Venomous irony that the vengeance which was caused in one day between the parties was nurtured by them for three decades

Venomous irony that the vengeance which was caused in one day between the parties was nurtured by them for three decades - HC

Delhi High Court

Smt.Kamlesh Kumari vs Shri Mehtab Singh on 16 January, 2012

IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 17.03.2011
Judgment delivered on: 16.01.2012
+ FAO 291/1996
Smt.Kamlesh Kumari ......Appellant. Through: Mr.Sanjay Kumar Pathak, Advocate.
Vs.
Shri Mehtab Singh ......Respondent Through: Mrs.Mala Goel with Mr.Yashpal Singh, Advocates.
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
KAILASH GAMBHIR, J.
1. By this appeal filed under Section 28 of the Hindu Marriage Act, the appellant-wife seeks to challenge the impugned judgment and decree dated 18.07.1996 passed by the learned trial court whereby the divorce petition filed by the husband, respondent herein under Section 13 (1) (ia) and FAO 291/96 Page 1 of 34
(ib) of the Hindu Marriage Act was allowed by the court and the marriage between the parties was dissolved.
2. A conspectus of facts based on which the respondent filed the divorce petition are that the respondent got married to the appellant according to Hindu rites and ceremonies on 30.06.1982 at Delhi. It is stated that after the marriage on 01.07.1982, the parties went to the house of appellant‟s parents at Yusuf Sarai and had lunch there and thereafter the appellant‟s parents did not send the appellant back along with the respondent and the appellant also declined to accompany him without any reason or justification. It is further stated that on 11.07.1982, the respondent again went to the house of the appellant‟s parents to bring her back and requested her parents to send the appellant along with him but they refused to do so without disclosing any reason. It is further averred that after 15 days i.e. in the last week of July, 1982 the respondent again went to the house of appellant‟s parents to bring her back, however, after reaching there it was found that the appellant FAO 291/96 Page 2 of 34
was not present at her parents‟ house at that time and on persistent enquiries by the respondent her parents told him that the appellant had gone to the house of her sister‟s husband(jija) Shri Umed Singh at Village Nilothi, Nangloi, Delhi. Thereafter about a month of the marriage of the parties i.e. on or about 30.7.82/1.8.82/2.8.82 father of the respondent called said Shri Umed Singh to his village Sultanpur Majra where the respondent, his elder brother and two uncles were also present where Shri Umed Singh blamed father of the appellant for telling a lie that the appellant was with him at the time when the respondent visited her parents‟ house to bring her back to matrimonial home. In the evening of 21.08.82, one Shri Kalam Singh and Shri Sri Lal went to the house of Shri Umed Singh at Village Nilothi and found that the appellant was very much there and thus the fact of the appellant living with Shri Umed Singh without the consent or permission of the respondent was confirmed by them. The next day the respondent and his mother also went to the house of Shri Umed Singh at 6 p.m and found the appellant FAO 291/96 Page 3 of 34
present there and when the respondent and his mother tried to reason out from the appellant as to why she was living with Shri Umed Singh, then she replied that it was her sweet will to go anywhere. This fact was also enquired from Shri Umed Singh in the presence of the appellant and he said that the appellant was his sister-in-law and he had every right over her and that she had come to him with her own will. Despite the request of the respondent and his mother, the appellant did not accompany them to return to her matrimonial home and remained there. It is also stated that in the year 1983-84, the appellant filed a report with the Social Welfare Board, which called Shri Umed Singh, Shri Mohinder Singh and the appellant‟s maternal uncle Shri Gian Singh and her brother from the appellant‟s side and from the respondent‟s side the respondent and his parents were called and on enquiry made by the Welfare Board, it was found that the appellant was living with her brother-in-law (jija) Shri Umed Singh and there was no fault of the respondent and as such reconciliation efforts made by the Board could not take place between the FAO 291/96 Page 4 of 34
parties. It is also averred that the appellant taunted the respondent as the educational qualification of the appellant was graduate whereas the respondent is a matriculate, which caused cruelty to him. It is also stated that the appellant left the matrimonial home with the intention not to return again, whereas the respondent had made efforts for reconciliation. The parties are stated to be living separately since 1.7.82 and the appellant has deserted the respondent from the first day of marriage without any reasonable cause. The appellant has even not made any efforts to come back to the matrimonial home as she has been staying with her brother-in-law (jija).
3. The appellant in her written statement however, admitted the factum of her marriage with the respondent on 30.6.82 but denied the allegation of cruelty and desertion. The appellant has leveled allegation that the respondent and his parents used to taunt her on account of bringing insufficient dowry and that the main demand of the respondent was a two-wheeler scooter which was not met by the appellant‟s parents. It is also alleged that the brother of FAO 291/96 Page 5 of 34 the appellant who had come to take the appellant on 5.7.82 was humiliated, taunted and was coerced to part with the two-wheeler scooter on which he had come to take her back and the respondent and his parents warned the brother of the appellant that in case the scooter was not arranged at the earliest the appellant may not be sent to her matrimonial home and the respondent would also not come to take her back. It is also alleged that thereafter i.e 5.7.82 the respondent never came to take her back. It is denied that the appellant was ever living with her brother-in-law (jija) Shri Umed Singh or that the respondent and his mother ever went to the house of said Shri Umed Singh on 22.8.82 or that the appellant was present in the house of Shri Umed Singh on that day. It is stated that the appellant was forced to make report to Anti Dowry Cell of Delhi Police which report of her was referred by the Anti Dowry Cell to the Social Welfare Board. The factum of summoning of persons from both sides is admitted by the appellant, however, it is denied that the Social Welfare Board held in its enquiry that the appellant FAO 291/96 Page 6 of 34
was living with her brother-in-law (jija) Shri Umed Singh or that there was no fault of the respondent. It is asserted that the respondent flatly refused before the said Board to bring the appellant back to the matrimonial home. It is alleged that it was the appellant who had been deprived by the respondent and had caused mental agony and torture to her by not taking her to the matrimonial home for demand of two wheeler scooter and other articles. It is also stated that on an application made by the appellant to the Anti Dowry Cell the case was proceeded against the respondent and the Anti Dowry Cell came to the conclusion that it was a fit case for investigation and accordingly a case was registered against the respondent for demanding dowry and the respondent and his family members were arrested by the police, but subsequently were enlarged on bail. It is also alleged that it is the respondent who had deserted the appellant since 5.7.82 and had not bothered to take her back to the matrimonial home for his greed of dowry and did not allow her to enter the matrimonial home in spite of repeated panchayat meetings FAO 291/96 Page 7 of 34
between the parties, their relatives and respectable persons of the village. It is also stated that the appellant has been forced to live with her parents since 5.7.82 due to greed/demand of dowry by the respondent.
4. Based on the above pleadings of the parties, the learned trial court framed the following issues:-
"(i) Whether after solemnization of marriage, the respondent treated the petitioner with cruelty? OPP (ii) Whether the respondent has deserted the petitioner for a continuous period of not less than 2 years immediately preceding the presentation of the petition.
(iii) Whether the petition is not in accordance with rules? If so, its effect?
(iv) Relief."
5. In support of his case, the respondent examined himself as PW-1 besides examining Shri Maya Ram @ Mahe Ram as PW-2 and Shri Ram Swarup as PW-3. The appellant, on the other hand, examined herself as RW-1, besides examining Shri J.B.Gupta as RW-2, Shri Gian Singh (appellant‟s brother) as RW-3 and Shri Mahinder Singh as RW-4.
FAO 291/96 Page 8 of 34
6. On issue Nos.1 and 2, the learned trial court returned a finding against the appellant and in favour of the respondent husband and thus dissolved the marriage of the parties by the decree of divorce dated 18.7.1996, feeling aggrieved by which the appellant has preferred the present appeal.
7. Assailing the impugned judgment and decree, Mr.Sanjay Kumar Pathak, learned counsel for the appellant submitted that sufficient efforts were made by the appellant to join back the company of the respondent at the matrimonial home and it was the respondent who remained reluctant to allow the appellant to join back his company and, therefore, the respondent cannot be allowed to take advantage of his own wrongs. Counsel further submitted that the learned trial court committed a grave illegality in drawing adverse inference of her statement during her cross-examination where she stated that the respondent-petitioner never came to take her from her parents house after 02.07.1982 to mean as if she had stayed at her parents‟ house after 02.07.1982 in contradiction to her claim of staying at the matrimonial home FAO 291/96 Page 9 of 34
