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| Divorce, Desertion by Wife, Cruelty by wife, 125 CRPC |
The High Court held that it is the wife who deserted the husband, In this backdrop of the case, for the wife to demand permanent alimony without filing an application under Section 25 of the Hindu Marriage Act appears to be wholly unreasonable. Further held that although sub-section 4 of section 125 inheres that in case the wife deserted the husband, she would not be entitled to any maintenance, however, for the last about 13 years she has been accepting maintenance under the said provision.
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The high court held that Applicant has preferred this matrimonial appeal challenging judgment dated 23.7.2019.
The high court held that Applicant has preferred this matrimonial appeal challenging judgment dated 23.7.2019.
Vide the impugned judgment and decree, the marriage
between the parties has been dissolved by way of divorce in terms of provisions
of section 13 (1) (i-a) and Section 13(1) (i-b) of the Hindu Marriage Act,
1955. Also the appellant has been directed to pay Rs.8 lakhs as permanent
alimony to the respondent wife within 6 months from the day when the judgment
was passed.
2. The High Court have taken judicial notice of the
fact that the factum of divorce granted by the Court of law has been accepted
by the respondent wife in so much as no appeal has been preferred against the
judgment and decree at issue.
3. The appellant husband has only questioned the grant
of permanent alimony, essentially on the ground that the respondent wife
deserted him. In regard to the fact whether the wife deserted the husband, a
specific issue (3) was framed. The issue has been answered in the affirmative
with the finding that the respondent wife deserted the husband. It has been
pleaded that in such circumstances, the appellant husband cannot be held liable
to pay alimony.
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The second ground taken on behalf of the appellant
husband is that the wife did not file any application under Section 25 of the
Hindu Marriage Act. It has been asserted that the provisions of Section 25
inhere that an application is required to be made for the purposes of claiming
permanent alimony and maintenance. No such application having been made, it was
beyond the jurisdiction of the lower court to have awarded permanent alimony.
Learned counsel for the appellant has further pointed
out that sub-section 4 of Section 125 CrPC specifically provides that no wife
shall be entitled to receive maintenance allowance in case she refuses to live
with her husband. In the case in hand, although the wife has deserted the
husband, she has been receiving maintenance under Section 125 CrPC in the sum
of Rs.2,600/- per month since November, 2006. It has been pleaded that the
appellant husband has paid a sum of Rs.2,600/- per month under Section 125 CrPC
to the wife, without she having any entitlement thereto in terms of statutory
bar under Section 125(4) of the CrPC. In all a sum of Rs.4 lakhs approximately
has already been paid under Section 125(4) CrPC. In such circumstances, the
amount assessed and awarded as permanent alimony in the sum of Rs.8 lakhs is
required to be set aside.
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4. The High Court have confronted the learned counsel
for the respondent wife as regards the award of permanent alimony without her
filing an application under Section 25 of the Hindu Marriage Act.
Learned counsel for the respondent wife has not been
able to cite any judgment on the issue to establish the claim to award of
permanent alimony under Section 25 of the Hindu Marriage Act.
So far as money already received by the wife under
Section 125 CrPC despite she having deserted her husband, which finding has not
been challenged by the wife also learned counsel for the respondent has no
answer.
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5. The High Court have considered various aspects of
the case after hearing the learned counsel for the parties. Provisions of
Section 25 of the Hindu Marriage Act reads as under:
"25 Permanent alimony and maintenance .--
(1) Any court exercising jurisdiction under this Act
may, at the time of passing any decree or at any time subsequent thereto, on
application made to it for the purpose by either the wife or the husband, as
the case may be, order that the respondent shall pay to the applicant for her
or his maintenance and support such gross sum or such monthly or periodical sum
for a term not exceeding the life of the applicant as, having regard to the
respondent's own income and other property, if any, the income and other
property of the applicant [the conduct of the parties and other circumstances
of the case], it may seem to the court to be just, and any such payment may be
secured, if necessary, by a charge on the immovable property of the respondent.
