Gauhati High Court
Sri Anupam Roy vs Smt. Ratna Roy on 12 February, 2020
Bench: Ajai Lamba, Soumitra Saikia
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GAHC010288372019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Mat.App. 3/2020
1:SRI ANUPAM ROY
S/O- LATE BHAJA NITAI ROY, R/O- VILL.- BARPATHAR, P.O. NEW
BONGAIGAON,PIN- 783381, DIST.- BONGAIGAON, ASSAM.
VERSUS
1:SMT. RATNA ROY
D/O- LATE TARAPADA GOSWAMI, RESIDING AT CHIBINANG BAZAR, P.O.
AND P.S. PHULBARI, PIN- 794104, DIST.- WEST GARO HILLS, MEGHALAYA.
Counsel for appellant : Mr. SD Purkayastha
Counsel for respondent : Mr. B.J. Mukherjee
BEFORE HON'BLE THE CHIEF JUSTICE MR. AJAI LAMBA HON'BLE MR. JUSTICE SOUMITRA SAIKIA 12.02.2020 (Ajai Lamba, C.J.) Sri Anupam Roy has preferred this matrimonial appeal challenging judgment dated 23.7.2019 rendered in Title Suit (D) No.64/2013 titled Sri Anupam Roy vs. Smti. Ratna Roy.
Vide the impugned judgment and decree, the marriage between the parties has been dissolved by way of divorce in terms of provisions of section 13 (1) (i-a) and Section 13(1) (i-b) of the Hindu Marriage Act, 1955. Also the appellant has been directed to pay Rs.8 lakhs as permanent alimony to the respondent wife within 6 months from the day when the judgment was passed.
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2. We have taken judicial notice of the fact that the factum of divorce granted by the Court of law has been accepted by the respondent wife in so much as no appeal has been preferred against the judgment and decree at issue.
3. The appellant husband has only questioned the grant of permanent alimony, essentially on the ground that the respondent wife deserted him. In regard to the fact whether the wife deserted the husband, a specific issue (3) was framed. The issue has been answered in the affirmative with the finding that the respondent wife deserted the husband. It has been pleaded that in such circumstances, the appellant husband cannot be held liable to pay alimony.
The second ground taken on behalf of the appellant husband is that the wife did not file any application under Section 25 of the Hindu Marriage Act. It has been asserted that the provisions of Section 25 inhere that an application is required to be made for the purposes of claiming permanent alimony and maintenance. No such application having been made, it was beyond the jurisdiction of the lower court to have awarded permanent alimony.
Learned counsel for the appellant has further pointed out that sub-section 4 of Section 125 CrPC specifically provides that no wife shall be entitled to receive maintenance allowance in case she refuses to live with her husband. In the case in hand, although the wife has deserted the husband, she has been receiving maintenance under Section 125 CrPC in the sum of Rs.2,600/- per month since November, 2006. It has been pleaded that the appellant husband has paid a sum of Rs.2,600/- per month under Section 125 CrPC to the wife, without she having any entitlement thereto in terms of statutory bar under Section 125(4) of the CrPC. In all a sum of Rs.4 lakhs approximately has already been paid under Section 125(4) CrPC. In such circumstances, the amount assessed and awarded as permanent alimony in the sum of Rs.8 lakhs is required to be set aside.
4. We have confronted the learned counsel for the respondent wife as regards the award of permanent alimony without her filing an application under Section 25 of the Hindu Marriage Act.
Learned counsel for the respondent wife has not been able to cite any judgment on the issue to establish the claim to award of permanent alimony under Section 25 of the Hindu Marriage Act.
So far as money already received by the wife under Section 125 CrPC despite she having deserted her husband, which finding has not been challenged by the wife also learned counsel for the respondent has no answer.
5. We have considered various aspects of the case after hearing the learned counsel for the parties. Provisions of Section 25 of the Hindu Marriage Act reads as under:
"25 Permanent alimony and maintenance .--
Page No.# 3/8 (1) Any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent's own income and other property, if any, the income and other property of the applicant [the conduct of the parties and other circumstances of the case], it may seem to the court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent.