till 05.07.1982. The contention of counsel for the appellant was that this date has been mentioned by the appellant in her cross-examination to explain that the respondent in fact had never visited her parents‟ house to bring her back after 02.07.1982. Counsel also submitted that the said deposition of the appellant could not have been read by the learned trial court in isolation as the same was to be read in conjunction with her earlier statement wherein she took a stand that she had taken a lunch at her parental house on 02.07.1982 and she also denied the suggestion in her cross-examination about the alleged visit of the respondent to take her back on 11.07.82 or on that date the parents of the appellant had refused to send her along with the respondent. Counsel for the appellant further submitted that the respondent had duly admitted in his evidence that the marriage between the parties was consummated on the night between 02.07.82 and 03.07.82, but at the same time took a contrary stand by alleging that the appellant never lived with him from 01.07.82. Counsel also submitted that the respondent took a FAO 291/96 Page 10 of 34
contrary stand of his alleged visit on 11.07.82 to the parents house of the appellant, as in the proceedings under Section 125 Cr.P.C. the respondent alleged such visit on 08.07.82 instead of 11.07.82. Counsel further submitted that the respondent had showed his reluctance to bring the appellant back to the matrimonial home before the Social Welfare Board. Counsel further submitted that the respondent had even admitted the visit of Mr.Bharat Singh, Counsellor at that time for the purpose of reconciliation and also the visit of the workers of the Social Welfare Board for the same purpose. Counsel also submitted that the appellant was not cross- examined by the respondent to contradict the deposition in her examination-in-chief wherein she stated that on 02.07.82 the marriage was duly consummated between the parties. Counsel also submitted that even no suggestion was given by the respondent to suggest that the appellant did not stay at her matrimonial home till 05.07.82 or no Panchayat took place at the instance of the appellant or the appellant and her parents did not make any efforts after 05.07.82 for her to go FAO 291/96 Page 11 of 34
back to the matrimonial home. Counsel further argued that the appellant had duly proved on record that she was never found at the residence of her brother-in-law (jija) Mr.Umed Singh at Nilothi. Counsel also argued that the decree of divorce cannot be granted on the ground of irretrievable breakdown of marriage which is not a ground under Section 13 of the Hindu Marriage Act. In support of his arguments, counsel for the appellant placed reliance on the following judgments:-
(i) Subhash Chander Sharma Vs. Anjali Sharma 2010(174) DLT 564 (ii) Suram Pal Singh Vs. Savita 2007(140) DLT 198 (iii) Krishan Kumar Vs. Shankari 2007(142) DLT 177
9. Opposing the present appeal, Ms.Mala Goel, learned counsel appearing for the respondent submitted that no fault can be found with the findings given by the learned trial court in granting the decree of divorce under Section 13 (1) (ia) and (ib) of the Hindu Marriage Act. In support of her arguments, counsel submitted that the appellant had deserted the respondent on 01.07.82 with the intention to break the marriage permanently. Counsel further submitted that the FAO 291/96 Page 12 of 34 respondent had sufficiently proved on record that the appellant was staying with her brother-in-law Shri Umed Singh at his residence at Nilothi. Counsel also argued that the appellant miserably failed to prove on record that any demand of scooter was made by the respondent or his parents. Counsel further submitted that in criminal proceedings, the appellant also alleged that the demand of Rs.30,000/- was made by the respondent along with the scooter which was not the defence set up by her in the proceedings before the matrimonial court and such contradictory stands of the appellant would clearly establish her false claim of setting up defence of demand of scooter made by the respondent or his parents. Counsel further submitted that no attempts were made by the appellant to join back the company of the respondent at the matrimonial home and instead she had approached the Anti-Dowry Cell so as to falsely implicate the respondent and his family members to face the criminal proceedings. In support of her arguments, counsel for the FAO 291/96 Page 13 of 34
respondent placed reliance on the judgment of this Court reported in Vimal Kanta Vs. J.M.Kohli176 (2011) DLT 527.
10. I have heard learned counsel for the parties at considerable length and given my thoughtful consideration to the arguments advanced by them.
11. The marriage which was solemnized between the parties on 30.06.82 turned ruinous within a short period of 24 hours as per the respondent and 5 days as per the appellant. As per the respondent-petitioner, the appellant did not return back with the respondent on 01.07.82 when she was taken by the respondent to her parental house. As per the respondent, no reasons were advanced either by the appellant or her parents for not sending back the appellant with the respondent to the matrimonial home. In para 4 (B) of the petition, the respondent averred as under.
"4(B). That on 1st of July, 1982, the petitioner and the respondent went to the respondent's parents house at Yusuf Sarai and had lunch there. The parents of the respondent did not send the respondent alongwith the petitioner. The respondent too declined to come alongwith her husband- petitioner without any reason and justification. Therefore, FAO 291/96 Page 14 of 34 the petitioner-husband returned back to his residence having been disappointed by the respondent's conduct." As per the respondent despite making efforts to bring back the appellant, the appellant did not return and therefore, the respondent filed a petition for divorce under section 13(1)(ia) and (ib), i.e cruelty and desertion which vide order dated 18.7.1996 was decreed in his favour.
12. To claim a decree on the ground of desertion as envisaged in section 13(1)(ib) of the Hindu Marriage Act the ingredients that need to be proved , so far as the deserting spouse is concerned it is (i) factum of separation, (ii) the intention to bring cohabitation permanently to an end i.e animus deserdendi, and so far deserted spouse is concerned, (i) absence of consent and (ii) the absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. It is also a settled legal position that desertion commences when the factum of desertion and the animus deserendi co-exist. However, it is not necessary that these two conditions should commence at FAO 291/96 Page 15 of 34
the same time as the de facto separation may commence earlier in point of time without the necessary animus and the necessary animus may arise later in point of time and then coincide with the factum of separation. Desertion has no straitjacket formula and in each case an inference has to be drawn from the facts of the case. It is the intentional and permanent forsaking of one spouse by the other without others consent, and without reasonable cause. This was held by the Apex Court in the case of Bipin Chander Vs. Prabhawati AIR 1957 SC 176. Along with explaining the essential conditions which constitute desertion as a ground for divorce, the Apex Court in the case of Lachman UtamChand Kirpalani vs. Meena Alias Mota (1964) 4 SCR 331 while reiterating Bipin Chander(supra) held as under:
" It would be seen that we have here the interaction of two distinct matters which have to co-exist in order that desertion might come to an end. In the first place, there must be conduct on the part of the deserted spouse which affords just and reasonable cause for the deserting spouse not to seek reconciliation and which absolves her from her continuing obligation to return to the matrimonial home. In this one has to have regard to the conduct of the deserted spouse. But there is one other matter which is also of equal importance, that is, that the conduct of the deserted spouse FAO 291/96 Page 16 of 34 should have had such an impact on the mind of the deserting spouse that in fact it causes her to continue to live apart and thus continue the desertion. But where, however, on the facts it is clear that the conduct of the deserted spouse had had no such effect on the mind of the deserting spouse there is no rule of law that desertion terminates by reason of the conduct of the deserted spouse. It appears to us that the principle that the conduct of the deserted spouse which is proved not to have caused the deserting spouse to continue the desertion does not put an end to the desertion appears to be self-evident and deducible from the legal concepts underlying the law as to desertion." Thus it is clear from above, that the deserting spouse should have deserted the other spouse without his consent and without being there any just and reasonable cause. In a case of desertion by the deserting spouse there should be reasons sufficient enough for such spouse not to reconcile with the deserted spouse. But where the deserting spouse withdraws not only physically from the marriage but also from the society of the deserted spouse without any reasonable cause, the ground of desertion shall be available to the deserted spouse.
