was subjected to mental cruelty of such magnitude that it became impossible for the Respondent/husband to live with the Appellant?

4. To what relief?”

10. Point Nos.1 to 4:- The Respondent is a doctor by profession and while he was working as a Junior Doctor in Senthil Nursing Home, Coimbatore, where the Appellant was working as a nurse, both of them had fallen in love. The Respondent, who was a Hindu, got himself converted to Christianity and their marriage was solemnised in Saint Michael’s Church, Coimbatore on 10.6.1983. Out of lawful wedlock, a male child was born on 1.12.1984. The son has now completed his B.E.Mechanical Engineering and said to be pursuing his higher studies in abroad. There is no dispute that only after marriage Respondent studied his Post Graduation in Stanley Medical College, Chennai during 1984-1989. After completion of his M.D. in 1989, the Respondent joined Government Hospital, Pandhalur and thereafter joined E.S.I.Hospital in Lakshmi Mills, Coimbatore, from where he was transferred to Government Medical College and Hospital, Coimbatore. After the Respondent completed M.D., and joined Government services, the Appellant has left the services. Both the spouses were living together in various places in Coimbatore till they constructed their own house in Sowripalayam, Coimbatore in 1998.

11. The Appellant has alleged that Respondent developed illicit intimacy with another lady Doctor  Bhuvana and when she questioned about the same, Respondent beat her and ill-treated her. The Appellant has further stated that the illicit intimacy developed day by day and that they used to live as husband and wife at various places and the said Bhuvana has also sent rowdy elements to the house and when Appellant made complaint over phone, the phone connection was cut-off. The Appellant has further stated that the Respondent has also taken away the car with him and after mediation he had agreed to come and live, but thereafter again started quarrelling without any reasons and ill-treated the Appellant insisting to agree for a divorce.

12. Per contra, the Respondent/husband has alleged that the Appellant is a person of suspicious character and that she would not tolerate his coming late from the Hospital and as Anaesthetist he has to attend emergency cases in the Hospital and that the Appellant would question him about the same and use abusive language and that Appellant used to visit the work place and publicly tease the Respondent spoiling his reputation in the public. In his evidence, Respondent has also stated that the Appellant has lodged police complaint containing false allegations alleging that he is leading an adulterous life and when no action was taken by the police, Appellant sought assistance from an Organisation called Helpline, who threatened the Respondent and that the conduct of the Appellant had caused reasonable apprehension in his mind and that it is impossible for him to live with the Appellant and that the marriage has irretrievably broken and it is no longer possible for him to live with the Appellant. In his evidence, the Respondent has also denied any relationship with another lady doctor  Bhuvana.

13. Even though the Appellant has alleged that the Respondent was having illicit intimacy with another medical practitioner  Bhuvana, both in the counter affidavit in I.D.O.P.No.235 of 2003 and her Petition in I.D.O.P.No.205 of 2004, the Appellant has not mentioned the name of the Doctor, but she has only alleged that the Respondent is having illicit intimacy with another lady doctor and when she questioned about the same, Respondent ill-treated her. In her chief examination, the Appellant has alleged that the said Bhuvana has been working as a medical practitioner in E.S.I.Hospital and the said Bhuvana developed intimacy with the Respondent and that the Respondent and the said Bhuvana are living as husband and wife at various places and that the said Bhuvana used to send rowdy elements to the house. It is pertinent to note that inspite of such serious allegations made, neither in the counter filed in I.D.O.P.No.235 of 2003 nor in the petition for restitution of conjugal rights, which was filed in April 2004, such averments were made. Though in her chief examination, the Appellant has alleged about the illicit intimacy, when being questioned in the cross examination, the Appellant has stated

VERNACULAR (TAMIL) PORTION DELETED

The averments in the counter in the petition in I.D.O.P.No.205 of 2004 are vague. Except to make allegation of illicit intimacy with another lady doctor, there are no other definite averments in her Petition as well as in the counter in the Divorce Petition. In such circumstances, the allegation of illicit intimacy levelled against the Respondent cannot be accepted as such.

14. Even though the Appellant has made serious allegations against the Respondent along with the said Bhuvana, apart from the evidence of Appellant/R.W.1, there is no other evidence to substantiate the same. In her evidence, the Appellant has stated that her brother and sisters used to frequently visit the matrimonial house. But the Appellant has not chosen to examine even her brother and sisters to substantiate the allegations of Respondent’s intimacy with the said Bhuvana. Neither any independent witness nor appellant’s family members were examined to substantiate the allegations. We are of the view that the Family Court rightly held that the allegations of illicit intimacy levelled against the Respondent are not substantiated.

15. We may recapitulate the background of Appellant and Respondent. As pointed out earlier, the Appellant was a Roman catholic and native of Coimbatore, whereas Respondent was a Hindu and he belonged to Jalagandapuram, Salem District. In his evidence, Respondent/P.W.1 has stated that his elder brother – Madesh, who has been working as a clerk in Panchayat Union Office, educated him and brought him up. The Respondent has further alleged that the Appellant was not interested in his family members and that his family members have been languishing without proper financial support from the respondent. During the cross examination of Appellant/R.W.1, it was suggested to her that when Respondent’s brother and his wife visited their house in Coimbatore, the Appellant did not properly treat them and ill-treated them. The Appellant has denied the said suggestion. We may usefully refer to the relevant portion of the evidence, which reads as under:

VERNACULAR (TAMIL) PORTION DELETED

16.On the other hand, the brothers and sisters of the Appellant frequently visited the house . That respondent’s family members were not well treated by the appellant, must have caused resentment in the mind of the Respondent, which resulted in strained relationship between the spouses. Insofar as the financial and money matters, it is brought on evidence that the Respondent/husband was taking care of the needs of family and also spent money for educating their son. Admittedly, the spouses have built their own house in Sowripalayam, Coimbatore in 1998. It is also brought on evidence that house warming ceremony was firstly held as per Hindu custom and later performed as per Christian rituals. The fact that the Respondent got himself converted to Christianity and that he was also attending Churches and that the house warming ceremony was also performed as per Christian rituals would show that the Respondent was giving due respect to the sentiments of the Appellant.