(2) If the court is satisfied that there is a change
in the circumstances of either party at any time after it has made an order
under sub-section (1), it may at the instance of either party, vary, modify or
rescind any such order in such manner as the court may deem just.
(3) If the court is satisfied that the party in whose
favour an order has been made under this section has re-married or, if such
party is the wife, that she has not remained chaste, or, if such party is the
husband, that he has had sexual intercourse with any woman outside wedlock, [it
may at the instance of the other party vary, modify or rescind any such order
in such manner as the court may deem just]."
Sub-section 1 of Section 25 above extracted would
indicate that "the conduct of the parties and other circumstances of the
case" can also be considered by the Court while awarding permanent alimony
and maintenance.
The said provision also makes it crystal clear that
award of permanent alimony can be made "on an application" made to
the Court.
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6. Sub-section 4 of Section 125 of the CrPC also needs
exact reference. Relevant portion of Section 125 of the CrPC would read as;
"125. Order for maintenance of wives, children
and parents -
(1) if any person having sufficient means neglects or
refuses to maintain -
(a) his wife, unable to maintain herself, or
(b) xxxxxxxx
(c) xxxxxxxx
(d) xxxxxxxx (2) xxxxxxxxx (3) xxxxxxxxx (4) No Wife
shall be entitled to receive an [allowance for the maintenance or the interim
maintenance and expenses of proceeding, as the case may be,] from her husband
under this section if she is living in adultery, or if, without any sufficient reason,
she refuses to live with her husband, or if they are living separately by
mutual consent."
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7. A bare reading of sub-Section 4 of Section 125 CrPC
would make it evident that no wife shall be entitled to receive an allowance
for maintenance, or interim maintenance and expenses of the proceeding from her
husband under Section 125 CrPC if she without any sufficient reason refuses to
live with her husband.
So far as the case in hand is concerned, the relevant
issue framed by the lower court is contained in paragraph 6 of the impugned
judgment. Issue No.3 reads as under;
" xxxxxxx(3) Whether the respondent deserted the
petitioner? xxxxxxx"
The issue Nos.2, 3 and 4 had been dealt with together.
The following needs to be noticed specifically from the judgment rendered by
the lower court.
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" xxxxxxx The marriage between the parties took
place on 13.5.1999 as per Hindu rites and customs and after the marriage the
respondent came to the house of the petitioner in the railway quarter, North
west Colony at New Bongaigaon. As per pleadings the marriage took place from
the railway quarter of the relative of the respondent,
from quarter No. R/145/A Mount View Colony of New Bongaigaon. The pleadings and
testimony of the petitioner (PW 1) used to visit
his house in his absence and when asked by him and his family members not to
visit, the respondent got angry and misbehaved with the petitioner and his
family members and on 25.9.1999 the respondent with the help of, a close associate arrested the petitioner without lodging any complaint and confined him from
11.00 A.M to 9 P.M and during that of confinement the petitioner was assaulted
by the Police men. The other allegation is that on 26.05.1999 the Police men
again arrested him and his brother and assaulted them; that on 05.06.1999 again
arrested and released on 06.06.1999 without case being registered at the
instance of the respondent. The petitioner was compelled to live with the
respondent separately at his father's house at Chugapota for about a month and
during that time also the respondent subjected her to cruelty. After one month
the respondent left and thereafter never returned. Dhaligaon Police Station
case no. 43/1999 u/s 498 A IPC was registered against the petitioner and his
family members and they were arrested in that case and for his detention he was
even suspended from his job. In GR case arising out of Dhaligaon Police Station case u/s 498 A IPC the petitioner and his family members were convicted
which on appeal being Criminal Appeal was set aside by the
Sessions Judge vide judgment and order dated 02.08.2008.
That the married life of the petitioner was very short
and as per PW 1 after 6 ½ days of his marriage his wife lodged a case u/s 498 A
IPC and that after 6 ½ days of the marriage he started to stay with the
respondent at his village house at Chungapota with his father. The fact that
the respondent stayed for seven days with her petitioner husband in the quarter
of the petitioner is admitted by the respondent as DW 1 in her cross
examination. She also admitted lodging of FIR u/s 498 A IPC against the
petitioner and his family members. She stated in her cross examining that she
stayed for about one month at Chungapota with her father-in-law and after
filing of the case u/s 498 A IPC she is not staying with the petitioner."
