Punjab-Haryana High Court
Sanjay Lata vs Amrit Lal Gautam on 4 September, 2009
FAO No.164-M of 2002 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
FAO No.164-M of 2002 (O&M)
Date of decision: 4.09.2009
Sanjay Lata ..Appellant
Versus
Amrit Lal Gautam ...Respondent
CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA
Present:- Mr.V.P.Singh, Advocate,
for the appellant.
Mr.H.N.Mehtani, Advocate,
for the respondent.
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1. Whether Reporters of Local Newspapers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in Digest?
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VINOD K. SHARMA,J.( Oral) This appeal by the appellant/wife is directed against the judgment and decree dated 15.6.2002 passed by the learned District Judge, FAO No.164-M of 2002 2 Bhiwani vide which petition filed by the respondent/husband under sections 13 of the Hindu Marriage Act, 1955 (for short the Act), seeking dissolution of marriage by a decree of divorce stands allowed.
Marriage between between the parties was solemnized on 27.4.1996. From the wed-lock a male child was born on 5.9.1997 but he died soon thereafter on 7.9.1997. A girl child was born on 15.9.1998. The respondent/husband filed a petition under section 9 of the Act but it was withdrawn. The respondent/husband thereafter had filed a petition under section 13 of the Act seeking decree of divorce on the ground of cruelty. Grounds of cruelty pleaded were that on 2.1.1998 Deepak alias Kuldeep brother of the appellant came to the house of the respondent for taking the appellant to her parents' home. The appellant accompanied her brother in the absence of the respondent, and took with her all her ornaments as well as two suit-cases of clothes, golden chain and ring. This was said to have been done by the appellant on the plea that she was to stay with her parents for a considerable long period. The attempt of the respondent to bring her back failed.
It was further pleaded that instead of accepting his request to return to her matrimonial home the appellant and her family members misbehaved with him and refused to send her. It was also the case set up that he was not even permitted to see the newly born child. The case further set up by the respondent further was that the respondent filed a petition for restitution of conjugal rights, but in the reconciliation proceedings she refused to join the matrimonial home. It was on account of her adamant FAO No.164-M of 2002 3 stand that respondent withdrew the petition. That as a counter blast to the petition the appellant and her father filed a false complaint with the police against the respondent, his father, Ram Gopal, his uncle Sham Lal, his mother Smt.Sumitra, maternal aunt Smt.Shashi, aunt Smt.Renu, Kaushlaya, his sister Sushma, uncle Gobind Ram and his cousins Vijay Kumar and Sanjay regarding demand of dowry. The respondent claimed that he was repeatedly called by the police and unnecessary humiliated during investigation. Allegations were finally found to be false, baseless, and untrue.
It was the case of the appellant that on 9.3.1999 when the respondent had gone to attend the court, the appellant along with her daughter came there, but when the appellant tried to take the daughter outside the court the appellant insulted him by saying that the respondent was a puppet in the hands of his parents and was "Namard". It was also pleaded that she spat on his face. This act was claimed to be an act of cruelty.
The petition was contested, wherein it was pleaded that the petition was based on wrong facts and concoctions, and all the facts pleaded therein were twisted by the respondent and his parents. It was pleaded that the parents of the respondent wanted their son to get remarried for dowry. Allegations of cruelty qua demand of dowry were also levelled. It was pleaded that a complaint was filed with the police but due to political influence of the respondent the police did not take action. Allegations were levelled against the father of the respondent by stating that he had an evil FAO No.164-M of 2002 4 eye on the appellant. It was pleaded case of the appellant that in spite of the respondent having been informed he decided to keep mum. Allegations of use of foul and abusive language against the appellant and her family members were also levelled. It was also pleaded that the appellant was subjected to beating by the mother and aunt of the respondent and further that the father of the appellant was threatened with dire consequences if he ever came to see her. It was also pleaded that on the birth of the second child no member of the family came to see her. Allegations were also levelled that due to ill-treatment of parents of the respondent she had to leave the job and she was disturbed mentally by their ill-treatment. It was further alleged that the respondent wanted to kill the appellant, and that her Istridhan was kept by her father-in-law i.e. father of the respondent. She also alleged that she was turned out of house in three clothes. Filing of petition under section 9 of the act was admitted. However, it was denied that she misbehaved with the respondent in the court premises as alleged.
Learned matrimonial court on appreciation of evidence decided issue of cruelty in favour of the respondent/husband.
Learned matrimonial court found that the allegations of the respondent that on 9.3.1999 when he had gone to the court, and that the appellant had picked up quarrel with respondent when he tried to take female child in his arm and that she had called him Namard and spat on his face stood proved.
Learned matrimonial court also found that in cross- examination appellant had admitted that the respondent never maltreated or FAO No.164-M of 2002 5 abused her or demanded any dowry, thus came to the conclusion that the allegations levelled qua the demand of dowry were not proved. The learned matrimonial court also found that it was proved by evidence that the the appellant had filed various complaints against the respondent and his family members which were found to be false. Appellant also admitted having filed a criminal complaint against the respondent as well as his family members for which they were tried and finally the case was found to be totally false.
