Jharkhand High Court
Rabindra Kumar vs Usha Devi on 5 March, 2014
Equivalent citations: AIR 2014 JHARKHAND 78, 2014 (2) AJR 427, (2015) 3 DMC 6, 2014 (2) JLJR 137, (2014) 137 ALLINDCAS 273 (JHA), (2014) 4 JCR 214 (JHA)
Author: R. Banumathi
Bench: Chief Justice, Shree Chandrashekhar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
F.A. No. 32 of 2004
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Rabindra Kumar ... ... ... Appellant
Versus
Usha Devi .... .... ... Respondent
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CORAM: HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
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For the Appellant : Mr. Jai Prakash, Senior Advocate
Mr. Prabir Chatterjee, Advocate
For the Respondent : Mr. Rohit Roy, Advocate
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C.A. V. On 25.02.2014 Pronounced on 5th of March,2014
R.Banumathi, C.J.
&
Shree Chandrashekhar, J.: This First Appeal is directed
against the judgment dated 28.07.2004 and the decree
signed on 06.08.2004 passed in T.M.S. Case No.181 of 2001
by which the Principal Judge, Family Court, Dhanbad,
dismissing the suit filed by the appellant-husband for a decree
of divorce under Section 13(1)(ia) of the Hindu Marriage Act,
1955 and a further direction was given by the court-below to
the appellant-husband to pay a sum of Rs.7000/- per month to
the respondent-wife from the month of July, 2004 which
included Rs.4000/-per month for the wife and Rs.3000/- per
month for the minor son, Lalan Kumar upto attaining age of
majority.
2. The case of the appellant-husband, in brief, is as
under:
(i) That the plaintiff/appellant-husband got married
with the defendant/respondent-wife on 20.05.1985
according to Hindu rites and customs. It was alleged by
the appellant-husband that after marriage the
respondent-wife came to his house however, seldom
2
lived with him because she was not adjusting with
him and used to insult him in various ways from time
to time in presence of his family members, friends
and neighbours. The appellant-husband disclosed
that out of the said wed-lock a son named Lalan
Kumar was born on 25.10.1988. The allegation put
forward by the appellant-husband was that he had no
relationship with the respondent-wife either physical,
mental or social, though she was living in his house
since last 13 years. The appellant-husband said that
he was bearing the entire cost of maintenance of his
wife and son. He was Probationary Officer in a bank
and always resided out of his house to maintain
peace in the family.
(ii) It has been further alleged in the plaint by the
appellant-husband that in his absence, the
respondent-wife developed physical relationship with
many persons. When she was in her advanced stage
of pregnancy of about seven months, he came to
know about the same on 19.08.2001. He was
shocked and surprised to see his wife pregnant
because there had been no physical relationship
between them. It has further been stated by the
appellant-husband that he raised objection and
pressurized the respondent-wife for D.N.A. test to
show and prove that she was not conceived from him,
but she became adamant and flatly refused to do so
3
and threatened him to implicate in false case with the
support of her family members and see him behind
bars. It was stated that it was impossible for him to
continue the marital relationship with her because of
her cruel behaviour and adultery. The appellant-
husband filed suit on 20.08.2001 seeking for a decree
of divorce against respondent-wife on the ground of
cruelty and adultery of the respondent-wife.
(iii) Later on, after instituting the plaint, the
appellant-husband on 20.10.2001, filed a specific
application before the Court below disclosing the
name of his father, namely, Raj Nandan Sharma
S/o Sakaldeep Singh as the adulterer stating that his
wife was very soon going to deliver a child out of the
alleged adultery.
3. On the other hand, the respondent-wife
appeared and filed her written statement before the Court
below. It was stated by her that the female child (alleged to
be illegitimate by the appellant-husband) was delivered by
her on 19.11.2001 out of the matrimonial relationship with
the appellant-husband but the said female child died on
07.12.2001. She specifically pleaded the paternity of the appellant-husband with respect to the said child. She explicitly said that she was willing for the D.N.A. test as proposed by the appellant-husband and inflicted counter allegations of torture, cruelty and adulterous relationship on the part of the appellant-husband. She further stated 4 that the appellant-husband had neglected her and their son and therefore, she asked for alimony pendente-lite under Section 24 of the Hindu Marriage Act, 1955. The respondent-wife has alleged that the appellant-husband left the house to live with some other lady to whom he wants marry.
