Uttarakhand High Court
Umesh Chandra Chamola ...Plaintiff vs Smt. Seema on 14 November, 2022
Author: Sharad Kumar Sharma
Bench: Sharad Kumar Sharma
Reserved judgement
HIGH COURT OF UTTARAKHAND AT
NAINITAL
First Appeal No. 62 of 2010
Umesh Chandra Chamola ...Plaintiff-Appellant
Vs.
Smt. Seema ...Defendant-Respondent
Advocate : Mr. Lokendra Dobhal, Advocate, for the appellant
Mr. Yogesh Kumar Pacholia, Advocate, for the respondent
Reserved on : 25.04.2022
Delivered on : 14.11.2022
Hon'ble Sharad Kumar Sharma, J.
The instant First Appeal, has been preferred by the plaintiff/appellant by invoking Section 28 of the Hindu Marriage Act, whereby the plaintiff/appellant, has put a challenge to the impugned judgement dated 13th September 2010 and a consequential decree, as passed on it on 20th September 2010 by the Court of District and Sessions Judge, Tehri district at new Tehri in Original Suit No. 35 of 2007, Umesh Chandra Chamola Vs. Smt. Seema. As a consequence of the impugned judgement and decree, the Suit preferred by the plaintiff/appellant, seeking dissolution of marriage dated 18th May 2001, had been dismissed.
2. This case revolves around a very peculiar facts and circumstances. The case of the plaintiff/appellant, in the proceedings, as drawn before the learned trial Court on 24th July 2007, it was based upon a fact, that the marriage between the plaintiff/appellant and the defendant/respondent, was solemnized on 18th May 2 2001, in accordance with the Hindu customs and rituals, which initially continued for certain time under a cordial relationship. As a consequence thereto, the defendant/respondent, had given birth to a girl child, who was born out of the marriage on 31st March 2002.
3. The allegations of the plaintiff/appellant in the proceedings of the Original Suit was, that immediately after the marriage which was held on 18th May 2001, though despite the fact that a girl child was born within 10 months, of the wedlock, but later on, the sour relationship between the husband and the wife, in their matrimonial relationship started germinating and there were several set of vexatious allegations, which had been levelled by the plaintiff/appellant in the proceedings drawn under Section 13 of the Hindu Marriage Act, which was almost akin to the proceeding drawn by the plaintiff/appellant under Section 10 of the Hindu Marriage Act.
4. Before proceeding to deal with the instant case, which engages consideration under the proceedings under Section 13 of the Act, the brief genesis which is required to be referred to is, that on 7th June 2007, the plaintiff/appellant, is said to have filed the proceedings of Original Suit No. 13 of 2004, Dr. Umesh Chandra Chamola Vs. Smt. Seema, by invoking the provisions contained under Section 10 of the Hindu Marriage Act, seeking judicial separation of marriage dated 18th May 2001, which was later on got decided by an order which was passed upon it on 14th September 2005.
35. The various contentions which were raised by the plaintiff/appellant, in the proceedings before the Court below, as it was held under Section 13 of the Hindu Marriage Act were the allegations pertaining to the dislikes expressed by the respondent wife, towards the appellant husband, and further, that the parents of the defendant/respondent had solemnized her marriage under the influence of the government service, which the plaintiff/appellant was said to have been engaged with, and it was alleged by the plaintiff/appellant, that the defendant/respondent, had raised an allegation that the marriage solemnized on 18th May 2001 was against her wishes.
6. It is contended by the plaintiff/appellant, that on the aforesaid averments, which were made by the defendant/respondent, the plaintiff/appellant, was taken by shock and was not in a position to sustain the marriage, because gradually the atrocities of the respondent wife is contended, to have aggravated with the passages of time which was making the matrimonial relation as to be unbearable for each other.
7. The plaintiff/appellant, in his defence in the Suit has submitted, that initially the allegations of atrocities, which were said to be exercised and as professed by the respondent/wife, were taken lightly owing to the fact, that he endeavour to sustain the marriage owing to the fact, that out of the wedlock, a girl child was born and she was to be taken care of.
48. The plaintiff/appellant had submitted, that when despite the birth of a girl child, still the attitude of the respondent/wife, towards the parents of the plaintiff/appellant continued to be too atrocious, as it was alleged that she never took any interest in performing household works, even so much so, that she didn't perform even the kitchen work, nor she has washed the laundry of the family and even of the plaintiff/appellant, and since there was an apparent denial by the respondent/wife to perform household works, the plaintiff/appellant contended that, looking to the strenuous circumstances in which the family used to reside, it was practically becoming difficult for the plaintiff/appellant to sustain the marriage any further.
