Appellant stated that as the Respondent went away with her parents, he
filed a petition for restitution of conjugal rights. He has denied the
correctness of the suggestion that the Respondent had shown
willingness to resume cohabitation. He has also denied the correctness
of the suggestion that Respondent's father had also stated that he was
willing to withdraw all the complaints and send back the Respondent to
resume cohabitation. It is pertinent to note that allegations of very
serious nature regarding conduct of the Respondent have been made in
the petition which according to the Appellant constitute acts of cruelty.
All the allegations relate to the period prior to 2 nd April, 1998. The very
fact that after 2nd April, 1998, in the year 1998 itself, the Appellant filed
a petition for restitution of conjugal rights shows that the Appellant
himself was ready and willing to resume cohabitation with the
Respondent and, therefore, the very conduct of filing the petition for
restitution of conjugal rights is nothing but a clear act of condonation of
the alleged acts of cruelty. No other inference is possible to be drawn as
there was no reason for the Appellant to file a petition for seeking a
decree for restitution of conjugal rights. The Appellant has made no
attempt to explain in detail, the reasons for filing the petition for
restitution of conjugal rights and the reasons as to why the petition was
unconditionally withdrawn. In view of the act of condonation of
cruelty, in the light of clause (b) of subsection (1) of Section 23 of the
said Act, the Appellant will be disentitled to claim a decree of divorce
on the ground of cruelty.
FAMILY COURT APPEAL NO.27 OF 2005
WITH
CIVIL APPLICATION NO.149 OF 2010
IN
FAMILY COURT APPEAL NO.27 OF 2005
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
“S”
... Appellant
V/s.
... Respondent
“D”
CORAM : A.S. OKA &
REVATI MOHITE DERE, JJ.
DATE : 4th SEPTEMBER, 2013
Citation;2014(4) ALLMR206 Bom
As this Judgment will be available on public domain, we
have described the Appellant and Respondent as 'S' and 'D' respectively.
The Appellanthusband has taken an exception to the judgment and
decree dated 18th August, 2003 passed by the learned Judge of the
Family Court, Pune, by which a petition for divorce filed by the
Appellant and the counterclaim made by the Respondent wife for
restitution of conjugal rights have been dismissed. We must note here
that the earlier Division Bench had kept the Appeal in Chamber with a
view to bring about amicable settlement between the Appellant and
Respondent. However, as amicable settlement was not possible, on 20 th
August, 2013, the Appeal was directed to be placed on final hearing
2.
board. Accordingly, we have taken up the Appeal for final hearing.
The Appellant husband applied for divorce on the ground
of cruelty and desertion under clauses (ia) and (ib) of subsection (1) of
Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as
“the said Act”). With a view to appreciate the submissions made across
The marriage between the Appellant and the Respondent
3.
aspects of the case.
the bar, it will be necessary to make a brief reference to the factual
was solemnized on 4th December, 1994 according to Hindu Vedic Rites.
A female child was born on 24th November, 1995 from the wedlock.
4.
