Punjab-Haryana High Court
Smt. Parkash Kaur vs Harbhajan Dass on 28 February, 2003
Equivalent citations: AIR2003P&H191, II(2004)DMC410, (2003)134PLR500
Author: S.S. Saron
Bench: S.S. Saron
JUDGMENT S.S. Saron, J.
1. Smt. Parkash Kaur has filed this appeal under Section 28 of the Hindu Marriage Act (hereinafter referred to as the Act) against the judgment and decree dated 3.11.1989 passed by the learned Additional District Judge, Jalandhar, whereby the petition of the respondent-husband for grant of divorce has been allowed and the marriage between them has been dissolved by a decree of divorce.
2. The facts of the case are that marriage between the parties was solemnized on 16.6.1974 at village Kotla, Tehsil and District Jalandhar, according to Hindu religious rites. After marriage the parties lived as husband and wife in village Nussi, Tehsil and District Jalandhar, upto 2.11.1987. No child was born out of the wedlock. The respondent-husband filed a petition under Section 13 of the Act for dissolution of the marriage on the ground that the wife had treated him with utmost cruelty, as a result of which the petitioner (now respondent) has suffered immense mental and physical torture. He thus had a reasonable belief that it would be injurious and harmful for him to live with his wife. The respondent set out the details of the cruelty meted out to him. Me has stated that at the time of marriage, he was studying in B.A. IInd and the appellant after staying for fifteen days went back to her parental house and lived there for a period of one and half years. She did not resume cohabitation and in fact even during the initial period of 15 days, there has been no cohabitation between the parties. She did not even allow the respondent to touch her much less allowing the consummation of marriage. Besides, she did not talk properly with the respondent and his other family members. On account of this behaviour, the respondent suffered great mental torture. It was after convening a Panchayat that the appellant returned to the matrimonial home. However, even then her behaviour was rude, insulting and aggressive in nature. She remained at the matrimonial home for a period of one year and during this period she quarrelled with the mother of the respondent and used to abuse her in dirty language. The respondent tolerated the same with the hope that she may improve but without any result. The appellant then again left for her parental house against the wishes of the respondent and remained there for a period of one and half years. In order to keep the marriage intact, the respondent again brought her back to the house by convening a panchayat. The appellant instead of appreciating the love and affection, took it as a weakness and immediately after resuming cohabitation, she started misbehaving, Whenever the respondent asked his wife to behave better and discharge the household work, she created a row in the house and would attract the neighbours and in their presence abused the respondent and his mother. Lastly, about six and half months earlier to the filing of the petition, the appellant after creating trouble in the house threatened the respondent that she would commit suicide by consuming dichlorodipheny Itrichloroethane (for short D.D.T.), The respondent then approached the village panchayat and apprised them of her mis-behaviour. The Panchayat members of village Nussi came to the house of the respondent and after verifying the fact went to the Panchayat of village Kotla and apprised them of the appellant's mis-behaviour and on the third day, the appellant was taken away by her brother Narain Dass and since then she has been living with her parents. The respondent also made allegations against his wife of being inaccessible and refusing to have sex on account of which they could not have a child. This also, it is said, amounted to cruelty towards him. Hence the petition for divorce.