4. The appellant-husband filed a rejoinder to the written statement wherein he denied his involvement with any other lady stating that the allegations are baseless, unfounded and only to strengthen her case, such counter allegations had been made by the respondent-wife.
5. On the basis of the pleadings of the parties, the Court below framed the following issues:-
I. Whether the case as framed is maintainable? II. Whether the respondent-wife treated the petitioner-husband with cruelty? III. Whether the respondent-wife had adulterous relationship rendering her pregnant as a result of that?
IV. Whether the petitioner-husband is entitled to a decree of divorce or to any other relief or reliefs?
6. Altogether three witnesses have been examined on behalf of the appellant-husband and two witnesses on behalf of the respondent-wife. Apart from the oral witnesses, the respondent-wife brought on record ten documents that is, Ext.A to Ext.-J in order to deny the allegation of adultery and to establish cruelty caused to her by the appellant-husband.
7. On trial, the learned Trial Court found that the 5 witnesses examined by the plaintiff did not support the allegation of cruelty and therefore, the learned Trial Court recorded a finding that the plaintiff has failed to prove the cruelty by the wife and accordingly, the issue was decided against the plaintiff. Trial Court held that the appellant- husband is proved to have been adulterous relationship with his widowed Bhabi (sister-in-law) Siyamuni Devi and that is the reason of matrimonial discord and separate living of the appellant from the conjugal home. The learned Trial Court found that the allegation of adultery on the part of the defendant-wife was not proved and accordingly, the issue was decided against the plaintiff. In view of the evidence recorded on the point of cruelty and adultery, remaining two issues were also decided against the plaintiff. The suit filed by the appellant was dismissed and the husband was directed to pay permanent alimony of Rs. 7,000/- per month from July, 2004 on account of maintenance of the wife and minor son namely, Lalan Kumar.
8. Being aggrieved by and dissatisfied with the dismissal of the matrimonial suit, the appellant-husband preferred this First Appeal. Mr. Jai Prakash, the learned Senior counsel appearing on behalf of the appellant has submitted that though, there was sufficient material on record and the circumstances in the case clearly indicated that the respondent-wife was pregnant on account of her adulterous relationship with her father-in-law in as much 6 as, she avoided to undergo D.N.A. test, the learned Trial Court ignored the materials on record and recorded erroneous finding that the plaintiff has failed to prove adultery on the part of his wife. It is submitted that the allegation of adultery levelled by the wife against her husband would amount to cruelty and therefore, cruelty by the defendant-wife was proved however, the learned Trial Court has committed a serious error in law in recording a finding that cruelty on the part of the wife has not been proved. It is further submitted that even after the suit for divorce has been dismissed, grant of permanent alimony under Section 25 of the Hindu Marriage Act, 1955, is a serious error in law committed by the learned Trial Judge and on that count alone, the impugned judgment and decree dated 28.07.2004/06.08.2004 is liable to be set aside and the appellant-husband is entitled for grant of decree of divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955.
9. It was contended on behalf of the appellant-husband that the respondent-wife was having illicit relationship with her father-in-law (husband's father), as a result of which, a female child was born who subsequently alleged to have died. It has also been submitted on behalf of the appellant-husband that it is admitted that since, 1996, the appellant-husband was residing separately in Topchanchi (a separate place from Dhanbad where the respondent-wife was living) and had no 7 physical relationship with the respondent-wife since, 1996 when he left his house for good. It has further been submitted that the Court below failed to take into consideration that criminal case filed by the respondent-wife and the Title suit filed by the father of the appellant-husband were instituted much after the filing of the divorce suit filed by the appellant-husband with an intention not to proceed with the divorce suit. It is contended on behalf of the appellant-husband that the Court below failed to take into consideration the depositions of the witnesses to establish the cruelty caused to the husband by the wife and also her illicit relationship with her father-in-law. It has also been submitted on behalf of the appellant-husband that he was an employee of Bank of India and the wife is a teacher who is working since November, 2011 and they are living separately for the last 18 years.