13. Now applying the aforesaid principles of law to the facts of the case at hand, the appellant ceased to live with the appellant from 1.7.82 and as per the appellant from 5.7.82. However it is immaterial as to the date of separation as it is FAO 291/96 Page 17 of 34 not in dispute that the parties did not live together thereafter till the presentation of the petition and thus the essential condition that the parties must be living for two years separately before the presentation of the petition stands fulfilled. Thus the first ingredient of the factum of separation stands fulfilled.
14. Coming to the next ingredient which is the animus desrendi, i.e the intention of the appellant to bring the cohabitation permanently to an end. As per the respondent petitioner the appellant did not return back from her parental house on 1.7.82 and the parents of the appellant also refused to send her back without any justifiable cause. As per the respondent, he again on 11.07.82 went to the parents house of the appellant to take her back but again the parents of the appellant refused to send her back with the respondent. After a gap of 15 days i.e. in the last week of July, 1982 another attempt was made by the respondent, but this time the appellant was found not present at her parents house and he was told by the parents of the appellant that she had gone to FAO 291/96 Page 18 of 34
her brother-in-law Mr.Umed Singh at village Nilothi. After having learnt this fact, the father of the respondent had called Mr.Umed Singh on or about 30.07.82 when in the presence of Shri Daryao Singh, Shri Mohinder Singh, Shri Hanumant Singh and Shri Sri Lal, uncles of the respondent besides his family members, Shri Umed Singh blamed his father-in-law and informed them that the appellant was not staying with him and in fact she was with her parents. As per the respondent in the first week of August, 1982, the father of the respondent again informed him that the appellant was living with Mr.Umed Singh and acting on this information, Shri Kalam Singh and Shri Sri Lal visited the residence of Shri Umed Singh at village Nilothi on 21.08.82. As per the respondent, on the next day, he along with his mother went to Shri Umed Singh‟s house, but the appellant refused to accompany the respondent. On being enquired by the respondent and his mother the reason as to why she was at the residence of Mr.Umed Singh, then she replied that it was her sweet will to go anywhere. As per the respondent, even FAO 291/96 Page 19 of 34
Mr.Umed Singh also told them that the appellant is his sister- in-law and he has every right over her and she has come there at her own will. No further efforts were made by the respondent to bring back the appellant and in the year 1983- 84 the appellant filed a report with the Social Welfare Board and despite the intervention of the Members of the said Board no reconciliation could take place between the parties. As per the respondent, the appellant had also taken all ornaments with her on 01.07.82 and in this manner, the appellant deserted him since 01.07.82 and the repeated refusal of the appellant not to return back and the continued stay with her brother-in-law caused mental cruelty to him.
15. The appellant, on the other hand, in her written statement took a defence that she was never taken back to her parents‟ house on 01.07.82. As per the appellant, she was brought to the parents house around 4 p.m on 02.07.82 and she returned back with the respondent after having taken dinner at the parental home at about 9 p.m. It is also the case of the appellant that on 02.07.82 the respondent was FAO 291/96 Page 20 of 34
accompanied by his cousin named Ajit Singh and they travelled back in the same taxi which brought them to the parents house and on their way back, the respondent and his cousin and the taxi driver consumed liquor for about one hour and then ultimately they reached back at the matrimonial house around 11:30 p.m It is also the case of the appellant that the marriage had already been consummated on 01.07.82 and the respondent cohabitated with the appellant upto 04.07.82. It is also the case set up by the appellant that on 05.07.82 in the morning her brother Gian Singh came to take her to the parents house in accordance with the customs. It is also the case of the appellant that her brother was humiliated, taunted and coerced to part with the two-wheeler scooter on which he had come with the appellant on 05.07.82. It is also the case of the appellant that she was not allowed to live peacefully by the parents of the respondent and also the respondent himself during the said short period between 30.06.82 till 04.07.82, during which time all of them kept taunting and cursing the appellant and her parents for not FAO 291/96 Page 21 of 34
bringing sufficient dowry in the marriage. It is also the case of the appellant that on 04.07.82 the respondent and her mother took in possession all the ornaments which were presented to her from both the sides. It is also the case of the appellant that the respondent never came to take her back after she had left the matrimonial home on 05.07.82 along with her brother. The appellant also denied that she was ever living with her brother-in-law Umed Singh at village Nilothi. The appellant also denied that her brother-in-law was ever called by the father of the respondent at Sultanpur Mazra or Shri Sri Lal and Shri Kalam Singh ever paid visit to the house of the appellant or at the house of Shri Umed Singh at Nilothi or the respondent and his mother found the appellant present at the house of Shri Umed Singh on 22.08.82. The appellant also submitted that the divorce petition filed by the respondent was in fact a counter blast to the complaint filed by the appellant with the Anti-Dowry Cell. The appellant also took a stand that a criminal case was registered against the respondent, father, mother, brother, sister and uncle of the FAO 291/96 Page 22 of 34
respondent and they were arrested by the police for committing offences under Section 498-A/406 IPC and later on were enlarged on bail. The appellant in the written statement also took a plea that her parents and Shri Umed Singh received messages through one Shri Bhagwan Singh who was a mediator for arranging the said marriage regarding the demand of a two-wheeler scooter made by the respondent and his parents. In the background of the said facts, the appellant in her written statement submitted that since 05.07.82 she was deserted by the respondent and no efforts were made by the respondent to take her back even despite repeated panchayat meetings and efforts made by the area MLA Shri Bharat Singh.
16. Based on the above pleas of the parties, the learned trial court held that no such conduct of the respondent was proved on record which could have compelled the appellant to leave the matrimonial home. The learned trial court further found that based on the evidence led by the respondent it was sufficiently proved on record that repeated efforts were made FAO 291/96 Page 23 of 34
by the respondent to visit the house of the appellant to bring her back. The learned trial court further found that even the parents of the respondent had gone to the house of Shri Umed Singh and even Shri Umed Singh was called to their Village to be told not to keep the appellant with him and send her back to the respondent being her legally wedded wife. The learned trial court also found that the respondent and his mother went to the house of Shri Umed Singh in Nilothi so as to persuade the appellant to return to the matrimonial home but with no result. The learned trial court further found that the appellant did not examine Smt.Prem and Shri Umed Singh who were very material witnesses to deny the version of the respondent about stay of the appellant at Umed Singh‟s place, therefore, adverse inference was drawn against the appellant. The learned trial court although found that the appellant failed to prove that she had been living apart from the respondent since 05.07.1982, but in any case the learned trial court also found that no effort was made by the appellant or her family members to send her back to the matrimonial home FAO 291/96 Page 24 of 34
even if the date of her returning back to the matrimonial home on 05.07.1982 is taken as correct. The learned trial court observed that as per ordinary course of human behaviour even if the respondent had not come to take her back after few days, then certainly the appellant could have gone back to the matrimonial home herself or her parents should have taken her to the matrimonial home with a view to rehabilitate her in the matrimonial home. With regard to the alleged stand of the appellant that some meetings were held with the members of the Panchayat, the learned trial court found that the allegations in this regard were absolutely vague and the same could not be proved by the appellant.
17. The learned trial court has examined the evidence adduced by both the parties in detail and has given an extensive judgment holding the respondent husband entitled to the decree of divorce. On examining the evidence adduced by both the parties, it is quite manifest that the appellant has miserably failed to disclose any reasons, much less the justifiable reasons for bringing the cohabitation with the FAO 291/96 Page 25 of 34