3. The appellant filed her written statement in which the factum of marriage and the place of residence before and after marriage and her living at her matrimonial house upto 2.11.1987 were admitted. It is also admitted that at the time of marriage, the respondent was studying in B.A, However, the other allegations, as made by the respondent in his petition before the learned trial Court, have been denied. It is stated that the version given by the respondent was wrong, false and concocted and a clever design to make a ground of cruelty. She was married to the respondent more than 14 years back and during this period, she had conducted herself like a dutiful wife and has been treating the respondent, his mother and relations with utmost love, respect and regards, although they had been treating her with scant regard. It has been submitted that the parties were engaged two years earlier to their marriage. Her father was financially well off but the respondent family was in less financial circumstances. Her father had been helping the respondent from time to time. It is stated that although the parties are "Adharmies" but her father was doing the lucrative business of diesel etc. and was in a position to help the respondent. Her father performed the marriage by spending a lot and gave very good dowry. Her father also helped the respondent in getting service in the Bank. The respondent got services in the bank after 4/5 years of the marriage and during this period, it was her father who had been virtually supporting the respondent's family. It is after the respondent joined bank service that the status of the family became better. With a view to help the respondent and his family, appellant's father also sent building material for building a new house and they built a new house on a piece of land, they already had. Her father also gave the respondent a good milch buffalo as there was no milch cattle in the family of the respondent. It is the case of the appellant that there was no estrangement and till 1985, the married life of the parties was happy and smooth. During the last three years, the behaviour of respondent and his family had been aggressive and oppressive. For about the first half of this period i.e. one and half years, there were quarrels in the family. The respondent started saying that the appellant was not beautiful and was not educated and that she did not conceive and was barren. Her mother-in-law also joined the respondent. They went to the extent of saying that the appellant be sent to her parents' place and that the respondent would be re-married and she would be paid maintenance. The respondent and his mother compelled the appellant to do manual labour for others and work as a farm labourer. She did it although she was ashamed of it as the women-folk used to remark that why should she do such odd jobs when her husband was a respectable educated bank employee getting handsome pay, About two years earlier to the filing of the written statement, she was given katcha kotha (mud house) to live separate, although it lasted only for 5/6 days. Whenever there was any quarrel in the family, the father and the brothers of the appellant used to go to the respondent's house and pacify the parties. For the last one and half years, the appellant was mal-treated and she was turned out of the matrimonial home and was constrained to take refuge at her parents place. Letters were sent to the respondent by her father but he did not bother. The Sarpanch of village Kotla, who happened to know the respondent wrote a letter that he may take the appellant to the matrimonial home. This was about 5/6 months after she had been turned out. In response to this letter, the uncle of the respondent namely Shanker and Surjan the mediator to the marriage between the parties accompanied by other persons came to see Ram Kishan, Sarpanch of village Kotla. Thereafter all of them went to the house of the appellant's father and it was agreed that the respondent would come and take her with him to the matrimonial home. A week thereafter, the respondent took the appellant with him. This was about one year back. However, after 5/6 months, she was again forsaken. With the object of getting rid of the appellant, the respondent was trying to find excuses. The respondent enacted a "suicide drama." It has been alleged that when the appellant was suffering from fever, the respondent gave her some liquid in a tumbler telling her to be medicine. The moment the appellant tried to drink it, the respondent snatched the glass from her hand, started shouting and telling the people that she was going to take poison with the intention to commit suicide, so as to involve the respondent and his family. In fact this was a clever design and manipulation of the respondent to create public opinion in his village. It is on the next day of this incident, the respondent, his uncle namely Shanker came to Ram Kishan, Sarpanch of village Kotla and told him about the "suicide attempt". They went to the house of the appellant's father and it was decided that after a couple of days the Sarpanch, the appellant's father and relations would go to the house of the respondent and verify the facts. Before this could be done, on the following day, the respondent along with his uncle Shanker took the appellant with them telling her that they were going to her parents' place and they left her stranded at village Sham Chaurasi, from where she had to walk the distance to village Kotla in shabby clothes, thereafter, despite efforts of her father and the other respectable the respondent refused to take the appellant back to the matrimonial home. The other averments, as made, have also been denied. It is also denied that the respondent had no access to her and that he had been having sexual intercourse with her. However, child having not been born was a matter of chance. She stated that the respondent should have consulted a Doctor and got himself and the appellant medically examined.
4. On the pleadings of the parties, the learned Additional district Judge, on 8.8.1988 framed the following issues:-
1. Whether the respondent has treated the petitioner with cruelty after the solemnization of their marriage? OPA
2. Relief.
5. The learned Additional District Judge, after consideration of the matter and the evidence adduced by the parties on the record, passed a decree for divorce vide impugned judgment and decree, which is subject matter of this appeal.
