Madhya Pradesh High Court
Smt. Nidhi vs Shri Nishant Dubey on 29 July, 2019
Equivalent citations: AIRONLINE 2019 MP 1073, 2019 AIR CC 3269 (MPI)
F.A.No.2306/2018 & F.A.No.141/2019 1
HIGH COURT OF MADHYA PRADESH BENCH AT INDORE
DIVISION BENCH : Hon'ble Shri Justice S.C. Sharma
and Hon'ble Shri Justice Virender Singh
F.A.No.2306/2018
Nishant Dubey Vs. Dr.Nidhi
&
F.A.No.141/2019
Smt. Nidhi Vs. Nishant
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Shri A.P.Wachasundar learned counsel for the appellant/husband
in F.A.No.2306/2018 and counsel for respondent in
F.A.No.141/2019.
Shri Mohd. Khalid Khokar, learned counsel for the
respondent/wife in F.A.No.2306/2018 and counsel for petitioner
in F.A.No.141/2019 .
********************
JUDGMENT
(Delivered on 29 July, 2019) Per : Virender Singh, J.
1. With consent of the parties, both the matters are heard finally.
2. Both these counter appeals have been preferred by husband and wife against each other challenging judgment and decree dated 25.10.2018 passed by Second Additional Principal Judge, F.A.No.2306/2018 & F.A.No.141/2019 2 Family Court, Indore in H.M.A. No.1902/2017; whereby the learned Family Court has granted ex-parte divorce to wife Dr. Nidhi Nishant Dubey along with one time permanent alimony of Rs.10,00,000/- (Ten Lacs).
3. Husband Nishant has challenged both the reliefs; divorce as well as one time alimony granted to the wife, while wife Nidhi has challenged inadequacy of permanent alimony granted in her favour and she has demanded Rs.50 (fifty) Lacs in that count.
4. Wife Nidhi had preferred the petition before the Family Court stating that she married to Nishant on 24.11.2016 as per Hindu rights and rituals, but after the marriage she came to know that her husband is a habitual and heavy drunkard. He used to come back home at night in drunk condition. Many a times he did not return home for several days. She was also subjected to cruelty by her husband and even by her in-laws. Her Mother-in- law was pressurizing her to hand over jewelry gifted by her parent in the marriage. She was also taunting her that she should have brought at-least Rs.1.5 Lacs in 'Faldan'. She also came to know that her husband had borrowed money from several persons, who were behind him. Once her husband got annoyed and scolded her when she unknowingly accepted a notice of dishonour of cheque worth Rs.4,00,000/- (four lacs) sent by Court in Marathi language. She also saw several messages on his mobile demanding money from him. He was also having illicit relation with some lady. Once she saw a message on his mobile sent by his friend indicating that he had F.A.No.2306/2018 & F.A.No.141/2019 3 relation with one 'Mohini', a bar dancer, and had a son with this relation. On 10.2.2017, she was forced to hand over her jewelry to fulfill his demand of Rs.1.5 lacs. On 17.3.2017, he got annoyed, when she asked to bring back the same. Once she was forced to give Rs.20,000/- from her credit card. Thus, she was suffering a lot in the hands of her husband. When she complained to her parents-in-law, they also revealed that he used to do the same things with them also and once he had stolen Rupees Ten Lacs from their locker also. Perplexed with his behaviour ultimately she walked out of her marital home in April, 2017, but came back again after some time on intervention of elders of both the families. On 6.10.2017, he again abused and hit her in a state of intoxication. Her in-laws did not pay heed to her grievance. Ultimately; on 9.10.2017, she intimated the Police (Chandanagar Police Station, Pune) and left her marital home finally for maternal home and took shelter there.
5. She filed petition for divorce. The Family Court issued notice to the husband by registered A.D. at his home as well as at office address. Notice sent to the office was received by authorized signatory and duly signed acknowledgment was received back. On the date of hearing, none appeared for the husband, therefore the Family Court proceeded ex-parte. After taking evidence of the petitioner wife, final arguements were heard on 11.9.2018 and the case was fixed to pronounce judgement on 22.09.2018.
F.A.No.2306/2018 & F.A.No.141/2019 46. Claiming that the notice sent by the Court was never received to him and only on 20.9.2018 he came to know about filing of the petition, the husband approached the Court and filed application to set aside ex-parte order, but as by that time, hearing of the petition was over and the case was fixed for judgement, his application was dismissed as not maintainable and ultimately the Family Court pronounced the judgement on 25.10.2018.