10. It has further been argued on behalf of the appellant-husband that after filing of the divorce suit on 20.08.2001 under Section 13(1)(ia) of the Hindu Marriage Act, 1955 on the ground of cruelty and adultery before the Court below, the plaintiff filed an application for the D.N.A. test on 20.10.2001 showing his apprehension that the wife may kill her child to get rid of allegation of adultery and the respondent-wife appeared in the suit on 21.12.2001 but did not file the written statement and when the Court afforded last opportunity to file the written statement, the 8 respondent-wife instead of filing the written statement filed an application under Section 24 of the Hindu Marriage Act on 15.02.2002. It has further been pointed out that on 08.03.2002 the prayer for D.N.A. test was renewed by the husband when the Court directed the respondent-wife to appear on 23.03.2002 and to file rejoinder, if any, to the application for D.N.A. test and finally the Court passed an order on the prayer for D.N.A. test on 06.06.2002 directing for D.N.A. test and also a sum of Rs.4000/- per month for the maintenance pendente-lite with a litigation cost of Rs.5000/-. The learned counsel appearing on behalf of the appellant-husband submitted that the respondent-wife although appeared in the Court on several dates in the Court starting from 21.12.2001 (for the first time) thereafter, on 10.01.2002, 08.02.2002, 15.02.2002, 21.02.2002, 25.02.2002 and 08.03.2002 but she never filed written statement nor any document of death and birth of child was produced nor she informed the Court about the birth and death of the female child and only on 17.06.2002 (after passing the order of D.N.A. test on 06.06.2002) the respondent-wife filed an application for review of the order dated 06.06.2002 disclosing the birth and death of the child. The aforesaid conduct of the respondent-wife would indicate that she wanted to avoid D.N.A. test and when the Court passed the order for D.N.A. test on 06.06.2002 she disclosed on 17.06.2002 about the birth and death of the child and lastly on 18.12.2003, the 9 respondent-wife filed written statement making counter allegations of torture and adultery against the husband stating that the appellant-husband had an illicit relationship with her sister-in-law (Bhabhi). It has further been contended on behalf of the appellant-husband that it has been admitted by the wife in her evidence in the Court that since April, 2001 they are not living together and thus the learned counsel appearing on behalf of appellant-husband advanced argument for grant of divorce on the ground of desertion as there was no physical relationship between them since last 13 years.
11. It has further been pointed out that the Court below has committed gross error in awarding permanent alimony of Rs.7000/- per month to the respondent-wife as it is settled law that permanent alimony can be granted when the judgment and decree results in dissolution of marriage and permanent alimony cannot be granted if the marital status is continued. It has also been pointed out that minor child, Lalan Kumar, towards him a sum of Rs.3000/- was awarded by the Court below for the maintenance was only till he attains the age of majority and now since he has become major as admittedly his date of birth was 25.10.1988, so he is not entitled for any maintenance. It has also been pointed out by the appellant-husband that the respondent-wife is now serving as a permanent Teacher in a Government school named 'Upgraded Middle School', Korawa in the District of Patna, 10 Bihar since November, 2011 and getting salary of Rs.22,550/- per month and therefore, respondent-wife is not entitled for any amount as permanent alimony or maintenance under the provisions of Section 25 of the Hindu Marriage Act, 1955. It has also been pointed out that all these facts have been admitted by the respondent-wife in her evidence in Dhanbad P.S. Case No.556 of 2001 corresponding to G.R. No.2883 of 2001.
12. Mr. Rohit Roy, the learned counsel appearing for the respondent-wife has submitted that none of the witnesses including the plaintiff himself has deposed before the Court making specific allegation of cruelty on the part of the respondent-wife and the allegation made by the appellant-husband against his wife would not amount to cruelty. It is further submitted that in so far as, the allegation of adultery is concerned, the suit was liable to be dismissed on account of non-joinder of necessary party in as much as, the alleged adulterer namely, Rajnandan Sharma, the father of the plaintiff was not made defendant in the suit. The learned counsel has further submitted that during the trial maintenance of Rs. 4,000/- on an application made under Section 24 of the Hindu Marriage Act, was awarded by the learned Trial Court and the same was enhanced to Rs. 7,000/-. Though, the learned Trial Judge has recorded that permanent alimony of Rs. 7,000/- is granted under Section 25 of the Hindu Marriage Act, in substance, the amount of Rs. 7,000/- has been awarded by 11 the learned Trial Judge for maintenance of respondent-wife and minor son of the plaintiff. On these grounds, the learned counsel for the respondent has supported the impugned order passed by the learned Trial Court in T.M.S. Case No. 181 of 2001 and prayed for award of cost.