9. In support of his contention, the plaintiff/appellant has further pleaded in the plaint, that often now and then due to small incidents, which chanced normally in day-to-day life, the respondent/wife, used to threaten that she would falsely engage the entire family, including the plaintiff/appellant, in false criminal cases, and thus under that duress, the plaintiff/appellant has also submitted, that when the atrocities of the respondent wife become unbearable, and when even the parents of the plaintiff/appellant had suggested to maintain the cordial relationship with the wife and to take the wife to reside at the place where the husband was professionally engaged.
10. It was further pleaded, that it was on 10th September 2001, that the respondent wife accompanied with the husband had settled at 5 Lambgodi, Rudraprayag, and in order to sustain the marriage, the plaintiff/appellant contended, that he had made an effort for a joint living, but despite of his best efforts when still it, bear no fruitful results, and the matrimony could not sustained, thus he was constrained to institute the proceedings under Section 10 of the Hindu Marriage Act on 7th June 2007.
11. A small incident chanced when the plaintiff/ husband, was working in his agriculture field he met with a minor accident, due to which he suffered some minor injuries and there was sarcastic remarks which was allegedly made by the respondent /wife, as against her husband that it would have been better, he would have died rather than suffering from minor injuries. It was further alleged that despite having suffered injuries, no care and attention, as it is normally expected from a wife was even taken care of by the respondent and rather to the contrary she left the matrimonial home and moved to her parental home and remained there for about more than 10 months against the wishes of the appellant/husband.
12. It was contended by the plaintiff/appellant, that when despite of the best efforts the matrimony could not be survived and she didn't return back after her desertion for about last more than 10 months, he was forced upon to serve notices upon the respondent calling upon her to maintain the matrimonial relationship and to discharge her matrimonial obligations. When there was no response to it, it is contended by the appellant that there was second 6 notice which was sent by him to the respondent /wife on 16th March 2004, but she refused to accept the same and had not revived the matrimonial relationship.
13. As a result thereto, it is the case of the plaintiff/ appellant, that when there was a tacit refusal by the respondent /wife, to accept the notice dated 16th March 2004, on 14th July 2004 the plaintiff/appellant submitted, that he has written a letter to the respondent /wife, calling upon her to return back and to revive her matrimonial relationship, but on the said letter admittedly after being served upon the family (parental home of the respondent /wife) on 22nd August 2004, instead responding to the two notices, it is contended by the plaintiff /appellant that on 22nd August 2004, the respondent wife, along with her brothers and 4-5 anti social elements had forcefully barged into the residence of the plaintiff /appellant, situated at Narendra Nagar, district Tehri Garhwal and had misbehaved with the appellant, rather had also threatened to do away with her life.
14. It is contended by the plaintiff/appellant that in order to athwart the said incident, he was forced upon to call the police, to avoid any untoward incident being chanced on 22nd August 2004. He submitted that it was in the month of November 2004, that the responded wife had lastly resided with the plaintiff/appellant till she had voluntarily deserted him on 25th November 2004, which continued to persist despite the two notices, as referred to above and hence, he has submitted that this act of desertion 7 would have been a ground for cruelty, as well as voluntary desertion and failure to discharge the matrimonial relationship and the said incident, which is alleged to have continued from November 2004, is said to have continued for more than two and a half years, as no physical relationship was ever established between the plaintiff /husband and the respondent/ wife.
15. Owing to the peculiar circumstances, the plaintiff/appellant's case in the Suit was, that being conscious of his responsibility towards his daughter, he used to send a consolidated amount of maintenance to meet the day-to-day expenses towards daughter's maintenance, as well as, he submitted that he filed a Suit under Section 10 of the Hindu Marriage Act, (referred to above), for judicial separation, but that was later on withdrawn by the plaintiff /appellant.
16. As against the order passed in the proceedings which were held under Section 10 of the Hindu Marriage Act, a First Appeal, being First Appeal No. 107 of 2005, was preferred by the plaintiff/appellant before this Court, but owing to the persistent atrocious activities and attitude, the Appeal was sought to be dismissed as withdrawn by the judgement, which was rendered by this Court on 7th June 2007.
17. Under the aforesaid backdrop and particularly in view of the assertions made in para 17 of the plaint, the plaintiff /appellant had contended, that since she had voluntarily deserted the appellant ever since 25th 8 November 2004 and is residing separately with her parents, it was much beyond the prescribed period provided under Section 13 of the Hindu Marriage Act, and since she has not discharged her matrimonial obligations and no physical relationship was established for a considerable long time, obviously ever since 2004, he filed the Suit under Section 13 of the Hindu Marriage Act, seeking dissolution of marriage dated 18th May 2001.