respondent permanently to end. The learned trial court has not believed the case of the appellant that any demand of two wheeler scooter was made by the respondent or his parents, or the appellant and her brother were told not to send the appellant till the said demand of two wheeler scooter is fulfilled by the appellant and her parents. The learned trial court also referred to the contradictory pleas raised by the appellant in her written statement and in her evidence as well as the stand taken by her in the criminal case wherein the demand of two wheeler scooter, monetary demand of Rs.30,000/- was also alleged to have been made by the father of the respondent at the time of „bidha‟ ceremony. The trial court further found that the allegation leveled by the appellant in the written statement with regard to the alleged demand of dowry are not very clear and specific as very vaguely the appellant in para 4 (b) of the written statement took a stand that during the period i.e. 30.6.82 to 4.7.82 she was not allowed to live peacefully by the respondent and his parents as they kept on taunting and cursing her and her FAO 291/96 Page 26 of 34
parents as they were not satisfied with the dowry given by her parents at the time of marriage. The trial court also found that it was not the case of the appellant either in the written statement or in the evidence that she was forcibly turned out of the matrimonial house thereafter. The trial court also observed that the appellant failed to prove the exact dates, months or years as to when the alleged panchayat‟s meetings took place so as to resolve the conflicts of the parties. The trial court also observed that the appellant has not filed any record to prove any copy of complaint/report of the proceedings of the Anti Dowry Cell or the Social Welfare Board where she had made her first complaint, so as to prove any efforts made by the appellant for reconciliation of the dispute with the respondent.
18. In my considered view, no fault can be found with the said findings of the learned trial court. The appellant has nowhere in her written statement or evidence asserted or claimed that she made efforts to go back to her matrimonial home or her parents tried to send her back. It is surprising FAO 291/96 Page 27 of 34
that the parents of a daughter who has just been married for a day would not want to send her back or at least make any effort to send her back. The appellant has also not been able to prove that the in laws demanded a two wheeler or Rs.30,000 or in any manner taunted her for bringing insufficient dowry. It is surprising that with the marriage on 30.6.82 and the appellant going to the parental house on 1.7.82, where was the opportunity for the in laws to taunt her for getting insufficient dowry or she could be so seriously troubled with their conduct that she decided not to come back forever. The appellant laid much stress on the fact that the respondent refused to take her back when there were reconciliation proceedings before the Social Welfare Board. It is not surprising that the respondent reacted in the irresponsive manner, as the reconciliation proceedings were started after the appellant filed a complaint with the anti- dowry cell accusing her in laws of a criminal offence, and thereafter getting them arrested for offence under section 498-A/406 IPC, which would have naturally antagonized the FAO 291/96 Page 28 of 34
respondent to take her back. It is also the case of the appellant that the marriage of the parties had already been consummated on 1.7.82, while this fact has been disputed by the respondent who has deposed that as per the customs prevailing in their family the marriage is not consummated on the first night. It is immaterial of whether the marriage was consummated or not or as to when it was consummated as the appellant has maintained the stand that she has lived with the respondent till 5.7.82. The relevant question to be examined in the facts of the case as to whether the appellant had left the matrimonial home with an intention to permanently bring cohabitation to an end and secondly whether there was a reasonable cause on the part of the appellant to leave the matrimonial home due to the conduct of the respondent. As already discussed above, the appellant has failed to justify her conduct for not returning back to the matrimonial home, despite repeated efforts made by the respondent. The learned trial court has also not believed the theory of demand of two wheeler scooter put forth by the appellant on account FAO 291/96 Page 29 of 34
of inconsistency raised by the appellant in her pleadings and in her evidence and also because of divergent stand taken by her in the criminal case filed by her under Sections 498A and 406 IPC. It is true that the deserted spouse must establish on record that sufficient efforts were made by him to bring the deserting spouse to the matrimonial home but it is equally true that the deserting spouse cannot be expected to sit back at the parental home for no justifiable grounds and not to return back to the matrimonial home. Neither in the written statement nor in the evidence the appellant has shown making any such efforts to return back to the matrimonial home while on the other hand the respondent has successfully proved on record due efforts made by him to bring back the appellant to the matrimonial home. Taking into consideration the aforesaid, no infirmity or illegality can be found with the findings of the learned trail court as far as the ground of desertion is concerned.
19. The petitioner also claimed divorce on the ground of cruelty as envisaged in section 13(1)(ia), which finding was FAO 291/96 Page 30 of 34
given in favour of the respondent and the decree of divorce vide the impugned passed. The appellant has also averred that in the present appeal the respondent has not argued the ground of cruelty and thus the same is deemed to have been abandoned by the respondent. Making cruelty as a ground for divorce in conjunction with the ground of desertion has become a common practice but it cannot be lost sight of the fact that the two are completely distinct grounds and have different barometers on which they are judged. The respondent has not averred any instance of cruelty strongly or has made a case that the conduct of the appellant was such so as to cause mental agony so that they are not able to live with each other. Hence, the findings of the learned trial court on the ground of cruelty are hereby set aside.
20. Before parting with the judgment, the agonizing facts of the case need to be reiterated. The appellant was of 20 years of age and the respondent 22 when they got married in 1982. The petition for divorce was filed by the respondent husband 5 years after the marriage i.e in 1987, and the FAO 291/96 Page 31 of 34
decree of divorce granted in 1996. The present appeal was filed by the appellant before this court in 1996 itself and has come for the final decision in the year 2012. The fact that the parties who stayed together for a mere 24 hours spent close to 30 years in alleys of courts to get rid of each other, is nothing but appalling to say the least. The institution of marriage, which is considered the holy union of two souls, is made mockery of by such like cases and it is no wonder that the relevance of this pious bond is under scanner by the youth today. Each marriage has its bittersweet moments which are cherished by the couple in the sunset of their lives. The companionship of the years spent together is a comforting pillar of strength in their old age and it is most unfortunate that the parties in the present case were devoid of making any such memories, more so because of their own faults. This poignant adjudication has again drawn the mind to wonder about the litigative voyage in our courts, especially in matrimonial cases, which leaves the parties with no hope, zeal, or time to start their lives afresh. It would also be FAO 291/96 Page 32 of 34
pertinent to mention here that as per the mandate of section 9 of The Family Courts Act, 1984 and section 23(2) of the Hindu Marriage Act, the Matrimonial Courts should make every positive endeavour to bring about reconciliation between the parties so that the matter can be amicably settled on mutually acceptable terms at the very threshold. The courts should make efforts at the initial stage itself so that the burden of the courts is also lessened and the parties are also saved from the arduous litigation. The services of the mediators and counselors especially appointed for this purpose are at the disposal of the Family Courts, and should be utilized to the fullest so that parties are reconciled or agree to part mutually and amicably. Let the object of section 9 of the Family Courts Act and section 23(2) HMA not be defeated by a ritualistic exercise but a concerted, cohesive and conscientious effort on the part of the Matrimonial Courts to bring the parties to a pacific agreement. In-time intervention of the courts dealing with marital disputes with devotion of sufficient hearings at the initial stage itself may save such parties this long ordeal. FAO 291/96 Page 33 of 34 The courts should make sustained and persistent attempts even when the pleadings are complete and evidence led, as it will certainly yield potent results. The present case is nothing but a venomous irony that the vengeance which was caused in one day between the parties was nurtured by them for three decades, and I hope that they realize that it has bereft them of everything that matrimonial life would have instore, leaving them now with nothing but remorse.
21. In the light of the above, the present appeal is dismissed.
22. Let the copy of this judgment be sent to all the Matrimonial Courts functioning in various District Courts at Delhi.
January, 2012 KAILASH GAMBHIR, J Dc/mg
FAO 291/96 Page 34 of 34

