Allahabad High Court
Smt. Poonam Gupta vs Ghanshyam Gupta on 9 October, 2002
Equivalent citations: AIR2003ALL51, 2003(1)AWC36, I(2003)DMC467, AIR 2003 ALLAHABAD 51, 2003 ALL. L. J. 385, 2003 A I H C 1392, (2003) MATLR 292, (2003) 2 MARRILJ 406, (2003) 1 CURCC 133, (2003) 1 ALL WC 36, (2003) 1 DMC 467, (2003) 1 ALL LR 53, 2003 ALL CJ 1 737
Author: Vineet Saran
Bench: G.P. Mathur, Vineet Saran
JUDGMENT Vineet Saran, J.
1. These two appeals arise out of the same Judgment and order dated 30.3.2001 passed by the Principal Judge, Family Court, Kanpur Nagar. By the impugned order, the suit for divorce under Section 13 of the Hindu Marriage Act (hereinafter referred to as the Act) filed by the husband Ghanshyam Gupta has been allowed on the condition that the plaintiff Ghanshyam Gupta pays a sum of Rs. 5,00,000 for the maintenance of his wife and daughter. The First Appeal No. 307 of 2001 has been filed by the wife Smt. Poonam Gupta praying for setting aside the judgment and order dated 30.3.2001 and to dismiss the suit of the plaintiff, whereas the other First Appeal No. 350 of 2001 has been filed by the husband Ghanshyam Gupta praying for setting aside that part of the judgment and order whereby it directs the appellant Ghanshyam Gupta to pay Rs. 5,00,000 as maintenance allowance.
2. The brief facts of this case are that the plaintiff Ghanshyam Gupta got married to the opposite party Smt. Poonam Gupta on 24.11.1993. Out of the wedlock, a daughter was born on 2.12.1994. On the allegations of cruelty by the wife, on 22.5.1995, the plaintiff filed a petition under Section 13 of the Hindu Marriage Act praying for a decree of divorce. According to the allegations in the plaint, after the marriage, the plaintiff had taken full care of the opposite party and had also taken her to various places for holiday. Later when they returned home, it was revealed that the opposite party was not prepared to do any domestic work and used to tell the plaintiff and his family members that all such domestic work was done by servants at her mother's place and thus expressed her inability to do the same. It was also alleged that she refused to meet his relatives and used to misbehave with the family members. Further, it was alleged that even though the marriage of plaintiffs sister was fixed for 5.11.1994, the opposite party went away to her mother's place on 15.10.1994 and did not turn up to attend the marriage. Due to these actions of the opposite party, it was alleged by the plaintiff that he had to face humiliation amongst his relatives, friends and others. Contending that all these acts of misbehaviour amounted to cruelty by the wife, the plaintiff prayed for a decree of divorce.
3. An ex parte decree of divorce was passed on 5.5.1997. On coming to know of the said ex parte decree, the opposite party filed an appeal challenging the said order, which was registered as First Appeal No. 237 of 2000. The Division Bench hearing that appeal had made efforts for reconciliation and in fulfilment of such objective, the parties were required to appear before the Bench. Although the opposite party-wife, had made a statement that she would like to reside with her husband, but the plaintiff husband had expressed his inability to live with the opposite party. He even stated that after the passing of the ex parte decree, he had performed another marriage with one Sunita Gupta through whom they had a son. After arriving at a conclusion that the reconciliation was not possible, the Bench heard the matter on merits and allowed the appeal with a direction to the Principal Judge. Family Court, Kanpur Nagar to dispose of the suit expeditiously. In the said judgment dated 14.7.2000. the Division Bench also observed that during the process of reconciliation, the plaintiff-husband had made an offer to settle the entire dispute with the opposite party-wife, for which he was prepared to pay a sum of rupees five lakhs. However, since the same was not acceptable to the opposite party-wife, no settlement could be arrived at even on such terms.
