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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

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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.

2

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.)

sk

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

Human Rights Violation in our context: A presentation by RajaGopal

It is pleasure to have RajaGopal in our meeting as he has immense knowledge of human right violation cases out of his personal experience of fighting case in TN-SHRC-Chennai.

He gave a good insight to NFHS members by telling us about:

  • What is Human Rights Violations?
  • How to frame a complaint?
  • What actions of police can be termed as human right violation?
  • Why most of us do not succeed in such cases?
  • How these complaints are different from Civil/Criminal cases?
  • How proceedings are conducted in such cases?
  • How the wordings of the complaint should be?
  • Difference between abduction and illegal detention
  • “Probability of occurrence” in such cases  

It was really good presentation by RajaGopal. Thanks Raja.

Categories: Weekly Sessions