13. The learned counsel appearing on behalf of the respondent-wife vehemently refuted the contentions of the appellant-husband that the wife did not undergo D.N.A. test as it would have established adultery on her part. It is submitted that the son is aged about 25 years and after doing Diploma in Engineering, he is unemployed and living with his mother. It has further been pointed out on behalf of the respondent-wife that she wants to live with her husband and the Court below has rightly found that there was neither cruelty nor adultery on the part of the respondent-wife and she is still ready to live with her husband but the husband did not want to live with his wife. It has also been argued on behalf of the respondent-wife that long separation is a forced separation as the husband himself is residing separately and alleged that the appellant-husband has not given maintenance to her wife since, 1996.
14. Having gone through the assertions set forth on behalf of the parties, this Court carefully examined the lower court records including entire documentary and oral evidences adduced on behalf of the parties and the impugned judgment.
12
15. Marriage of the the appellant-husband with the respondent-wife on 20.05.1985 is admitted. Out of the said wed-lock, one son was born to them on 25.10.1988 namely, Lalan Kumar. It is found that after the marriage, relationship between husband and wife became strained and various allegations and counter allegations were inflicted upon each other. The appellant-husband instituted the divorce suit vide T.M.S. Case No.181 of 2001 before the Principal Judge, Family Court, Dhanbad on the ground of cruelty and adultery alleged to have been committed by the respondent-wife. The respondent-wife is also said to have lodged criminal case of torture and cruelty against the appellant-husband vide Dhanbad P.S. Case No.556 of 2001 corresponding to G.R. No.2883 of 2001.
16. From the perusal of depositions of the witnesses including the appellant-husband adduced on his behalf, it is palpably clear that there is no specific allegation of cruelty alleged to have been caused to him by the respondent-wife. It was just sweeping allegations as evident from para 5 and 20 of the deposition of the husband-Rabindra Kumar. Thus, the statements made by the appellant-husband in the examination-in-chief do not disclose any incident about which the alleged allegations could be proved. It is just unspecified and general allegation without narrating any incident to infer about the alleged grounds.
17. As held in "Dr. N.G. Dastane v. Mrs. S. Dastane", 13 reported in (1975) 2 SCC 326, the Court has to enquire as to whether the conduct charged as cruelty is of such a character as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or injurious for him to live with the respondent. What was required was that the petitioner/appellant must prove that the respondent has treated the petitioner/appellant with cruelty that cohabitation will be harmful or injurious that the petitioner/appellant cannot reasonably be accepted to live with the respondent having regard to the circumstances of each case, keeping in view the character and condition of the parties, their status, environment and other relevant circumstances.
18. In the written statement the defendant-wife categorically denied the allegation that she did not adjust with the plaintiff-appellant and insulted him and treated him with cruelty. The respondent further stated that she always tried to live with the appellant peacefully but it is the appellant who, in the last few years, was torturing the respondent because he wanted to marry another lady. During trial the plaintiff-appellant examined himself as P.W.-1 and in his cross examination, he admitted that his wife wanted to stay with him but he was not willing to reside with her. The other two witnesses namely, Sanjay Kumar, who is brother of the widowed sister-in-law of the plaintiff and one Punam Devi, who was the maid-servant in the matrimonial house, did not depose anything in respect 14 of cruelty on the part of respondent-wife. In the absence of convincing evidence as to cruelty, the trial court rightly negatived the case of the appellant on the allegation of cruelty.
19. Learned Senior Counsel appearing for the appellant-husband submitted that the respondent-wife appeared in the court on 21.12.2001 and took number of adjournments for filing written statement and the respondent-wife had not earlier informed the court about the death of female child. It was further submitted that only on 17.6.2002 (after passing the order of DNA Test on 6.6.2002), when the respondent-wife filed an application for review of the order dated 6.6.2002 disclosing the death of the female child and the aforesaid conduct of the respondent-wife would indicate that she wanted to avoid DNA Test. Learned Senior Counsel further submitted that only because of the respondent's adulterous conduct and that the appellant is not the father of the female child, the respondent intentionally evaded DNA Test and it was further submitted that the appellant had proved the adulterous conduct of the respondent-wife.
20. The allegation of adultery is a serious charge and the court must be satisfied beyond all reasonable doubt that the charge of adultery is established. It is not necessary and really not possible to prove adultery by any direct evidence. At the same time, it cannot be a matter of inference merely on slender evidence. By clear and 15 cogent evidence and circumstances, the charge of adultery has to be established by the party alleging adultery.