(2) If the court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under sub-section (1), it may at the instance of either party, vary, modify or rescind any such order in such manner as the court may deem just.
(3) If the court is satisfied that the party in whose favour an order has been made under this section has re-married or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, [it may at the instance of the other party vary, modify or rescind any such order in such manner as the court may deem just]."
(emphasised by us) Sub-section 1 of Section 25 above extracted would indicate that "the conduct of the parties and other circumstances of the case" can also be considered by the Court while awarding permanent alimony and maintenance.
The said provision also makes it crystal clear that award of permanent alimony can be made "on an application" made to the Court.
6. Sub-section 4 of Section 125 of the CrPC also needs exact reference. Relevant portion of Section 125 of the CrPC would read as;
"125. Order for maintenance of wives, children and parents -
(1) if any person having sufficient means neglects or refuses to maintain -
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(a) his wife, unable to maintain herself, or
(b) xxxxxxxx
(c) xxxxxxxx
(d) xxxxxxxx (2) xxxxxxxxx (3) xxxxxxxxx (4) No Wife shall be entitled to receive an [allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,] from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent."
(emphasised by us)
7. A bare reading of sub-Section 4 of Section 125 CrPC would make it evident that no wife shall be entitled to receive an allowance for maintenance, or interim maintenance and expenses of the proceeding from her husband under Section 125 CrPC if she without any sufficient reason refuses to live with her husband.
So far as the case in hand is concerned, the relevant issue framed by the lower court is contained in paragraph 6 of the impugned judgment. Issue No.3 reads as under;
" xxxxxxx
(3) Whether the respondent deserted the petitioner?
xxxxxxx"
The issue Nos.2, 3 and 4 had been dealt with together. The following needs to be noticed specifically from the judgment rendered by the lower court.
" xxxxxxx The marriage between the parties took place on 13.5.1999 as per Hindu rites and customs and after the marriage the respondent came to the house of the petitioner in the railway quarter, North west Colony at New Bongaigaon. As per pleadings the marriage took place from the railway quarter of Sri Pulak Chatterjee, the relative of the respondent, from quarter No. R/145/A Mount View Page No.# 5/8 Colony of New Bongaigaon. The pleadings and testimony of the petitioner (PW 1) is that Sri Pulak Chatterjee used to visit his house in his absence and when asked by him and his family members not to visit, the respondent got angry and misbehaved with the petitioner and his family members and on 25.9.1999 the respondent with the help of Pulak Chatterjee and Bishnu Denial, a close associate of S.I. Jatindra Nath Saikia arrested the petitioner without lodging any complaint and confined him from 11.00 A.M to 9 P.M and during that of confinement the petitioner was assaulted by the Police men. The other allegation is that on 26.05.1999 the Police men again arrested him and his brother and assaulted them; that on 05.06.1999 again arrested and released on 06.06.1999 without case being registered at the instance of the respondent. The petitioner was compelled to live with the respondent separately at his father's house at Chugapota for about a month and during that time also the respondent subjected her to cruelty. After one month the respondent left and thereafter never returned. Dhaligaon Police Station case no. 43/1999 u/s 498 A IPC was registered against the petitioner and his family members and they were arrested in that case and for his detention he was even suspended from his job. In GR case no. 196/99 arising out of Dhaligaon Police Station case no. 43/1999 u/s 498 A IPC the petitioner and his family members were convicted which on appeal being Criminal Appeal no. 9(1)/2007 was set aside by the Sessions Judge vide judgment and order dated 02.08.2008.
That the married life of the petitioner was very short and as per PW 1 after 6 ½ days of his marriage his wife lodged a case u/s 498 A IPC and that after 6 ½ days of the marriage he started to stay with the respondent at his village house at Chungapota with his father. The fact that the respondent stayed for seven days with her petitioner husband in the quarter of the petitioner is admitted by the respondent as DW 1 in her cross examination. She also admitted lodging of FIR u/s 498 A IPC against the petitioner and his family members. She stated in her cross examining that she stayed for about one month at Chungapota with her father-in-law and after filing of the case u/s 498 A IPC she is not staying with the petitioner."