7. The husband has now preferred this appeal. Besides, denial of allegations of cruelty, harassment and ill-treatment leveled by his wife, he even denied the marriage stating that after all arrangements of marriage were completed and "Saptpadi" was about to start, their priest informed them that being 'Sapind' both the parties to the marriage falls under prohibited degree and, therefore, their marriage cannot be solemnized. After getting this information, the ceremony was aborted and thus, no legal and valid marriage between both of them exists.
8. It is also averred that the postal notice was served at different address of his employer; then the place he was working, therefore, such service cannot be treated as a proper and valid service.
9. Decree of divorce is also challenged on the ground that mandatory provisions of reconciliation under Section 9(1) and Section 23 (2) of the Hindu Marriage Act, 1955 and Order 32(A) Rule 3 of CPC were not followed by the Family Court.
F.A.No.2306/2018 & F.A.No.141/2019 510. Permanent alimony is opposed on the grounds that life time maintenance is governed by the provisions of Section 18 of the Hindu Adoption and Maintenance Act, 1956, therefore, granting maintenance under Section 24 or 25 of the Hindu Marriage Act is contrary to the law.
11. Quantum of permanent alimony is challenged on the ground that the wife herself is a well educated and professionally qualified having completed four and half years bachelor's degree in Physiotherapy and doing well in his profession and is earning sufficiently. She is member of various professional organizations as a qualified Physiotherapist, like All India Sports Physiotherapy, Quality Physiotherapy Services etc. As per her own advertisement on the internet, she gives services as a Physiotherapist in the name and style of "Arthros Clinic" and also works as a Physiotherapist in "Sahaj Hospital", Indore. On a professional networking site, viz; 'Linkedin', she has publicized that she is a physiotherapist with "Sahaj Hospital" since March 2013 and has experience of work since 5 years in the said field.
12. It is further pleaded that the learned Family Court has not considered his income properly. It has considered his income as Rs.6.4 Lacs per annum, which is actually his gross income. Several deduction being made from his salary are not considered. In view of his net salary, he is not in a condition to pay such huge amount as life time maintenance.
13. Another ground for contesting the life time maintenance is that it is without jurisdiction as the same is granted without any F.A.No.2306/2018 & F.A.No.141/2019 6 application in that behalf and without considering the equity amongst the parties.
14. Suppression of facts is also taken as a ground to challenge the ex-parte decree. It is pleaded that wife had also initiated a proceeding under domestic violence act against her husband and other family members, who were appearing to defend themselves in that proceeding but the fact of pendency of divorce petition was never disclosed before them and this suppression of fact dis- entitles the wife for any relief prayed for.
15. The wife has suppressed all the material facts regarding her qualification, profession and earnings, intentionally, misguided and misled the family Court, therefore, she is not entitled to any equitable relief for life time maintenance.
16. On the aforesaid grounds, the husband prayed for quashing and setting aside judgment and decree of divorce dated 25.10.2018. In alternate, he prayed that the case be remanded back to the Family Court for denovo trial after giving him opportunity to defend his case.
17. In reply, the wife has refuted all the allegations made by her husband. By producing "Shajra Khandhan" (family tree); she has vehemently denied that the parties to the marriage are "Sapind". To rebut the claim of the husband that as per Hindu Law; their marriage was never solemnized, she has produced several photographs of different ceremonies performed during their marriage.
F.A.No.2306/2018 & F.A.No.141/2019 718. To support the relief of enhancement in the amount of one time maintenance, the wife has claimed that her husband earns a lot. He is only son of his parents. His parents are working and earning handsome salaries. His father is civil engineer and is working as professor in Raisoni College, Pune. His mother is electronic engineer and is Director in Polytechnic College. He has good amount of property. Her life is spoiled. Though she has decree of Physiotherapy but due to marriage she left her place and never practiced or earned anything in her marital home and even after coming back at her maternal home, she has not started practice and is not earning anything. Her father was an officer in Co-operative bank but is now retired. She is totally dependent on her mother, who is a school teacher and is going to retire soon. Besides, she is fifth stage kidney patient and needs dialysis twice a week. Therefore, she need Rs.50 lacs to lead a dignified life.
19. We have considered rival contentions of the parties and have gone through the record.
20. Undisputedly, the notice of the petition filed by the wife for divorce before the family Court was sent by Registered A.D. post to the office of the respondent and was received and acknowledged by the authorized signatory of the office. Deepak Sharma, who is Manager in the same 'Motilal Oswal Securities Limited' where the husband Nishant was admittedly working at that time, has stated on oath before the Family Court that Nishant Dubey was Sales Manager in the Pune Branch of the F.A.No.2306/2018 & F.A.No.141/2019 8 Company. Salary slips and account statement of HDFC Bank of Nishant have been proved by this witness as Exhibit P-17,18 & 19, which makes it vividly clear that at least since September, 2017 to July, 2018, Nishant was working in the same Branch of the Company where the notice of the petition was received. Therefore, his contention that he was not duly served the notice of the petition; cannot be accepted.