21. The appellant husband has not stated as to when he came know about such illicit relationship of his wife with his father. In the Matrimonial Suit originally filed, the appellant husband has alleged that his wife is having relationship with other men. Had the respondent had any such illicit relationship with her father-in-law, the appellant husband would have specifically stated so in the petition. But that was not to be so. The allegations of adulterous conduct made against the respondent-wife with appellant- husband's father is unfounded and baseless and the court below rightly negative the same.
22. In para (20) of the deposition of the appellant- husband, it has been alleged that in the year 2001, he came to know that his wife was pregnant and when he made query she started abusing him. Further, in para 24 he simply stated that his father had an illicit relationship with his wife but he did not know since how long it was existing. He further stated that his father was 70 years only. In para 29 of the cross-examination, the appellant- husband said that he came to know about the alleged illicit relationship of his wife with his father when his wife became pregnant. By this statement, it is self-evident that the allegation is fabricated and concocted which is corroborated from para 31 of the deposition where he said 16 that his father had instituted a Title (M) Suit No.113/2003 which was pending and in para 30 the appellant-husband said that he had instituted an Eviction Suit No.129/2003 against the wife-respondent. All these evidences of the husband are supporting the findings of the court below that the allegation of adultery made against his wife with his father are unfounded and cooked up by the appellant. The false allegation of adultery against the respondent-wife with the appellant's father appears to have been made only to cover up the appellant's relationship with his sister- in-law(Bhabi), whose brother has been examined as P.W.2.
23. In so far as appellant's denial of paternity of female child (since died) is concerned, it is to be pointed out that the respondent-wife was living in the matrimonial house and the appellant-husband was also residing in the same house. Though the appellant was stated to be working in outstation, it is not denied that he was visiting the matrimonial house where the respondent-wife was residing with the son. During the subsistence of marriage of the appellant and the respondent, the second female child was born on 19.11.2001. Once the valid marriage is proved, Section 112 of the Indian Evidence Act raises the conclusive presumption about the paternity of the child born during the subsistence of the valid marriage. The burden lies upon the person to prove that he had no access. Evidence adduced by the appellant-husband is not sufficient to establish "non-access". In view of the 17 statutory presumption raised under Section 112 of the Indian Evidence Act, the plea denying the paternity of the female child is liable to be rejected.
24. Upon appraisal of the oral and documentary evidence, the court below rightly held that the appellant has failed to establish the charge of cruelty against the respondent-wife, rather the counter-allegation of cruelty levelled against the appellant stands proved. The court below held that the evidence of R.W 1 and R.W.2 is consistent and unimpeachable. Upon appraisal of evidence, the court below rightly held that the appellant failed to prove the allegation of adultery leveled against the respondent-wife. The court below further held that the appellant is proved to have been having adulterous relationship with widowed sister-in-law, Siyamuni Devi, and that was the reason for the matrimonial discord. The findings of the court below are based on evidence and we fully endorse the same.
25. The learned Senior counsel appearing for the appellant relied on a decision of the Hon'ble Supreme Court in "Vijaykumar Ramchandra Bhate Vs. Vijay Kumar Bhate", reported in (2003) 6 SCC 334 to fortify his contention that the allegation made in the written statement or suggested in the course of examination by way of cross-examination would amount to cruelty. A reading of paragraph no.7 of the said judgment discloses that such a plea was raised before the Trial Court and a 18 finding in this regard was recorded by the Family Court which was affirmed by the High Court. The Hon'ble Supreme Court held that in view of the allegation levelled against the husband by the wife no exception can be taken to the findings recorded by the Family Court as well as High Court.
26. Before adverting to the contention of the learned counsel appearing for the appellant that allegation of adultery levelled by the respondent-wife against the appellant-husband would amount to mental cruelty which entitles the appellant-husband for grant of decree of divorce, it would be useful to examine the concept of "Mental Cruelty" in relation to matrimonial discord.
27. In "Hadden Vs. Hadden", reported in Modern Law Review, Volume-12, 1949 at p.332, Sherman,J. observed, "he had no intention of being cruel but his intentional acts amounted to cruelty". There can be cruelty without any physical violence. In " Jem Vs. Jem", (1937) 34 Haw 312, it has been observed that, cruel treatment not amounting to physical cruelty is mental cruelty.
