Calcutta High Court (Appellete Side)
Sri Ashutosh Bandhopadhyay vs Smt. Mukta Bandhopadhyay on 31 July, 2018
Author: I. P. Mukerji
Bench: Amrita Sinha, I. P. Mukerji
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present :- Hon'ble Mr. Justice I. P. Mukerji
Hon'ble Justice Amrita Sinha
FMA 322 of 2016
Sri Ashutosh Bandhopadhyay
Vs.
Smt. Mukta Bandhopadhyay
For the Appellants :- Mr. Somnath Mukherjee,
Ms. Papiya Shaw.
For the Respondent :- Mr. Supriyo Chattopadhyay,
Ms. Paromita Dutta.
Judgement On :- 31.07.2018
I. P. MUKERJI, J.:-
In 2008, a suit under Section 13 of the Hindu Marriage Act, 1955 was
instituted by the appellant/husband against his wife, the respondent in the
Court of the learned District Judge, Hooghly. Here, he made very serious
charges of adultery and desertion, against her. He said that they were
married on 19th May, 1995 according to Hindu rites and custom. The
marriage was short lived. It lasted a little over one year. On 2nd July, 1996,
a male child Souvik, was born to them. On 31st July, 2006 the wife left the
matrimonial home along with Souvik. The husband alleged that while he
and his wife lived together, his junior colleague started visiting his house.
The respondent developed intimacy with him. She left the matrimonial
home to live with him.
Prior to this suit, the appellant instituted a suit asking for restitution of
conjugal rights. This suit was filed before the Additional District Judge, 1st,
Fast Track Court, Hooghly. The wife did not contest it. On 18th October,
2006 the appellant obtained a decree in his favour. The respondent never
returned to him.
The present suit by the husband for dissolution of marriage by a decree of
divorce was also not contested by the respondent wife. The appellant gave
evidence and on that basis the learned judge of the court below held that he
had been able to prove his case of adultery and desertion.
On 16th January, 2009 an ex parte decree was made. She made an
application under Section 125 of the Criminal Procedure Code claiming
maintenance for herself and the son. The son got a maintenance order but
his mother did not. We are not concerned with that application.
In 2012, she made an application to the learned District Judge, Hooghly,
under Section 25 of the Hindu Marriage Act, 1955 claiming permanent
alimony for herself and her son. In this proceeding her claim for
maintenance was very seriously opposed by the appellant's counsel. He
argued that in the matrimonial proceedings it had been established that the
respondent had been living in adultery. Even after dissolution of the
marriage she was living in that way, with her husband's colleague. For this
reason her alimony pendente lite application, under Section 24 of the said
Act was rejected, he aruged.
However, learned Counsel was not able to draw the learned judge's
attention to all the parts of Section 25 of the said Act. Neither could he cite
any relevant authority before that Court.
The learned District Judge, Hooghly, allowed the Section 25 application on
15th January, 2015 directing the appellant to pay a lumpsum of
Rs.14,00,000 as permanent alimony to the respondent and maintenance
amount for the son.
The husband appeals to this Court.
A number of authorities has been cited before us. Moreover, a
supplementary affidavit has also filed with the leave of the Court in which
the income tax returns of the respondent have been annexed from where it
may be argued that the she has a monthly income of not less than
Rs.20,000/-.
Now, it is time to take a look Section 25. It is reproduced below:
"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
6 [***] 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]."
The grant of permanent alimony under Section 25 of the said Act is subject
to conditions. If the Court is satisfied under Section 25(3) thereof that the
wife has remarried or has not remained chaste, it might modify or rescind
the order of maintenance. It follows that if on the date of making the initial
order for maintenance the respondent is able to prove that the applicant
wife has been unchaste or has remarried, the Court would not grant any
maintenance to her or order a reduced sum.
The word "unchaste" has been defined in the Oxford English Dictionary as
"relating to or engaging in sexual activity, especially of an illicit or
extramarital character". The accepted notions of chastity or unchastity
must change with time. What was unchaste conduct a century ago may not
be so today. But I need not dwell on the modern ideas on the subject,
because adultery is certainly unchaste conduct even today and the
respondent is proved to have been living in adultery.
Is she entitled to maintenance from her husband?