17. Admittedly, the Respondent had spent money for the education of their son. Even in her evidence, Appellant/R.W.1 has admitted that for admitting their son in Medical College in Bangalore, the Respondent has paid capitation fee of Rs.15 lakhs, since the said Medical College in Bangalore was not an approved medical college, their son could not continue the medical course and the Respondent had got back the money paid by him as capitation fee. Admittedly the Respondent has paid capitation fee and other fees for their son to complete his engineering course. Ex.B.1 is the xerox copy of the tuition fee paid to Kumaraguru College of Technology, Coimbatore. Even the Appellant/R.W.1 admitted that only the Respondent has paid the fees for their son to the Engineering College and also paid capitation fee, education expenses and the tuition fee. The evidence would clearly show that the Respondent was taking care of the family as well as the education expenses of their son. Admittedly, after the Respondent left the house, the Appellant continues to be in occupation of the same house and the Appellant is also in possession of a car bearing Regn.No.37D 5936. The Respondent is continually paying the housing loan. From the evidence, the respondent appears to be a responsible person taking care of the family.

18. Now let us consider the allegations of the averments of illicit intimacy alleged by the Appellant. As we discussed earlier, the name of the doctor, with whom Respondent has adulterous conduct, has not been indicated either in the counter or in the petition in I.D.O.P.No.205 of 2004. Even though the Petition for restitution of conjugal rights was filed long after filing of the divorce petition, even in the said I.D.O.P.No.205 of 2004, the Appellant has not mentioned the name of the doctor. In her chief examination, the Appellant/R.W.1 has stated that the said Bhuvana used to send rowdy elements to the house and when he made a complaint over phone, the phone connection was cut off and the car was also taken away by the Respondent though he had a car for his own use and that she had lodged the complaint before All Women Police Station for getting re-connection of the telephone and that All Women Police Station directed her to go to Helpline and the Helpline persons advised the Respondent in a decent manner to restore the phone connection”. Appellant/R.W.1 has denied having preferred any police complaint against the Respondent. Appellant/R.W.1 was questioned about lodging a complaint before the police, regarding disconnection of telephone. Appellant/R.W.1 evaded answering the questions stating “she does not remember having lodged any complaint with the police and also approaching Helpline.” In the light of her categoric admission in the proof affidavit filed by her/chief examination, no weight could be attached to the evasive answer of the Appellant/R.W.1 in the cross examination. Lodging of police complaint against Respondent/husband and approaching Helpline would have certainly affected the Respondent/husband causing mental agony.

19. In his evidence, Respondent/P.W.1 has stated that the Appellant used to visit the work place and publicly tease him spoiling his reputation in public. To substantiate the same, the Respondent has examined one Jeeva(P.W.2), who has been doing tinkering work in Ambal Autos and also running an auto garage along with his partner Muthukrishnan in Saibaba Colony, Coimbatore. P.W.2 has stated that on 4.1.2003, for issuing the pamphlets for customer canvas, he went to Coimbatore Medical College Hospital and he saw gathering of people and when he went near the place, he saw the Appellant shouting at the Respondent alleging that the respondent is having illicit intimacy with another doctor and that he is sharing his bed with the said Doctor. P.W.2 has also stated that the Respondent tried to persuade the Appellant to go back to the house and that the problem could be sorted out after he returns home; But the Appellant did not heed to such persuasion.

20. The learned Judge of Family Court observed that P.W.2, who is running an auto garage, is not a probable and natural witness. The trial Court further observed that the name of P.W.2 was not mentioned in the affidavit filed by the Respondent. The learned Judge of Family Court, who had the opportunity of seeing and observing P.W.2, has discredited the evidence of P.W.2 and has chosen not to attach any weight to the evidence of P.W.2. We are also of the view that the name of P.W.2 was neither mentioned in the divorce petition filed by the Respondent nor in the proof affidavit filed by him. P.W.2, who is running an auto garage in Saibaba colony, cannot be a natural and probable witness to speak about the occurrence in the Coimbatore medical College hospital premises.

21. Even dehors the evidence of P.W.2, by his own evidence, Respondent/P.W.1 has categorically alleged that he has been publicly abused by the Appellant. His version is strengthened by the case of Appellant herself by her admission that she lodged a police complaint before All Women Police Station and also admitted in her chief examination about approaching of Help Line in seeking their intervention.

22. It was suggested to Appellant/R.W.1 that when there were differences between the spouses, she had made an attempt to commit suicide by taking sleeping pills. Though in cross examination, the Appellant denied the suggestion in the proof affidavit, in the chief examination, the Appellant has admitted that the Respondent has harassed her and driven her to the extent of committing suicide.

23. The concept of cruelty encompasses mental cruelty also. Mental cruelty means mental pain, agony or suffering caused by either spouse. Where the wife makes accusations of illicit intimacy of the Respondent/husband by publicly abusing, it certainly amounts to cruelty. From the evidence, it is established or an inference can legitimately and reasonably be drawn that the conduct of the Appellant has caused mental cruelty in the mind of the Respondent. The question of cruelty must be considered in the light of the matrimonial relationship and regard must be had to the physical and mental conditions of the parties, social status, impact of the personality and conduct of the spouses and their mind set up. All incidents and quarrels of the spouses must be weighed from that point of view. We are of the view that a case of cruelty is made out justifying the conduct of the Respondent to leave the matrimonial house and live separately.