28. In "Gananath Pattnaik Vs. State of Orissa" , reported in (2002) 2 SCC 619, the Hon'ble Supreme Court has held thus :
7. "The concept of cruelty and its effect varies from individual to individual, also depending upon the social and economic status to which such person belongs. "Cruelty"
for the purposes of constituting the offence under the aforesaid section need not be 19 physical. Even mental torture or abnormal behaviour may amount to cruelty and harassment in a given case."
29. In "Vinita Saxena Vs. Pankaj Pandit", reported in (2006) 3 SCC 778, the Hon'ble Supreme Court observed :
37. "As to what constitutes the required mental cruelty for the purposes of the said provision, will not depend upon the numerical count of such incidents or only on the continuous course of such conduct but really go by the intensity, gravity and stigmatic impact of it when meted out even once and the deleterious effect of it on the mental attitude, necessary for maintaining a conducive matrimonial home."
30. In "Savitri Pandey Vs. Prem Chandra Pandey", reported in (2002) 2 SCC 73, the Hon'ble Supreme Court has observed as
6. "..................Mental cruelty is the conduct of other spouse which causes mental suffering or fear to the matrimonial life of the other.............."
31. In the light of the above, let us consider the evidence. In the deposition of the plaintiff, it is nowhere stated that his wife accused him of having adulterous relationship with his widowed sister-in-law (Bhabhi). The counter allegation of adulterous relationship of the plaintiff with his widow Bhabhi has been made for the first time in the written statement. The evidence with respect to the 20 allegation of cruelty as a ground for seeking divorce has to be examined on the date on which the suit was set-up for trial, however, we do not find any allegation of "cruelty as a consequence of false accusation of adultery" made against his wife by the plaintiff so as to seek a decree of divorce. In the case in hand no issue was framed on this aspect by the Trial Court and the written arguments submitted by the plaintiff and the judgment of the Trial Court do not indicate that such a plea was raised before the Trial Court and therefore, we find no merit in the contention raised by the learned Senior counsel appearing for the appellant.
32. As noticed above, the appellant has filed Divorce Petition seeking divorce on the ground of cruelty and adultery on the part of his wife. In the petition, the appellant alleged that the respondent-wife is having relationship with many men. When such wild allegation was levelled against the respondent-wife, necessarily she has to take her own defence. It is in this context, the respondent filed written statement making counter- allegation that the appellant is living with another woman whom he wants to marry and for that reason, the appellant had instituted the Matrimonial Suit for divorce. From the testimonies of the witnesses, it appears that the allegation of adultery against his wife with his father is the result of his own illicit relationship with his sister-in-law (Bhabi) whose brother has been examined as P.W 2. In 21 such view of the matter, the contention of the appellant that the allegation of adultery made by the respondent- wife cannot amount to cruelty, as contended by the appellant.
33. In "Gurbux Singh Vs. Harminder Kaur", reported in (2010) 14 SCC 301 a similar contention raised by the counsel for the husband has been rejected by the Hon'ble Supreme Court in these words "
17. "The learned counsel appearing for the appellant by drawing our attention to certain allegations made by the respondent wife in the reply to the petition under Section 13 of the Act before the Additional District Judge submitted that by considering all these aspects it is just and reasonable to consider and grant divorce on the ground of cruelty. In support of the same, he relied on the decision of this Court in Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate.
18. No doubt, in that decision, this Court has held that allegations made in the written statement or suggested in the course of examination and by way of cross-
examination satisfying the requirement of law has also to be taken note of while considering the claim of either party. In the case on hand, it is true that the respondent wife has made certain allegations against her appellant husband. However, admittedly based on the same, the trial court has not framed any issue and no evidence let in in support of the same. In such circumstances, the said decision is not helpful to our case.22
Admittedly, no such issue was framed by the trial court or any point determined by the High Court based on such averments in the reply/written statement. Accordingly, we reject the said contention."
34. The court below, upon appraisal of evidence, found that the allegation of cruelty and adultery leveled against the wife is not proved. On the other hand, the cruelty of the appellant-husband and his relationship with his sister-in-law are found to have been proved. The court below rightly dismissed the Matrimonial Suit for divorce.
35. The learned counsel appearing on behalf of the appellant-husband raised a fresh ground of divorce i.e. 'separation' for the last 18 years and that the marriage is 'irretrievably broken down'. This Court does not think it to proper to consider this ground at this appellate stage, a fresh ground i.e. for the dissolution of marriage between appellant-husband and respondent-wife on the ground that the marriage is "irretrievably broken down". In absence of any finding on the ground of separation by the Court below, as the same was never raised by the appellant- husband and for the first time it is being raised here this Court refrains itself from considering the said ground. The appellant-husband did not even whisper about such ground for divorce in the court below either in the plaint or at the time of adducing evidence.