http://lobis.nic.in/dhc/KG/judgement/18-01-2012/KG16012012FAO2911996.pdf

http://www.indiankanoon.org/doc/5193301/

Not fulfilling demand of separate home is NOT cruelty. Minor disputes, difference of opinion which are to be adjusted and tolerated, cannot be treated as cruelty. -wife cannot be allowed to advantage of her own wrong-desertion cruelty not proved-Bom HC

Not fulfilling demand of separate home is NOT cruelty. Minor disputes, difference of opinion which are to be adjusted and tolerated, cannot be treated as cruelty | wife cannot be allowed to advantage of her own wrong desertion cruelty not proved - Bombay HC

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

FAMILY COURT APPEAL NO.77/2003

Mrs.Surbinder Kaur Sandeep Sood,
Age about 36 yrs.Occ.Nil
R/o C/O Shri.Sardulsingh
Re.E.G.55/4,Bhaira Nagar,
Dhanori Road,
Vishrantwadi,
Pune-422 015 Appellant/Ori.Petitioner

Vs.
Sandeep Rajkumar Sood,
Age about 40 yrs.Occ.Business,
Residing at 529/E,Kadamwadi,
Kolhapur 415 003       Respondent/Ori.Respondent
Ms.Ashwini Takalkar i/b Mr.Nitin Deshpande for Appellant
Mr.P.R.Arjunwadkar,for Respondent

Coram- A.M.Khanwilkar and    Mrs.Mridula Bhatkar,JJ

Reserved On-2nd  May,2011.

Pronounced On- 8th  December, 2011.

J U D G M E N T (Per Mrs.Mridula Bhatkar,J.):

1 The judgment and order dated 23/6/2003 passed by the Judge of Family Court, Pune is challenged in this appeal. The appellant/original petitioner had filed petition for divorce on the ground of cruelty and desertion under section 13(1)(ia)(ib) of the Hindu Marriage Act, 1955.