18. The proceedings under Section 13 of the Hindu Marriage Act was carried; notices were issued to the respondent wife; but, the same was not served upon her, and despite of the best efforts made by the Court since notices were not served upon her, the plaintiff/ appellant was directed to serve the respondent by way of publication vide its order dated 23rd October 2007, which was complied with, and the publication to the said effect was made in a local newspaper of a vide circulation of local place of residence of the respondent/wife in Shah Times. But, then too despite service of notice by way of publication, the respondent- wife did not participate in the proceedings, hence the learned Court of District and Sessions Judge, Tehri Garhwal, on 13th November 2007, had directed the proceedings under Section 13 of the Hindu Marriage Act, to proceed ex parte.
19. The plaintiff appellant contended, that in support of his contention as raised in the plaint, he filed paper Number 21 (kha) under Order 18 Rule 4; paper number 15(ga2); paper number 22(ga) with regard to the 9 demand drafts, which were sent by the plaintiff/ appellant, towards the maintenance of his daughter w.e.f. October 2005 to November 2007, to show his bonafide, that he was always willing to discharge his matrimonial obligations, but there had been a consistent desertion on part of the respondent wife and as such, he prayed for that the Suit under Section 13 of the Hindu Marriage Act, to be decreed.
20. Due to non participation, in the proceedings by the defendant/ wife, despite service of notice by way of publication dated 23rd October 2007; despite order dated 13 November 2007 directing to proceed ex parte, the proceedings under Section 13 of the Hindu Marriage Act was held ex parte and it was ultimately decreed by the judgement rendered on 18th February 2008, on the ground, that the plaintiff appellant was able to establish the fact of cruelty and a voluntary desertion, on part of the respondent/defendant/wife.
21. The defendant, on 8th April 2008, had filed an Application under Order 9 Rule 13 of CPC, on which, notices were issued on 13th May 2008, to the appellant, but, however, no interim order was passed on it, as against the ex parte decree, which was rendered on 8th February 2008. It is contended by the plaintiff-appellant, that as a consequence of sustaining ex parte decree of 8th February 2008, since the marriage didn't subsisted in the eyes of laaw, it was open for him to solemnize the second marriage, because the Appeal against the ex parte decree was not preferred within permitted time, rather an 10 application under Order 9 Rule 13 of CPC was preferred on which too, only notices were issued and no interim order was granted. However, the Application under Order 9 Rule 13 of CPC, was later on considered by the learned Court of the District and Sessions Judge, who vide its judgement dated 29th August 2008, had set aside the ex parte decree dated 8th February 2008, and the proceedings of Matrimonial Case No. 35 of 2007, stood revived back to its original number before the District Judge, Tehri Garhwal, to be decided afresh.
22. The controversy stood further complicated, that immediately after the decree dated 8th February 2008 and even much prior to expiry of the period of limitation legally provided to prefer an Appeal, it is alleged by the plaintiff/appellant, that on 14th March 2008, the plaintiff/appellant, under the strength of ex parte decree, had solemnized the second marriage with one Ms. Archana, daughter of Mr. Mahima Nand, and when the aforesaid fact was revealed to the respondent/wife on 18th February 2011, though at a much belated stage, she institutes a criminal proceedings, by way of Criminal Case No. 169 of 2011 (new number 321 of 2012), for the offences under Sections 498A & 494 of IPC and Section 3/4 of the Dowry Prohibition Act, on which the cognizance was taken by the Court of Chief Judicial Magistrate, Rudraprayag. The trial was conducted and concluded and ultimately by the judgement, which was rendered by the Court of Chief Judicial Magistrate on 24th June 2009, the plaintiff/appellant was acquitted of the offences under Section 3/4 of the Dowry Prohibition 11 Act, though he was convicted for the offences under Section 498A and 494 of IPC, by imposing a sentence for 3 years of simple imprisonment and a fine of Rs. 1000/- for each of the offences, under Section 494 and 498A of IPC was imposed upon him.
23. As against the judgement of conviction dated 24th June 2019, the plaintiff/appellant had preferred an Appeal, being Criminal Appeal No. 14 of 2019, Umesh Chandra Chamola Vs. State of Uttarakhand, in which the learned District and Sessions Judge, had allowed the Appeal vide its judgement dated 4th December 2019 and had consequentially acquitted the appellant for the offences under Sections 494 and 498A of IPC and the judgement of the trial Court of conviction dated 24th June 2019 was set aside.