In support of the plea of cruelty, various allegations have
been made by the Appellant. The allegations start from the very day of
marriage. It is contended that on the day of marriage, the parties went
to Shegaon to pay obeisance to Saint Gajanan Maharaj. It is alleged
that the Respondent wife refused to visit the temple. It is alleged that
for a period of 6 months from the marriage, the Respondent cohabited
properly. The allegations are made in the petition by the Appellant that
thereafter, the Respondent started becoming obstinate. She did not
attend to the domestic work properly. It is alleged that she insulted the
Appellant's parents and brother. It is alleged that on two occasions, the
Respondent threw away her Mangalsutra towards the Appellant by
stating that she did not want his bondage and wanted to return to her
father. It is alleged that in June 1995, the Respondent proceeded to
her parent's home for the purpose of delivery. However, she did not
resume cohabitation for a period of one year. It is alleged that without
consulting the Appellant or his parents, the Respondent and her parents
scheduled the naming ceremony of the girl child on 21 st December,
1995 and gave intimation of the same to the Appellant only two days
prior to the said date. It is alleged that the Appellant visited the house
of the Respondent's parents to bring her back. It is alleged that the
Respondent insulted the Appellant at the time of visit. It is alleged that
the parties resumed cohabitation, but the behaviour of the Respondent
did not improve. She started insisting that the Appellant should make
an arrangement for their separate residence. The averments have been
made in the petition as regards the conduct of the Respondent in
relation to marriage of the Respondent's cousin. There is an allegation
made in the petition that the Respondent always used to tell the
Appellant that she should be sent back to her parent's home. It is
alleged that in March, 1998, the Respondent beat minor daughter by a
stick who is only two years of age at that time. It is alleged that
Respondent has made false allegations against the Appellant and his
parents, therefore, the Appellant was compelled to send a message to
Respondent's father and call Respondent's father to Pune where the
parties were cohabiting. It is alleged that Respondent's father decided
to take the Respondent with him but the Appellant resisted. Due to
resistance, the Respondent's father filed a complaint with Shramik
Mahila Sanstha as well as Hadapsar Police outpost. The Respondent's
father alleged in the complaint that the Appellant may cause danger to
the life of the Respondent. It is alleged that Respondent's parents took
Respondent with them on 2nd April, 1998. On 7th April, 1998, the
Appellant issued a notice through his Advocate to the Respondent
calling upon her to resume cohabitation. The notice was replied on 29 th
April, 1998 contending therein that she apprehended danger to her life
and on that ground, she declined to resume cohabitation. The
Respondent filed an application under Section 125 of the Code of
Criminal Procedure, 1973 (hereinafter referred to as “the said Act”) in
the Court of Judicial Magistrate, First Class, Buldhana, in which order
of maintenance was passed. It is stated by the Appellant that he filed
marriage petition No.458 of 1998 praying for the relief for restitution of
conjugal rights. It is the case of the Appellant that as the Respondent
did not resume cohabitation, on 16th March, 2001, the said petition was
withdrawn by him. It is alleged that on 15 th February, 2001, the
Respondent addressed a letter to the Appellant's father. It is alleged
that very objectionable language was used by the Respondent in the
said letter about the Appellant's elder brother and his wife. It is alleged
that on 15th March, 2001, the Respondent made a phone call to the
father of the Appellant and abused him. As stated earlier, the Appellant
filed a petition for divorce both on the grounds of cruelty and desertion.
The petition was lodged on 7th April, 2001.
The Respondent contested the petition by filing a written
5.
statementcumcounter claim. There is a general denial of the
averments made in the Appellant's petition in the said written
statement. It is stated in the written statement that for the reasons
recorded therein with the consent of the Appellant and his elder family
members, the Respondent continued to stay with her parents' place
even after delivery of the child. It is alleged that the parents of the
Appellant had assaulted Respondent and caused physical and mental
cruelty to her. It is stated that the Appellant telephonically informed
the Respondent's parents at Buldhana, calling upon them to come to
Pune. Accordingly, on 31 st March, 1998, the Respondent's father came
to Pune. When he requested the Appellant to allow the Respondent to
accompany him to Buldhana, the Appellant and his father insisted that
he should agree for grant of divorce. It is alleged that as the
Respondent's father was threatened and insulted, he lodged a complaint
with Shramik Mahila Sanstha. It is stated that even the intervention by
the workers of said Sanstha failed and that is the reason why the
Respondent's father was compelled to approach the police. It is alleged
that the Appellant's father gave a consent in writing before the Police to
accompany Respondent's father and that is how the Respondent
accompanied her father to Buldhana. It is stated in the written
statement that Respondent replied to the legal notice dated 7 th April,
1998. It is stated that after filing of the petition, the Respondent agreed
before the Court to resume cohabitation, considering the welfare of the
conjugal rights.
The parties adduced evidence before the Family Court. The
6.
minor child. The prayer in the counterclaim was for restitution of
Appellant examined himself by filing an affidavitinlieu of examination
inchief. The Appellant examined his father by filing his affidavitinlieu
of examinationinchief. The Appellant also examined his brother as a
witness. Respondent examined herself by filing affidavitinlieu of
examinationinchief. She also examined her mother who was also
extensively crossexamined by the Appellant's Advocate.