A learned Single Judge of this Court in Amar Kanta Sen vs Sovana Sen
And Anr. reported in AIR 1960 Cal 438 held that even an unchaste wife is
entitled to minimal maintenance from the husband, to save her from
starvation, on the condition that she would not be unchaste in future. This
case followed the English decision of Ashcroft Vs. Ashcroft and Roberts
reported in 1902 Probate 270. However, in Sachindra Nath Biswas vs
Sm. Banamala Biswas, decided a few weeks later and reported in AIR
1960 Cal 575, a division bench of this Court held that where the wife was
proved adulterous she was forever not entitled to any maintenance. Amar
Kanta Sen vs Sovana Sen And Anr. was not cited before the division
bench. Other High Courts have interpreted the section in a slightly different
way by ruling that unchastity by itself is not a ground to altogether refuse
maintenance under Section 24 or 25 of the said Act but is a factor taken
into account to decide the amount of maintenance. (See also Umesh Chand
Sharma Vs. Rameshwari Devi reported in AIR 1982 Rajasthan 83.)
In Yogeshwar Prasad Vs. Smt. Jyoti Rani reported in AIR 1981 Delhi 99
a learned Single Judge of the Delhi High Court held that unchastity of the
wife might determine the amount of maintenance but the same could not
be refused on that ground.
In Kaithakulangara Kunhikannan Vs. Nellatham Veettil Malu reported
in AIR 1973 Kerala 273, a Division Bench of the Kerala High Court
following Amar Kanta Sen vs Sovana Sen And Anr. reported in AIR 1960
Cal 438 ruled that an unchaste wife was entitled to subsistence allowance.
It held that Section 25 gave a discretion to the Court to order maintenance
amount payable to the wife proven to be unchaste.
A division bench of the Bombay High Court in Gulab Jagdusa Kakwane
Vs. Kamal Gulab Kakwane reported in AIR 1985 Bombay 88 laid down
the following dictum.
"4. The scheme and provisions of S. 25 as we have analysed above, show
that an applicant is entitled to maintenance under sub-s. (1) thereof
notwithstanding the kind of matrimonial decree that is passed and the
ground on which it is passed. A decree passed and the against the applicant
on the ground of unchastity is no bar to his or her claiming maintenance
either at the time of passing such decree or any time subsequent thereto. The
Court has ample discretion to grant or refuse maintenance, and the extent to
which to grant the same, depending on the facts and circumstances of each
case. The legislature did not intend to lay down a rule that in all cases there
the claimant has been proved to be unchaste., he or she should be denied
maintenance. On the contrary, the legislative approach on the subject
appears to be liberal, reformative and conciliatory. The legislature had to be
pragmatic on the subject since all acts of unchastity cannot be painted with
the same brush. In one case, a single fall from virtue may brand a person
unchaste while a persistent unchaste conduct in other case may remain
unnoticed for a long time. Similarly, a person may become a victim of a
helpless or an uncontrollable situation in one case while another case may
reveal a defiant debaucherous conduct. There may be cases where the
opponent is directly or indirectly a contributory party to the unchaste conduct
of the applicant. The circumstances in which decree on the ground of
unchastity are passed may also differ from case to case. No two situations
are comparable much less similar. Life is complex and human behaviour
inscrutable and complicated. What is mare, in a country like ours inhabited
by social groups with diverse social mores, customs and practices, ethical
norms, moral concepts and cultural patterns, no uniform standard of
personal and social conduct including that of matrimonial fidelity can be laid
down. Much less can such conduct be judged by a single norm. This
consideration appears to have weighed with the legislature in refraining from
being dogmatic on the subject, and in adopting a realistic approach in the
matter. The deliberate change in the language brought about by the
amendment amply proves the said intent. Hence, according to us, however
repugnant or repulsive may appear the idea to a mind traditionally steeped
in one set of moral code, the section does not disentitle a party to
maintenance even if a decree is passed against him or her on the ground of
unchastity."
This case considered Amar Kanta Sen vs Sovana Sen And Anr. reported
in AIR 1960 Cal 438. It also took into account the later division bench
judgment of this Court in Sachindra Nath Biswas Vs. Smt. Banamala
Biswas reported in AIR 1960 Cal 575.
I think that after the amendment of Section 25(3) of the said Act with effect
from 27th May, 1976 where the legislature took a liberal view of giving the
Court a discretion either to rescind or to modify an order of maintenance
upon, inter alia, unchaste conduct of the wife, even on proof of unchastity
of the wife, the Court can order a subsistence maintenance amount to be
paid to her. Our Division Bench decision in Sachindra Nath Biswas Vs.