2 The appellant and the respondent got married on 12/5/1993 and stayed together for a period of three years at Kolhapur, in the joint family of respondent consisting of parents and three sisters. It is the case of the appellant that she was not given freedom in the house and  was harassed in  number of ways by the mother and sisters of the respondent. She was not allowed to speak to the respondent and was  asked to do domestic work from morning to night. Many restrictions were imposed on her routine and she hardly could step out of the house. She was deprived of company of the respondent and had to obey the instructions/orders of her mother in law and sisters in law. For want of proper care and rest she had miscarriage. So her parents came to Kolhapur and gave her Rs.5,000/-for her own expenses. However, she was not allowed to spend that money for herself. Subsequently she again conceived and gave birth to male twins on 24/4/1996. She was not allowed to take proper rest and sisters of the respondent used to quarrel with her so the children were neglected. It is contended that in July, 1996 she was not allowed to go to the temple of goddess at Kolhapur. On that issue there was a big quarrel in the house. The respondent slapped the appellant, thereafter her sister in law Anju lodged false complaint with the police  that the appellant tried to commit suicide. On enquiry police called her father and she was sent to Pune alongwith her father.  She resided with her parents for 2-3 months. The respondent was supposed to come to her father’s house to take her back. However, he did not come. Therefore, in the month of January,1997 the appellant alongwith her father went to Kolhapur  to reside with the respondent. However, the respondent and his family members quarreled with the appellant and she alongwith her family members was driven out of the house  at odd hours of night. Since then she has been residing with her parents at Pune.It is contended that the respondent did not pay any maintenance to her and her children and did not bother to call her back. She, therefore, on the ground of cruelty and desertion filed petition for divorce in the Family Court at Pune, but it  was dismissed. Hence this appeal.

3 The respondent has denied all the contentions raised and allegations made in the petition and in the appeal.  He filed written statement and contested the petition that the grounds of cruelty and desertion are false and it is a cooked up story.   The petition was based on false averments and petitioner had withdrawn herself from the company of the respondent without any good cause. She has taken away two children and was not interested from the beginning to live with the respondent alongwith his family members. It is contended by the respondent that the petitioner wanted to reside separately only with the respondent and was interested to enjoy the life without taking any responsibility. She is pampered child of her parents. Despite such behaviour of the appellant, the respondent being a responsible and loving husband filed petition for conjugal rights bearing no.95/97 and it was decided in his favour. The petitioner did not come to stay with him. He filed execution proceedings, however, the petitioner did not show any interest and did not come to Kolhapur to live with him. It is contended that the petition was rightly dismissed as the petitioner could not prove her case of either cruelty or desertion.

4 The petitioner examined herself and also three witnesses viz. Nandlal Amarchand Shrishrimal, Sharadsingh Banga, and Captain Deepchandra. The respondent  husband offered himself as a witness and examined Shivaji Sankpal, Vijaya Toraskar and his sister Anju Rajkumar Sood.

5 Learned counsel for the appellant argued that cruelty is an aggravated form of harassment and it can be either expressly  proved or it can be inferred. She submitted that the appellant in her examination in chief has stated that the respondent husband had slapped her and the family members, especially the sisters of the respondent used to torture her by not giving food and not allowing her to go out of the house. Learned counsel pointed out that the application for the Restitution of Conjugal Rights though was decreed in favour of the respondent, the appellant never stayed with the respondent, therefore,  if the decree is not implemented till today then itself forms a ground for divorce.  She submitted that the maintenance ordered by the Court to her was  not paid by the respondent.  These aspects ought to have been considered by the Family Court. In support of her submissions she relied upon (Sanghmitra Ghosh Vs.Kalalkumar Ghosh) reported in 2007(2) SCC,220. She submitted that this being a irretrievable breakdown of the marriage the prayer of divorce be granted and the appeal deserves to be allowed.

6 Learned counsel for the respondent submitted that the appellant at the time of evidence could not narrate specific instances of cruelty and failed to bring any evidence to that effect. He pointed out that in her cross examination the petitioner has admitted that she has no grievance against the respondent but she was on inimical  terms and holding grudge against the mother and sisters of the respondent and this cannot be a ground for divorce. Hence the petition is rightly dismissed. 

7 The points framed by the Family Court and findings given are as follows.

POINTS       FINDINGS
1. Whether the petitioner proves thatthe respondent treated her with cruelty after solemnization of marriage ? No
2. Whether the petitioner proves that the respondent deserted her withoutjust and sufficient reason for a period of 2 years preceding the date of petition ?No
3. Is there any legal bar u/s 23 of  H.M.Act ?Not survive
4. Is petitioner entitled to decree of divorce? No
5. What about permanent alimony of petitioner and maintenance of children ?Not survive
6.   Is petitioner entitled to continue the permanent custody of children with her ?Yes,presently.

7. What order ?      As per final order

8 Issue nos.1 and 2 are  the ground for divorce i.e. cruelty and desertion. We have carefully gone through the evidence and judgment of the Trial Court. On the point of mental and physical cruelty, following incidents are stated by the appellant. 

Physical Cruelty-
1. Slapping the petitioner in the month of July,1996  when the appellant expressed her desire to
go to the temple.
2. She was driven out of the house at night in July,1997 alongwith her father.
3. Not giving food
4. Asking her to do the domestic work
 
Mental Cruelty-
1. Not allowing to talk to her husband.
2. Not allowing to go out3. Husband was not accepting her wish of separate residence and not to stay with sisters.
4. Not to give her Rs.5,000/- to spend.

9 The petitioner in her evidence, except giving slap and not giving food did not narrate any specific incident of physical cruelty against the respondent. It is oral uncorroborated evidence.  In fact she gave admission and showed readiness to stay  with the respondent and his mother. She did not like the company  of his sisters. House of the respondent is of 12 rooms. Thus, separate residence for the appellant and respondent could be possible,  if the respondent had accepted the offer. At any rate, as the  demand of separate residence cannot be considered as cause of cruelty,  for the same reason, non-acceptance of such demand by the husband also cannot be a cruelty. These are choices given by the spouses to each other and expression of choice and refusal of the choice itself is not a cruelty.   In the evidence of Anju, sister of the respondent, she has stated that she leaves home at 9 a.m. and returns at 6 p.m. Further, the appellant gave admission in her evidence that the mother of the respondent has taken her care during pregnancy. This shows that the appellant did not have any complaint against the mother of the respondent. It appears that the root cause of the dispute was due to stay of the sisters in the house,  an ego problem.

10 On the point of cruelty one Captain Deepchandra was examined by the appellant. He is maternal uncle of the respondent. He has produced one letter, Exh.25, written by the father of the respondent to him. He deposed that in that letter father of the respondent has written that , “ Surbinder was kicked out to Pune”. On reading the said letter the words “kicked out” appear to be added subsequently. However, further it is mentioned in the letter that the family was spending Rs.30,000/- per year on the appellant. Thus, her evidence that she was not given food, cannot be believed on the basis of the letter which is proved and relied by the appellant herself.

11   On 25/7/1996 a police complaint  was lodged by the sister of the respondent alleging that the appellant was trying to commit suicide by pouring kerosene on her body. This shows that the sister had diligently  reported the police station so that the police would take preventive measures and no untoward incident should happen. However, the attempt of the appellant to commit suicide when she was mother of 2-3 months old infants cannot be justified.  The evidence of police officer is on record which supports this and that cannot be doubted.  After going through this evidence we are of the opinion that the Judge of the  Family Court has properly appreciated the evidence of the witnesses of both the sides and has correctly arrived at the conclusion. It is settled position of law that a routine bickerrings  or petty quarrels cannot be labelled as cruelty under the Hindu Marriage Act.