24. The point falling for our consideration is, whether such conduct of the Appellant/wife seeking help from Helpline in trying to bring about the reconciliation is of such magnitude to cause such apprehension in the mind of the Respondent that it would be harmful or unsafe to live with the other party.

25. Helpline is a non-governmental organisation espousing the cause of women. Even according to the Appellant, Helpline only made persuasive efforts by advising the Respondent. Even though the Respondent has alleged that the Helpline people threatened him, there was no contemporaneous complaint lodged by him. In such circumstances, it cannot be said that the conduct of the wife has caused reasonable apprehension in the mind of the Respondent that it will be harmful or unsafe for the Respondent/husband to live with her.

26. The mere allegations of illicit intimacy coupled with other acts might have caused feeling of anguish, disappointment, frustration and public embarrassment. Such disappointment and incompatibility of temperament between the spouses cannot be held to be cruelty within the meaning of Section 10(1)(x) of the Divorce Act. We are of the considered view that the Family Court was not right in holding that the conduct of the appellant was such so as to cause reasonable apprehension in the mind of the respondent that it would be harmful or dangerous for him to live with the appellant.

27. Though the conduct of the wife is proved to have caused mental cruelty to the husband, it was not a persistent unkindness or persisting cruelty so as to cause reasonable apprehension in the mind of the Respondent that it will be harmful or unsafe for him to live with the Appellant. In our considered view, the ingredients of Section 10(x)(x) of Divorce Act has not been established, whereas the case of cruelty is made out to grant decree of judicial separation under Section 22 of Divorce Act. When the Respondent has prayed for a decree of divorce, the Court is competent to pass a decree for judicial separation on the grounds mentioned in Section 22 of the Divorce Act. (vide DORIS PADMAVATHY v. V.CHRISTODASS, (AIR 1970 Madras 188 FB)).

28. For the foregoing reasons, the decree of divorce passed by the Family Court, Coimbatore in I.D.O.P.No.235 of 2003 under Section 10(1)(x) of the Divorce Act has to be modified as that of Judicial Separation under Section 22 of the Divorce Act.

29. In the result, the decree of divorce passed in I.D.O.P.No.235 of 2003 on the file of Family Court, Coimbatore is modified as judicial separation under Section 22 of Divorce Act and C.M.A.No.3839 of 2005 is partly allowed. The order in I.D.O.P.No.205 of 2004 dismissing the petition for restitution of conjugal rights is confirmed and C.M.A.No.3840 of 2005 is dismissed. In the circumstances of the case and relationship of the parties, both parties are directed to bear their respective costs. Consequently, the connected miscellaneous petitions are closed.

usk

Copy to:

The Family Court

Coimbatore

Categories: Judgement

Parties cannot get divorce on IBM for his/her own misdeeds-Divorce rejected by SC

Bench: B S Reddy, A Alam

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.1957 OF 2006

Neelam Kumar … Appellant Versus

Dayarani … Respondent JUDGMENT

AFTAB ALAM, J.

1. This appeal, by the husband, is filed against the judgment and order dated September 14, 2005 passed by the Madhya Pradesh High Court (at Jabalpur) in F.A.O. 462 of 2003. By the judgment coming under appeal, the High Court set aside the judgment dated August 23, 2003 passed by the 1st Additional District Judge, Balaghat in HMA Case No.26A/02, allowing the appellant’s petition and granting him the decree of divorce under section 13(1)(ia) of the Hindu Marriage Act, 1956.

2. The marriage between the parties took place on December 7, 1986 and they lived together first at Ankleshwar and later at Vadodara. There is no child from the wedlock.

2

3. According to the appellant, barely after 8 or 9 months of the marriage, the wife (respondent in this appeal) became quite aggressive and insulting, and started treating him and his family members in a cruel manner. He tried to make adjustments in the hope that she would correct herself but finally, when it became impossible to carry along with her, he filed the petition for dissolution of marriage under section 13(1)(ia) of the Act, on grounds of cruelty. In the application filed by the appellant, it was stated that his wife objected to his giving any financial assistance to his family and especially for the marriage of his sister and she always quarreled with him over the matter. It was alleged that at the time of his sister’s marriage she raised an alarm that her ornaments were missing and cast suspicion on the groom’s mother. Later on, the alarm turned out to be false, causing huge embarrassment to him and his family. Such incidents and the respondent’s behaviour and conduct towards the appellant made him the laughing stock in the town. He changed residence, but that too did not help to salvage his position. The respondent used to leave for office early and returned very late. When the appellant remonstrated over her timings she became very angry and even threatened to implicate him in a dowry case. In those circumstances, the appellant had even contemplated committing suicide but was held back by friends and relatives. The appellant also gave certain instances as evidence of her cruelty to him. In 1989, despite his advice to her not to go for attending his brother’s marriage since she was pregnant, she 3

undertook the travel and participated in the marriage. As a result, she suffered a miscarriage there and, ironically, held the appellant and his family responsible for it. In 1994, the appellant sustained some injuries in an accident and had to undergo medical treatment. At that time she was living in a different town where she was posted in connection with her service. Despite intimation given to her she did not come to look after him and to give him moral support because she did not want to take leave from the work. Again she did not come to serve his mother and to support her when she was admitted to a hospital for her eye surgery.

