Himachal Pradesh High Court
Along With Civil Misc. Petition No. 949 ... vs Neela Vijay Kumar Bhate on 23 September, 2022
Author: Satyen Vaidya
Bench: Satyen Vaidya
Reportable/Non-reportable IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA ON THE 23rd DAY OF SEPTEMBER, 2022.
.
BEFORE HON'BLE MR. JUSTICE SATYEN VAIDYA FIRST APPEAL FROM ORDER No. 417 of 2011 ALONG WITH CIVIL MISC. PETITION NO. 949 OF 2012.
Between:-
r to SMT. PARVEEN ALIAS PINKU WIFE OF SHRI RAJESH DAUGHTER OF SH.
BISHAMBAR JHAKTA, PRESENTLY
RESIDING AT HOUSE NO. 341 SHANTI
VIHAR BYE PASS ROAD, SPROON,
SOLAN, H.P.
....APPELLANT.
(BY MS. DEVYANI SHARMA, ADVOCATE) AND SH. RAJESH SON OF SHRI NARVEER RESIDENT OF VILLAGE DAKHARANTU (CHHAJPUR), P.O. DADHI RAWAT, TEHSIL JUBBAL, DISTRICT SHIMLA, H.P. ...RESPONDENT.::: Downloaded on - 23/09/2022 20:03:18 :::CIS
...2...
(BY MR. BHUPINDER GUPTA, SR.
ADVOCATE WITH MR. VEDHANT RANTA, .
ADVOCATE) RESERVED ON: 5th SEPTEMBER, 2022.
DECIDED ON: 23rd SEPTEMBER, 2022.
This appeal coming on for hearing this day, the Court delivered the following:-
r JUDGMENT Appellant assails judgment and decree dated 18th October, 2011, passed by learned Additional District Judge, Fast Track Court, Shimla, in H.M.A. Petition No. 17- S/3 of 2005/04, whereby the petition of respondent/ husband for dissolution of marriage on the ground of cruelty has been allowed.
2. The parties hereinafter shall be referred as wife and husband respectively for clarity.
3. Husband filed a petition for dissolution of marriage under Section 13 of the Hindu Marriage Act (for short "the Act") on the grounds of cruelty and desertion.
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Learned trial Court allowed the petition on the ground of .
cruelty. The issue with respect to desertion was decided against the husband. Wife has assailed the impugned judgment and decree on the ground that the same is not sustainable in the eyes of law.
4. The marriage between the parties was solemnized on 8/9 September, 2001 at Dakharantu, Tehsil Jubal, District Shimla, H.P. Parties were Hindus by religion and hence their marriage was solemnized in accordance with Hindu rites and ceremonies. A baby was born to wife on 11.11.2002 out the wedlock. Husband alleged that his mother went to the house of father of wife, where the wife was staying at the time of birth of baby, but the father of the wife did not allow the mother of husband to see her daughter-in-law and newly born baby. The mother of husband was insulted and she had to come back without seeing the newly born child. Thereafter, husband went to see his wife at Solan and enquired as to why his mother was insulted and humiliated, but the ::: Downloaded on - 23/09/2022 20:03:18 :::CIS ...4...
husband was also treated in the same manner. Two .
respectable persons were sent to call the wife to her matrimonial home, but wife refused the offer. Husband again went to the wife, this time he was accompanied by his relatives and on their persuasion, the wife along with her mother and father came to the house of husband. On the very next day, father of wife collected all the belongings of wife and went away. While leaving the place, he instructed the husband to send the wife on 19.12.2002 as there was a "poojan" ( religious ceremony) to be solemnized. Accordingly, husband and wife along with newly born baby visited Solan to join "pooja"
ceremony. On the next day of "pooja" ceremony, husband requested the wife to accompany him to matrimonial home, but he faced hostility at the hands of the wife and her parents. False allegations of dowry demand were levelled against him as well as his parents.
Husband termed these allegations as frivolous and ridiculous. The parents of the wife also levelled ::: Downloaded on - 23/09/2022 20:03:18 :::CIS ...5...
allegations that the wife tried to commit suicide by taking .
poison. In order to save the marriage of parties, parents of husband again sent some respectable persons, but to no avail.