12 The respondent though denied that amount of Rs.5000/- was received from the father of the appellant, he admitted that he  kept that amount in the Fix Deposit in the name of the appellant and he did not spend that money for himself. Further, the record shows that he had filed application for Restitution of Conjugal Rights which was decreed as the appellant failed to prove that she had withdrawn from the society of the husband with good and satisfactory cause.  Even in those proceedings the appellant had asserted cruelly caused by the respondent and his family members. However, that plea was negatived.  The said decree was not challenged by the appellant in appeal. Though the execution was taken out, she did not respond and the decree could not be executed.

13 It is admitted that on that day i.e. 25/7/1996 father of the appellant was called by the police. With a view to get the things settled she was sent to Pune at her father’s residence for 2-3 months. After two months the respondent did not bring back the appellant, so her father came to Kolhapur. The respondent told him to bring back the appellant to Kolhapur. On 25/1/1997 she came alongwith her father and some family members, out of which one is examined as a witness. There are two versions of the parties before the Family Court  that she was driven out of the house and secondly the father and other member who had gone there,  fought and put stringent condition which were not acceptable to the respondent, therefore, they took their daughter back to Pune. Be that as it may, the fact remains that  the appellant did not go back and continued to stay away from the respondent from July,1996. Any version of either of the parties if accepted, it is not a good ground to stay away from each other and to untie a nuptial knot.

14 Considering the nature of the dispute and the reasons given by the appellant, the separation cannot be justified.  It cannot be held that the respondent has deserted the appellant without any good cause. It appears that the appellant herself opted to stay with her parents at Pune and not to cohabit with the respondent. She did not respond to the decree of Restitution of Conjugal Rights and therefore, the findings given by the Family Court that animus deserendi was absent and so the divorce cannot be granted under the ground of desertion is correct. Minor disputes, difference of opinion which are to be adjusted and tolerated, cannot be treated as cruelty.

15 The respondent had filed petition for custody of children. However, it was rejected. He could not succeed in the appeal. The twins were born  in 1996 and now they are around 15 years old. Since childhood they are staying with mother and taking education. So the issue of permanent custody was rightly held in favour of the appellant. Indeed, after attaining majority, it would be open to the children to stay with parent of their choice i.e., continue to stay with the mother or reside with the father (respondent)

16 A demand of permanent alimony was made by the appellant. Our attention was drawn to the orders passed by the Trial Court and this Court in the maintenance petition filed by the appellant. The appellant had filed a petition for maintenance bearing number 218/97 and maintenance of Rs.400/- p.m. to the appellant and Rs.300/- p.m. to each child was granted. It was enhanced to Rs.800/- p.m. for the appellant and Rs.500/- p.m. to each child. The respondent filed an application for cancellation of maintenance, however, it was dismissed. Again the maintenance amount was enhanced by the Family Court to Rs.1,200/-p.m. to the appellant and Rs.1,000/-p.m. to each child. The respondent preferred Revision Applications before this Court bearing nos.654/2007 and 512/2008. The Revision Applications were dismissed by this Court on 18/7/2009. The respondent preferred Special Leave to Appeal (Criminal) 7870-7871/2009 and the same was dismissed by the Supreme Court. We do not wish to interfere with finding recorded by the Family Court on issue No.5. We also agree with the Family Court that the appellant is free to resort to other legal
remedies. 

17 It is necessary to note that when the appeal was taken up for hearing, we, in the first place, tried to persuade the parties to arrive at some amicable settlement.  However, we found that the parties were still holding grudge against each other and were not in a mood to adjust. Instead, the learned counsel for the appellant has advanced her submission that such a long separation amounts to irretrievable break down of the marriage and so the decree of divorce be granted. In the case of  Sanghmitra Ghosh (supra) the parties were residing separately since January, 2001. In a transfer petition before the Supreme Court to transfer the pending matrimonial petition to some other State;  they filed joint petition for a decree of divorce praying that the Court may grant decree of divorce by mutual consent. The Supreme Court accepted the plea of irretrievable break down of marriage and exercised its extraordinary jurisdiction under Article 142 of the Constitution and granted decree of divorce. In the present matter, having recorded finding on merits on the relevant points/issues raised by the rival side and thus upheld the decree passed by the Family Court which is impugned in this Appeal, we would follow the dictum of our High Court in the case of Ravindra M.Shelar v. Kalpana R.Shelar reported in 2002 (3) MLJ 746.(http://www.indiankanoon.org/doc/1343342/) The same applies on all fours to the facts of the present case. Inasmuch as, even in this case we have found that the appellant was responsible for non-compliance of decree of restitution of conjugal rights and had committed positive wrong. She cannot be allowed to take advantage of her own wrong as the legal bar in granting the decree of divorce was not lifted. 

18 We, therefore, do not wish to interfere with the judgment and order passed by the Family Court.

19. Hence the Appeal is dismissed with no order as to costs

.
(Mrs.Mridula Bhatkar,J.) (A.M.Khanwilkar,J.)

http://bombayhighcourt.nic.in/data/judgements/2011/CFCA3090503.pdf

No alimony for women walking out of marriage, who cannot prove wilful neglect by husband despite sufficient means

  

No alimony for women walking out of marriage, who cannot prove wilful neglect by husband despite sufficient means-Delhi district court (saket) judgment (125crpc. case)

IN  THE  COURT OF  SHRI  RAJEEV  BANSAL, ASJ-03 (SOUTH DISTRICT), SAKET COURTS, NEWDELHI.

 
     Criminal Revision  No. 45/10                  (Unique No.02403R0251242010)

1.   Kulwant Kaur

      W/o Sh. Maan Singh

2.   Master Simran Singh

      S/o Sh. Maan Singh

      Through Natural Guardian

      Kulwant Kaur. 

      Both R/o F-11/4,  Malviya Nagar,

      New Delhi                                                   ...........Revisionist

Vs

Sh.  Maan Singh

S/o Sh. Jeet Singh,

R/o WZ/111-B, Gurunanak Nagar,

Tilak Nagar, New Delhi                                   ..........Respondent

Date of Initial Institution      :30.07.2010

Date of institution in the present court:19.10.2010

Date of Reserving Order      :03.10.2011

Date of Pronouncement Order      :31.10.2011

ORDER

The present revision petition has been filed against dated 26.05.2010 by which the petition filed under Section 125 Cr.P.C by the revisionist was dismissed by the Ld. Trial Court.