4. The respondent denied all the allegations made against her by the appellant. She stated that she did not act cruelly or even disrespectfully towards the appellant or her family members. Her case was that she was in service from before her marriage and her marriage with the appellant was on the clear understanding that she would not be forced to leave the service. But a short while after their marriage, the appellant changed his mind and demanded that she should give up working. She was not agreeable to this and this seemed to hurt his pride. Further, their marriage failed to produce any child. This became another source for his estrangement from her and he eventually filed the divorce petition wanting to get rid of her.

5. Before the trial court the appellant examined himself, his sister Rashmi and two of his neighbours from Vadodara, as witnesses, in support of his case. The respondent did not get herself examined nor did she produce 4

any witness. On the basis of the ex parte evidence adduced before it, the trial court allowed the appellant’s application and granted him the decree of divorce under section 13(1)(ia) of the Act.

6. Against the judgment and decree passed by the trial court, the respondent filed an appeal in the High Court under section 28 of the Act.

7. Before the High Court, the appellant strongly defended the judgment of the trial court and pointed out that the respondent had not even led any evidence in support of her case. The High Court, however, took the view, and we think quite rightly, that even though the respondent did not produce any evidence, no decree of divorce could be granted unless the appellant was able to prove on the basis of the pleadings and the evidences produced by him that his case was covered by section 13(1)(ia) of the Hindu Marriage Act. On a consideration of the materials on record, the High Court found and held that no case of cruelty could be made out against the respondent and hence, the appellant was not entitled to the decree of dissolution of marriage on that ground.

8. The High Court found that the judgment of the trial court was mainly based on three allegations cited by the appellant as instances of the respondent’s cruelty. First, she put the blame on the appellant and his family members for the miscarriage suffered by her when she went to attend the marriage of the appellant’s brother, against his advice. The High Court pointed out that the miscarriage would have caused the greatest distress and 5

pain to the respondent and instead of sympathizing with her, the appellant chose the incident to cite as an instance of her cruelty. This showed not the cruelty of the respondent but the complete insensitivity of the appellant himself. The High Court also observed that a marriage in the family is an occasion for rejoicing in India in which the all family members are supposed to participate. If the respondent had failed to go to attend the marriage of her husband’s brother, then also she would have been liable to be blamed.

9. The High Court then took up the other allegation that the respondent did not come to attend and take care of the appellant when he was undergoing medical treatment in a hospital for the injuries caused in an accident. The High Court found that this allegation was not part of the appellant’s pleadings and the matter was introduced in course of evidence. The court observed that not being stated in the pleadings, the allegation could not be taken into consideration. Even otherwise, apart from the oral statement made before the trial court, there was no material to support the allegation. The appellant did not examine any doctor or produce the medical records in connection with his treatment. In any event, one single instance, in isolation, was hardly sufficient for the dissolution of marriage on the ground that the respondent treated the appellant with cruelty. The court also rejected the third allegation by the appellant that the respondent did not come to attend and serve his mother when she was admitted in a hospital for eye surgery. The Court did not believe the case as neither the mother nor the 6

attending doctor was examined nor was any documentary evidence produced showing the mother’s surgery.

10. Having thus dealt with all the allegations made by the appellant and having considered the materials on record in some detail, the High Court found that the appellant had not been able to bring his case under section 13(1)(ia) of the Hindu Marriage Act. It, accordingly, allowed the respondent’s appeal and set aside the judgment and decree passed by the trial court.

11. On hearing counsel for the parties and on going through the judgments of the trial court and the High Court, we are in agreement with the view taken by the High Court and we are satisfied that its findings do not warrant an interference by this Court in appeal.

12. Counsel for the appellant then submitted that the appellant’s marriage with the respondent had completely broken down with no hope of revival and compelling them to live together would be very hard and unjust. He made a plea for dissolution of marriage on the ground of its irretrievable breakdown. In support of the submission, learned counsel relied on the judgment of this Court in Satish Sitole vs. Smt. Ganga, (2008) 7 SCC 734 wherein it was held in the last paragraph as follows: “….. that since the marriage between the parties is dead for all practical purposes and there is no chance of it being retrieved, the continuance of such marriage would itself amount to cruelty, and, accordingly, in exercise of our powers under 7

Article 142 of the Constitution we direct that the marriage of the appellant and the respondent shall stand dissolved…”

13. We are not impressed by this submission at all. There is nothing to indicate that the respondent has contributed in anyway to the alleged breakdown of the marriage. If a party to a marriage, by his own conduct brings the relationship to a point of irretrievable breakdown, he/she cannot be allowed to seek divorce on the ground of breakdown of the marriage. That would simply mean giving someone the benefits of his/her own misdeeds. Moreover, in a later decision of this Court in Vishnu Dutt Sharma vs. Manju Sharma (2009) 6 SCC 379, it has been held that irretrievable breakdown of marriage is not a ground for divorce as it is not contemplated under section 13 and granting divorce on this ground alone would amount to adding a clause therein by a judicial verdict which would amount to legislation by Court. In the concluding paragraph of this judgment, the Court observed:

“If we grant divorce on the ground of irretrievable breakdown, then we shall by judicial verdict be adding a clause to Section 13 of the Act to the effect that irretrievable breakdown of the marriage is also a ground for divorce. In our opinion, this can only be done by the legislature and not by the Court. It is for the Parliament to enact or amend the law and not for the Courts.” 8

14. On a consideration of the submissions made on behalf of the parties and the materials on record, we find no merit in this appeal. It is, accordingly, dismissed but with no order as to costs. …………………………….J.

(B. SUDERSHAN REDDY)

…………………………….J.

(AFTAB ALAM)

New Delhi,

July 6, 2010.

