Chattisgarh High Court
Vasudev Prajapati vs Smt. Sunita Kumari on 28 April, 2022
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AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
First Appeal (M) No.09 of 2015
Reserved on 07.04.2022
Pronounced on 28.04.2022
● Vasudev Prajapati, S/o Rajaram Prajapati, aged about 34 years,
R/o BTI Road, Baroda Chowk, Mahasamund, Police Station
Mahasamund, Tahsil Mahasamund, Civil & Revenue District
Mahasamund, Chhattisgarh
---- Appellant/Plaintiff
Versus
● Smt. Sunita Kumari, W/o Vasudev, aged about 33 years, R/o
Durga Chowk, Krishna Nagar, Supela, Bhilai, Civil & Revenue
District Durg, Chhattisgarh.
---- Respondent/Defendant
For Appellant : Shri Manoj Paranjpe appears along with Shri Anurag Singh and Shri Subhank Tiwari, Advocate.
For Respondent : Shri H.B.Agrawal, Sr. Advocate along with Shri Amit Tirkey, Advocate.
Hon'ble Shri Justice Sanjay S. Agrawal C.A.V. Judgment/Order
1. This appeal has been preferred by the Applicant - husband under Section 28 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act, 1955) questioning the legality and propriety of the judgment and decree dated 26.11.2014 passed in Civil Suit No.16-A/2013, whereby the learned trial Court has dismissed his application seeking decree for dissolution of marriage on the ground of desertion and cruelty. The parties to this appeal shall be referred hereinafter as per their description before the Court below.
2. Facts, which are essential to be stated for adjudication of this appeal, are that the marriage of the Applicant was solemnized 2 with the Non-applicant - wife on 28.02.2008 in accordance with Hindu rites and rituals at Bhilai, Dist. Durg (C.G.). It is pleaded in the application that at the time of marriage, the age of the Non-applicant was suppressed by showing three years less than her actual age and her parents wanted to keep him as Gharjamai (a resident son-in-law). According to the Applicant, they lived only for 9 days in his house at Mahasamund and thereafter he got her admission in Shankaracharya B.Ed. College, Bhilai as per her wishes, where she stayed upto June 2009 for the purposes of completing her education and thereafter, they lived only one and half months at the place of his posting, i.e., Gariaband as she left the matrimonial home on 12.08.2009 without any intimation when he was not at home. Further contention of the Applicant is that a false criminal complaint has been lodged by his wife pertaining to demand of dowry, owing to which, an offence punishable under Section 498-A of IPC read with Section 4 of Dowry Prohibition Act has been registered against him in connection with Crime No.26/2011 causing mental cruelty to him, which compelled him for the initiation of the proceedings for dissolution of marriage on the ground of cruelty and desertion as required under Section 13 (1) (ia) and (ib) of the Act, 1955, instituted on 07.05.2013.
3. While contesting the aforesaid claim, it is pleaded by Non-
applicant - wife that after examining her educational certificates, the Applicant has got married with her, and therefore, the alleged allegation of suppression of her age is a false one. It is stated 3 further that immediately 4 days after the marriage, her husband went to his place of posting without making any relations with her. It is pleaded further that her husband used to keep talking late night with other women and has extra-marital relations with her. It is pleaded further that since she was subjected to cruelty on account of demand of dowry, therefore, she was forced to lodge the alleged report against him.
4. In support, the Applicant has examined himself and his father Rajaram, while the Non-applicant has examined herself, father of her husband's concubine, namely, Murlidhar and also her father
- Harinath Prasad in rebuttal.
5. After considering the evidence led by the parties, it was held by the trial Court that as the Applicant was found to be living with another woman, namely, Deepika Agrase, therefore, the Non- applicant was forced to live separately with justifiable reasons and in view thereof, the ground of desertion as alleged by the Applicant was not found to be established. It held further that the alleged complaint pertaining to the demand of dowry was not found to be a false one as alleged by the Applicant, and therefore, it cannot be held that the wife has committed cruelty with her husband entitling him to a decree for dissolution of marriage on the ground enumerated under Section 13 (1) (ia) of the Act, 1955 as well. As a consequence of it, the trial Court has dismissed the claim, which has been impugned by way of this appeal.