5. Husband thereafter filed a petition under Section 9 of the Hindu Marriage Act for Restitution of Conjugal rights before the learned Civil Judge (Junior Division), Jubbal. Wife prayed for transfer of said petition and accordingly the same was transferred to the Court of learned Civil Judge (Senior Division), Shimla. Petition under Section 9 of the Act was stated to be pending at the time of filing of petition for dissolution of marriage.
6. In response, wife submitted her reply and denied the allegations as levelled against her and her parents in the petition. It was submitted that in petition under Section 9 of the Act, wife filed her reply and also an application under Section 24 of the Act for maintenance pendente lite, but the petition was withdrawn by husband. As a counter allegation, it was ::: Downloaded on - 23/09/2022 20:03:18 :::CIS ...6...
submitted that after one month of marriage wife was .
pressed hard by husband and his family members to arrange marriage of the sister of husband with her (wife's) brother. She tried to arrange such marriage, but the sister of husband was found to be elder in age.
Thereafter, the behaviour and attitude of husband and his family members became hostile towards wife. She was maltreated and threatened. Demands of dowry were made from her. It was stated that on 29.04.2004 husband and his mother visited the house of father of wife at Solan. They started quarrel and tried to snatch baby from the wife. Accordingly, FIR No. 132/2004 was registered against them under Sections 451, 323, 506, 34 IPC. A specific averment was also made that one of the sisters of husband named Reena, used to provoke the husband to marry again. It was also submitted that husband was interested to marry someone else.
7. On the pleadings of the parties, following issues were framed by the learned trial Court:-
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1. Whether the respondent has treated the petitioner with cruelty, as alleged. If so, its .
effect? OPP
2. Whether the respondent has deserted the petitioner, as claimed. If so, its effect?OPP.
3. Whether the petition is malafide. If so, its effect?
OPR
4. Whether the petitioner is trying to take benefit of his own wrongs. If so, its effect?OPR.
5. Relief.
Issue No.1 was decided in affirmative and rest of the issues were negated.
r The petition was accordingly allowed on the ground of cruelty.
8. I have heard Ms. Devyani Sharma, Advocate, for the appellant/wife and Mr. Bhupinder Gupta, Senior Advocate, for the respondent/husband and have also gone through the entire record carefully.
9. Learned trial Court held that since husband had filed petition under Section 9 of the Act on the same grounds as alleged in petition for dissolution of marriage, it amounted to condonation of acts of cruelty on the part of the husband. Reliance was placed on the provisions of Section 23(b) of the Act. Still, the wife was held to be guilty of inflicting cruelty on husband on the basis of ::: Downloaded on - 23/09/2022 20:03:18 :::CIS ...8...
unsubstantiated allegations levelled by her against the .
husband in counter to the divorce petition.
10. Learned trial Court, for above purpose, took notice of following material:
(I) The averment made in the reply filed by wife to the effect that the husband was interested to marry someone else;
(ii) a suggestion made to husband in his cross-
examination on behalf of the wife to the effect that he had re-married and for that reason he wanted divorce from the wife,
(iii) an averment made in the examination-in-chief of the father of wife to the effect that husband had re-
married and he was keeping another woman as his wife;
(iv) an extract from the statement of wife while appearing as witness to the effect "he never used to stay in the matrimonial house and he used to remain with that lady with whom he had married now"
11. Relying upon the dictum of Vijay Kumar Ram Chandra Bhate vs. Neela Vijay Kumar Bhate, ::: Downloaded on - 23/09/2022 20:03:18 :::CIS ...9...
reported in (2003)6 SCC 334, the learned trial Court held .
that in case of disgusting accusation of unchastity and indecent familiarity with a person outside wedlock and extra marital allegations of spouse are levelled and not proved, then they would amount to cruelty and aggrieved spouse is entitled for divorce on this ground alone.
Allegations against the husband by wife and her father in their reply and statements as noticed above, were held to be accusation of serious nature and such accusation having remained unproved, husband was held to be entitled to a decree of divorce.