6. The appeal was filed in the year 1990. During the pendency of the appeal, Shri K.K. Cuccira, Advocate, for the appellant died. This Court in 12.2.1999 issued actual date notice to the appellant for 19.3.1999. As per report of the Registry, the said letter was not received back served or otherwise.
7. Thereafter, when the case was listed on 25.9.2002. Mr. Sachin Midha, Advocate appeared for the appellant. The parties prayed for time to seek instructions and the case was adjourned to 23.10.2002. On the said date, he did not appear and neither had he filed a Vakalatnama. The appeal was filed by Mr. K.K. Cuccria and Mr. Vikas Cuccria, Advocates, for the appellant. Mr. K.K. Cuccria, advocate, as already noticed had passed away. Therefore, it was ordered that notice be issued to Mr. Vikas Cuccria, Advocate, for the appellant for 30.10.2002. He appeared for the appellant on 30.10.2002 and made a request for adjournment and case was adjourned to 13.11.2002. Another request for adjournment was made on 13.11.2002 and the case was adjourned to 27.11.2002. On 27.11.2002, Mr. Lalit Thakur, Advocate appeared for Mr. Vikas Cuccria, Advocate. However, on the request of the learned counsel for the respondent, the case was adjourned to 11.12.2002. Case was then taken on 18.12.2002 on which date none of the parties were present and the case was adjourned to 12.2.2003. On 12.2.2003, Mr. Dilpreet Singh, Advocate appeared for Mr. Vikas Cuccria, Advocate and prayed for an adjournment. Accordingly the case was adjourned for 19.2.2003 on which date despite the case being called out three times, none appealed for the appellant.
8. In these circumstances the learned counsel fqr the respondent has been heard and with his assistance, I have gone through the records of the case.
9. The appellant Smt. Parkash Kaur, in her grounds of appeal, has reproduced same observations of the learned trial Court, from which she seeks to contend that it is the version of the respondent only, which has been accepted, by the learned Court below. Besides, it is stated that the respondent when he appeared produced a letter and also stated that members of the Panchayat called on him at his house and they made enquiries from the appellant. The panchayat gave a writing to him which was addressed to the village Panchayat Kotla for delivering the same there. He identified that the letter, which he delivered to the Sarpanch of Kotla and the same was Ex.P1. This letter it is stated to be neither relied upon nor produced at the time of filing the petition, whereas Order VII Rule 18 of the Code of Civil Procedure (C.P.C.-for short) provides that a document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed with the plaint and which is not produced or entered accordingly, shall not without the leave of the Court be received in evidence on his behalf at the hearing of the suit. This question was left open by the Court while recording the evidence of the respondent. However, it is stated in the grounds of appeal that the Learned trial Court has mainly relied on Ex.P1, for granting the relief of divorce. The appellant has also stated in the grounds of appeal that the story with regard to the threat to consume D.D.T, powder and the involvement of the panchayat was cooked up. The appellant in fact has been left high and dry. It is former stated that the learned trial Court ought to have made a serious effort for reconciliation. Even no mention has been made in the judgment that an effort was made to reconcile the matter between the parties who have been married for almost 15 years. It was the case of the appellant that she was ready and willing to live with the respondent and it was the respondent who had been at fault. It was also stated that in any case, the question of permanent alimony is also to be determined to avoid any further litigation between the parties, as was done by a Division Bench this court in case of Kiran Mandal v. Smt. Mohini Mandal, (1989-1)95 P.L.R. 553. Lastly, it is contended that no cruelty has been established against the appellant and rather it is established by oral and documentary evidence that the respondent-husband was out to divorce the appellant on one or the other pretext. The findings of the learned trial Court are totally unwarranted and against oral and documentary evidence on record.
10. The learned counsel appearing for the respondent on the other hand contended that the appellant has treated the respondent with utmost cruelty and it was a very hard case where the appellant had attempted to commit suicide and she had treated the respondent with cruelty within the meaning of Section 13(1)(i-a) of the act, so as to entitle him for the grant of divorce.