24. It is contended by the learned counsel for the appellant that the set of allegation, pertaining to solemnization of the second marriage on 14th March 2008 was even much prior to the expiry of the limitation period for preferring of an Appeal against the judgement and decree of denial to dissolve the marriage, it is the case of the appellant that merely a plea raised with regard to the fact of second marriage, that may not suffice the purpose to attract Section 294 or Section 7 of the Hindu Marriage Act, because even a mere admission by the accused in a criminal proceedings is not sufficient to arrive at a conclusion, that the plaintiff/appellant had solemnized the second marriage.
1225. As against the judgement of the learned District and Sessions Judge dated 4th December 2019 of acquitting the present appellant for the offences under Sections 498A and 494 of IPC, a Criminal Appeal, being Criminal Appeal No. 29 of 2020, was preferred by the respondent/wife, which is presently pending consideration.
26. In order to sum up the controversy, agitated at the hands of the appellant, he has submitted that since 25th November 2004 and as of now, for more than 18 years have been lapsed and they have been admittedly living separately there is a complete breakdown in the matrimonial relationship, which is not retrievable and hence he is entitled for the grant of a decree of divorce under Section 13(1)(ia) of the Hindu Marriage Act.
27. He further submitted, that no maintenance is required to be granted though, despite the fact, that the plaintiff/appellant, is working as a Lecturer; but, simultaneously respondent too is an LT Grade Teacher and is presently working in a Government Inter College and as per the evidence on record, in the year 2017- 18, she was getting a salary of Rs. 41,318/- per month.
28. He further, in support of his contention, which stands supported by certain authorities, on which the reliance has been placed, that the act of respondent wife of pursuing his judicial remedy before the Superior Court, despite of acquittal from the criminal Courts, would be an act of cruelty or from an act of bigamy, it would warrant a grant of decree of divorce, owing to 13 the fact, that pursuing of a remedy as against the judgement of acquittal, too would itself be an act of cruelty at the hands of the respondent.
29. On the other hand, the respondent/wife had come up with the case in her application, filed under Order 9 Rule 13 of CPC, as well as in the pleading which she had submitted in the proceedings under Section 10 of the Hindu Marriage Act, that there had been a series of incidents in their domestic life, which would amount to be a cruelty at the hands of the plaintiff/appellant for the following reasons:-
(a) She pleaded, that the parents of the appellant/husband used to taunt the defendant/
respondent for bringing less dowry from the very first day of the marriage.
(b) She has levelled a set of allegations, that there was various set of atrocities, which could be summarised in the following manner:
That despite the fact that the house of the plaintiff/appellant, was having its own independent water source, but still she was forced to collect water, for taking bath and washing clothes from a nearby water tank, and that she had to fetch the water each day. Meaning thereby, she was distinctly treated with cruelty by the parents of the plaintiff/appellant. Secondly, she submitted that she was maltreated by the parents of the plaintiff/appellant, because even if she wanted to discharge her matrimonial obligations or the family responsibilities, the act of the parents of the plaintiff/appellant was too atrocious, as they used to force her to perform kitchen work under a very strict 14 guidance, in which she was kept under a consistent surveillance by the parents of the plaintiff/appellant, even to the effect, that the number of rotis, she used to prepare from the quantity of wheat flour, which was supplied to her was also statistically regulated.
30. She submitted, that she was never permitted to have food with all the family members, rather when all the family members had finished their food, it was thereafter only that she was supplied with the food to eat, and that too in a meagre quantity. She further submitted, that she was harshly dealt with by the parents of the plaintiff/appellant, if she failed to collect sufficient grass from the forest for the cattle and if it's quantity was less, as compared to other women villagers, who go out to the forest for collecting grass for the cattle.
31. She took a plea, that the proceedings under Section 10 of the Hindu Marriage Act, was deliberately got withdrawn because when she had filed a written statement and denied the pleadings to the proceedings under Section 10 of the Act, in fact, the factum of cruelty and desertion was not established and thus it was almost on the same ground, that the proceedings was instituted under Section 13 of the Hindu Marriage Act.
32. What she has pleaded in her Application under Order 9 Rule 13 of CPC, was that since she, at the relevant point of time when the proceedings under Section 13 of the Hindu Marriage Act was instituted, 15 she was pursuing her B.Ed Course from SGRR College, Dehradun, she was not requisitely served with the notices of the proceedings under Section 13 of the Hindu Marriage Act, and further that the address, which was given by the plaintiff/ appellant in the plaint under Section 13 of the Hindu Marriage Act, it was not the correct address and due to which she couldn't be served with the notices, due to which the proceedings under Section 13 of the Hindu Marriage Act, was held ex parte and decreed.