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6. Shri Manoj Paranjpe, learned counsel appearing for the Applicant - husband submits that the finding of the Court below holding that the Non-applicant has not deserted her husband and has not committed a cruelty upon him by lodging a complaint under Section 498-A of IPC read with Section 4 of the Dowry Prohibition Act is apparently contrary to law. According to him, the wife has lived only a very short span of time with her husband and has started living separately without intimating him since 12.08.2009 and, as she has committed cruelty by lodging a false complaint case against him under Section 498-A of IPC read with Section 4 of Dowry Prohibition Act, therefore, the Court below ought to have granted a decree for dissolution of marriage. In support, he placed his reliance upon a decisions rendered by the Supreme Court in the matters of Rani Narasimha Sastry vs. Rani Suneela Rani and K. Srinivas Rao vs. D.A. Deepa reported in 2019 SCC OnLine SC 1595 and (2013) 5 SCC 226 respectively. During pendency of this appeal, an application under Order 41 Rule 27 of Code of Civil Procedure, 1908 (for short, 'the CPC') seeking production of certified copy of judgment dated 12.12.2014 passed in Criminal Case No.345/2013 was filed as the same was delivered during the pendency of this appeal.
7. On the other hand, Shri H.B.Agrawal, learned Senior Counsel appearing along with Shri Amit Tirkey has supported the judgment and decree under appeal as passed by the Court below. It is contended further by moving an application under 5 Order 41 Rule 22 of CPC that in the event of granting a decree for dissolution of marriage, a permanent alimony be granted to the wife under Section 25 of the Act, 1955.
8. I have heard learned counsel for the parties and perused the entire record carefully.
9. The questions, which arise for determination in this appeal are :
(i) Whether the Non-applicant - wife has deserted her husband since 12.08.2009 without any rhyme and reasons being assigned entitling the Applicant for the decree of dissolution of marriage on the ground of desertion under Section 13 (1) (ib) of the Act, 1955?
(ii) Whether the Non-Applicant - Wife has levelled the false allegations against her husband pertaining to the demand of dowry by lodging a false complaint under Section 498-A of IPC read with Section 4 of Dowry Prohibition Act entitling the Applicant for the decree of dissolution of marriage on the ground enumerated under Section 13 (1) (ia) of the Act, 1955?
Reference to question (i)
10. According to the averments made in the Application, the Non-
applicant - wife has left the matrimonial house on 12.08.2009 without intimating to anyone else when the Applicant - husband was not at home and since then she is living with her parental home and has thus deserted her husband without any reasonable and justifiable reasons. In order to substantiate the said fact, it was reiterated by him in his evidence. The said fact was, however, denied by his wife in her statement wherein she has stated that despite her resistance, her husband used to talk 6 with some girl, namely, Deepika Agrase, and therefore, she has been forced to live separately from her husband. The version of her was found to be proved as her husband in categorical terms has admitted this fact in his cross-examination that he is living with that girl who was earlier of his student.
11. Considering the aforesaid evidence led by the parties, it is evident that as the Applicant was living with another woman, namely, Deepika Agrase, therefore, there was the reason as to why the Non-Applicant has started living separately from her husband. In view thereof, the Applicant has failed to establish the fact that his wife has deserted him since 12.08.2009 without any justifiable reasons so as to obtain a decree for dissolution of marriage on the ground of desertion under Section 13 (1) (ib) of the Act, 1955 and, I do not find any infirmity in the finding of the trial Court in this regard, which deserves to be and is hereby affirmed.
Reference to question (ii)
12. Before considering this question, it is necessary to consider the application filed by the Applicant during the pendency of this appeal under Order 41 Rule 27 of CPC seeking production of the certified copy of the judgment dated 12.12.2014 passed by Judicial Magistrate First Class, Mahasamund in Criminal Case No.345/2013. Since the said judgment was delivered during the pendency of this appeal and is relevant for adjudication of the issue involved herein, I am inclined to allow this application and 7 the certified copy of the said judgment is accordingly taken on record.
13. From perusal of the aforesaid judgment, it appears that a written report was lodged by the Non-applicant - wife alleging that she was subjected to mental and physical cruelty pertaining to the demand of dowry made by her husband and in-laws and after the investigation, no evidence was, however, found against her father-in-law (Rajaram), mother-in-law (Bedanbholi) and sister- in-law (Jethani - Sudha) and, the Applicant - husband alone was charge sheeted under Section 498-A/34 IPC read with Section 4 of the Dowry Prohibition Act and the Applicant was accordingly arrested in connection with the said crime. According to the Applicant, it was a false complaint that was lodged against him and by virtue of the said judgment, the alleged complaint was found to be a false one and the Applicant was accordingly acquitted from the alleged crime.
14. Besides, a close scrutiny of the wife's statement would reveal that she was never subjected to cruelty with regard to the demand of dowry as no evidence was led by her in this regard and her statement was even not found to be corroborated by her father Harinath Prasad, who was examined as N.A.W.3, as he has also not stated anywhere that his daughter was subjected to cruelty either by the Applicant or by his parents as such.