12. Husband has not assailed the findings returned by learned trial Court in so far as his allegations of cruelty were held to be condoned. Thus, the only question that arise for determination is whether, in the facts and circumstances of the case, the divorce could be granted, on the ground of cruelty to the husband, on the basis of allegations of his having another wife, in defence?
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13. I cannot persuade myself to subscribe to the .
view taken by the learned trial Court. The learned trial court contradicted itself in the sense that on one hand the allegations of cruelty levelled by husband were washed away by applying norm of condonation against husband, on the other, allegations of second marriage against husband levelled in defence by wife were used against her by ignoring the same principle.
14. Section 23 (1)(b) of the Act mandates that the Court, before passing a decree of divorce on the ground of cruelty, has to record satisfaction that the petitioner has not in any manner condoned the cruelty. Learned trial Court has failed to record such mandatory satisfaction in so far as the acts of cruelty arising out of allegations of second marriage against husband are concerned. The marriage under the Act can be dissolved on one or more grounds mentioned in Section 13 of the Act. The proceedings in this behalf can be initiated on petition of either husband or wife. The Courts have no ::: Downloaded on - 23/09/2022 20:03:18 :::CIS ...11...
suo motto jurisdiction to initiate proceedings or to .
dissolve the marriage on its own. Either of the spouse has to approach the Court with his or her grievance and cause of action. Meaning thereby, that either of the spouse has to reveal his or her grievance against some acts of omission or commission of other spouse constituting cruelty. It is at the option of spouse suffering cruelty even to condone the same. It is, in this context, Section 23(1)(b) of the Act mandates, as noticed above.
15. In the facts of instant case, the husband has not raised any grievance against the allegations of unchastity levelled against him by the wife. He also did not come up with the plea that such allegations had caused cruelty to him. It was also incumbent upon him to have said that he had not condoned such acts of cruelty. In the absence of such material, the learned trial Court was not justified in granting decree of divorce in favour of husband on the allegations which were not even complained as acts of cruelty by husband. Even in ::: Downloaded on - 23/09/2022 20:03:18 :::CIS ...12...
Vijay Kumar Ram Chandra Bhate's case (supra), only the .
aggrieved spouse was held entitled for divorce only on the ground that the allegations against him or her of unchastity had remained unsubstantiated. Thus, in the considered opinion of this court, grievance has to be raised by the spouse in order to be called as aggrieved person. r
16. Viewed from another angle, it was not a case where the wife had levelled such allegations against her husband prior to entering into defence. Learned trial Court clearly mis-appreciated this aspect by saying that the wife had not made any averment in her petition earlier filed under Section 10 of the Act for judicial separation. Noticeably, in reply of respondent-wife to the divorce petition just a reference was made that husband was interested to marry someone else. The reply was filed in March, 2007. In her statement on oath as a witness, wife had mentioned in her examination-in-chief, "I have reasons to believe that recently my husband has ::: Downloaded on - 23/09/2022 20:03:18 :::CIS ...13...
kept another woman as his wife." Meaning thereby, that .
her knowledge about the facts on which she had based allegations was of recent origin. Same inference can also be easily drawn from the cross-examination of husband to whom it was suggested that he had kept another lady as wife in his house for the last 5-6 months. Statement of husband was recorded on 15.03.2008. In this view of the matter, the inference drawn by learned trial Court from non-incorporation of such allegation in earlier pleadings of wife in petition under Section 10 of the Act is clearly misplaced. The material suggests that the wife had entertained the belief about her husband residing with some other lady during the pendency of the petition. Thus, she could not be accused of having manufactured facts just to malign her husband.
17. The husband never took exception to such remarks of the wife and her father. He never raised any issue in this regard and did not choose to get ::: Downloaded on - 23/09/2022 20:03:18 :::CIS ...14...
incorporated his grievance in the petition, which clearly .
means that firstly husband had not taken the allegations levelled against him as acts of cruelty and secondly, even if, he had considered such allegations to be acts of cruelty, he had condoned the same.