Categories: Judgement

Every person has a right to live healthy sexual life-Divorce on grounds of IBM

1

Court no. 1

Second Appeal No. 38 of 2005

Dr. Vinod Kumar Gupta

versus

Smt. Deepa Gupta

Hon’ble Rakesh Tiwari, J.

The case peremptorily listed today. List has been revised. Heard learned counsel for the appellant and perused the record. Sri A.K. Sharma, learned counsel for the respondent is not present. The appellant filed Original Suit No. 447 of 1995, Dr.Vinod Kumar Gupta versus Smt. Deepa Gupta, under Section 13 of Hindu Marriage Act for divorce against the respondent. The suit was decreed vide judgment and order dated 29.8.1998 passed by the Ist Additional Civil Judge (Senior Division), Muzaffarnagar.

Aggrieved by the judgment and order dated 29.8.1998 the respondent filed Civil Appeal No. 333 of 1998, Smt. Deepa Gupta versus Dr. Vinod Kumar Gupta before first lower appellate Court which was allowed vide judgment and order dated 25.10.2000.

It appears from the order-sheet dated 9.9.2009 that the Court had granted opportunity to the learned counsel for the parties as to whether there is any possibility of husband and wife stay and live together. Thereafter, the case was listed on 22.2.2010 when it was directed to be listed in the next cause list on the prayer of learned counsel for the parties. Since then, learned counsel for the respondent has not appeared before this Court. On 11.5.2010, learned counsel for the respondent was also not present and on 26.5.2010 he sought adjournment of the case on the ground of illness slip. Learned counsel for the appellant states that the matter may be decided as the adjournments sought are deliberate. The case has been directed to be listed peremptorily. Today also, learned counsel for the respondent is not present. It appears from the order sheet that continuously for the last 3 days the case is being adjourned at the behest of learned counsel for the respondent.

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The contention of learned counsel for the appellant is that the appellant is posted as Doctor in Madhya Pradesh. However, the wife is employed as teacher in Government Girls College, Kichha, Nainital, Uttarakhand.

It appears that husband and wife are not living together since 1993. The suit for divorce had been granted and the decree for divorce had been reversed in appeal.

Learned counsel for the appellant states that the wife is not ready to live with husband at his place of posting despite several attempts by him and his relatives. The judgment and decree of the first lower appellate Court is assailed on the ground that it has acted with material irregularity of law and jurisdiction in setting aside the judgment and decree of the trial Court without reversing the findings recorded by it on individual issues. He submits that the behaviour of the wife with the appellant amounts to cruelty and that the lower appellate court has committed an error in holding that her not living with the husband in the facts and circumstances of the case, did not amount to cruelty within the meaning of term as defined under Section 13(1)(1a) of the Hindu Marriage Act. It is stated that from the facts and circumstances of the case as available from the pleading and evidence on record it is established from conduct of the wife that marriage had broken irretrievably due to cruelty which was a valid ground for dissolution of marriage under the Act and that the decree for divorce ought to have been passed on basis of record as the husband and wife have been living separately for the last so many years as such the judgment of the lower appellate Court being against the evidence on record and misinterpretation of the provisions of law can not be sustained and is liable to be quashed.

In support of his submission, learned counsel for the appellant has relied upon the judgment rendered in AIR 2005,SC-3297, Durga Prasanna Tripathy versus Arundhati Tripathy in which it has been held that where the spouses had been living separately for almost 14 years and wife was not prepared to lead conjugal life with husband and in that backdrop an attempt was made by husband and his relatives in getting back wife to matrimonial home failed. It was found to be a fit case for decree of divorce 3

on the ground desertion as record showed that there was no chances of reconciliation and was irretrievable breakdown of marriage. He has also placed reliance upon paragraphs 21 and 22 of the judgment rendered in (2002)(48) ALR-485, Praveen Mehta versus Inderjit Mehta wherein the Court considered the definition of ‘cruelty’ within the meaning of section 13(1)(1a) of the Act. It was held that mental cruelty is a state of mind. In this case also the court came to the conclusion that despite several attempts by relatives and well-wishers no conciliation between husband and wife was possible, The petition for the dissolution of the marriage was filed in the year 1996. In the mean time, so many years have elapsed since the spouses parted company as such it can reasonably be inferred that the marriage between the parties has broken down irretrievably without any fault on the part of the husband, hence the decree for divorce was not liable to be repaired.

He then submits that in the instant case the husband and wife are living separately since 1993. There is no plausible reason for the wife not to live with the husband, who is a Doctor in Madhya Pradesh and her insistence to leave service for living along with her at Nainital, Uttarakhand was unreasonable and amounts to desertion. The trial Court has rightly granted decree for divorce which has been reversed by the lower appellate court on irrelevant consideration.

After perusal of the judgment it is noted that the parties are not cohabiting together for almost 17 years. Since there has been a long period of continuous separation, it may fairly be concluded that in the facts and circumstances of this case that the matrimonial bond is beyond repair and the marriage has become a fiction as has been held by the Apex Court in (2007) 4 SCC-511, Samar Ghosh versus Jaya Ghosh. The Court in that case held that-

” The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases does not serve the sanctity of marriage; on the contrary it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty. In present 4

case, trial Court had rightly concluded that the various instances in their matrimonial life, and led to grave mental cruelty to the appellant husband. Further, the High Court failed to take into consideration the most important aspect of the case that the parties had admittedly been living separately for more than 16-1/2 years. The entire substratum of marriage had already disappeared.”