" xxxxxxx For almost 10 years from 1999 to 2009
till the filing of the suit for judicial separation by the petitioner, the
respondent never approached the Court seeking restitution of conjugal life or
to carry forward her matrimonial life with the petitioner. It was only after
the petitioner has approached the Court with T.S.(M) 18/2009 with the prayer
for judicial separation, the respondent appeared with her written statement
making counter claim for restitution of conjugal life. Had she ever been
interested in her matrimonial life she would not have kept silent all alone 10
years. She wake up only after the suit was filed by the petitioner and then
only she made counter allegation against the petitioner and sought prayer for
restitution of conjugal life. The conduct of the respondent itself speak of her
attitude. Had she been interested in the matrimonial life she would have
approached the petitioner by herself or through mediator but not done so and
only to counter the petitioner she came out with the counter claim.
As admitted by the petitioner her matrimonial life
lasted for seven days and after that the trouble started. The petitioner has
mentioned the fact that the trouble started for Mr Pulak Chatterjee and on his
objection he was subjected to various physical cruelty through the Police. He
alongwith his family members were even sent to judicial custody in a case u/s
498 A IPC, which ended up in conviction but the conviction was set aside in the
appeal. The respondent has not preferred any revision against the judgment of
acquittal.
In this case also the respondent has not produced any
evidence in regard to cruelty meted to her. She has not produced any witness to
support of her case and her evidence is also not reliable."
" xxxxxxxxx From the above discussion and finding
arrived at it is established that it was the respondent who is responsible for
the break down of the matrimonial rife with the respondent by inflicting
physical and mental cruelty to the petitioner after few days of the marriage
and thereafter deserting the petitioner and living separately. She did not take
any steps to restart her matrimonial life and only when the petitioner has
approached the Court after years of separation for a decree of judicial
separation, the respondent has come up with a counter claim in that suit with
restitution of conjugal rights. It is now 20 years since separation in the year
1999 and the matrimonial bond is beyond repair. The marriage has become a
fiction support by a legal tie and by refusing to severe the tie, will lead a
more mental cruelty to the petitioner."
8. The High Court have made reference in extenso to
the relevant portions from the impugned judgment so as to depict the conduct of
the respondent wife towards the appellant husband in the course of short life
of less than one month spent together.
9. Learned counsel for the appellant has also brought
to the notice of the Court judgment rendered by Additional Sessions Judge, FTC,
Bongaigaon in Crl. Appeal . Vide
judgment dated 2.8.2008 the above named appellants were acquitted of the
charges under Section 498 (A)/34 IPC.
A perusal of the said judgment referred to by us
indicates that the entire family of the appellant husband was implicated in
criminal proceedings. A court having competent jurisdiction acquitted of all
the accused. The judgment has attained finality.
10. A conjoint reading of the facts and circumstances
emerging from the impugned judgment; and the fact that criminal proceedings
were initiated against the family members of the appellant husband which were
found to be without legal cause indicates the conduct of the respondent wife.
The High Court took particular notice of the fact that it is the respondent
wife who deserted the husband, which finding recorded by a court having
competent jurisdiction has gone unassailed. In this backdrop of the case, for
the wife to demand permanent alimony without filing an application under
Section 25 of the Hindu Marriage Act appears to be wholly unreasonable.
11. The High Court also take judicial notice of the
fact that although sub-section 4 of section 125 inheres that in case the wife
deserted the husband, she would not be entitled to any maintenance, however,
for the last about 13 years she has been accepting maintenance under the said
provision.
12. However, so as to not multiply the litigation, the
high court deem it just and proper to allow the appeal in limited terms and
reduce the amount of alimony to Rs.4 lakhs to be paid to the respondent wife
within a period of 3 months from today.
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