4. After remand of the case, the opposite party-wife filed her written statement admitting the fact of the marriage on 24.11.1993. However, she denied the allegations that she was not performing her duties at her matrimonial home at Kanpur. On the contrary, she stated that she was discharging her part of matrimonial obligations and was rendering her services throughout by looking after the household, serving her in-laws and husband and performing all necessary social obligations. She also denied that she ever refused to meet the family members and relatives of the plaintiff. As regards her absence at the time of marriage of the plaintiffs sister, she stated that the marriage was performed on 5.12.1994 and not on 5.11.1994. She further stated that prior to the said marriage, she had gone to her mother's place because she was due for delivery. Since there was complication in the pregnancy and as proper care was not being taken by her In-laws, she went to her parent's house at Sasaram for delivery of the child. However, close to the time of delivery, as further complications had arisen which could not be tackled at Sasaram, on medical advice she was shifted to a nursing home at Lucknow where she delivered a female child on 2.12.1994. It was stated that in these circumstances, she was unable to attend the wedding of her husband's sister on 5.12.1994. There were also counter allegations by her that her husband used to cause physical assault and behaved abnormally in a barbaric manner and used to abuse her with filthy and obnoxious language in a vociferous manner. It was also alleged that she was virtually thrown out of the house by her husband and in-laws before delivery of the child. It was stated by the opposite party wife that despite having given information to the plaintiff and other members of his family about the birth of a female child, no one attended or even came to see her and the child. In the additional pleadings, it was mentioned that in September, 1997, she had got a complaint case registered against her husband, father-in-law, mother-in-law and brother-in-law under Sections 498A, 323 and 504, I.P.C. as well as Sections 3 and 4 of the Dowry Prohibition Act. In response to the said complaint, the plaintiff husband, his brother and father were arrested and were brought from Kanpur to Sasaram where they remained in jail. The husband remained behind bars for sixty three days before he was granted bail and the other two were released on bail after about twenty to twenty five days. It was further stated that after the delivery of the child, when she regained normal health, she went back to her in-laws place in the month of April, 1995 and on the condition that a Maruti car would be made available to them, they allowed her and the child to stay with them. Consequently, a Maruti car No. U.P. 78G-9151 was given to the plaintiff by the brother of the opposite party. It has been further alleged that despite the car having been given, the plaintiff and his family members continued to demand further dowry of Rs. 2,00,000 and tortured her both mentally and physically. However, it was alleged that in the month of May, 1997, she was again thrown out of the house by her in-laws and thus she returned back to Sasaram, her parent's house. It was also stated that after the filing of the complaint in September, 1997, the Maruti car was seized from the possession of the plaintiff and was released in favour of the brother of the opposite party.
5. The trial court recorded the statement of the plaintiff who reiterated the plaint allegations. He further mentioned that after the ex parte decree was passed on 5.5.1997, he had remarried in July, 1997 and had two children from the subsequent marriage. He also stated that in the complaint case filed by the opposite party wife under Sections 498A, 323 and 504, I.P.C. and the Dowry Prohibition Act, he had to remain in jail for over two months and his brother and father were jailed for about 20 to 25 days and because of the influence of the brother of the opposite party, who is an advocate at Sasaram, they could not be granted bail easily. It was stated by him that because of the action of the opposite party and her family members, he was greatly troubled mentally as well as physically and specially after having remained in jail for more than two months on the complaint of the opposite party, it was now impossible for him to stay with the opposite party. In his statement, he has categorically asserted that in the circumstances, he was left with no other option except for divorce. In support of his case, the father and brother of the plaintiff were also examined as witnesses who also reiterated the plaint case.
6. The statement of the opposite party Smt. Poonam Gupta was also recorded by the trial court and she reiterated the allegations made by her in the written statement. She also alleged that despite having performed all the marital obligations and her good behaviour at her in-laws place at Kanpur, she was always treated badly by her husband and in-laws. She had denied that her husband had remarried after the ex parte decree and stated that she is still prepared to live with the plaintiff. In support of her case, her brother and one Prem Chand Gupta were also examined who also reiterated the case set out by the opposite party wife.
7. After considering the contentions of the learned counsel and the evidence adduced by the parties, the trial court came to the conclusion that the plea of cruelty of the opposite party-wife as against the plaintiff husband could not be proved. But considering the fact that since both the parties have made allegations and counter allegations against each other and the matter had further precipitated after filing of a criminal complaint and the arrest of the plaintiff-husband as well as his father and brother, it was not practically possible for the plaintiff and the opposite party to live together as husband and wife. Even though no application was filed under Section 27 of the Hindu Marriage Act, still considering the statement recorded by the Division Bench of this Court on 14.7.2000, while deciding the First Appeal against the ex parte decree, since it had come on record that the plaintiff was prepared to pay a sum of rupees five lakhs to the opposite party-wife for settling the matter, the learned trial court passed a conditional decree of divorce subject to payment of Rs. 5,00,000 to the opposite party-wife by the plaintiff for her maintenance and that of their daughter.