36. So far as the award of maintenance of Rs.7000/- per month, including Rs.4000/- per month for the wife and 23 Rs.3000/- per month for the son, Lalan Kumar in pursuance of impugned judgment and decree is concerned this Court constrains to take into consideration the relevant facts available on record. The argument raised by the learned counsel appearing on behalf of the appellant on the point of maintenance is that, the court below has erred in granting permanent alimony of Rs.7000/- because decree for the dissolution of marriage has not been passed and the marriage between the parties is still subsisting.
37. Section 25 of the Hindu Marriage Act, 1955 reads as under :
Section 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 24 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 remarried 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].
38. Section 25 of the Hindu Marriage Act, 1955 has been held to be an enabling provision. The important expressions occurring in Section 25 are "at the time of passing of any decree" and, "at any time subsequent thereto". Logically, the word "any decree" would include all kinds of decrees. In "Rameshchandra Rampratapji Daga Vs. Rameshwari Rameshchandra Daga", reported in (2005) 2 SCC 33, a plea was raised that when the marriage is found to be null and void under Section 11 of the Hindu Marriage Act, the question of grant of permanent alimony or maintenance would not arise. Referring to a decision in "Chand Dhawan (Smt.) Vs. Jawahar Lal Dhawan", reported in (1993) 3 SCC 406 in which the petition seeking divorce by mutual consent had failed because the parties withdrew their consent during the statutory waiting period, the 25 Hon'ble Supreme Court held as under :
18. "In the present case, on the husband's petition, a decree declaring the second marriage as null and void has been granted.
The learned counsel has argued that where the marriage is found to be null and void --
meaning non-existent in the eye of the law or non est, the present respondent cannot lay a claim as wife for grant of permanent alimony or maintenance. We have critically examined the provisions of Section 25 in the light of conflicting decisions of the High Court cited before us. In our considered opinion, as has been held by this Court in Chand Dhawan case, the expression used in the opening part of Section 25 enabling the "court exercising jurisdiction under the Act" "at the time of passing any decree or at any time subsequent thereto" to grant alimony or maintenance cannot be restricted only to, as contended, decree of judicial separation under Section 10 or divorce under Section 13. When the legislature has used such wide expression as "at the time of passing of any decree", it encompasses within the expression all kinds of decrees such as restitution of conjugal rights under Section 9, judicial separation under Section 10, declaring marriage as null and void under Section 11, annulment of marriage as voidable under Section 12 and divorce under Section 13."
39. In the above decision, holding that the grant of maintenance both to the wife and the daughter was fully justified, the Hon'ble Supreme Court has further held thus : 26
20. ".........It is with the purpose of not rendering a financially dependent spouse destitute that Section 25 enables the court to award maintenance at the time of passing any type of decree resulting in breach in a marriage relationship.
21. Section 25 is an enabling provision. It empowers the court in a matrimonial case to consider facts and circumstances of the spouse applying and decide whether or not to grant permanent alimony or maintenance."
40. In the present case, the appellant has himself admitted in his evidence before the Trial Court that he was not maintaining his wife and his son. It was only after the Trial Court passed an order in an application filed under Section 24 of the Hindu Marriage Act, the appellant-husband started paying maintenance amount to his wife only by the order of the Court, the appellant-husband who is a Bank officer, seems to be paying maintenance amount to the wife. During the course of hearing the appellant and his son were present in the Court and on a querry from the Court whether the appellant is willing to help his son establish in life, on instruction the learned Senior counsel informed the Court that the appellant is ready to give the ancestaral house at Dhanbad to his son. The learned counsel appearing for the respondent indicated that the said house is under litigation and it has come in the evidence of this case also that a 27 Title suit with respect to the said property is pending in Trial Court. The appellant has informed this Court that he is working as Internal Auditor with a Bank and he is staying at Bombay presently. The conduct of the appellant over the years indicates that he has completely abandoned his pious obligation of maintaining his wife and his own son whose paternity he has not disputed.