Smt. Banamala Biswas reported in AIR 1960 Cal 575 is impliedly
overruled by this amendment.
The respondent did not obey a decree for restitution of conjugal rights made
on 19th October, 2006. The learned Judge while pronouncing the ex parte
decree of divorce to which the wife deliberately subjected herself, accepted
the evidence of the husband that the wife eloped with his colleague and
since then has been living in his house.
Whether the respondent wife was leading an adulterous life is an issue
closed by the finding of the Court below trying the matrimonial proceedings
for dissolution of marriage, answering it in the affirmative. In other words,
the said finding is binding upon them or res judicata. In our opinion, the
said finding of fact is a bar to regurgitation of the self-same issue in this
proceeding. The court below, in the matrimonial proceedings for dissolution
of marriage, had also come to a finding that the respondent had deserted
her husband.
As I have observed before, living in adultery is unchaste conduct. Having
lived in adultery at the time of the divorce which was duly proved before the
matrimonial court, in my opinion, the respondent wife is not entitled to any
maintenance. Moreso, because she has a reasonable income. Although in
all probability she continued to live with her husband's colleague, even
after the divorce, I would not call it adultery because after the divorce the
matrimonial relationship ceased. Whether it could still be said that the
respondent was living in adultery or was unchaste was neither raised nor
argued before us. I do not express any opinion on the conduct of the
respondent after the divorce. However, the respondent is entitled to
reimbursement of the expenses incurred by her in bringing up Souvik upto
the age of majority.
In those circumstances I dispose of this appeal by setting aside the order
under appeal and directing the Registrar General to encash the sum of
Rs.5,00,000/- lying with him further to an order passed by this Court and
handover the entire sum with interest to the respondent as a settled
onetime lump sum payment of her claim for reimbursement of the amount
expended by her for bringing up Souvik within two weeks of communication
of this Order. The son is now 22 years of age and is no longer entitled to a
maintenance order. I have also taken into account the sum paid or being
paid by the appellant under Section 125 of the Code of Criminal Procedure,
to the respondent and Souvik as maintenance.
(I. P. MUKERJI, J.)
Amrita Sinha, J.:-
The appellant/husband obtained an order of divorce against the
respondent/wife on the ground of desertion and adultery. The wife though
initially contested the matrimonial suit no. 89/08 but thereafter did not
take any steps therein. The suit was ultimately decreed ex parte on
16.01.2009.
On the date of the decree the child (son) of the parties was a minor and the
wife was receiving Rs. 2,500/- only per month as maintenance on account
of her son pursuant to an order passed under section 125 Cr.P.C. In the
matrimonial suit the learned Court below recorded in its order dated
25.09.2008 that there is nothing on record to show that any amount more
than that is required for the minor child. The Court held that the said
amount was reasonable for maintenance of the child. The learned Court
below further held that the wife had left her matrimonial home on her own
accord and she had been residing with another person for which the suit
praying for restitution of conjugal rights being MAT Suit No. 492 of 2006
filed by the husband was also decreed ex parte. So, the facts and
circumstances of the case and the conduct of the wife do not suggest that
she is entitled to get any money towards alimony pendent lite or litigation
costs. Both the decrees not being appealed against attained finality.
The instant appeal arises out of the Misc. Case No. 71/2012 filed by the
wife under section 25 of the Hindu Marriage Act (herein after referred to as
the Act) praying permanent alimony and maintenance for herself and her
son who was born on 02.07.1996. The husband filed objection in the said
Misc. Case. The learned Court below vide order dated 14.01.2016 decreed
the said case and directed the husband to pay lump sum of Rs. 14 lack as
one time permanent alimony to the wife and her son. In the instant appeal
the husband challenged the said grant by the learned Court below.
The primary thrust of the appellant/ husband is that as their marriage had
been dissolved by a decree of divorce on the ground of desertion and
adultery the wife is not entitled to any maintenance. He relies upon the
following cases in his support:-
i) Amar Kanta Sen v. Sovana Sen AIR 1960 Cal 438.
ii) SachindraNath Biswas v. Banamala Biswas AIR 1960 Cal 575.
iii)Raja Gopalan v. Rajamma AIR 1967 Ker 181.
iv) Sardari Lal v. Vashano AIR 1970 (J&K) 150.
v) Sunita Singh v. Rajbahadur Singh and Anr. AIR 1999 Allahabad 69.
vi) DebnarayanHaldar v. AnushreeHaldarAIR 2003 SC 3174.