11. Before considering the other aspects, the contention of the appellant as contended in her grounds of appeal that no serious efforts for reconciliation were made may be considered. The learned trial Court at the time of framing issue after the filing of the written statement on 8.8.1988 did make efforts, for reconciliation. It is recorded in the said order that reconciliation efforts were made but the same fizzled out. Thereafter the issues were framed. Besides, during the pendency of this appeal, the Hon'ble Lok Adalat also made efforts of reconciliation between the parties and on 27,4.1991 passed the following order-
"Present: Suit. Parkash Kaur, appellant. Sh. Harbhajan Dass, respondent.We have tried to persuade the parties. Both the parties have agreed to compromise the matter. The compromise will be recorded in the Court. The office may put up this case before Hon'ble Judge for compromise and that date may be informed to the paities well before the date. The counsel for the parties may also be informed accordingly."
Thereafter the matter was taken up in this Court on 8.5.1991, on which date the compromise was to be made. However, the husband stated that there was no chance of any reconciliation and he was not prepared to keep his wife. The learned Single Judge, on 8.5.1991 passed the following order:-
"Present: Mr. K..K. Cuccria, Advocate with Parkash Kaur, appellant. Harbhajan Dass, respondent in person.
Parties to the marriage were present in Lok Adalat held on April 27, 1991. Before the Members of Lok Adalat, parties gave a statement that they were ready for compromise and the compromise be recorded in the Court.
Today, appellant as well as respondent are present in Court. Husband has stated that there is no chance of any reconciliation and he is not prepared to keep his wife. Since the matter cannot be compromised, let the main case be filed for hearing on its turn."
The perusal of the above shows that efforts to compromise the matter were made which however, did not prove fruitful. Therefore, the contention of the appellant that efforts for reconciliation were not made is without any merit.
12. The next contention regarding the findings of the learned trial Court with regard to the respondent being treated with cruelty by the appellant may be considered. The learned trial Curt held that the appellant had treated the respondent with cruelty. This is to be considered in accordance with the legal position enumerated by the Courts in interpreting the provisions of Section 13(1)(i-a) of the Act. The Hon'ble Supreme Court in V. Bhagat v. Mrs. D. Bhagal, A.I.R. 1994 Supreme Court 710, held cruelty in Section 13(1)(i-a) of the Act can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. However, it was held triat while arriving at such conclusion, regard must be held to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all there relevant facts and circumstances which it was neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined having regard to the facts and circumstances of each case. If it is a case of accusation and allegations, regard must also be had to be context in which they were made. To the similar effect are the observations of the Hon'ble Supreme Court in the case of G. V.N. Kameswar Rao v. G. Jabilli, (2002)2 Supreme Court Cases 296 wherein it was held that mental cruelty is to be assessed bearing in mind the social status of the parties their custom, traditions, their educational level and the environment in which they live.
13. In Savitri Pandey v. Prem Chandra Pandey, (2002)2 S.C.C. 73, it was held that cruelty under Section 13(1)(i-a) of the Act may be physical or mental. Physical cruelty consists of acts which endanger the physical health of one of the parties to the marriage and includes inflicting of bodily injury or giving cause for apprehension of such injury. Mental cruelty consists of conduct which causes mental or emotional suffering or induces fear in respect of the matrimonial relationship. In Parveen Mehta v. Inderjit Mehta, (2002)5 S.C.C. 706, the Hon'ble Supreme Court held that Section 13(1)(i-a) of the Hindu Marriage Act includes both mental and physical cruelty. The legal concept of cruelty and the kind of degree of cruelty necessary to amount to a matrimonial offence has not been defined under the Act. The legislature has refrained from giving a comprehensive definition of the expression that may cover all cases. It was held that mental cruelty is a state of mind and feeling of one of the spouses due to the behaviour or behavioural pattern by the other. It is,therefore, necessarily a matter of inference to be drawn from the facts and circumstances of the case. Proper approach requires the assessment of the cumulative effect of the attending fact and circumstances established by the evidence on record and that only then can be inference be drawn that the petitioner has been caused to suffer mental cruelty by the spouse. It was clarified that individual instances of misbehaviour seen in isolation would not be sufficient to establish mental cruelty.