Page No.# 6/8 " xxxxxxx For almost 10 years from 1999 to 2009 till the filing of the suit for judicial separation by the petitioner, the respondent never approached the Court seeking restitution of conjugal life or to carry forward her matrimonial life with the petitioner. It was only after the petitioner has approached the Court with T.S.(M) 18/2009 with the prayer for judicial separation, the respondent appeared with her written statement making counter claim for restitution of conjugal life. Had she ever been interested in her matrimonial life she would not have kept silent all alone 10 years. She wake up only after the suit was filed by the petitioner and then only she made counter allegation against the petitioner and sought prayer for restitution of conjugal life. The conduct of the respondent itself speak of her attitude. Had she been interested in the matrimonial life she would have approached the petitioner by herself or through mediator but not done so and only to counter the petitioner she came out with the counter claim.
As admitted by the petitioner her matrimonial life lasted for seven days and after that the trouble started. The petitioner has mentioned the fact that the trouble started for Mr Pulak Chatterjee and on his objection he was subjected to various physical cruelty through the Police. He alongwith his family members were even sent to judicial custody in a case u/s 498 A IPC, which ended up in conviction but the conviction was set aside in the appeal. The respondent has not preferred any revision against the judgment of acquittal.
In this case also the respondent has not produced any evidence in regard to cruelty meted to her. She has not produced any witness to support of her case and her evidence is also not reliable."
" xxxxxxxxx From the above discussion and finding arrived at it is established that it was the respondent who is responsible for the break down of the matrimonial rife with the respondent by inflicting physical and mental cruelty to the petitioner after few days of the marriage and thereafter deserting the petitioner and riving Page No.# 7/8 separately. She did not take any steps to restart her matrimonial life and only when the petitioner has approached the Court after years of separation for a decree of judicial separation, the respondent has come up with a counter claim in that suit with restitution of conjugal rights. It is now 20 years since separation in the year 1999 and the matrimonial bond is beyond repair. The marriage has become a fiction support by a legal tie and by refusing to severe the tie, will lead a more mental cruelty to the petitioner."
(emphasised by us)
8. We have made reference in extenso to the relevant portions from the impugned judgment so as to depict the conduct of the respondent wife towards the appellant husband in the course of short life of less than one month spent together.
9. Learned counsel for the appellant has also brought to the notice of the Court judgment rendered by Additional Sessions Judge, FTC, Bongaigaon in Crl. Appeal No.09(1)/2007 titled Smti. Hashi Rani Ray, Sri Anupam Ray, Sri Apurba Ray, Smti Roma Ray, Sri Hiranmoy Chakraborty and Smti Soma Chakraborty vs. State of Assam in context of G.R. Case No.196/1999. Vide judgment dated 2.8.2008 the above named appellants were acquitted of the charges under Section 498 (A)/34 IPC.
A perusal of the said judgment referred to by us indicates that the entire family of the appellant husband was implicated in criminal proceedings. A court having competent jurisdiction acquitted of all the accused. The judgment has attained finality.
10. A conjoint reading of the facts and circumstances emerging from the impugned judgment; and the fact that criminal proceedings were initiated against the family members of the appellant husband which were found to be without legal cause indicates the conduct of the respondent wife. We take particular notice of the fact that it is the respondent wife who deserted the husband, which finding recorded by a court having competent jurisdiction has gone unassailed. In this backdrop of the case, for the wife to demand permanent alimony without filing an application under Section 25 of the Hindu Marriage Act appears to be wholly unreasonable.
11. We also take judicial notice of the fact that although sub-section 4 of section 125 inheres that in case the wife deserted the husband, she would not be entitled to any maintenance, however, for the last about 13 years she has been accepting maintenance under the said provision.
12. However, so as to not multiply the litigation, we deem it just and proper to allow this appeal in limited terms and reduce the amount of alimony to Rs.4 lakhs to be paid to the respondent wife within a period of 3 months from today.
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13. Decided accordingly.
JUDGE CHIEF JUSTICE Comparing Assistant