21. Facts regarding academic qualification of wife have been mentioned in paragraph 11 of the original petition preferred by the wife before the Family Court. Fact regarding pendency of divorce petition is mentioned in para 8(c) of the petition filed by the wife under Section 12 of the Domestic Violence Act and this fact is mentioned in para 7.1 of the reply of stay application filed by the husband. This fact is no where rebutted by the husband; therefore, allegation of suppression of fact is not true or in fact is contrary to the record.
22. So far as contention of the husband that right at the time of marriage, the Priest informed them that they are 'Sapind' and therefore, their marriage cannot be solemnized is beyond truth as sufficient evidence is available on record to rebut this averment of the husband. Several photographs to show that all the rituals were performed step by step at the time of marriage are produced by the wife. In his rejoinder, the husband has not specifically denied them. Otherwise also it is unbelievable that after making all arrangements and performing several rituals at the time of 'Satpadi' the marriage was stopped all of sudden on F.A.No.2306/2018 & F.A.No.141/2019 9 the information of the priest as it can easily be assumed from the claim of the husband himself that both the families of this case were well known to each other and it is a tradition and is a fact of common knowledge that prior to fixing marriage, usually both the families remain in touch for considerable long period and before settling a relation like marriage they inquire about the Religion, Caste and Gotra and even they match 'Janam Kundalis' and only thereafter they proceed further to settle the relation. Any statement contrary to this deep rooted custom, which is being invariably followed in all marriages in 'Hindus' has to be established by the party making such statement by cogent and unambiguous evidence, but here; in the case in hand, the things are different. Nothing is on record to support the pleadings of the husband. On the contrary there is ample evidence to show that the marriage was solemnized between the parties, therefore, this contention of the husband appears to be misleading.
23. Averment that the parties to this case are 'Sapind' and they are cousins by blood relation is misconceived as in reply, the wife has produced 'Shajra Khadhan' (family tree) making it amply clear that the parties of the marriage do not fall in the prohibited category. Husband has filed rejoinder but, no cogent statement has been made to rebut the claim of the wife; therefore, this averment cannot be countenanced.
24. The husband has made repeated pleadings that it was the first and foremost duty of the Family Court to make efforts for reconciliation of the parties to the marriage as per scheme of the F.A.No.2306/2018 & F.A.No.141/2019 10 Hindu Marriage Act, Family Court Act and other relevant laws. He has asserted that no attempts for reconciliation were ever been made, therefore, the decree passed by the Family Court is contrary to the provisions of Section 9(1) and Section 23 (2) of the Hindu Marriage Act, 1955 and Order XXXIIA Rule 3 of the CPC and is against the spirit of marriage laws, but here also the law is misconstrued. The husband never appear before the family Court even after service of the notice, therefore, the Court was having no occasion to make any efforts for reconciliation. Even after appearing before the Family Court prior to passing of the decree of Divorce, he filed an application for setting aside ex- parte order but has never made any proposal that he is interested in compromise or reconciliation. Even before this Court, no such proposal was made by him.
25. In our attempt of reconciliation, we directed both the parties to be present in person before us. We tried at our level best to reconcile the matter, but of no avail. Looking to the inexorability of the husband, age of the parties and the nature of the dispute, we decided to hear this matter finally and with consent of the parties heard it finally, but neither any desire is expressed by the husband that he is interested in reconciliation or needs some more time for this purpose nor he came forward with any concrete proposal of reconciliation. His disinterest can also be presumed from the fact that he has even denied the marriage.
26. Thus, in the case in hand, as stated above, the family Court was not having any occasion to make such attempts and efforts F.A.No.2306/2018 & F.A.No.141/2019 11 made by us have been foiled by the husband. The husband has never shown interest in reconciliation. He has come before this Court with a plea that marriage was not solemnized as both the parties were 'Sapind', therefore, his plea for reconciliation appears to be only an eyewash. When a person is not accepting the marriage how can he be interested in any type of reconciliation? In such a situation, the claim of the husband that the decree of divorce passed against him is a nullity or contrary to the law governing the field, is antonymous to his conduct and to the facts of the case and his plea that efforts were not made for reconciliation is not tenable.