7.
As we have observed earlier, the learned Judge of the
Family Court held that the Appellant failed to establish both the
grounds pleaded by him. The Family Court also held that the
Respondent is disentitled to a decree of restitution of conjugal rights.
We may note here that there is neither an appeal nor a crossobjection
8.
by which counterclaim filed by her was dismissed.
preferred by the Respondent wife for challenging that part of the decree
The learned counsel appearing for the Appellant has taken
us through the pleadings, notes of evidence and other documents on
record. She urged that consistent conduct of the Respondent which is
duly established by the Appellant by examining himself, his brother and
ig
father proves the ground of cruelty. She did not dispute that earlier the
petition filed by the Appellant for restitution of conjugal rights has been
unconditionally withdrawn. Her submission is that though the petition
remained pending for three years, the Respondent never offered to
cohabit with him and that is the reason why the said petition was
withdrawn. She invited our attention to the reply to the legal notice
issued by the Appellant in which the Respondent came out with the
excuse of threat to her life for not cohabiting with the Appellant. She
pointed out that the said case made out in the reply was neither
pleaded nor proved by the Respondent. She pointed out that the claim
for restitution of conjugal rights was belatedly filed in the year 2002.
The submission is that taking the evidence of the Respondent as it is, it
clearly proves that the Respondent made no attempt to resume
cohabitation and, therefore, there is a clear intention on her part to
abondon the matrimonial relationship and, therefore, the decree for
divorce on the ground of desertion must follow. The learned counsel
appearing for the Respondent supported the impugned judgment and
decree to the extent to which the prayer for divorce has been dismissed.
Her submission is that the allegations of cruelty are of serious nature
and in any event, the same have not been substantiated on the
evidence. She submitted that even in the reply to the notice issued by
the Advocate for the Appellant, the Respondent has set out the reasons
ig
as to why she could not resume cohabitation. She submitted that at
that stage, there was a serious threat to her life. She urged that at no
stage, the Respondent refused to resume cohabitation and on the
contrary, there is no overt act on the part of the Appellant to resume
cohabitation. She urged that there is no evidence to show that there
was any intention on the part of the Respondent to desert the
Appellant.
9.
We must note here that we have also heard the learned
counsel appearing for the Appellant and Respondent on the issue of
grant of maintenance. The learned counsel appearing for the Appellant,
on instructions, has stated that the Appellant lost his earlier
employment due to a complaint made by the Respondent. Today, the
Appellant is working as Commission Agent and his gross income is
Rs.10,000/ p.m. On instructions, he stated that in the event a decree
of divorce is passed, the Appellant is willing to pay maintenance at the
rate of Rs.7,000/ pm to the daughter. The learned counsel appearing
for the Respondent submitted that the Appellant is possessing large
immovable properties and his income is much more than 10,000/ pm.
Her submission is that the Stridhan of the Respondent has been illegally
retained by the Appellant. Lastly, the learned counsel appearing for the
Respondent relied upon the decision of Jharkhand High Court in the
case of Sunil Kumar Gupta v. Kunti Gupta .
We have given careful consideration to the submissions.
10.
We have perused the record of the Family Court. Following questions
arise for consideration in this Appeal :
Whether the Appellant has established the ground of
(I)
cruelty ?
(II) Whether the Appellant has established the ground of
desertion?
(III) In the event the Appellant makes out a case for passing a
decree of divorce, what would be the permanent alimony
payable in accordance with Section 25 of the said Act?
11.
Now, we deal with the first question which arises for
consideration. The petition for divorce was filed on 7 th April, 2001.