15. In view of the aforesaid evidence and in absence of any cogent and reliable evidence led, it is evident that the alleged complaint 8 lodged by the Non-applicant was not only a false one, but, based upon it, the Applicant - husband has faced trial for a period of 4 years in connection with the alleged crime wherein he was ultimately found to be acquitted vide judgment dated 12.12.2014 in Criminal Case No. 345/2013. Levelling the alleged allegations have thus caused a mental cruelty upon him. It is to be noted at this juncture the principles laid down by the Supreme Court in the matter of Rani Narasimha Sastry v. Rani Suneela Rani (supra) wherein it has been held at paragraph 14 as under:-
"14. The above observation of the High Court cannot be approved. It is true that it is open for anyone to file complaint or lodge prosecution for redressal for his or her grievances and lodge a first information report for an offence also and mere lodging of complaint or FIR cannot ipso facto be treated as cruelty. But when a person undergoes a trial in which he is acquitted of the allegation of offence under Section 498-A of IPC, levelled by the wife against the husband, it cannot be accepted that no cruelty has meted on the husband. As per pleadings before us, after parties having been married on 14.08.2005, they lived together only 18 months and thereafter they are separately living for more than a a decade now."
16. Moreover, it appears from the record that after living a very short span of time, the Non-applicant - wife is living separately from her matrimonial home since 12.08.2009 and, thus both are living separately for over more than 11 years. It, thus, appears that the alleged marriage solemnized on 28.02.2008 has irretrievably broken down, and therefore, it is dead for all purposes and cannot be revived as held by the Supreme Court in the matter of K. Srinivasa Rao v. D.A.Deepa (supra) wherein it has been held 9 at paragraphs 30 and 31, which read as under:-
"30. It is also to be noted that the appellant husband and the respondent wife are staying apart from 27-4- 1999. Thus, they are living separately for more than ten years. This separation has created an unbridgeable distance between the two. As held in Samar Ghosh (2007 1 SCC 337), if we refuse to sever the tie, it may lead to mental cruelty.
31. We are also satisfied that this marriage has irretrievably broken down. Irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act, 1955. But, where marriage is beyond repair on account of bitterness created by the acts of the husband or the wife or of both, the courts have always taken irretrievable breakdown of marriage as a very weighty circumstance amongst others necessitating severance of marital tie. A marriage which is dead for all purposes cannot be revived by the court's verdict, if the parties are not willing. This is because marriage involves human sentiments and emotions and if they are dried up there is hardly any chance of their springing back to life on account of artificial reunion created by the court's decree."
17. Applying the aforesaid principles to the case in hand, it appears, as observed herein above, that both are not only living separately for over more than 11 years, but a false criminal case was found to be lodged by the Non-applicant - wife against her husband, which certainly caused mental cruelty to him. As a consequence of it, the Applicant - husband would be entitled to get a decree for dissolution of marriage on the ground enumerated under Section 13 (1) (ia) of the Act, 1955 and, the finding of the trial Court declining to grant a decree for divorce on the ground of cruelty is accordingly set aside and the Applicant is hereby held to be entitled to a decree for divorce under Section 13 (1) (ia) of the Act, 1955.
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18. Since the Applicant is entitled to a decree for dissolution of marriage, as observed herein above, therefore, in order to consider the permanent alimony payable to the Non-Applicant - Wife, it is necessary to examine the provision prescribed under Section 25 of the Act, 1955, which reads as under :-
"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 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]."
19. The aforesaid provision has been interpreted by the Supreme Court in the matter of Vinny Paramvir Parmar vs. Paramvir Parmar reported in (2011) 13 SCC 112 and observed at paragraph 12 as under :-
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"12. As per Section 25, while considering the claim for permanent alimony and maintenance of either spouse, the respondent's own income and other property, and the income and other property of the applicant are all relevant material in addition to the conduct of the parties and other circumstances of the case. It is further seen that the court considering such claim has to consider all the above relevant materials and determine the amount which is to be just for living standard. No fixed formula can be laid for fixing the amount of maintenance. It has to be in the nature of things which depend on various facts and circumstances of each case. The court has to consider the status of the parties, their respective needs, the capacity of the husband to pay, having regard to reasonable expenses for his own maintenance and others whom he is obliged to maintain under the law and statute. The courts also have to take note of the fact that the amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and mode of life she was used to live when she lived with her husband. At the same time, the amount so fixed cannot be excessive or affect the living condition of the other party. These are all the broad principles courts have to be kept (sic keep) in mind while determining maintenance or permanent alimony."