18. Taking the holistic view of the entire situation, it is held that the judgment and decree passed by learned trial Court cannot be sustained. Accordingly, the instant appeal is allowed and the judgment and decree dated 18.10.2011 passed by the learned Additional District Judge, Fast Track Court, Shimla, H.P., in H.M.A. Petition No. 17-S/3 of 2005/2004 is set aside and the divorce petition filed by the husband is dismissed with no order as to the costs.
CMP No. 949 of 2012.
19. The applicant/wife, by way of instant application, has sought maintenance pendente lite at the rate of Rs.15,000/- per month, besides litigation expenses to the tune of Rs.50,000/-.
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20. The claim for maintenance pendente lite has .
been made on the premise that the applicant/wife has no independent source of income. She is totally dependent upon her parents for livelihood. Besides herself, she has to maintain her daughter and to bear all her expenses. It is submitted that during the pendency of divorce petition before the learned District Judge, applicant/wife was getting Rs.2,000/- per month as maintenance which was received till October, 2011. It is further submitted that respondent/husband had not paid any amount to the applicant/wife or their daughter towards maintenance after filing of the appeal before this Court. As per the applicant/wife, she was fraught to bear all the expenses of her daughter including her education, food, shelter clothing etc. The respondent/husband was stated to be earning about Rs.50 lacs per annum from his orchard.
21. Prayer of the applicant/wife has been contested on the ground that she was disentitled from claim claiming maintenance on account of her own ::: Downloaded on - 23/09/2022 20:03:18 :::CIS ...16...
defaults. It is submitted that the father of the .
applicant/wife was a retired government servant. Her brother was also earning handsome amount. The applicant/wife was stated to be earning herself till 2012 as an employee of Gurukul International School, Solan. It is further asserted that the income from orchard was not more than Rs.5-7 lacs per annum and that the orchard belonged to entire family of respondent/husband.
22. In rejoinder, applicant/wife denied the averments made in the reply and reiterated the contents of application. Additionally, the breakup of expenses was provided, according to which, annual expenses of daughter were approximately Rs.56,000/-.
23. The instant application was filed on 17.12.2012. Appeal had been admitted for hearing on 26.07.2012.
24. It is not in dispute that daughter of parties was residing with the applicant/wife and was being maintained by her only. Respondent/husband has not ::: Downloaded on - 23/09/2022 20:03:18 :::CIS ...17...
placed on record any material to show that he had paid .
any amount for maintaining his wife and daughter. There is also nothing on record to suggest that the applicant/wife had any independent source of income. As per reply, applicant/wife had worked in Gurukul International School, Solan, till 2012.
25. The fact that the father of applicant/wife was a retired government servant or that her brother was also employed, does not in any manner absolve the respondent/husband from his liability to maintain applicant/wife and the daughter. The date of birth of the daughter of parties is 11th November, 2002. Meaning thereby, at the time of filing of instant application she was about 10 years old. Applicant/wife has maintained herself and the daughter without any help from the respondent/husband till date. Presently the daughter is about 20 years old.
26. Section 24 of the Hindu Marriage Act provides for grant of maintenance pendente lite in case either wife ::: Downloaded on - 23/09/2022 20:03:18 :::CIS ...18...
or husband, as the case may be, has no independent .
income sufficient for her or his support. The aforesaid provision also provides for grant of necessary expenses for proceedings. In Amarjit Kaur vs. Harbhajan Singh and Another, (2003)10 SCC 228, Hon'ble Supreme Court observed that the relevant statutory consideration under Section 24 of the Hindu Marriage Act is that the applicant has no independent income sufficient for support, if such fact exists, then the interim maintenance has to be granted. The only discretion thereafter left with the Court is with reference to reasonableness of the amount.
27. In the facts of the instant case, as noticed above, the applicant/wife has no independent source of income. Respondent/husband has not been able to place on record any material to show that the applicant/wife had been earning sufficiently since the date of filing of application till date. It being so, applicant/wife is entitled to maintenance pendente lite from respondent/husband. Since, the daughter of the ::: Downloaded on - 23/09/2022 20:03:18 :::CIS ...19...
parties is also being maintained by the applicant/wife, it .
also will be the relevant consideration in deciding the present application.