Perusal of the petition and written statement shows the admitted
position that from 2nd April, 1998, the Appellant and the Respondent
1 AIR 2003 Jharkhand 42
have not cohabited together and from that day, the Respondent started
residing with her parents. The Respondent never returned to
matrimonial home after 2nd April, 1998. In this contest, it will be
necessary to make a reference to averments made in the petition filed
by the Appellant. There is a specific assertion that in the year 1998, the
Appellant filed Marriage Petition No.458 of 1998 against the
Respondent for restitution of conjugal rights and that the said petition
On this aspect, the Appellant has been subjected to cross
12.
was unconditionally withdrawn on 16th March, 2001.
examination by the Advocate for the Respondent. In paragraph 10, the
Appellant stated that as the Respondent went away with her parents, he
filed a petition for restitution of conjugal rights. He has denied the
correctness of the suggestion that the Respondent had shown
willingness to resume cohabitation. He has also denied the correctness
of the suggestion that Respondent's father had also stated that he was
willing to withdraw all the complaints and send back the Respondent to
resume cohabitation. It is pertinent to note that allegations of very
serious nature regarding conduct of the Respondent have been made in
the petition which according to the Appellant constitute acts of cruelty.
All the allegations relate to the period prior to 2 nd April, 1998. The very
fact that after 2nd April, 1998, in the year 1998 itself, the Appellant filed
a petition for restitution of conjugal rights shows that the Appellant
himself was ready and willing to resume cohabitation with the
Respondent and, therefore, the very conduct of filing the petition for
restitution of conjugal rights is nothing but a clear act of condonation of
the alleged acts of cruelty. No other inference is possible to be drawn as
there was no reason for the Appellant to file a petition for seeking a
decree for restitution of conjugal rights. The Appellant has made no
attempt to explain in detail, the reasons for filing the petition for
restitution of conjugal rights and the reasons as to why the petition was
unconditionally withdrawn. In view of the act of condonation of
cruelty, in the light of clause (b) of subsection (1) of Section 23 of the
said Act, the Appellant will be disentitled to claim a decree of divorce
on the ground of cruelty.
13.
That takes us to the second question which arises for
consideration. The Appellant issued a legal notice to the Respondent on
7th April, 1998 calling upon the Respondent to resume cohabitation
within a period of 8 days from the date of receipt of the notice. There is
a reply dated 29th April, 1998 sent by the Respondent through her
Advocate. At this stage, we may note that both the notice and reply
have not been marked as Exhibits. However, in the affidavitinlieu of
examinationinchief of the Appellant, he has specifically referred to the
reply as well as the notice. In the written statementcumcounter claim,
not only that the Respondent has relied upon the reply dated 29 th April,
1998, but she has quoted the material portion of the said reply sent
through Advocate which appears in paragraph 8 thereof. That is why
we are of the view that the office copy of the notice and the original
reply of the Respondent which are on record ought to have been
14.
admitted in evidence and marked as exhibits.
The material portion of the reply dated 29 th April, 1998 is
in paragraph 8 which reads thus :
“now there is every apprehension to the life and limb
of my client if she cohabits with you and hence you
are called upon to provide the separate maintainance
of Rs.2000/ per month.”
Perusal of the reply and in particular paragraph 8 thereof
shows that apart from denying the allegations made in the notice, the
Respondent specifically declined to resume cohabitation on the ground
that there was a threat to her life and limb if she resumes cohabitation.
In fact, by the reply, the Appellant was called upon to pay maintenance
at the rate of Rs.2,000/ p.m. In the reply, the Respondent has not at all
shown readiness and willingness to resume cohabitation. Careful
perusal of the written statementcumcounter claim as well as affidavit
inlieu of examinationinchief of the Respondent shows that the
contention raised in the reply to the notice that there was a danger to
her life and limb seems to have been given up by the Respondent as the
same has not been pleaded. The reason appears to be obvious that the
Respondent has made prayer in the counterclaim for a decree of
restitution of conjugal rights. We must note here that in the year 1998
itself, the Respondent admittedly filed an application under Section 125
of the said Code. In the affidavitinlieu of examinationinchief of the
Appellant and in particular paragraph 7 thereof, the Appellant has come
out with the case that at the time of hearing of Miscellaneous Petition
No.116 of 1998, which was the application for maintenance, the
Respondent specifically stated that she was not willing to resume
cohabitation. On this statement, there is no crossexamination made of
the Appellant. The Marriage Petition No.458 of 1998 filed by the
Appellant for restitution of conjugal rights remained pending till 16 th
March, 2001. There is nothing placed on record by the Respondent to
show that even during the pendency of the said petition, she offered to
resume cohabitation. In the crossexamination, the Respondent
admitted that she replied to the notice dated 7 th April, 1998 but she did
not file any petition for restitution of conjugal rights. The prayer for
restitution of conjugal rights was belatedly made by the Respondent by
filing a counter claim in the year 2002.