In view of the findings recorded above, learned matrimonial court came to the conclusion that the appellant had treated the respondent with cruelty and it was impossible for the respondent to share marital life with the appellant. The learned matrimonial court decreed the petition field under section 13 of the Act.
Mr.V.P.Singh, learned counsel appearing on behalf of the appellant has challenged the findings of the learned matrimonial court by contending that the respondent miserably failed to prove that he was treated with cruelty. The conclusion drawn by the learned matrimonial court were based on mere conjectures. Learned counsel for the appellant also contended that filing of criminal case itself does not amount to cruelty. Therefore, the judgment and decree deserved to be set aside.
On consideration of the matter, I find no force in the contention raised by the learned counsel for the appellant. The act of the appellant in insulting the respondent in the court and spitting on his face is an act which is sufficient for grant of divorce. In the present case it was proved, that a criminal complaint filed by the appellant against the respondent and his FAO No.164-M of 2002 6 family members was found to be false, and parents were discharged.
Even if this is ignored still a criminal complaint filed under sections 302/498-A/406 and 120-B IPC in the court of learned Additional Sessions Judge-I, Bhiwani against the respondent and his family members was found to be patently false. Learned Additional Sessions Judge had rather found the case to be fit for initiating criminal proceedings under section 194 IPC against the respondent. This act of filing a false criminal prosecution is sufficient to hold that the respondent was treated with cruelty. The findings of the learned matrimonial court are affirmed.
Hon'ble Supreme Court in Ramesh Chandra Rampratapji Daga Vs. Rameshwari Ramesh Chandra Daga, 2005(1) Apex Court Judgments 396 has been pleased to lay down as under: -
"17. In interpreting the provision of Section 25 in the case of Chand Dhawan (supra) the Supreme Court categorically held that the expression 'at the passing (sic. time) of passing any decree,' as has been used in Section 25, includes a decree of nullity of marriage. The relevant observations read thus: -
"On the other hand, under Hindu Marriage Act, in contrast, her claim for maintenance pendente lite is durated (sic) on the pendency of a litigation of the kind envisaged under Sections 9 to 14 of the Hindu Marriage Act, and her claim to permanent maintenance or alimony is based on the supposition that either her marital status has been strained or affected by passing a decree for FAO No.164-M of 2002 7 restitution of conjugal rights or judicial separation in favour of (sic. or) against her, or her marriage stands dissolved by a decree of nullity or divorce, with or without her consent. Thus when her marital status is to be affected or disrupted the court does so by passing a decree for or against her. On or at the time of the happening of that event, the court being seisin of the matter, invokes its ancillary or incidental power to grant permanent alimony. Not only that, the court retains the jurisdiction at subsequent stages to fulfill this incidental or ancillary obligation when moved by an application on that behalf by a party entitled to relief. The court further retains the power to change or alter the order in view of the changed circumstances. Thus the whole exercise is within the gammit (sic gamut) of a diseased or a broken marriage. And in order to avoid conflict of perceptions the legislature which codifying the Hindu Marriage Act preserved the right of permanent maintenance in favour of the husband or the wife, as the case may be, dependent on the court passing a decree of the kind as envisaged under Section 9 to 14 of the Act. In other words without the marital status being affected or disrupted by the matrimonial court under the Hindu Marriage Act the claim of permanent alimony was not to be valid as FAO No.164-M of 2002 8 ancillary or incidental to such affection or disruption. The wife's claim to maintenance necessarily has then to be agitated under the Hindu Adoptions and Maintenance Act, 1956 which is a legislative measure later in point of time than the Hindu Marriage Act, 1955, though part of the same socio-legal scheme revolutionizing the law applicable to Hindus. We have thus, in this light, no hesitation in coming to the view that when by court intervention under the Hindu Marriage Act, affectation or disruption to the marital status has come by, at that juncture, while passing the decree, it undoubtedly has the power to grant permanent alimony or maintenance, if that power is invoked at that time. It also retains the power subsequently to be invoked on application by a party entitled to relief. And such order, in all events, remains within the jurisdiction of that court, to be altered or modified as future situations may warrant.
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 nonexistent in eye of law or non est, the present respondent cannot lay a claim as wife for grant of permanent alimony or maintenance. We have critically FAO No.164-M of 2002 9 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's case (supra), 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."
In the present case the appellant is not entitled to any alimony as she herself is employed, but the respondent is certainly bound to maintain the minor daughter.
With the consent of the parties, it is ordered that the minor daughter shall be entitled to a lump sum permanent alimony of Rs.2 lacs (Rupees two lacs only), and in addition, a sum of Rs.1500/- (Rupees fifteen hundred only) per month till the date of her marriage. Amount of two lacs FAO No.164-M of 2002 10 (Rupees two lacs only) shall be deposited in the fixed deposit in the name of the minor carrying maximum rate of interest. Neither the appellant nor the respondent shall be entitled to withdraw the said amount. The minor daughter shall be at liberty to withdraw the amount along with accrued interest on attaining majority.
For the reasons stated above, there is no merit in the appeal which is ordered to be dismissed but with no order as to costs.
(Vinod K.Sharma) 4.09.2009 Judge rp