Punjab-Haryana High Court
Rajinder Kumar vs Sunita Rani on 14 July, 2011
Author: Jitendra Chauhan
Bench: Jitendra Chauhan
FAO No.M-101 of 2001 1
IN THE HON'BLE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
FAO No.M-101 of 2001
Date of decision 14.07.2011
Rajinder Kumar
.....Appellant
Versus
Sunita Rani
......Respondent
CORAM: HON'BLE MR.JUSTICE JITENDRA CHAUHAN
Present: Mr. Mahipal, Advocate
for the appellant.
None for the respondent.
JITENDRA CHAUHAN,J.
1. The husband has filed this appeal against the judgment and decree, dated 03.04.2001, passed by the Additional District Judge, Kaithal, whereby his divorce petition was dismissed. The husband has also impugned order dated 03.04.2001 in this appeal, by which the wife was awarded a permanent alimony of ` 4000/- per month during her lifetime.
2. In brief the facts of the case are that the marriage between the parties was solemnized on 07.08.1992, according to the Hindu rites and customs. Two children, namely Master Ankit Garg and Miss Akansha were born from this wedlock. The divorce petition was filed on the ground of cruelty, alleging therein that the wife had been demanding money from him, to meet the unreasonable demands of her brothers and father. On refusal the appellant, the behaviour of the respondent-wife, became untolerable and insulting. It is further alleged that the wife would disobey the petitioner and refused to cook. She threatened to immolate herself with a view to FAO No.M-101 of 2001 2 falsely implicate the appellant. It is further averred that the conduct and behaviour of the wife caused mental cruelty to the husband, affected his business and he could not lead a normal, peaceful and happy married life in the company of the respondent-wife.
3. The respondent-wife, contested divorce petition on the ground that after the death of his brother-Prem Chand, he intented to desert the respondent-wife, and was interested to marry his widowed Bhabi-Santosh. The rest of the allegations were also denied. It was further pleaded that the respondent belonged to a very poor family. The petitioner-husband is one leg is afflicted with polio and is a handicap. Due to the poor financial status of the respondent-wife, she married the petitioner/appellant. The wife asserted that the husband filed the divorce petition primarily to marry his widowed Bhabi-Santosh.
4. From the pleadings of the parties the following issues were framed:-
1. Whether petitioner is entitled to a decree of divorce on the ground of cruelty, pleaded in the petition?OPP
2. Whether petitioner has entitled the true and material facts from the Court? If so, its effect?OPR
3. Relief.
5. The learned trial Court dismissed the petition under Section 13 of the Hindu Marriage Act, holding that the husband has failed to make out case of cruelty.
6. Apart from dismissing the divorce petition the learned Additional District Judge, has also granted permanent alimony of ` 4000/- per month, during her lifetime to the respondent-wife under Section 25 of the Hindu Marriage Act.
7. Feeling aggrieved against the judgment and decree dated FAO No.M-101 of 2001 3 03.04.2001, dismissing his divorce petition and also impugning the awarding of permanent alimony.
8. I have heard the learned counsel for the appellant and gone through the evidence on record.
9. The husband has claimed divorce mainly on three grounds:-
That the wife had been demanding money to settle her brothers, the wife had been disobeying the petitioner husband; and refused to cook; she threatened to immolate herself.
10. The question arise in this appeal as to "whether the alleged grounds of cruelty if proved can be considered sufficient to grant a decree of divorce."
11. The appellant has made general allegations and not given any specific instance with regard to the allegations made. The above grounds do not amount to cruelty and these are not sufficient ground for dissolution of marriage having two children. It is only grave incidents which cause reasonable apprehension in the other spouse's mind, which amount to cruelty. It depends on the objective satisfaction of the Court and not the subjective satisfaction of the complainant. The grounds made out by the appellant are normal wear and tear of a married life which may at sometime comes even in happy married couples. A pin prick here and a little tiff there, like refusal to cook and threatening, even if proved cannot be legal cruelty. Such like trifling incidents have to be ignored with patience in order to keep peace in the happly married life. The learned trial Court has come to the conclusion that there is a big difference between the financial status of two families. Husband is a rich businessman. He is running a rice sheller and working as commission agent. He also owned computerised weighing bridge. From the statement of the husband, it appears that the husband had not been giving sufficient funds to meet domestic FAO No.M-101 of 2001 4 requirements to run the family. She is wife of a rich business man having two children and is expected to keep with her some amount for day to day expenses. It is duty of a husband to see that his wife having two minor children possesses sufficient funds with her apart from the house hold expenses. The other ground that the wife is threatening him to immolate herself no evidence or specific instance has been cited. It is matter of common knowledge that no woman having two children would like to die even if she feels suffocated at her in-laws house. She might have some reasonable grouse against the husband in the eventuality of not fulfilling the obligations towards the family by him. The ground of refusal to cook is not such a grave which may constitute cruelty. Even helping the family of the wife does not constitute cruelty, as they being very poor would certainly approach and expert their brother-in-law who is rich and resoruceful to help them.