The law laid down by the Apex Court in the aforesaid cases squarely applies to the facts and circumstances of this case where the spouses have been living separately for a long long period of time. It appears that their bond of marriage can not be repaired which has been extensively damaged by passage of separation. The parties are in their mid’s 40. The wife is not ready to cohabit and inspite repeated efforts made by him and their relatives. Every person has a right to live healthy sexual life; hence love and affection from his or her partner in the marriage which has completely vanished in the instant case. It appears that the lower appellate Court has lost sight of this important factor and the guide lines laid down by the Apex Court from time to time through their Lordships’ judgments. The marriage in the instant case cannot continue. Ground realities have to be considered before allowing the parties to continue their relationship of married couple till they become too old to have any biological need. Parties are already in their med forty’s and if a new lease to their life is to be granted then matter has to be settled now.

For all the reasons stated above, the second appeal is allowed and the judgment and order of the lower appellate court is set aside and that of the trial court is confirmed. No order as to costs. Dated 12.7.2010

CPP/-

Categories: Judgement

HC-Husband went/sent to jail-Marriage is irretrievably broken down

IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.274 of 2010

ANIL KUMAR S/O SRI AMARNATH PRASAD R/O MOHALLA- NAGLA GADIWAN TOLA, P.O. & P.S.- MALSALAMI, DISTT.- PATNA

…. Petitioner …. Appellant

Versus

SMT. SITA DEVI W/O ANIL KUMAR R/O

MOHALLA- NAGLA GADIWAN TOLA, P.O. & P.S.- MALSALAMI, DISTT.- PATNA, AT PRESENT RESIDING AT CHIDAIYATAND (POSTAL PARK , ROAD NO.1), P.O. & P.S.- KANKARBAGH, DISTT.- PATNA

…. Opp. Party ….. Respondent

——-

For the Appellant : Mr Jitendra Kishore Verma, Adv. For the Respondent : M/s Anil Kumar, Smt. Annapurna Gupta and Govind Pd. Sinha,

Advocates

——–

5 12.8.2010 Heard the parties. This appeal is directed against the judgment and order dated 22.2.2010 passed by the learned Principal Judge, Family Court, Patna whereby Matrimonial Case No.171 of 2005 preferred by the appellant has been dismissed on a finding that he is not entitled to a decree of divorce sought for because he failed to prove the allegation that the respondent wife was suffering from mental disorder and was guilty of cruelty. It is not in dispute that soon after the marriage in 2

2002 a son was born from the wedlock but for about last six years, the husband and the wife are separate on account of differences. The criminal case lodged by the respondent wife bearing complaint case no.1786 (c) of 2006 is still pending in the court of SDJM, Patna and in that case the appellant had to suffer imprisonment for about 3 1/2 months before he could be released on bail. The circumstances indicate that the marriage has broken down irretrievably, therefore, on persuasion, the parties agreed for amicable settlement. As per terms of the settlement, the marriage shall stand dissolved by a decree of divorce on the ground of mutual consent but on the condition that an amount of Rs.1.5 lakh shall be paid by the appellant to his wife by way of permanent alimony. It has been agreed that this amount should be paid by the appellant through bank drafts in the name of the respondent in installments but the entire money must be paid within a period of one year from today. It has further been agreed that besides the aforesaid lump sum alimony, the appellant shall pay to the respondent the monthly maintenance amount lying in arrears till this month within 3

a period of four months from today. As to what is the exact amount of arrears on account of monthly maintenance shall be found out by the appellant on the basis of materials available on record or else he shall pay an amount of Rs.24,000/- (Twenty four thousand) by way of arrears of maintenance because that is the amount which appears to be due as per submission advanced on behalf of the respondent. It is further agreed between the parties that the respondent shall take steps in the light of this order to get the criminal case stayed for a period of one year from today and she shall withdraw the said criminal case as soon as the permanent alimony of Rs.1.5 lakh is paid to the respondent as per terms indicated above. The appeal stands disposed of. No costs. (Shiva Kirti Singh, J.)

(Hemant Kumar Srivastava, J.)

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Categories: Judgement

Implicating husband in a false case amounts to cruelty

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL First Appeal No.76 of 2008

Sunita Arya, W/o Surendra Dev

D/o Ganesh Prasad

R/o Mohalla Ganesh Nagar, Nekpur

Subhashnagar, Bareilly (U.P.)

.. Appellant

Versus

Surendra Dev

S/o Late Shankar Dev

R/o Aryanagar, Gadarpur,

District Udham Singh Nagar

.Respondent/Plaintiff

Shri D.K. Sharma, Advocate, present for the appellant. Shri M.K. Ray, Advocate, present for the respondent. Hon’ble Prafulla C. Pant, J.

Hon’ble Nirmal Yadav, J.

This appeal, preferred under section 19 of Family Courts Act, 1984, is directed against judgment and order dated 12.11.2008, passed by Judge Family Court, Nainital, in suit no. 74 of 2005, whereby said court has allowed the petition 2

under section 13 of Hindu Marriage Act, 1955, and granted the decree of divorce on the petition filed by the present respondent.

2. Heard learned counsel for the parties and perused the lower court record.

3. Brief facts of the case are that appellant Sunita Arya got married to respondent Surendra Dev on 02.05.1999, at Bareilly, according to Hindu rites. A son (named Aman) was born out of the wed-lock on 27.01.2000. Present respondent Surendra Dev filed a petition for divorce alleging that the appellant and her parents used to insist that the present respondent (husband) should live in Barelly to which he did not agree. It is further alleged that the appellant used to frequently leave her husband’s company to join her parents at Bareilly. Earlier a petition under section 9 of Hindu Marriage Act, 1955, was filed by the husband for Restitution of Conjugal Rights, but after the wife joined her, said petition was withdrawn. However, again the appellant left the house of the present respondent and filed the criminal complaint at police station Gadarpur, 3

against her husband and in laws relating to offences punishable under section 498A, 323, 506 IPC, and one punishable under section 3/4 of Dowry Prohibition Act, 1961, in the year 2002. It is further pleaded on behalf of the husband in the divorce petition that since 06.05.2002, appellant (wife) has deserted him without any sufficient reason for a period of more than two years, and therefore the petition for divorce was filed.