We must note a very important aspect that in the year
1998, the Appellant himself filed a petition for restitution of conjugal
rights which remained pending till 2001. In the reply to the notice,
there is a specific refusal by the Respondent to resume cohabitation on
the ground of a threat to her life and limb. The said plea is virtually
given up by the Respondent while filing written statement and counter
claim and even in her examinationinchief. There is no attempt made
by the Respondent to substantiate the plea regarding danger to her life
and limb. There is no overt act made by the Respondent which is
brought on record to show that a genuine effort was made by her to
resume matrimonial relationship. As stated earlier, till the year 2002,
the Respondent neither file a petition for restitution of conjugal rights
nor issued a legal notice calling upon the Appellant to resume
cohabitation. Perhaps in the reply to the legal notice, an attempt was
made to come out with the case that there was a sufficient cause for not
resuming the cohabitation. The cause pleaded was the threat to her life
and limb. This case has not been substantiated in the evidence by the
Respondent. Therefore, the only inference which can be drawn is that
there was a clear intention on the part of the Respondent to abandon
matrimonial ties with the Appellant. The only inference which can be
drawn is of intention on the part of the Respondent to desert the
Appellant. As stated earlier, no attempt has been made to prove that
the desertion was for a reasonable cause. The Respondent has not
established that due to any particular conduct on the part of the
Appellant that she was not willing to resume cohabitation. Therefore,
in our view, this was a case where a decree ought to have been passed
on the ground incorporated in clause (ib) of subsection (1) of Section
13 of the said Act. Perusal of the judgment of the Family Court shows
that no attempt has been made even to advert to the pleadings and the
evidence on the issue of desertion. Very cryptic reasons have been
recorded by the learned Judge of the Family Court for declining to grant
a decree of restitution of conjugal rights. To that extent, the impugned
judgment and decree will have to be set aside.
16.
Now, we go to the aspect of grant of permanent alimony
under Section 25 of the said Act. We must note here that under section
125 of the Code of Criminal Procedure, 1973, the Appellant was
directed to pay maintenance of Rs.600/ pm to the Respondent. By an
order dated 16th September, 2001, in addition to maintenance amount
of Rs.600/ pm, the Appellant was directed to pay interim alimony of
Rs.600/ pm and Rs.500/ pm to the Respondent and her daughter
respectively.
17.
The learned counsel appearing for the Appellant, on
instructions, states that notwithstanding the said order, the Appellant
has been paying monthly maintenance to the Respondent of Rs.1,000/
and Rs.1,000/ to the minor daughter. As far as income of the
Appellant is concerned, in paragraph 13 of his crossexamination, which
is recorded on 7th June, 2003, he has stated that he was working as a
Computer OperatorcumClerk with Spica Elastics Limited and was
drawing salary of Rs.5,000/. An attempt was made by the learned
counsel appearing for the Appellant to contend that subsequently the
Appellant has lost his job. Today, on instructions of the Appellant, she
has stated that presently, the Appellant is getting monthly income of
approximately Rs.10,000/ pm and he was willing to pay maintenance
of Rs.7,000/ to his daughter. Whether the Petitioner gave up the job or
not is not relevant. The admission in paragraph 13 of the cross
examination recorded on 7th June, 2003 shows that as of that date, the
Appellant was in a position to earn income of Rs.5,000/ p.m. Thus,
earning capacity of the Appellant as of that date has been established.