8. We have heard Sri Rajesh Tandon, learned senior counsel assisted by Sri Some Narayan Mishra for the wife Smt, Poonam Gupta, as well as Sri Ramendra Asthana, learned counsel for the husband Ghanshyam Gupta, at length.
9. During the hearing of these appeals, we had once again made efforts for reconciliation between the parties. On 9.5.2002, both the parties appeared before us. We found that the appellant Smt. Poonam Gupta was still keen to go and life with her husband but her husband Ghanshyam Gupta categorically stated that he was not prepared to life with her, mainly because of her misbehaviour as well as the fact that she had lodged a criminal complaint case against him and his family members because of which he, his father and brother had to remain in jail at Sasaram for a considerably long period. After having talked to the parties individually, as well as to both of them together, we found that reconciliation or settlement in any manner was not possible. Thus, we proceeded to hear both the appeals on merits.
10. Sri Ramendra Asthana, learned counsel for the husband Ghanshyam Gupta has strenuously argued that the behaviour of the wife Smt. Poonam Gupta was such that his client could not live with her as she used to regularly lower his position in public as well as before his family members. It was further urged that besides hot doing any domestic work at home, she used to misbehave with the family members and abuse them all ; she also threw tantrums by locking herself in the room and even threatened to commit suicide. Although these allegations have not been substantially proved by the plaintiff husband but still Sri Asthana urged that in the totality of the circumstances, because of the unusual and improper behaviour of the wife Smt. Poonam Gupta, the same amounted to cruelty and thus the plaintiff was entitled to a decree of divorce. He also submitted that the condition imposed by the trial court for payment of rupees five lakhs for the maintenance of wife and daughter is totally unreasonable and uncalled for as no such prayer was even made by the wife. Sri Asthana has further stated that because of the subsequent developments, as after passing of the ex parte decree of divorce, the husband had remarried and had children by the subsequent marriage, and also the conduct of the wife and her family members by lodging the criminal complaint and the subsequent arrest of the husband and his father and brother, the position had further aggravated and in such a situation it was not possible for the parties to live together as husband and wife.
11. Sri Rajesh Tandon, learned counsel appearing for the wife Smt. Poonam Gupta has contended that in the absence of any finding of cruelty, the decree of divorce under Section 13(1)(i-a) of the Hindu Marriage Act ought not to have been granted by the trial court. He has reiterated the stand taken by the wife that she was still prepared to go back and live with her husband even if he is remarried and has children, although the remarriage was not admitted by the wife.
12. In his statement before the trial court, the plaintiff husband initially only reiterated the allegations made in the plaint but was unable to give any concrete evidence to establish that the conduct of the opposite party wife actually amounted to cruelty. He then mainly narrated the developments subsequent to the filing of the suit, like the filing of the criminal complaint by the wife and he having thus been arrested along with his brother and father ; as well as his remarriage and he having two children from such marriage. Ram Sunder Gupta, father of the plaintiff was also examined as P.W. 2. He merely stated that the opposite party Smt. Poonam Gupta did not do the domestic work, like cooking, etc. and that she did not mix with the other members of the family and did not even attend the marriage of the plaintiffs sister. He further stated that she had filed a false criminal complaint against them. Vinod Kumar Gupta P.W. 3, brother of the plaintiff also deposed on the same lines. From the statements of the witnesses of the plaintiff, it appears that the main endeavour was not with regard to proving cruelty by the opposite party-wife but to show that the circumstances had been so created that now the two of them could not live together.
13. The opposite party wife in her deposition before the trial court, stated that the plaintiff had filed a false case for divorce by making wild and wrong accusations against her. She categorically asserted that it was not she who was cruel to her husband and in-laws, but on the contrary her husband and father-in-law used to torture her by abusing and beating her after getting drunk and her in-laws also used to harass her for dowry, like car and cash. The statements of her brother, Sushil Kumar (D.W. 2) and another relative, Prem Chandra Gupta (D.W. 3) were also on the same lines.