14. In the light of the above dictim of the Hon'ble Apex Court, in order to establish cruelty the conduct of the erring spouse must be of such character so as to cause danger to life, limb or health (physical or mental) or as to give rise or a reasonable apprehension of such a danger. This has been accepted to be meaning of cruelty and has been held by the Courts to be rather difficult to define. It depends upon facts and circumstances of each case, which is to be assessed bearing in mind the social status of the parties, their customs and traditions, their educational level and the environment in which they live.
15. In this background it may be noticed that the parties to the marriage are "Adharmies" by caste and are living in rural area in a village. The appellant has stated that she was compelled to do labour work and the respondent has got service in the bank. Therefore, the position is that the respondent is well placed in the service of the bank whereas the appellant appears to be semi-literate inasmuch as she has signed the petition in Gurmukhi script with a shaky hand. The respondent appeared as his own witness and retreated the averments made in his petition. He also in his deposition produced on record a letter dated 31.10.1987 which was exhibited as P1. This was subject to objection of its late production and not being relied upon which was ordered to be decided at the time of disposal of the petition. In the said letter the Panchayat of village Nussi i.e. of the respondent's village wrote to the Panchayat of village Kotla i.e. Panchayat of appellant's village that the appellant was about to consume D.D.T. so as to commit suicide and that the respondent came to know of it and snatched the glass and then he called the panchayat and others. In the presence of the Panchayat, the appellant admitted that she was about to consume D.D.T. and that on the same day her father and her brother had met her. It was requested in the letter that the Panchayat of the appellant's village should come to the village so that some decision can be taken regarding this occurrence. Apart from the attempt of the appellant to commit suicide, the respondent has stated other various conducts and the behaviour pattern of the respondent. Besides, the respondent's village Sarpanch Bir Chand of village Nussi appeared as PW-2 and he supported the case of the respondent. He produced on record a copy of application Ex.P-2 which is dated 16.3.1987 and is addressed by the respondent to the panchayats of village, Nussi and Kotla. In the said application he has stated that his wife had left his home for village Kotla in April 1986 and till the date of the said application i.e. 16.3.1987 she had not returned.Even earlier on 2/3 occasions, she had been living with her mother and that they had to make many attempts to get her back. Her parents had also misbehaved with them and instead of making the appellant to understand, her parents fought with the respondent's side and said that they have to act in this manner only. Apart from this, it is mentioned that the appellant had held out threats on many occasions to commit suicide and he had informed her parents about this. But they paid no heed to the same. Bir Chand RW-2 has also produced on record Ex.P-4, which is a letter received by him from the Sarpanch of village Kotla. In this letter, which is dated 28.3.1987 the Sarpanch of Gram Panchayat, Village Kotla, acknowledges the receipt of letter dated 16.3.1987 Ex.P2. The Sarpanch of village Kotla has stated in the letter Ex.P-4 that he has apprised himself of the dispute between the parties and that the Sarpanch along with other respectable persons including the family members of the respondent should come to their village so that the matter can be sorted out. To him, it appeared to be a trifle matter. The last witness produced by the respondent is his mother Smt. Rajo, who appeared as PW-3 and she has given the account of the behaviour of the appellant, besides her repeated threats to immolate herself or commit suicide by jumping into well. She also mentioned about the incident when the appellant tried to consume D.D.T. mixture which was snatched away by her son i.e. the respondent, then the Panchayat was informed about it.