12. A very high degree of probability is required in matrimonial matters to accept evidence on charges of "Cruelty".
'Mental cruelty' has also been examined by this Court in Parveen Mehta v. Inderjit Mehta (2002) 5, SCC 706, thus:
"Cruelty for the purpose of Section 13(1)(ia) is to be taken as a behaviour by one spouse towards the other, which causes reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with the other. Mental Cruelty is a state of mind and feeling with one of the spouses due to the behaviour or behavioral pattern by the other. Unlime the case of physical cruelty, mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of inteference to be drawn from the facts and circumstances of the case. A feeling of anguish, disappointment and frustration in FAO No.M-101 of 2001 5 one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. The inference has to be drawn from the attending facts and circumstances taken cumulatively. In case of mental cruelty it will not be a correct apporach to take an instance of misbehaviour in isolation and then pose the question whether such behaviour is sufficient by itself to cause mental cruelty. The approach should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the petitioner in the divorce petition has been subjected to mental cruelty due to conduct of the other."
13. Each spouse can discover numerous causes to complaint against the other but these generally arise from incompatible tamperaments. The petition filed by husband does not appear to be a bona fide and the learned Additional District judge has rightly dismissed the divorce petition. Accordingly, this appeal fails and is dismissed without costs.
14. Now, this Court will go to the legality of granting of maintenance under Section 25 of the Hindu Marriage Act. Learned counsel for the appellant cites Paramjit versus Ranjit 1994(3) Punjab Law Reporter Page 232 and argued that once main petition under Section 13 of the Hindu Marriage Act, is dimissed, the learned trial Court has no power to grant maintenance under Section 25 of the Hindu Marriage Act. Learned Counsel argued that the maintenance can be granted under this Section only if the petition for divorce is allowed.
Section 25 of the Hindu Marriage Act reads as under:-
" 25. Permanent alimony and maintenance:-(1) Any Court FAO No.M-101 of 2001 6 exercising jurisdiction under this Act may, at the time of passing any decree or at any time 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".
15. The word "decree" has been defined under Section 2(2) of the Code of Civil Procedure.
(2) "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include:-
(a) any adujdication from which an appeal lies as an appeal from an order, or
(b) any order of dismissal for default."
16. The argument of the learned counsel for the appellant is not tenable Section 25 of the Act, has been incorporated in the Hindu Marriage Act, for providing permanent alimony and maintenance to a wife in order to avoid multiplicity of further litigation, so that there may not be any further harassment to the wife by filing another round of litigation for seeking FAO No.M-101 of 2001 7 permanent alimony. There is distinction between Section 24 of the Act and Section 25 of the Act. Section 24 of the Act provides for maintenance pendente lite and litigation expenses during proceedings. Section 25 of the Act comes into play on the decision of the main petition. It is not necessary that maintenance under Section 25 of the Act can only be granted if the petition is allowed. The dismissal of divorce petition is a "decree" under Section 2(2) of the Code of Civil Procedure. The word "decree" is defined in Section 2(2) of the C.P.C. As a formal expression of an adjudication which conclusively determines the rights of parties with regard to all or any of the matters in controversy in the suit. A relief may be given or refused. In either case, it is a decree. There is no reason to give a restricted meaning to the expression "decree".
17. The petition under Section 25 of the Act is maintainable even where the main petition for divorce is dismissed. The learned trial Court has rightly granted permanent alimony under Section 25 of the Act.
18. Now coming to the quantum of permanent alimony granted, the learned counsel for the appellant argued that the amount is on the higher side. It has come on the record that the husband-appellant is a rich business man having rice sheller, commission agent shop and proprietor of a weigh bridge. Keeping in view of the financial status and income of the husband the amount of ` 4000/- cannot be said to be excessive. Now a days, it is very difficult for one person to survive with such meagre amount. So, keeing in view the dearness of the essential commodities and financial status of the husband, this amount cannot be reduced.
19. Resultantly, this FAO No.M-101 of 2001 fails and is dismissed without costs.
(JITENDRA CHAUHAN) 14.07.2011 JUDGE Jyoti 1 Note: Whether to be referred to reporter? Yes