28. In Jasbir Kaur Sehgal vs. District Judge, Dhradun and others, (1997)7 SCC 7, the Hon'ble Supreme Court has observed as under:-
"6. The wife says that the husband has not given true account of his assets and income and has rather suppressed the same. Though the wife has not been able to give any specific evidence to support her contention but circumstance show that the husband has not given true state of affairs of his income. He has pleaded that both his wife and his eldest daughter are earning Rs. 10,000/- per month but there is no basis for such an allegation. The fact remains that the wife has no source of income and she is also maintaining her eldest unmarried daughter. Under the Hindu Adoptions & Maintenance Act, 1956 it is the obligation of a person to maintain her unmarried daughter if she is unable to maintain herself. In this case since the wife has no income of her own, it is the obligation of the husband to maintain her and her two unmarried daughters one of whom is ::: Downloaded on - 23/09/2022 20:03:18 :::CIS ...20...
living with wife and one with him. Section 24 .
of the Act no doubt talks of maintenance of wife during the pendency of the proceedings but this section, in our view, cannot be read in isolation and cannot be given restricted meaning to hold that it is maintenance of the wife alone and no one else. Since wife is maintaining the eldest unmarried daughter, her right to claim maintenance would include her own maintenance and that of her daughter. This fact has to be kept in view while fixing the maintenance pendente lite for the wife. We are aware of the provisions of Section 26 of the Act providing for custody of minor children, their maintenance and education but that section operates in its own field."
29. Thus, applicant/wife is entitled to maintenance pendente lite from the respondent/husband for herself as well as her daughter. For the purpose of assessment of the amount of maintenance pendente lite, reference can be made to following extract from Jasbir Kaur Sehgal's case (supra):-
"8. Wife has no fixed abode of residence She says she is living in Gurudwara with her eldest daughter for safety. On the other hand husband has sufficient income and a house to him. Wife has not claimed and litigation ::: Downloaded on - 23/09/2022 20:03:18 :::CIS ...21...
expenses in this appeal. She is aggrieved only .
because of the paltry amount of maintenance fixed by the court. No set formula can be laid for fixing the amount of maintenance. It has, in very nature of things, to depend on the facts and circumstance of each case. Some scope for liverage can, however, be always there. Court has to consider the status of the parties, their respective needs, capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and those; he is obliged under the law and statutory but involuntary payments or deductions. Amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with her husband and also that she does not feel handicapped in the prosecution of her case. At the same time, the amount so fixed cannot be excessive or extortionate. In the circumstances of the present case we fix maintenance pendente lite at the rate of Rs. 5,000/- per month payable by respondent- husband to the appellant-wife."
30. In Rajnesh vs. Neha and another, (2021)2 SCC 324, Hon'ble Supreme Court has made an ::: Downloaded on - 23/09/2022 20:03:18 :::CIS ...22...
exposition to define criteria for determining quantum of .
maintenance as under:-
"77. The objective of granting interim / permanent alimony is to ensure that the dependant spouse is not reduced to destitution or vagrancy on account of the failure of the marriage, and not as a punishment to the other spouse. There is no straitjacket formula for fixing the quantum of maintenance to be awarded.
78. The factors which would weigh with the Court inter alia are the status of the parties; reasonable needs of the wife and dependant children; whether the applicant is educated and professionally qualified; whether the applicant has any independent source of income; whether the income is sufficient to enable her to maintain the same standard of living as she was accustomed to in her matrimonial home; whether the applicant was employed prior to her marriage; whether she was working during the subsistence of the marriage; whether the wife was required to sacrifice her employment opportunities for nurturing the family, child rearing, and looking after adult members of the family; reasonable costs of litigation for a non- working wife.::: Downloaded on - 23/09/2022 20:03:18 :::CIS
...23...