33. She submitted, that the very fact that the plaintiff/ appellant immediately after the grant of ex parte decree, had solemnized the second marriage on 14th March 2008. This act of the plaintiff/appellant would be violation of Section 15 to be read with Section 18(4) of the Hindu Marriage Act, but, however, after considering the statement and the oral testimony led by the plaintiff/appellant by way of PW1, wherein he himself appeared in the witness box and recorded his statement in support of his contentions to the plaint averments, the witness of PW2 i.e. Shridhar Chamola, who had submitted an affidavit in examination-in-chief under Order 18 Rule 4 of CPC.
34. Similarly, the affidavit of Smt. Seema chamola, who appeared in the witness box and submitted her affidavit in examination-in-chief as DW1 and the statement of one Mr. Bacchi Ram which was filed by the defendant respondent therein under Order 18 Rule 4 of CPC, to deny the plaint averments.
1635. The learned trial Court, after considering the respective averments, vide its judgement and decree, which was ultimately rendered on 13th September 2010, had dismissed the Suit after recording a finding and after formulation of issues, which are extracted hereunder:-
"(1) Whether the respondent has treated the petitioner with cruelty as alleged?
(2) Whether the respondent has deserted the petitioner as alleged?
(3) Whether after passing of ex parte order of dissolution of marriage the petitioner has solemnised another marriage with one Archana as alleged by the parties? Its effect?"
36. The learned trial Court, after formulation of above issues in its conclusion has observed, that after considering the respective evidence, the factum of cruelty was not proved at the hands of the plaintiff/appellant and thus the Suit was dismissed by the impugned judgement dated 13th September 2010, hence, the instant First Appeal has been filed before this Court on 4th October 2010.
37. The defended/wife, respondent herein, had submitted, that owing to the fact, that the brothers of the respondent had manhandled the appellant; the appellant and her brothers were booked under Section 107 / 116 of the Court of Criminal Procedure by the authority of Sub Divisional Magistrate, and they were directed to submit a joint security bond of Rs. 50,000/- as would be apparent from the paper brought on record being paper number 51(ga), which proves that the plaintiff/ appellant was maltreated by the responded and her brother.
1738. On the country, apart from the Criminal Case, which has already been referred to above, the responded/wife had also instituted a proceedings under Section 125 of the Court of Criminal Procedure, which was registered by way of Miscellaneous Criminal Case No. 11 of 2005, for the grant of pendente lite maintenance.
39. Upto this stage, the controversy was based upon the respective facts and the evidences, which were placed by the parties before the learned trial Court. This would be a case, in which the reference to the order sheet of the instant First Appeal, is required to be referred to.
40. The coordinate Bench of this Court, while admitting the First Appeal by the order dated 14th March 2011, which was opposed by the learned counsel for the caveator /respondent after taking cognizance of the fact of the second marriage, having been solemnized by the appellant on 14th March 2008, immediately after the grant of ex parte decree, the Court has observed that the appellant would show- cause, as to why a criminal proceedings may not be initiated against him, for having solemnized the second marriage after the immediate dismissal of his plaint for the grant of decree of divorce. The relevant part of the order sheet dated 14th March 2011 is extracted hereunder:-
"The appellant shall show cause as to why the criminal proceedings be not initiated against him for entering into the second marriage during the 18 subsistence of the first marriage. Reply may be filed within three weeks."
41. Be that as it may. The matter proceeded and on number of occasions, and by yet another order passed by the co-ordinate on 9th March 2015 and had fixed the maintenance which was directed to be made payable by the appellant @ of Rs. 9000/- per month w.e.f. 1.1.2012 as a maintenance to the respondent, as well as for the daughter, who was at that relevant point of time was studying in 10th standard.
42. The aforesaid Rs. 9000/- was directed to be paid after the adjustment of Rs. 5000/-, which she was already getting in the proceedings before the Court below. The matter was argued on number of occasions. But, ultimately a situation arose that apart from the fact, that since November 2004, they have been living separately, the relationship had further complicated and had become more intricate and irretrievable because the fact of the second marriage, which was solemnized on 14th March 2008, is an admitted fact to both the parties. But, quite obviously, the clock could not be put back and the second marriage of 14th March 2008, as solemnized by the appellant/husband with Archana, cannot be dissolved in the present proceedings and since it continues to subsist. In that eventuality, it was a case where the Court had no other option except to carve out an exception and a way out for the grant of decree of divorce by fixation of permanent alimony under Section 25 of the Hindu Marriage Act. Accordingly, the Court passes an order dated 25th February 2021, proposing to grant of 19 alimony of Rs. 20.00 lakh to the plaintiff/respondent, in total, out of which Rs. 10.00 lakh was payable towards the respondent-wife and the balance Rs. 10.00 lakh towards the daughter, which was to be invested in a fixed deposit, till she attains the age of majority. The relevant part of the order dated 25th February 2021, is extracted here under :-
"Heard counsel for the parties and ultimately looking to the circumstances of the case, where the fact of the appellant having solemnized the second marriage is an admitted fact and the fact that from the earlier marriage with the appellant, the respondent-wife has a daughter, who is residing with her, in that eventuality, if at all the proceedings of Section 13 of the Hindu Marriage Act, 1955 is to be taken into consideration, the Court will have to consider an aspect under Section 25 of the Act, for granting a permanent alimony. This Court had proposed for the grant of Rs. 10,00,000/- to the daughter, which was to be kept in a fixed deposit, till she attains the age of majority and there was a proposal also of paying Rs. 10,00,000/- to the respondent-wife, for which the counsel for the respondent-wife wants to complete his instructions and make a statement."