4. The appellant who filed written statement before the trial court admitted her marriage to the present respondent. It was also admitted that a son was born out of the wed-lock. It is also not denied by her that she lodged criminal complaint against her husband and in laws at police station Gadarpur. However, rest of the allegations are denied by her and it is pleaded that she was subjected to cruelty for non fulfillment of demand of dowry. It is also pleaded by the appellant in her written statement that she was subjected to physical cruelty, and made to leave her husband’s house.

5. The trial court, after recording evidence 4

and hearing the parties found that the petitioner (present respondent) has made out the case for divorce on the ground of cruelty and desertion, and granted the decree of divorce sought by the husband. Hence this appeal.

6. Learned counsel for the appellant submitted that the trial court has erred in law in holding that the appellant treated the petitioner with cruelty. It is also contended that the trial court has not appreciated the facts properly in holding that the petitioner deserted her husband without any sufficient cause. It is argued that judgment in question is not based on evidence on record. We have gone through the impugned judgment and also perused lower court evidence and record. Admittedly, the parties to the matrimony, in the present case got married on 02.05.1999. It is also not disputed that son of out of the wed-lock, was born in the year 2000. It is also not disputed between the parties that present appellant is living in Bareilly in her parental house. Dispute relates as to whether the appellant treated that petitioner (present respondent) with cruelty, and has she deserted him without any 5

sufficient reason. It has established on the record that crime no. 7 of 2002, was got registered at police station Gadarpur, by the appellant against her husband and in laws in respect of offences punishable under section 498A, 323, 506 IPC, and one punishable under section 3/4 of Dowry Prohibition Act, 1961. Learned counsel for the present respondent pleaded that the respondent was arrested in said case and had remained in jail for three-four days before when he was granted bail. In this connection, our attention is drawn on behalf of the present respondent to the judgment and order dated 24.09.2005, passed by Civil Judge (Jr. Div.)/Judicial Magistrate, Udham Singh Nagar , in criminal case no. 359 of 2005 whereby the present respondent (husband) and her mother Rambeti were acquitted of the charge of offences punishable under section 498A, 323, 506 IPC and one punishable under section 3/4 Dowry Prohibition Act, 1961.

5. In the above circumstances,we have no reason to disagree with the finding of trial court that the present respondent (husband) was treated with cruelty by his wife (appellant) who implicated him in a false case which resulted in 6

acquittal. Apart from this, it is also proved on the record that the wife left her husband’s house without any sufficient reason on 06.05.2002, and did not join his company thereafter, as such after a period of two years from that date the petitioner (present respondent) is entitled to decree of divorce also on the ground of desertion. Therefore, we do not find any error of law committed by the trial court in granting decree of divorce in favour of the husband. However, we are of the view, to do complete justice between the parties, a reasonable amount of permanent alimony should have been awarded in the present case so that the appellant may maintain herself as she has not only to maintain herself but also a son born out of the wed-lock. Learned counsel for the present respondent pleaded that the husband is a poor agriculturist who has hardly one and half (1.5) acres of land. Having considered submissions of learned counsel for the parties on this point, and considering the economic status of the parties, and the fact that son is living with the appellant, we find just and proper to direct the present respondent (husband) to pay permanent alimony amounting rupees three lac within a period of 7

three months as condition precedent for the decree of divorce. Accordingly, this appeal is disposed of affirming the decree of divorce passed by the trial court on the condition that the present respondent shall pay rupees three lac as maintenance to the appellant within a period of three months or deposit the amount in her favour before the trial court within said. In default of payment of the permanent alimony as directed by this Court, this appeal shall stand allowed and the decree of divorce shall stand dismissed. Costs easy. (Nirmal Yadav, J) (Prafulla C. Pant, J) Dt. 26.08.2010

Parul

Categories: Judgement

HC granted divorce on irretrievably broken down even though it is still not Law

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

First Appeal No. 40 of 2010

Dayal Joshi

S/o Late Shri Chandramani Joshi

R/o Hindustan Zinc Smelter

Quarter No. 217-B/4, Devari

Tehsil-Girva, District Udaipur,

Rajasthan

………………. Appellant

Versus

Smt Usha Joshi

W/o Shri Dayal Joshi

D/o Bholadutt Harbola

R/o Unchapul, Harinagar

Haripurnayak, Haldwani, Nainital

…….. .Respondent

Shri A.M.Saklani, Advocate, present for the appellant Shri R.S.Sammal, with Vishal Singh, Prem Kaushal, B.S.Bhandari, Advocates, present for the respondent

Coram: Hon’ble Prafulla C. Pant, J. Hon’ble Nirmal Yadav, J.

Oral: Hon’ble Prafulla C.Pant, J.

This appeal, preferred under section 19 of Family Court Act, 1984, is directed against the judgment and order dated 16.06.2010 passed by Judge, Family Court, 2

Nainital, in Suit No. 128 of 2007 whereby said court has dismissed the petition of the appellant, moved under section 13 of Hindu Marriage Act, 1955.

(2) Heard learned counsel for the parties and perused the papers on record.