14. In the light of the facts as enumerated above and after having gone through the evidence adduced by the parties and hearing the counsel at length, we are in agreement with the finding recorded by the trial court that the plaintiff-husband was unable to prove the case of cruelty by his wife, as in the facts on record, .the same could not be established. However, on considering the totality of the circumstances and taking a pragmatic and practical approach that since there are allegations and counter-allegations of misbehaviour, physical and mental torture by both the parties, we find that it would not be actually possible for the two to live together. Besides this, there is also the fact that during the pendency of the petition for divorce, the husband has remarried and has two children. Coupled with this, due to the criminal complaint filed by the wife, the husband remained in jail for sixty three days and also his father and brother were jailed for twenty to twenty five days. Taking all these circumstances into consideration, we are of the opinion that the two parties cannot now live together as husband and wife.
15. While dealing with matrimonial cases, the Court has to strike a balance between the strict compliance of law and the situation emerging from the facts of the particular case. It is a totally different situation where the Court has to judge the rights of the parties with regard to certain property. But when the Court is to deal with human relationships, their lives and also their future living, it is obligatory on the part of the Court to consider whether the two persons whose matter is put before it, would in any way be benefited by the strict compliance of legal principles. We are duty bound to consider the welfare of the parties and come out with a workable solution. Under the scheme of the Act, dissolution of a marriage is normally the last option which the Court should exercise. But when a situation comes up, like the present one, where living together for the two of them is no longer possible or practical, directing the parties to live together as husband and wife would be totally meaningless. The purpose of continuance of such a marriage only for name-sake would be futile. In such circumstances, for all practical purposes, the marriage has become dead, both emotionally and practically, with no chances of revival. In the present case, even though the case of cruelty may not have been proved but as the facts emerging from the record clearly indicate that the living of the two as husband and wife would not only be difficult, but impossible, we are left with no alternative but to grant a decree of divorce.
16. While granting such prayer, even though there may not be an application for maintenance filed by the wife, the interest of the wife and the child would be of paramount consideration and ought to be taken care of by the Court. Such a direction for maintenance can be given by the Court under the provisions of Section 25 of the Act. During the discussions when the parties were called by us for the purpose of reconciliation, it has come to light that the plaintiff husband has a prosperous business. Taking advantage of the ex parte decree, he immediately remarried making a situation impossible for the wife to return and live together. In fact, the circumstances indicate that the plaintiff-husband was responsible in creating a situation in which the Court may not be left with any other alternative but to grant a decree of divorce, as under no circumstances, can the marriage now be retrieved. Considering the status of the families and the basic requirement for maintenance of the wife as well as the child, her education and upbringing, etc., we find that an 'amount of Rs. 5,00,000 as offered 'by the plaintiff-husband in the year 2000 before the Division Bench of this Court in the earlier appeal would be insufficient. Considering the depreciating value of money and the expenses incurred in running an average middle class household, In our opinion, an amount of Rs. 6,00,000 (rupees six lakhs) for the wife and further Rs. 2,00,000 (rupees two lakhs) for the child would be just and proper for their maintenance, so that the wife may not have to depend on her parents and brothers for the rest of her life.
17. Thus, we are of the opinion that the decree of divorce is liable to be confirmed, and we further consider it just and proper that a decree of Rs. 8,00,000 (rupees eight lakhs) be also passed against the plaintiff-husband and in favour of the opposite party-wife, which amount shall be deposited by the plaintiff Ghanshyam Gupta in the trial court within four months from today.
18. In the result, the impugned judgment and decree of the Principal Judge, Family Court, Kanpur Nagar, is modified. The plaintiffs suit for divorce is decreed and the marriage is dissolved and the defendant is entitled to a decree of Rs. 8,00,000 (rupees eight lakhs). The plaintiff husband Ghanshyam Gupta, shall deposit Rs. 8,00,000 with the trial court within a period of four months from today, failing which the opposite party-wife Smt. Poonam Gupta shall be entitled to get the decree executed in accordance with law. Out of the said amount of Rs. 8,00,000, a sum of Rs. 6,00,000 (rupees six lakhs) shall be paid to the opposite party-wife, Smt. Poonam Gupta forthwith and the balance amount of Rs. 2,00,000 (rupees two lakhs) shall be transmitted by the trial court to the Court of District Judge, Sasaram, within three weeks of such deposit. The District Judge, Sasaram, shall place the said amount of Rs. 2,00,000 in fixed deposit in the name of the child, with a nationalised bank so as to fetch maximum interest. The interest accruing on such fixed deposit would be payable to the opposite party Smt. Poonam Gupta every six months, which would be spent by her for the maintenance of the child. The amount kept in fixed deposit shall be made available to the child on her attaining majority.
19. Both the appeals are decided in the manner as indicated above.