43. The provisions contained under Section 25 of the Hindu Marriage Act, was amended by way of a substitution made by the Act No. 68 of 1976, in which, while considering the grant of a permanent alimony and maintenance, it was provided, that it was the conduct of the parties and other circumstances of the case, which too could be required to be taken into consideration by the Court, while granting the decree of divorce. In fact, Section 25 of the Act, has granted ample of powers to the Court, that for the purpose to balance the equities between the divergent couples, particularly when their marriage could not be retrieved or restored back to its original place, it ought to be dissolved by balancing the equities, by granting the maintenance in accordance with the parameters, laid down under Section 25 of the Hindu Marriage Act.
2044. While passing the order dated 25th February 2021, the Court had issued directions to the respective counsels appearing on their behalf, to complete their instructions with regard to the actual quantification of permanent alimony, because under the given set of circumstances, where there had been multifarious judicial proceedings, against one another, levelling various set of criminal, as well as civil allegations, where the couples were living separately ever since November 2004, where it is an admitted fact, that the husband has solemnized the second marriage on 14th March 2008, rightly or wrongly, that is subsisting in the eyes of law as of now. Without a challenge being given to it, by the respondent /wife, it would be absolutely an exercise in futility to continue with the marriage, which was sought to be dissolved by the plaintiff/appellant, by filing a Suit under Section 13 of the Hindu Marriage Act for dissolving of marriage dated 18th May 2001.
45. Though, while deciding the appeal which is being a regular appeal on a civil side, the Court ought to have considered the implications of Order 41 Rule 31 of the Code of Civil Procedure, but for the reasons already enumerated above, it may not be necessary in the given set of circumstances, which are peculiar in itself, to necessitate to formulate any question of law or fact to be decided in the appellate proceedings under Section 28 of the Hindu Marriage Act, because as already observed above, it was not a situation where the parties to the proceedings can be put back to a similar position, as it was existing in November 2004.
2146. Hence, in this situation, while proposing for the fixation of permanent alimony, as already referred to above in the order dated 25th February 2021, this Court has called upon the counsel for the parties, to complete their instructions with regard to the proposed alimony, as referred to in the order dated 25th February 2021. But, in any of the proceedings, which are held thereafter, none of the parties were able to complete their instructions and make any statement with regard to the settlement of permanent alimony, as it has been observed in the order dated 20th April 2022, which is extracted hereunder:-
"Put up this matter day after tomorrow (22.04.2022), in order to enable the respective counsels, appearing for the parties, to complete their instructions from their clients with regard to the settlement of permanent alimony under Section 25 of the Hindu Marriage Act."
47. The inability of giving consent for fixation of permanent alimony this Court was left with no choice, except to fix the permanent alimony under Section 25 of the Hindu Marriage Act, within an ambit of exercise of its powers, as it has been legislatively intended under Section 25, where, by virtue of a substitution of law made by Act No. 68 of 1976, the conduct of the parties and particularly, the circumstances of the case, plays a pivotal role, to be considered for the purposes of fixation of alimony.
48. In that eventuality, instead of venturing to address upon the respective merits of the case, which has already been dealt with above, since there was no response given by the learned counsel for the parties 22 with regard to the proposed alimony by the Court, vide its order dated 25th February 2021, this Court is of the view, that it would be deemed to be an acceptance by the respective parties, to dissolve the marriage, after the payment of the amount of permanent alimony under Section 25 of the Hindu Marriage Act.