20. While following the aforesaid principles, the Supreme Court in the matter of U. Sree vs. U. Srinivas reported in (2013) 2 SCC 114 held at paragraph 33 as under :-
"33. ................. We have already opined that the husband has made out a case for divorce by proving mental cruelty. As a decree is passed, the wife is entitled to permanent alimony for her sustenance. Be it stated, while granting permanent alimony, no arithmetic formula can be adopted as there cannot be mathematical exactitude. It shall depend upon the status of the parties, their respective social needs, the financial capacity of the husband and other obligations. In Vinny Parmvir Parmar v. Parmvir Parmar (SCC p. 116, para 12) while dealing with the concept of permanent alimony, this Court has observed that while granting permanent alimony, the court is required to take note of the fact that the amount of maintenance fixed for 12 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. At the same time, the amount so fixed cannot be excessive or affect the living condition of the other party."
21. Recently, the Supreme Court in the matter of Rajnesh vs. Neha and another reported in (2021) 2 SCC 324 held at paragraph 78 as under :-
"78. The factors which would weigh with the court inter alia are the status of the parties; reasonable needs of the wife and dependent 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."
22. Although an application while mentioning the wrong provision under Order 41 Rule 22 of CPC has been made by the wife, but more or less she is seeking permanent alimony/maintenance under Section 25 of the Act and, according to the principles laid down herein above, what would be just and proper amount of maintenance would, however, be dependent upon the status of the parties and the reasonable needs of the wife. Both the parties in the light of the guidelines mentioned in the matter of Rajnesh vs. Neha and another (supra) have submitted their affidavits disclosing their assets and liabilities. According to the 13 affidavit submitted by the Applicant - husband, it appears that a sum of Rs.5,000/- towards maintenance has been fixed under Section 125 of Cr.P.C. However, a bare perusal of the order dated 10.07.2012 passed by the Principal Judge, Family Court, Durg in Miscellaneous Criminal Case No.388/2010, it appears that the monthly amount of Rs.2000/- has, in fact, been fixed under the said provision and not Rs.5000/- per month as deposed by the Applicant, which was, however, found to be enhanced to the tune of Rs.5000/- per month vide order dated 28.03.2019 by the said Court in exercise of the powers enumerated under Section 127 of Cr.P.C. That apart, father and mother of the Applicant are shown to be dependents upon him and monthly pension of the father is shown to be Rs.15,000/- and approximate expenses used to be incurred towards dependents is shown in the affidavit as Rs.10,000/-. However, a bare perusal of the statement of the Applicant (A.W.1) and his father Rajaram Prajapati, who was examined as A.W.2, it is difficult to hold that father and mother are dependents upon him as none of them in their statements have stated that they are living along with the Applicant - husband. It reveals further from the pay-slip issued by the Government Higher Secondary School, Kochvay attached with the said affidavit, the net monthly salary of the Applicant is Rs.45,847/-, yearly Rs.5,50,164/- and his gross total annual income, as per Form-16, issued under Section 203 of the Income Tax Act, 1961 is shown to be Rs.5,17,384/-.
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23. In so far as the independent source of income of the wife is concerned, the Applicant - husband has, however, shown in his said affidavit that he is not aware of the earning of his wife. Although the Applicant has stated in his affidavit as such, but in a proceeding initiated by the wife under Section 125 of Cr.P.C. no independent source of income of wife was found by the concerned Family Court in its order dated 10.07.2012 attached with the said affidavit of the Applicant and which has attained its finality by efflux of time. In view thereof, the affidavit as submitted by the Non-applicant/wife in the light of the aforesaid matter of Rajnesh vs. Neha and another (supra) disclosing the fact that she has no independent source of income appears to be a genuine one.
24. In view of the above materials and that by considering the conditions prescribed under Section 25 of the Act, 1955 relating to claim of permanent alimony/maintenance and considering further the fact that the Non-applicant - wife has no independent source of income and that by taking note of the income of the Applicant - husband as reflected and observed from the aforesaid details furnished coupled with the period of marriage, the ends of justice would be served by fixing amount of permanent alimony/maintenance at Rs.15,00,000/- (Rupees Fifteen lakh only) in lump-sum payable to the Non-applicant - wife by the Applicant - husband within a period of one year in two installments commencing with effect from 01.05.2022 which will forfeit all her claims.
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25. It is made clear that while making the permanent alimony/maintenance, as directed herein above, the Applicant - husband shall be entitled to deduct the amount of maintenance which has already been paid by him during the pendency of this appeal and also in a proceeding initiated under Section 125 of Cr.P.C.
26. The appeal is accordingly allowed with the aforesaid observation.
27. A decree be drawn accordingly.
Sd/-
(Sanjay S. Agrawal) Judge Anjani