16. As against this the appellant has appeared as her own witness as PW1. She has stated that during her stay with the respondent, he kept on cursing and blaming her to be infertile. Besides, she was turned out about four years from the recording of her statement, which was recorded on 8.9.1989, after giving her beatings. She then lived with her parents. Panchayats were convened, who took her back to her matrimonial home. She. lived with the respondent for 5/6 months. As per her version, it is the respondent who gave her some mixture in the glass saying that it was medicine and when she tried to consume the same the petitioner grabbed the same from her and raised alarm accusing her of an attempt to take poison and to commit suicide. Thereafter she was left at village Sham Churasi from where she had to walk a distance of one km. to her own village. In her cross-examination, she denies that the Panchayat had come after the incident of her attempting to commit suicide. As per her version the drama was enacted by the respondent. Apart from her, she has produced her father Puran Chand as RW2, who narrated the version of the appellant. Besides Ram Kishan Sarpanch of village Kotla, appeared as RW3 for the appellant. He in his examination-in-chief, admitted the letter dated 16.3.1987 Ex.P2 received by Gram Panchayat Kotla from the Gram Panchayat of village Nussi. On receipt of the said letter, he sent a reply dated 28.3.1987 Ex.P4. Besides, he also wrote a post card to the Sarpanch of village Nussi, which is Ex,P5. In the post card Ex.P5, it is merely recorded that a programme had been made for coming to their village on 15.4.1987. However, he was not available on that day and, therefore, another date be fixed. He also admits that a meeting of the two Panchayats was held at the house of the appellant's parents and it was decided that the respondent could collect the appellant in a period of ten days. The respondent took the appellant to their matrimonial home. He went through the contents of the letter and he told the respondent that after consulting the parents of the appellant they would be visiting the village but before they could do so the appellant reached their village on the next day and the matter ended there.
17. From this evidence, it is clear that there had been various attempts to patch up the differences between the parties but on each occasion the matter fizzled out. The evidence on record in my view shows that the appellant did try to take D.D.T. mixture with the intention to commit suicide. This is supported by the independent evidence of Bir Chand PW-2, who is the Sarpanch of village Nussi. In the presence of the Panchayat, the appellant did admit that she had prepared a mixture and that she was at fault. It is thereafter that the letter Ex.P1 was written by him (PW2 Bir Singh) to the Sarpanch of village Kotla of the appellant's parental house, there is no reason for Bir Chand PW2, who is the Sarpanch of the village, to depose falsely. Being Sarpanch of the village, he is an independent and respectable witness. Smt. Rajo PW3, who is the mother of the respondent has also narrated the various threats held out by the appellant to commit suicide either by self immolation or by jumping into the well. The respondent, in her deposition has made allegations that she was turned out after she was given beating. The allegation of beating has not been made by the appellant in her written statement. Therefore, these appear to be an after-thought and have been made merely for the sake of making. Ram Kishan RW3, who is Sarpanch of Village Kotla i.e. the village of the appellant do not in any manner support her case. He rather admits the receipt of communications between the parties. The objection of the appellant, however, is that the documents are inadmissible in evidence in view of the provisions of Order VII Rule 18 of the C.P.C. The objection is of a technical nature. The letters which have been exchanged between the two Gram Panchayats are not such document which could have been manufactured. This is more so when Ram Kishan RW3, the Sarpanch of village Kotla in his examination-in-chief admits the exchange of the documents and the letter. Even otherwise the Rules of procedure are hand-maids of justice and are intended to subserve and facilitate the cause of justice and not to obstruct it. Therefore, no pedantic approach is to be adopted to defeat the cause of justice on mere hair splitting technicalities. Even otherwise the provisions Order VII Rule 18 of the C.P.C. now stand omitted by the Code of Civil Procedure (Amendment) Act, 2002. The said amendment which relates to procedure operates retrospectively. In Anand Gopal Sheoray v. State of Bombay, A.I.R. 1958 S.C. 915, it was held that no person has a vested right in any course of procedure. He has only the right of prosecution or the defence. Therefore, the objection raised by the appellant is without any substance.