49. In these peculiar circumstances and also considering the fact, that the parties to the proceeding are already earning members, and they are profitability engaged in their respective engagements, this Court feels it apt, to allow the First Appeal and to set aside the judgement and decree dated 13th September 2010, and as a consequence thereto, the principles of cruelty and the aspect of desertion, as decided by the District and Sessions Judge, Tehri Garhwal, it deserves to be answered in favour of the plaintiff/appellant herein, owing to the fact, that despite of various efforts, the matrimony was not revived by the respondent (defendant/wife), despite of service of two notices and hence considering the proposition as argued by the learned counsel for the applicant, that pursuing a remedy before a Superior Court against the judgement of acquittal, it would itself amount to be a cruelty warranting a grant of decree of divorce, that would be a sufficient ground to dissolve the marriage in view of the principles laid down by the following judgements, reference of which has been made by the learned counsel for the applicant:-
2013 (2) SCC Criminal 963, K. Srinivas Rao Vs. D.A. Deepa. Relevant paragraphs 16, 27 and 37 are extracted hereunder:-23
"16. Thus, to the instances illustrative of mental cruelty noted in Samar Ghosh, we could add a few more. Making unfounded indecent defamatory allegations against the spouse or his or her relatives in the pleadings, filing of complaints or issuing notices or news items which may have adverse impact on the business prospect or the job of the spouse and filing repeated false complaints and cases in the court against the spouse would, in the facts of a case, amount to causing mental cruelty to the other spouse.
27. We need to now see the effect of the above events. In our opinion, the first instance of mental cruelty is seen in the scurrilous, vulgar and defamatory statement made by the respondent-wife in her complaint dated 4/10/1999 addressed to the Superintendent of Police, Women Protection Cell. The statement that the mother of the appellant-husband asked her to sleep with his father is bound to anger him. It is his case that this humiliation of his parents caused great anguish to him. He and his family were traumatized by the false and indecent statement made in the complaint. His grievance appears to us to be justified. This complaint is a part of the record. It is a part of the pleadings. That this statement is false is evident from the evidence of the mother of the respondent-wife, which we have already quoted. This statement cannot be explained away by stating that it was made because the respondent-wife was anxious to go back to the appellant- husband. This is not the way to win the husband back. It is well settled that such statements cause mental cruelty. By sending this complaint the respondent-wife has caused mental cruelty to the appellant- husband.
37. While we are of the opinion that decree of divorce must be granted, we are alive to the plight of the respondent-wife. The appellant-husband is working as an Assistant Registrar in the Andhra Pradesh High Court. He is getting a good salary. The respondent-wife fought the litigation for more than 10 years. She appears to be entirely dependent on her parents and on her brother, therefore, her future must be secured by directing the appellant-husband to give her permanent alimony. In the facts and circumstance of this case, we are of the opinion that the appellant-husband should be directed to pay a sum of Rs.15,00,000/- (Rupees Fifteen Lakhs only) to the respondent-wife as and by way of permanent alimony. In the result, the impugned judgment is quashed and set aside. The marriage between the appellant-husband - K. Srinivas Rao and the respondent-wife - D.A. Deepa is dissolved by a decree of divorce. The appellant-husband shall pay to the respondent-wife permanent alimony in the sum of Rs.15,00,000/-, in three instalments. The first instalment of Rs.5,00,000/- (Rupees Five Lakhs only) should be paid on 15/03/2013 and the remaining amount of Rs.10,00,000/- (Rupees Ten Lakhs only) should be paid in instalments of Rs.5,00,000/- each after a gap of two 24 months i.e. on 15/05/2013 and 15/07/2013 respectively. Each instalment of Rs.5,00,000/- be paid by a demand draft drawn in favour of the respondent-wife "D.A. Deepa".
50. Similar principles have been laid down in the judgement reported in 2015 (3) SCC (Criminal) 400, K. Srinivas Vs. K. Sunita, relevant para 6 is extracted hereunder:-
"6. Another argument which has been articulated on behalf of the learned counsel for the Respondent is that the filing of the criminal complaint has not been pleaded in the petition itself. As we see it, the criminal complaint was filed by the wife after filing of the husband's divorce petition, and being subsequent events could have been looked into by the Court. In any event, both the parties were fully aware of this facet of cruelty which was allegedly suffered by the husband. When evidence was lead, as also when arguments were addressed, objection had not been raised on behalf of the Respondent-Wife that this aspect of cruelty was beyond the pleadings. We are, therefore, not impressed by this argument raised on her behalf."
51. The learned counsel for the applicant/appellant has also placed reliance on the judgement as reported in 1994 5 SCC 545, Laxmi Devi (Smt.) Vs. Satya Narayan and others. Relevant paragraphs 5, 6 and 7 are extracted hereunder:-
"5. This Court in Kanwal Ram v. H.P. Administration, AIR 1966 SC 614 has held as under :
"It was contended for the appellants that this evidence was not enough to show that the marriage of Kubja and Kanwal Ram can be said to have been performed. We think this contention is justified. In Bhaurao Shankar Lokhande v. State of Maharashtra, Crl. Appeal No. 178 of 1963, unreported; (Since reported in AIR (1985) SC 1564), this Court held that a marriage is not proved unless the essential ceremonies required for its solemnisation are proved to have been performed. The evidence of the witness called to prove the marriage ceremonies, showed that the essential ceremonies had not been performed. So that evidence cannot justify the conviction. The trial Court also took the same view.25
The learned Judicial Commissioner does not seem to have taken a different view.