27. The petitioner has pleaded that relief of one time maintenance is granted to the wife without asking for the same. Reliance has been placed on the case of D.Balakrishnan Vs. Pavalamani reported in AIR 2001 Madras 147. In this case, the Division Bench of the Madras High Court has ruled that order of permanent alimony under Section 25 can be passed only after making application furnishing all details regarding income or other properties.
28. But no specific format is provided in Hindu Marriage Act for filing any application under Section 25 of the Hindu Marriage Act for granting permanent alimony. Facts regarding academic qualification, job and family status have been mentioned in the petition preferred by the wife before the family Court itself. In the relief clause of the petition preferred by the wife before the family Court, relief of permanent alimony has been prayed for.
F.A.No.2306/2018 & F.A.No.141/2019 12By filing the present appeal, the wife has come with the sole prayer for enhancement of permanent alimony granted by the family Court. Therefore, judgment of Division Bench of the Madras High Court in D. Balakrishnan (supra) is distinguishable on facts and wife cannot be denied permanent alimony in this case.
29. The wife has stated and has proved that her husband is working at a package of Rs.6.4 Lacs per annum. Her statement is supported by Deepak Sharma and further corroborated by his Salary slips and account statement of HDFC Bank (Ex. P-17 &
19). The husband has denied his income as claimed by his wife, but he has not denied that earlier he was working with "Motilal Oswal Securities Limited". Further, nothing is on record to contradict the statement of Deepak Sharma and the documents proved by him.
30. The wife has admitted that she is a qualified Physiotherapist having a Bachelor's Degree in the said stream. The husband has claimed that she is providing services in the name and style of 'Arthros Clinic' and also attached with 'Sahaj Hospital' and providing services. She has membership of various Professional Organizations like 'Qualified Physiotherapist Society', 'All India Sports Physiotherapy', 'Quality Physiotherapy Services' etc. A print out of the advertisement on internet is annexed and marked as Anx-F (Pg 91 & 92).
31 Having regard to the facts emerged from the averments and evidence of both the parties that husband was working on F.A.No.2306/2018 & F.A.No.141/2019 13 package of Rs.6.4 Lacs per annum and keeping in mind that the wife is a well qualified Physiotherapist and is working with some Organizations and also providing services in the name and style of 'Arthros Clinic', in our considered opinion, the amount determined by the learned trial Court appears to be just and proper in the peculiar facts and circumstances of the case, therefore, we are not inclined to interfere in that part of the decree of the Family Court also.
32. Learned counsel for the appellant (husband) has placed reliance on various judgments of the Hon'ble Supreme Court passed in the cases of Jagraj Singh Vs.Birpal Kaur reported in (2007) 2 SCC 564, Vinny Parmvir Parmar Vs. Parmvir Parmar (2011) 13 SCC 112, K.Srinivas Rao Vs. D.A.Deepa (2013)5 SCC 226, Suman Singh Vs. Sanjay Singh (2017) 4 SCC 85, Abbayolla M. Subba Reddy Vs. Padmamma AIR 1999 Andhra Pradesh 19 Full Bench, and Kaminiben Mangaldas Shah Vs. Bharatbhai Rasiklal Shah AIR 2005 Gujarat 279.
33. In the case of A.M. Subba Reddy (supra) Hon'ble the Supreme Court has held that when admittedly marriage is nullity then the wife is not entitled for any permanent alimony under Section 25 of the Hindu Marriage Act. This situation does not exist in the present case; therefore, this judgment is not applicable in favour of the husband.
34. In the case of Kaminiben Mangaldas Shah (supra) the ex-parte decree of divorce was passed even when the wife F.A.No.2306/2018 & F.A.No.141/2019 14 appeared in the petition. No such situation exists in the present case; therefore, this judgment is distinguishable on the facts.
35. Other judgements cited by the learned counsel for the husband speak about necessity of attempts or efforts for reconciliation for passing a decree of divorce. But in this case the family Court was not having any opportunity to conduct the reconciliation proceedings and our attempts for the same were not successful, therefore the judgments cited by the husband are not beneficial to him.
36. In view of the foregoing discussion, we find no merits in the appeals preferred by both; the husband and the wife. We do not see any illegality or perversity in the order passed by the learned Family Court. Therefore, admission of both the appeals is declined and both the appeals are dismissed hereby.
37 All the I.As pending, stands closed.
(S.C. Sharma) (Virender Singh)
Judge Judge
Digitally signed by
REENA PARTHO
SARKAR
Date: 2019.07.31
11:18:25 +05'30'