18. In the face of the evidence of the appellant trying to commit suicide and also in the circumstances that the respondent made consistent efforts to settle the marriage by taking Panchayat on various occasions. Besides, the letter on record and the half-hearted deposition of Ram Kishan RW-3 Sarpanch of village Kotla, the social set up in which the parties are living, in my view the behavioral pattern of the appellant has been of such a nature from which an inference can be drawn that the respondent has been caused to suffer mental cruelty by the appellant. There is reasonable apprehension in the mind of the respondent that it would be difficult for him to live with the appellant in view of her repeated threats to commit suicide. Even the learned trial Court after examining the evidence on record held that the appellant tried to consume mixture of D.D.T. powder to execute her threats to commit suicide. It was further held that under such circumstances where the husband has to live under constant threat of prosecution of commission of an offence, the conclusion was that he has been subjected to cruelty. The learned trial Court has rightly reached the said conclusion. The threats to commit suicide were indeed executed by the respondent and she admits this fact in the presence of the Panchayat. Her version that in fact it was the respondent who had given a glass on the pretext giving some medicines and then raised alarm has rightly been disbelieved by the learned trial Court. Therefore, the marriage between the parties is liable to be dissolved by a decree of divorce.
19. The last contention of the appellant in the grounds of appeal is that the question of permanent alimony is also to be determined to avoid any further litigation. In support of this contention the appellant has referred to the judgment of Kiran Mandal's case (supra).
20. In order to appreciate this contention, of the appellant, the provisions of Section 25 of the Act, which provides for permanent alimony may be noticed. The same reads as under:-
"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 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 action 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 had sexual intercourse with any woman outside wedlock, it may at the instance of the other party very, modify or rescind any such order in such manner as the court may deem just."
The perusal of the above shows that any Court exercising jurisdiction under the Act may at the time of passing any decree or any time subsequent thereto on application made to it, order the respondent to pay maintenance to the applicant for her maintenance and support such gross sum or monthly or periodical sum for a term not exceeding the life time of the applicant as having regard to the respondents, own income and other property. Section 25 of the Act regarding permanent alimony is applicable at the time of passing any decree or at any time subsequent thereto. Decree has been defined in Section 2(2) of the C.P.C. as follows:-
"2(2) "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include-
(a) any adjudication from which an appeal lies as an appeal from a order, or
(b) any order of dismissal for default.
Explanation.- A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final." The perusal of the above shows that decree is formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit, but does not include any adjudication from which an appeal lies as an appeal from an order or any order of dismissal for default, The Hon'ble Supreme Court in the case of R. Rathinavel Ghettair v. V. Sivaraman, (1999)4 S.C.C. 89 held as follows:-
Thus a "decree" has to have the following essential elements, namely:
(i) There must have been an adjudication in a suit.
(ii) The adjudication must have determined the rights of the parties in respect of, or any of the matters in controversy.
(iii) Such determination must be a conclusive determination resulting in a formal expression of the adjudication.
Once the matter in controversy has received judicial determination, the suit results in a decree either in favour of the plaintiff or in favour of the defendant. What is essential is that the matter must have been finally decided so that it becomes conclusive as between the parties to the suit in respect of the subject-matter of the suit with reference to which relief is sought. It is at this stage that the rights of the parties are crystalled and unless the decree is reversed, recalled, modified or set aside, the parties cannot be divested of their rights under the decree."