41. The learned Trial Court has held cruelty inflicted by the plaintiff-husband upon his wife proved. The appellant has made wild and reckless allegation of adultery against his wife naming his own father as the adulterer. In "R. Balasubramanian Vs. Vijayalaxmi Balasubramanian (Smt.)", reported in (1999) 7 SCC 311, the Hon'ble Supreme Court has observed that the allegation that the wife had sexual intercourse with a person other than the husband is a serious allegation against the wife and shows cruel conduct of the husband entitling to seek relief against him under the Act or otherwise.
42. It is found that the appellant-husband was an employee of Bank of India 'for a long time'. It is also found from his deposition that he did not want to live with his wife while respondent-wife is still ready to live with him. It is now also admitted position that the son, Lalan Kumar who was born out of the wed lock of their marriage is an adult and is stated to be unemployed. There is nothing on the record to show that he is employed. It has also been averred on behalf of the respondent-wife that the 28 appellant-husband did not maintain his wife and son since, 1996. The appellant dragged his wife into litigation which continued for more than 13 years and thus, has caused immense mental agony and harassment to her. In this view of the matter, this Court finds it appropriate that the respondent-wife is entitled for maintenance and the appellant-husband should be saddled with cost also.
43. The court below awarded interim maintenance of Rs. Rs.7,000/- (seven thousand only) p.m. (under Section 24 of the Hindu Marriage Act) to be paid to the respondent-wife on account of her own maintenance and maintenance of her son. The respondent-wife has not filed any cross-appeal seeking for enhancement of maintenance. In the absence of any such appeal being filed, the question falling for consideration is while dismissing this appeal, whether the amount of monthly maintenance of Rs.7,000/-(Rs.seven thousand only) could be enhanced. As discussed earlier, in exercise of jurisdiction under Section 25,"at the time of passing any decree or at any time subsequent thereto, the court can order for maintenance of such gross sum or monthly or periodical sum keeping in view the conduct of the parties and other circumstances of the case, it may seem to the court to be just. Under Order XLI Rule 33 CPC, the appellate court has wide power to render justice between the parties. Power under Order XLI Rule 33 CPC can be exercised by the appellate court even though the party in 29 whose favour power under Order XLI Rule 33 CPC is sought to be exercised has not filed any appeal or cross-objection. Even though the respondent-wife has not filed any cross- appeal, in the facts and circumstances of this case and having regard to the conduct of the appellant, in our considered view, exercising power under Order XLI Rule 33 CPC, the maintenance amount awarded to the respondent- wife for her own maintenance and maintenance of the son is to be enhanced.
44. We are of the view that the respondent-wife is entitled to her own maintenance and maintenance of her son. The amount of Rs.7,000/- (seven thousand only) per month was ordered in the year 2004 when the appellant was only an Officer in the Bank Of India. Presently, the appellant is stated to be working as Internal Auditor with the Bank of India and is staying at Bombay. The maintenance amount of Rs.7,000/- (seven thousand only) per month including Rs.4,000/- p.m. for respondent-wife and Rs.3000/- p.m. for her son was granted in the year 2004. Considering the inflation and increase in price and the fact that the son is still unemployed, in the interest of justice, the amount of maintenance of Rs.7,000/- (seven thousand only) p.m. is enhanced to Rs.13,000/- (Rs.thirteen thousand only) p.m. including Rs.10000/- (Rs.ten thousand only) p.m. for respondent-wife and Rs.3000/- (Rs.three thousand only) p.m. for her son.
45. As a result, the impugned judgment and decree, 30 by which the suit for dissolution of marriage and decree of divorce was dismissed, is hereby confirmed. Further, modifying the amount of permanent alimony of Rs. 7,000/- (seven thousand) p.m., it is enhanced to Rs.13,000/- (Rs. thirteen thousand only) p.m. including Rs.10000/- (Rs.ten thousand only) p.m. for the respondent- wife and Rs.3000/- (Rs.three thousand only) p.m. for the son. The enhanced maintenance of Rs. 13,000/- (thirteen thousand) p.m. is payable from the month of March, 2014. The appeal is dismissed with the aforesaid modification in the award of maintenance to be paid by the appellant- husband.
The appellant is also directed to pay the cost of litigation of Rs.1,00,000/- (Rs.one lac only) to his wife.
(R. Banumathi, C.J.) (Shree Chandrashekhar, J .) Jharkhand High Court, Ranchi Dated.5th of March, 2014 Satyarthi/ Tanuj/A.F.R.