Allahabad High Court
Smt. Sheela vs Dr. Amar Singh on 31 July, 2024
Author: Saumitra Dayal Singh
Bench: Saumitra Dayal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:123426-DB Court No. - 39 Case :- FIRST APPEAL No. - 557 of 1998 Appellant :- Smt. Sheela Respondent :- Dr. Amar Singh Counsel for Appellant :- Devendra Swarup,Namit Kumar Sharma Counsel for Respondent :- S.K. Singh,V.K.Singh Hon'ble Saumitra Dayal Singh,J.
Hon'ble Donadi Ramesh,J.
1. List revised. None appears for the respondent. On the last date as well, none had appeared for the respondent. Matter is listed today, peremptorily.
2. Heard Shri Namit Kumar Sharma, learned counsel for the appellant and perused the record.
3. Present appeal has been filed under Section 28 of the Hindu Marriage Act, 1955 (hereinafter referred to as the 'Act') read with Section 14(1) of the Family Courts Act, 1984 arising from the judgement and order dated 23.9.1998 passed by Third Additional District & Sessions Judge, Jalaun at Orai, in Marriage Petition No. 29 of 1991 (Dr. Amar Singh vs Smt. Sheela). Thereby, the marriage between the parties has been dissolved by learned trial court under Section 13 of the Act, on the ground of cruelty alleged by the respondent.
4. The marriage between the parties was solemnized on 30.12.1980. At that stage, the respondent was pursuing his studies in M.B.B.S. course. The parties cohabited. One child was born to them in November 1987. Upon completion of his studies, respondent secured a government job at a government hospital in New Delhi. Around that time, the parties appear to have developed differences. Respondent alleges commission of cruelty against the appellant including lodging a false criminal case being Case Crime No. 16 of 1991 at Police Station Jalaun, District Jalaun involving allegation of offence of demand of dowry, etc. Arising therefrom, divorce petition was filed by the respondent. On the other hand, the appellant alleged desertion. She filed Case No. 40 of 1999 (Sheela vs Dr. Amar Singh) seeking restitution of her conjugal rights. That suit was decreed ex-parte on 20.1.1997.
5. While the present appeal was filed on 24.8.1998, during its pendency, respondent is described to have solemnized second marriage with one Smt. Usha, on 26.4.1999. The parties have not cohabited since their separation. Thus, even according to the appellant's case, she has lived separately from the respondent since 11.1.1991. More than thirty three years have passed since then. In the meantime, the marriage between the parties has also suffered a second marriage performed by the respondent. That marriage is itself was performed twenty five years ago.
6. In the meantime, the appellant had claimed and was granted maintenance under Section 125 Cr.P.C. at the rate of Rs. 500/- per month. The same was revised under Section 127 Cr.P.C. to Rs. 7,500/- per month from April 2017 onwards. That amount is being paid.
7. In such circumstances, learned counsel for the appellant has further submitted, as on date, there is no real chance of restoration or revival of the matrimonial relationship between the parties. The appellant was thirty four years of age at the time of institution of appeal. She is about sixty years of age now. The respondent is also retired on the post of C.M.O. (Head of the Department) Medicine at Dr. N.C. Joshi Memorial Hospital (Government of NCT of Delhi), Karol Bagh, New Delhi. His basic pay was Rs. 2,18,200/- per month as on 24.10.2017. He has also referred to the visiting card of the respondent Dr. Amar Singh describing him as Senior Doctor Physician having practised at C6/186, Sudamapuri, Delhi-53.
8. While it is true that no additional evidence has been led - on which strength, no firm conclusion may be drawn as to the income status of the respondent Dr. Amar Singh, at the same time, it is to be noted that the trial court has not made any provision for grant of permanent alimony. The marriage between the parties is undisputed. It does not appear the case of the respondent that the appellant had any known source of income. In the family dispute that was being resolved through dissolution of marriage, reasonable amount ought to have been provided by way of permanent alimony, to ensure preservation of dignity and existence of the appellant. Unless exceptional facts had been made out to deprive the appellant grant of permanent alimony, that right may not have been defeated simply because the decree of divorce was granted on allegation of cruelty.
9. For the purposes of the Act, cruelty may be a ground of dissolution of marriage but it is not an offence as may involve denial of alimony for reasons of simple cruelty proven. At one plane, cruelty remains an experience that is subjective. No two human beings placed in same/similar circumstances in a matrimonial relationship may be expected to experience the same level of measurable cruelty. While dissolving the marriage on the ground of cruelty, the Courts may only apply the test of prudence, keeping in mind the parties to the dispute. At the same time, even in cases where such test is found satisfied, the court may never rule that the person who is attributed to have committed cruelty was not entitled to permanent alimony merely for reason of that fact proven. To inflict that result on an estranged spouse that too a person who may have no source of income, would be to condemn a human being to suffer indignation and risk vagrancy and destitution for reason - including plain incompatibility, inflexibility or inability to adapt as per the desire of one's spouse and family, personal ambitions and desire or upbringing or any other reason or no-reason-like one's nature or psychological and emotional make up over which one may have no control and which fact may also fall outside the scope of the divorce case proceeding itself. To that extent, the act of pre-existing marriage performed by the parties would itself be a circumstance to be valued and weighed by the courts to allow for appropriate alimony to be awarded, considering the economic and social status of the parties. That appears necessary to us, to preserve basic human dignity.
10. In the present case, considering the unrebutted facts with respect to the professional engagement enjoyed by the respondent and material gains derived therefrom, it is provided that the marriage between the parties may remain dissolved from the date of the impugned judgement so however the respondent shall pay Rs. 30,00,000/- to the appellant by way of permanent alimony, within three months.
11. The present appeal is partly allowed, as above. No order as to costs.
Order Date :- 31.7.2024 Prakhar (Donadi Ramesh, J.) (S.D. Singh, J.)