The learned Judicial Commissioner, however, though that apart from the evidence about the marriage ceremonies earlier men-tioned there was other evidence which would prove the second marriage. He first referred to a statement by the appellant Kanwal Ram that he had sexual relationship with Kubja."
6. The same principle is reiterated in Priya Bal v. Suresh Chandra, AIR (1971) SC 1153 as under :
"According to Mr. Majumdar, when once the priest has given evidence to the effect that the marriage between the respondent and Sandhya Rani has been performed, it follows that all the essential ceremonies that are necessary to constitute a valid mar-riage must be presumed to have been performed. In any event, when there is evidence to show that the marriage as a fact has taken place according to law. In this connection Mr. Majumdar referred us to various English decisions where on the basis of certain evidence regarding the taking place of marriage between the parties a presumption has been drawn that the marriage must have been solemnized according to law, In our opinion, it is unnecessary to refer to those cases cited by the learned counsel as the position is concluded against the appellant by the decisions of this Court on both points. Section 5 of the Act lays down conditions for a Hindu Marriage. It will be seen that one of the conditions is that referred to in Clause (i) namely, that neither of the parties has a spouse living at the time of the marriage. Section 7 dealing with the ceremonies for Hindu Marriage is as follows :
"Section 7 - Ceremonies for a Hindu Marriage. (1) A Hindu Marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto. (2) Where such rites and ceremonies include the Saptapadi (that is the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken."
We have pointed out that in the case before us both sides were agreed that according to the law prevalent amongst them Homa and Saptapadi were essential rites to be performed for solemnization of the marriage and there if no specific evidence regarding the performance of these essential rites. The parties have also not proved that they are governed by any custom under which these essential ceremonies need not be performed.
26To conclude, we have already referred to the fact that both the learned Sessions Judge and the High Court have categorically found that the Homa and Sapatpadi are the essential rites for a marriage according to the law governing the parties and that there is no evidence that these two essential ceremonies have been performed when the respondent is stated to have married Sandhya Rani."
(Emphasis supplied)
7. The position is similar in this case. In the absence of proof of such a ceremony the factum of second marriage cannot be held to have been made out.
52. Lastly, the learned counsel for the applicant has placed reliance, on the basis of the principles laid down in the judgement, as reported in 1996 (6) SCC 122, P. Satyanarayana and Another Vs. P. Mallaiah and Others. Relevant para 3 is extracted hereunder:-
"3. In our view, the High Court was in error in upsetting the well-considered order of the Trial Magistrate requiring due ceremonies of the alleged second marriage being proved so as to satisfy the tests laid down by this Court in the afore-referred cases. The plea of guilt afore-referred to could at best be understood to mean that the first appellant had taken a wife, but that admission did not necessarily mean that he had taken the second wife after solemnizing a Hindu marriage with her after performing due ceremonies for the marriage. Such plea, which he need not have even entered upon, and which was ignorable by the Court, did not absolve the prosecution to otherwise prove its case, that the marriage in question was performed in a regular way so as to visit him with penal consequences. We therefore are of the view that a futile exercise has been enjoined Upon the Magistrate by the High Court in ordering a re-trial when the evidence, as it was, had been discussed and rejected threadbare. For these reasons, we think that the orders of the High Court would need upsetting, which we hereby do."
53. Since in view of the aforesaid settled principles by the Hon'ble Apex Court, as the respondent had pursued a superior remedy against the judgement of acquittal of husband, which in itself has been held to be a cruelty to 27 be brought within an ambit of Section 13 of the Hindu Marriage Act, the matrimony herein dated 18th May 2001, is dissolved. Consequently, the First Appeal is allowed, subject to the condition, that the plaintiff/ appellant pays an amount of Rs. 20.00 lakh to the defendant/respondent as a permanent alimony under Section 25 of the Hindu Marriage Act, within a period of 1 month from the date of receipt of the certified copy of this judgement, out of which an amount of Rs. 10.00 lakh would be kept in a fixed deposit in favour of the daughter, which is to be disbursed to her, on her demand after attaining majority, and on a proof of majority being placed before the banking authorities or the Court as the case may be, lest failing which, the effect and operation of the dissolving of marriage, would in itself be not made effective.
(Sharad Kumar Sharma, J.) 14.11.2022 Mahinder/