Today, there is an oral statement that the present income of the
Appellant is Rs.10,000/. Looking to the earning capacity of the
Appellant as reflected in the year 2003, it is not possible for us to accept
that the present income of the Appellant is only Rs.10,000/ pm. The
income must be much more than Rs.10,000/ per month. The
Appellant has offered to pay Rs.7,000/ pm as permanent alimony to
the daughter. Section 20 of the Hindu Adoption and Maintenance Act,
“Maintenance of children and aged parents
1956 reads thus :
(1) Subject to the provisions of this section a Hindu is bound,
during his or her lifetime, to maintain his or her legitimate
or illegitimate children and his or her aged or infirm
parents.
(2) A legitimate or illegitimate child may claim maintenance
from his or her father or mother so long as the child is a
minor.
(3) The obligation of a person to maintain his or her aged or
infirm parent or a daughter who is unmarried extends
insofar as the parent or the unmarried daughter, as the
case may be, is unable to maintain himself or herself out of
his or her own earnings or other property.”
18.
Though, the minor child will become major in November,
2013, the child being an unmarried daughter, the Appellant will have to
pay maintenance to her till the date of her marriage. Apart from
maintenance of Rs.7,000/ pm, the Appellant is under an obligation to
reimburse the Respondent for expenditure incurred on the daughter's
education and the Appellant shall be under an obligation to pay
requisite amount for meeting the expenditure of marriage of the
daughter. Considering the earning capacity of the Appellant, we deem
it appropriate to fix permanent alimony payable to the Respondent at
Rs.3,000/ pm.
Here we must note that an attempt was made by the
learned counsel appearing for the Respondent to submit that income of
the Appellant is much more than what is sought to be projected and the
Appellant is possessed of large immovable property. However, there is
no evidence adduced in that behalf. Therefore, we propose to reserve
liberty to the Respondent to apply to the Family Court in accordance
with Subsection (2) of the Section 25 of the said Act to apply
enhancement of the maintenance.
By a Civil Application No.149 of 2010 which is pending in
20.
this Court, a prayer is made for directing the Appellant to pay a sum of
Rs.4,000/ to the Respondent per visit to this Court and for the cost of
litigation Rs.30,000/. The cost of litigation payable to the Respondent
21.
Hence, we pass the following order :
ORDER
(i)
is fixed at Rs.15,000/.
The impugned judgment and decree dated 18th August,
2003 is quashed and set aside to the extent to which
the prayer for divorce on the ground of desertion has
been rejected by the trial Court;
(ii)
We pass a decree of divorce declaring that the marriage
solemnized between the Appellant and the Respondent
on 4th December, 1994 stands dissolved by a decree of
(iii)
Marriage Act, 1955;
divorce under clause (ib) of subsection 13 of Hindu
We direct the Appellant to pay maintenance at the rate
of Rs.7,000/ pm to the daughter from today till the
date of solemnization of her marriage. In addition, the
Appellant shall be liable to reimburse the Respondent
the expenditure incurred on the education of the
daughter. The Appellant shall be also liable to pay for
the marriage expenditure of the daughter. In the
event, the Appellant fails to pay the aforesaid amount
on demand being made by the Respondent in writing,
it will be open for the Respondent to make an
amount payable on both the grounds;
(iv)
application to the Family Court for quantification of the
The Appellant shall pay permanent alimony of
Rs.3,000/ pm from today to the Respondent;
(v)
We direct the Appellant to pay costs quantified at
Rs.15,000/to the Respondent within a period of eight
weeks from today;
The appeal is accordingly partly allowed on the above
terms;
(vii) We make it clear that it will be open for the
Respondent to make an application under subsection
(2) of Section 25 of the Hindu Marriage Act, 1955
before the Family Court for enhancement of the
amounts fixed by way of permanent alimony/
maintenance under this judgment and decree. If such
application is made, the Family Court shall decide the
same on merits in accordance with law.
Civil Application No.149 of 2010 does not survive and the
20.
(REVATI MOHITE DERE, J )
(A.S. OKA, J )
same is disposed of accordingly.
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