Therefore, the decree for divorce being passed in the present case, the appellant-wife would be entitled to the maintenance under Section 25 of the Act. The Hon'ble Supreme Court in Chand Dhawan v. Jawaharlal Dhawan, (1992-2)102 P.L.R. 114 (S.C.), considered the question whether payment of permanent alimony is admissible without the relationship between the supposes being terminated. In the said case the wife filed an application for grant of permanent alimony under Section 25 of the act, after the joint petition of grant of divorce by mutual consent had been dismissed as withdrawn. It was held that in those circumstances, the applicant was not entitled to permanent alimony. However, while considering the said question the Hon'ble Supreme Court made the following observations:-"
.....under the Hindu Marriage Act,in contrast, her claim for maintenance pendente Site is durated on the pendency of a litigation of the kind envisaged under Sections 9 to 14 of the Hindu Marriage Act, and her claim to permanent maintenance or alimony is based on the supposition that either her martial status has been strained or affected by passing a decree for restitution of conjugal rights or judicial separation in favour or against her, or her marriage stands dissolved by a decree of nullity or divorce, with or without her consent. Thus when her martial status is to be affected or disrupted the court does so by passing a decree for or against her. On or at the time of the happening of that event, the court being seized of the matter, invokes its ancillary or incidental power io grant permanent alimony. Not only that, the court retains the jurisdiction at subsequent stages to fulfil this incidental or ancillary obligation when moved by an application on that behalf by a party entitled to relief. The court further retains the power to change or alter the order in view of the changed circumstances. Thus the whole exercise is within the gambit of a diseased or a broken marriage. And in order to avoid conflict of perceptions the legislature while codifying the Hindu Marriage Aci preserved the right of permanent maintenance in favour of the husband or the wife, as the case may be, dependent on the court passing a decree of the kind as envisaged under Section 9 to 14 of the Act. In other words without the martial status being affected or disrupted by the matrimonial court under the Hindu Marriage Act the claim of permanent alimony was not to be valid as ancillary or incidental to such affectation or disruption."
Therefore, in the light of the above observations of the Apex Court, the appellant-wife is entitled for maintenance. Accordingly, the quantum of grant of permanent alimony to the wife can be considered.
21 It has come in evidence thai the respondent is a bank employee and he is in service. Besides, the appellant herself stated that she used to do labour work in the village. In this view of the matter, the respondent having the means to maintain his wife is liable to pay her permanent alimony. In Kiran Mandal's case (supra) relied upon by the appellant, the husband was directed to deposit a lump sum amount of Rs. 1,20,000/-while passing a decree for divorce in his favour. The question of quantum of maintenance is to be determined from the facts and circumstances of each case. In the present case, it may be noticed that the appellant before the learned trial Court had filed an application under Section 24 of the Act for grant of maintenance pendente lite. It was the admitted position that the respondent was working as a clerk-cum-cashier with the Punjab National Bank, at Jalandhar city. The respondent had placed on record a certificate dated 22.7.1988 issued by the bank giving details of his salary. The total gross monthly salary of the respondent at that time was Rs. 1990.20 and by making deductions of Rs. 552.47, the net payable was Rs. 1437.73. The learned trial Court recorded consent statements of the parties fixing the maintenance amounting to Rs. 375/- p.m. and Rs. 500/- as litigation expenses vide order dated 2.8.1988.
22. The ratio of this maintenance comes to about l/5th of the gross monthly salary received by respondent husband at that time in 1988. As already noticed above, the respondent was getting gross salary of Rs. 1990.20 per month and l/5th of this amount comes to Rs. 398/-. The maintenance granted by the learned trial Court with the consent of the parties was Rs. 375/- per month. Taking cue from this it would be just and expedient that the respondent is directed to pay appellant l/5th of his gross salary as on date. The permanent alimony can be fixed only at the time of passing the decree. The appellant has not made any application for grant of any maintenance pendente lite. Therefore, she cannot claim permanent alimony with retrospective effect. In case of changed circumstances, the parties are at liberty to move in terms of Section 25(2) and (3) of the act.
23. Consequently, the appeal of the appellant as regards divorce is dismissed. However, it is partly allowed insofar as grant of permanent alimony under Section 25 of the act is concerned. The respondent is directed to pay to the appellant 1/5th of his gross salary as on date as permanent alimony of the appellant from 1.3.2003 onwards, which shall be a charged against his salary and/or other emoluments including all other monetary benefits from service.
24. The judgment and decree under appeal are accordingly modified in the above terms. However, there shall be no order as to costs.
The copy of the judgment/decree be given to both the parties free of costs in accordance with Section 23(4) of the Act, and it be sent to the appellant by post.