(3) Brief facts of the case are that the appellant Dayal Joshi got married to respondent Uma Joshi on 24.04.1992 in Mehat Gaon, District Almora. A female child (named Khusbu) was born out of the wedlock on 31.10.1995. The appellant/husband lives in Udaipur where he is employed with Hindustan Zinc Limited. It appears that after a couple of years of marriage, the parties to matrimony started quarreling and their relations got soured. The husband / appellant filed a divorce petition in the year 2006 alleging that his wife used to quarrel with him and did not pay respect to his parents. He has further alleged that the respondent (wife) did not even care to see her daughter Khusbu when she was suffering from illness. It is also pleaded by the husband that the wife left her matrimonial home in the year 1996 leaving the young female child with him. He has also pleaded that on several occasions he made efforts to bring back his wife but to no avail. Lastly it is pleaded by the husband 3

that for more than ten years the parties to matrimony are living separately, and now it has become impossible for them to live together, as such the decree of divorce is prayed.

(4) The respondent (wife) admitted having married to the appellant on 24.04.1992. It is also admitted to her that the female child (Khusbu) was born out of the wedlock on 31.10.1995. However, she denied rest of the allegations. She pleaded that she paid respect to her in-laws. She alleged that it was the husband who treated her with cruelty. She further pleaded that she was beaten by her husband and that is what made her to leave her husband’s house in the year 1996. She has further pleaded that she is ready to live with her husband provided he undertakes not to make demand of dowry and not to harass her. She has also alleged that her husband has illicit relations with one Pushpa Papne.

(5) On the basis that pleading of the parties, the trial court framed following issues:-

(i) Whether, the respondent quarreled with her husband and in-laws as pleaded in para 2 and 3 of the divorce petition? (ii) Whether, the respondent, leaving her 4

eight months old female child, left her husband’s house on 25.06.1996 as pleaded in para 5 and 6 in the petition?

(iii) Whether, the petitioner treated the respondent with cruelty and committed ‘ MARPEET ‘ against her, and she was made to leave her husband’s house on 26.05.1996 as pleaded in para 5 of the written

statement?

(iv) Whether, on 10.05.2005 the petitioner (appellant) came to the house of the respondent and cohabited with her as alleged in para 10 of the written statement, if so it effect?

(v) Whether, the petitioner had illicit relations with one Pushpa and out of the said relation a son was born, as alleged in para-2 of the additional plea in the written statement?

(vi) To what relief, if any, the petitioner is entitled?

After recording the evidence and hearing the parties, the trial court decided issue no.1, issue no.2 and issue no.3, issue no.4 in affirmative. No finding was given on issue no.5. Issue no.6 was decided in negative. 5

With these findings, the trial court dismissed the divorce petition vide impugned order dated 16.06.2010. Hence this appeal.

(6) Learned counsel for the appellant argued that the trial court has erred in law in holding that the respondent has not treated the petitioner with cruelty. It is further contended that the trial court has not appreciated the facts and evidence on record correctly in holding that the petitioner has not been deserted by the respondent. Lastly it is also submitted that even other wise it is a case of irretrievable breakdown of marriage, and the decree of divorce should have been granted of that ground, as the parties are admittedly living separately for last ten years (now 14 years).

(7) Having re assessed evidence on record, we find that small quarrels between the spouses or mere fact that the respondent did not prepare tea for the parents of the petitioner, do not constitute cruelty to entitle him decree of divorce. However, this depends on the facts and the circumstances of the case, what a particular act on part of a spouse would constitute cruelty against the other spouse.

(8) In the present case the marriage between the 6

parties is admitted. It is also admitted between the parties that a female child was born out of the wedlock. It is also not disputed that said child is living with her father. Not even the fact that since 1996 they are living separately, is disputed. It has also come on the record that after this divorce petition was filed, the respondent filed a criminal complaint against her husband and in-laws on 28th of April 1996 in respect of offences punishable under section 498A, 494, 504 I.P.C., and one punishable under section 3/4 of Dowry Prohibition Act, 1961. Certainly this report appears to have been lodged after the respondent lived separately for more than ten years from her husband. This has further worsened condition and soured the relations between the parties to the matrimony, and we can say that the marriage between the parties has now been irretrievably broken down.

(9) In the above circumstances, we are of the view, that if we dismiss this appeal and maintain the dismissal of decree of divorce, we will be indirectly allowing the parties to the matrimony to live further miserable life all time to come. Therefore, in the interest of justice, we find it just and proper to allow this appeal and grant the decree of divorce on the ground that marriage between the parties has been irretrievably broken 7

down. However, we are conscious of the fact that respondent Uma Joshi is not an earning member. She needs reasonable amount for her maintenance from her husband (petitioner/appellant). To asses the amount of alimony we have to see economic status of the parties. Petitioner/appellant Dayal Joshi is an employee with Hindustan Zinc Limited whose total salary in 2008 was 15,029.00 (Basic pay 8150.00, DA 6879.00, PP 00.00) as per the salary slip shown to us by the appellant. We have also to keep in mind that the daughter of the parties is living with the father. Considering all the relevant facts and circumstances we are of the view that directing the petitioner to pay one time lumpsum permanent alimony amounting Rs. 5 lakhs to his wife would meet the ends of justice.

(10) Accordingly, the appeal is allowed, and impugned judgment and order dated 16.06.2010 passed by Judge, Family Court, Nainital, in Suit No. 128 of 2007, is set aside. The petition moved under section 13 of Hindu Marriage Act, 1955, is allowed on the condition that the petitioner/appellant shall pay Rs. 5 lakhs as lumpsum permanent alimony to respondent (wife) within a period of three months or deposit in her favour before the trial court, within said time. In case the condition is fulfilled, the decree of divorce 8

shall stand granted. In case the petitioner/appellant fails to comply with the condition mentioned above, this appeal shall stand dismissed.

(Nirmal Yadav, J.) (Prafulla C. Pant, J.) 26.08.2010

N.P

Categories: Judgement