In Sachindra Nath Biswas (supra) this Hon'ble Court held that in the
exercise of judicial discretion expressly vested in Courts of law under
section 25 (1) of the Act, a judge should, unless there be very special
grounds, leave a wife, divorced on the ground of proved unchastity or
adultery to the resources of her immorality and deny her the lawful means
of support by passing a decree of maintenance in her favour. The Hon'ble
Court set aside the order for maintenance passed in favour of the wife but
allowed maintenance in favour of the minor daughter, specifically holding
that there is unrebutted evidence to the effect that the wife was living in
adultery even at the time when the case was being heard. Thelearned
District Judge should not have made any order for maintenance in favour
of the wife.
In Amar Kanta Sen (supra), this Court relied upon the case of Ashcroft v.
Ashcroft and Roberts (IN 1902 P. 270) wherein it was held that the Court
has an absolute discretion in it by the Section (Section 32 of the
Matrimonial Causes Act 1857) to be exercised according to the
circumstances of each case. It will order the husband to secure a provision
for his guilty wife if the wife is proved to be entirely without means of
support and unable, through ill health, to earn her living. The Hon'ble
Court held that the wife is entitled to bare subsistence allowance or
starvation allowance. When she is earning a living and not in helpless
position, her right to maintenance, even of the bare subsistence allowance,
disappears, for the allowance is meant to prevent 'starvation'.
In Raja Gopalan (supra), the learned Judge of the Kerela High Court
declined to adopt the reasoning of thelearned Judge in the case of Amar
Kanta Sen (supra). The Court observed that a party has to establish a right
under section 25 (1) to be awarded maintenance. If that right is established
then the question will only be regarding the quantum of maintenance. If
there is no such legal right, by whatever term we may call it, allowance,
starving maintenance, or similar expressions, such award will be opposed
to the provisions of the Statute. Kerala High Court specifically in very clear
terms held that the wife will not be able to claim maintenance if she was
unchaste.
The High Court of Jammu and Kashmir in Sardari Lal (supra) set aside the
decree for maintenance of the wife on the ground of her unchaste and
adulterous life.
The Allahabad High Court in Sunita Singh (supra) held that the wife was
not entitled to permanent alimony as she had illicit relation with a person
outside her marriage.
I refrain from dealing with the judgement of Debnarayan Haldar (supra) as
the same had been passed on a different perspective which is not applicable
in the instant case.
Section 25 of the Act has already been set out in the judgement delivered
by my brother Mukerji, J.
The conduct of the parties and other circumstances of the case are extremely important and relevant factors that are to be taken into consideration at the time of passing order under section 25 of the Act. The learned Court below, in my opinion, did not take into consideration the aforesaid factors at the time of passing the impugned order and decree. Though the issue opposing grant of permanent alimony was raised by the husband, the learned Court below without dealing with the same proceeded to deliver its judgement on the basis of 'acceptable principles of law while considering petition under section 25 of the Act'. The learned Court below observed that if a Court is satisfied that the wife, after divorce, remains unmarried and prays for maintenance for the children, the Court can grant such prayer of maintenance to the wife. The learned Court below observed that though the learned Counsel appearing for the husband opposed the prayer for permanent alimony to the wife, he could not come up with any material to establish the fact that the wife has remarried or having substantial source of income to lead a comfortable life and/or to rear up the child which was admittedly born from the wedlock of the parties.
While considering the above facts the learned Court below completely missed and overlooked to take into consideration the mandate of the provisions of section 25. As already mentioned earlier, the conduct of the parties and the circumstances of the case have not been considered at all by the learned Court below.
It is an admitted fact that the husband filed the suit praying for restitution of conjugal rights which was decreed in his favour on 17.11.2006. As the order for restitution was not complied by the wife the husband was compelled to file the suit for divorce which was ultimately decreed on 16.01.2009. Both the suits had been filed by the husband alleging adultery and desertion on the part of the wife.