79. In Manish Jain v Akanksha Jain, .
(2017)15 SCC 801 this Court held that the financial position of the parents of the applicant-wife, would not be material while determining the quantum of maintenance. An order of interim maintenance is conditional on the circumstance that the wife or husband who makes a claim has no independent income, sufficient for her or his support. It is no answer to a claim of maintenance that the wife is educated and could support herself.
The court must take into consideration the status of the parties and the capacity of the spouse to pay for her or his support.
Maintenance is dependent upon factual situations; the Court should mould the claim for maintenance based on various factors brought before it.
80. On the other hand, the financial capacity of the husband, his actual income, reasonable expenses for his own maintenance, and dependant family members whom he is obliged to maintain under the law, liabilities if any, would be required to be taken into consideration, to arrive at the appropriate quantum of maintenance to be paid. The Court must have due regard to the standard of living of the husband, as well as the spiralling inflation rates and high costs of ::: Downloaded on - 23/09/2022 20:03:18 :::CIS ...24...
living. The plea of the husband that he does .
not possess any source of income ipso facto does not absolve him of his moral duty to maintain his wife if he is able bodied and has educational qualifications.
81. A careful and just balance must be drawn between all relevant factors. The test for determination of maintenance in matrimonial disputes depends on the financial status of the respondent, and the standard of living that the applicant was accustomed to in her matrimonial home.36 The maintenance amount awarded must be reasonable and realistic, and avoid either of the two extremes i.e. maintenance awarded to the wife should neither be so extravagant which becomes oppressive and unbearable for the respondent, nor should it be so meagre that it drives the wife to penury. The sufficiency of the quantum has to be adjudged so that the wife is able to maintain herself with reasonable comfort."
31. Respondent/husband has not denied his occupation as an agriculturist/horticulturist.
Applicant/wife alleged the income of respondent/husband to be about Rs.50 lacs per annum, whereas respondent/ ::: Downloaded on - 23/09/2022 20:03:18 :::CIS ...25...
husband has mentioned the income from orchard as .
between Rs.5-7 lacs per annum. The pleadings to the above effect were made by parties in the year 2012- 2013. Respondent/husband has not placed on record any authentic proof showing his monthly income. In the given circumstances, the Court has no option but to make an exercise in estimation. Applicant/wife has alleged that respondent/husband has about 35 bighas of land under apple orchard. This fact has not been specifically denied by the respondent/husband. Even by conservative approximation not less than 20 trees can be grown per bigha of land. In such a way, about 700 apple trees would be available in the orchard of the respondent/husband. From 700 apple trees, again by conservative approximation, yield of not less than 2500 apple boxes can be expected. It being so, the income from orchard would definitely be much higher than Rs.5-7 lacs per annum. Keeping in view the attending circumstances viz the expenses incurred on horticulture ::: Downloaded on - 23/09/2022 20:03:18 :::CIS ...26...
pursuits, family requirements of respondent/husband .
etc., it can safely be held that the husband would not be having his personal income of less than Rs.40,000/- per month. Keeping in view the quantum of income, an amount of Rs.15,000/- per month is considered to be reasonable amount as maintenance pendente lite to the applicant/wife r for her as well as her daughter's maintenance.
32. Merely because the instant application is being decided along with main appeal, the right of maintenance pendente lite available to the applicant/wife cannot be taken away. The fact of the matter remains that applicant/wife has spent all past years since 2012 without any financial help from respondent/husband. The applicant/wife coped with all adversities of life in order to maintain herself and her daughter. Had the application been decided earlier, the respondent/husband would have been liable to pay the maintenance pendente lite ::: Downloaded on - 23/09/2022 20:03:18 :::CIS ...27...
regularly. Applicant/wife needs to be compensated for .
default of respondent/husband.
33. In view of the above discussion, the application is allowed and the applicant/wife is held entitled for maintenance pendente lite @ Rs.15,000/- per month from the date of filing of this application till the date of final adjudication of the main appeal. In addition, the applicant/wife is also held entitled to litigation expenses of Rs.50,000/-. The respondent/husband is directed to pay the amount in terms of this order to the applicant/wife within three months from today. All other pending application(s), if any, shall also stand disposed of.
(Satyen Vaidya) Judge 23rd September, 2022.
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