The husband is an employee of the Railway Protection Force. The wife lodged a complaint against the husband and the husband lodged a complaint against one Bhaskar Jyoti Bandopadhyay, a junior member of the Railway Protection Force for enticing and eloping with his wife. Both the complaints were filed before the official department of the husband. On receipt of the said complaints the Chief Security Commissioner, Railway Protection Force, Eastern Railway conducted a detailed enquiry. Vide order dated 06.10.2006 the Chief Security Commissioner came to the specific finding that the allegations levelled against the husband by the wife was totally false and ill-conceived, whereas, the complaint of the husband against the constable Bhaskar Jyoti Bandopadhayay was genuine and factually correct. The Chief Security Commissioner came to the aforesaid conclusion after examining the evidence of at least seven witnesses who had deposed during the enquiry.
The facts of the instant case clearly indicate that the marriage between the parties came to an end due to the unfaithful conduct of the wife. Had the wife not been guilty of adultery then may be the holy bond of marriage could have been saved. The immoral act of the wife led to the breakdown of the marriage and the family fell apart. Since the wife took the son along with her the husband remained bereft of the love and affection of the son, similarly the son was also left craving for love, care and affection from his father.
The legislature thought it wise to incorporate 'conduct of the parties and other circumstances of the case' as factors relevant for the purpose of grant of maintenance to an applicant. The Act does not provide for grant of permanent alimony and maintenance to each and every applicant who files a case under section 25 of the Act. The objective of incorporating the aforesaid conditions would be rendered redundant if the same are ignored and order for permanent alimony and maintenance is passed in all cases. The aforesaid are determining factors which should compulsorily be looked into at the time of consideration of applications under section 25 of the Act. Kerala High Court categorically observed that if a subsequent conduct of the wife can form the basis for cancellation of an order passed under section 25 (1), then unchastity of the wife must and should be taken into account even at the first instance when an order is being passed under section 25 of the act.
In the present case the order for restitution of conjugal rights and divorce were passed on the ground of adultery and desertion. The report of the domestic enquiry conducted by the Chief Security Commissioner, Railway Protection Force held the wife to be adulterous and unchaste. The wife never appealed against any of the aforesaid orders. Granting permanent alimony and maintenance to such a wife would surely amount to give premium to the act of unchastity.
In modern society marriages are broken on various grounds, adultery and/or immorality being one of them. Awarding permanent alimony and maintenance to an applicant without consideration of the mandate of the section regarding 'income and property of the parties, conduct of the parties and other circumstances of the case' would, in my opinion, be contrary to the provisions laid down for such grant. Bigamy being an offence in our country and punishable under law unchastity should also be viewed as a negative factor for passing order under section 25 of the Act. In none of the cases referred above does the Court come to a finding that an order under section 25 is to be passed on mere filing of an application for the same. In fact, way back in the 1960s the Hon'ble judge rejected the order for grant of maintenance to an adulterous wife in the case of Sachindra Nath Biswas (supra) and also in the case of Raja Gopalan (supra). In Amar Kanta Sen (supra) the Hon'ble Court held that as the wife had joined service, she was not entitled to any allowance.
The appellant/ husband obtained leave from this Court and filed supplementary affidavit annexing copy of the income tax return filed by the wife for the assessment years 2009-10, 2014-15 and 2015-16 to prove that the wife had a steady source of income and was not entitled to receive any maintenance from the husband.
From the discussions made herein above, in my considered opinion, the conduct of the wife disentitles her to receive any amount as permanent alimony and maintenance under section 25 of the Act. Moreover the income tax returns of the wife proves that she has an independent source of income and the same stands in the way of granting an order of maintenance in her favour. However, it is true that the son remained with the wife and she must have made necessary expenses for his upbringing and education. Even though the wife is not entitled to maintenance as held herein above, the son who was a minor on the date of making the application under section 25 is entitled to the same. Keeping in mind the income of the husband, the sum of rupees five lakh which had been deposited by the appellant before the Registrar General of this Court pursuant to interim order passed in the instant case would be sufficient reimbursement of the amount spent by the wife in bringing up her son.
The Registrar General is directed to hand over the aforesaid sum of rupees five lakh along with interest accrued thereon to the respondent/wife as one time full and final settlement of the maintenance claim for her son.
The impugned order and decree passed by the learned court below is set aside. The appeal is allowed to the extent indicated herein above.
Ordering part shall be as per judgment and order of Mukerji, J.
There will however be no order as to costs.
Urgent certified photocopy of this judgment, if applied for, be supplied to the parties or their advocates on record expeditiously in compliance of usual legal formalities.
(Amrita Sinha, J.)