2. It has been stated in the petition that the revisionist No.1 Kulwant Kaur married respondent on 26.06.1992 and out of this marriage, petitioner No.2 was born on 10.11.1993.   It has been alleged that the respondent committed cruelties upon the revisionist No.1 which compelled her to register an FIR with CAW Cell against him.  The revisionist is stated to be living  separately since 09.04.1995 and has no independent source of  income whereas the respondent is stated to be earning Rs.20,000/-  per month by working as Electrician and Palmist.   The petition  under Section 125 Cr.P.C was thus filed on 25.09.2003 by the revisionist No.1 claiming a maintenance of Rs.11,000/- per month for herself and Rs.5,000/- for revisionist No.2.  It was further stated that earlier petition filed under Section 125 Cr.P.C by the revisionist was dismissed in default on 01.09.1997.    

3. After consideration of the rival contentions of the parties, the Ld. Trial Court dismissed the petition under Section 125 Cr.P.C vide order dated 26.05.2010.   

4. Grievance of the revisionist is that the respondent is a man of means whereas the revisionist has no independent source of income.  Further, it has been stated that the respondent had voluntarily deserted both the revisionists and has not made any arrangement for their maintenance.  Further, it has been stated that dismissal of previous petition filed under Section 125 Cr.P.C is not a bar for filing a fresh petition under Section 125 Cr.P.C. Thus on these grounds, the impugned order has been assailed by the revisionists. 

5. On the other hand, respondent/husband has stated that the revisionist No.1 herself deserted him and hence she is not entitled to any maintenance.  Apart from it, it has also been stated that the earlier application filed under Section 125 Cr.P.C was dismissed in default vide order dated 01.09.1997 and the second application for the same relief will not lie.  

6. I have heard both the Ld. Counsels and have gone through the Trial Court record.  The Ld. Trial Court in its impugned order dated 26.05.2010 has observed that the revisionist No.1 failed to discharge the initial burden of proving neglect by the husband. The Trial Court also observed that the circumstances in which the petitioner/wife left the matrimonial home was also not specifically dealt with by her.  It is trite that in order to claim maintenance under Section 125 Cr.P.C , it is obligatory upon the claimant to establish that there was willful neglect on the part of the husband to maintain the claimant. Ld. Trial Court took into consideration the demeanour of the revisionist during the course of her deposition in the court. Court’s observation are recorded in the deposition of the petitioner according to which the witness  had called her father inside the court by signaling. The court also observed that the witness was warned time and again, during herexamination, not to solicit help in her examination from her counsel or anybody else, but she did not desist from it. Ld. Trial Court rightly took exception to this conduct of the revisionist.  Ld. Trial Court also observed that the revisionist failed to show the circumstances under which she left the matrimonial home. Another factor which was noted by the Ld. Trial Court was the dismissal of earlier petition filed under Section 125 Cr.P.C on 01.09.1997.  However, the second petition under Section 125 Cr.P.C was decided on merits by the Ld. Trial Court and after considering the merits of the case, the same was dismissed. The argument of the petitioner that the Ld. Trial Court dismissed the second petition only on the ground that the first petition having been dismissed, is a bar against filing of a second petition, is factually incorrect.  The Ld. Trial Court has not dismissed the second petition under Section 125 Cr.P.C only on the ground of dismissal of the petition under Section 125 Cr.P.C.  Only an observation was made by the Ld. Trial Court that the first petition under Section 125 Cr.P.C was dismissed by the court on 01.09.1997 but nevertheless the second petition was decided on merits.  In her cross-examination, petitioner stated that she does not know as to whether the respondent was doing the work of Electrician and had nominal income. She admitted that at the time of marriage, the respondent was working as an Electrician but she could not tell as to whether the respondent had his own shop or was working for somebody else.  She further stated that the respondent was provided work by her brother when he could not succeed in his own work.  She further admitted that the respondent was taken to Hong Kong by her brother.  The deposition of the petitioner, read as a whole, does not show that the respondent had sufficient means but still he neglected or showed his inability to maintain the petitioner.  It is vital that the petitioner is painfully silent about the circumstances in which she left the company of the respondent and started living separately from the husband.  When the circumstances of living separately do not surface, adverse inference is to be drawn against the wife that she left the matrimonial home willfully and with her own choice. It is settled position of law that one cannot take benefit of his own wrongs.   It is not that all living separate are sufficient to entitle a wife to claim maintenance from the husband.  She must prove without fail that the husband refused to maintain her despite having sufficient means to do so. Wife cannot walk out of the house at her sweet will and also claim maintenance from the husband. The petitioner has failed to prove the circumstances resulting in her living separate from the respondent/husband.   In this view of the matter, I do not find any infirmity in the impugned order and hence the present revision petition is dismissed.  

7.  TCR be returned back to the concerned court alongwith a copy of this order. 

8. File be consigned to the Record Room. 

Announced in the open court.                 

( Rajeev Bansal )

Dated:31.10.2011               
ASJ-3/South District

Saket Courts, New Delhi

Allahabad HC- Every person has a right to live healthy sexual life.Bond of marriage can not be repaired which has been extensively damaged by passage of long separation

1

Court no. 1

Second Appeal No. 38 of 2005

Dr. Vinod Kumar Gupta

versus

Smt. Deepa Gupta

Hon'ble Rakesh Tiwari, J.

The case peremptorily listed today. List has been revised. Heard learned counsel for the appellant and perused the record. Sri A.K. Sharma, learned counsel for the respondent is not present. The appellant filed Original Suit No. 447 of 1995, Dr.Vinod Kumar Gupta versus Smt. Deepa Gupta, under Section 13 of Hindu Marriage Act for divorce against the respondent. The suit was decreed vide judgment and order dated 29.8.1998 passed by the Ist Additional Civil Judge (Senior Division), Muzaffarnagar.

Aggrieved by the judgment and order dated 29.8.1998 the respondent filed Civil Appeal No. 333 of 1998, Smt. Deepa Gupta versus Dr. Vinod Kumar Gupta before first lower appellate Court which was allowed vide judgment and order dated 25.10.2000.

It appears from the order-sheet dated 9.9.2009 that the Court had granted opportunity to the learned counsel for the parties as to whether there is any possibility of husband and wife stay and live together. Thereafter, the case was listed on 22.2.2010 when it was directed to be listed in the next cause list on the prayer of learned counsel for the parties. Since then, learned counsel for the respondent has not appeared before this Court. On 11.5.2010, learned counsel for the respondent was also not present and on 26.5.2010 he sought adjournment of the case on the ground of illness slip. Learned counsel for the appellant states that the matter may be decided as the adjournments sought are deliberate. The case has been directed to be listed peremptorily. Today also, learned counsel for the respondent is not present. It appears from the order sheet that continuously for the last 3 days the case is being adjourned at the behest of learned counsel for the respondent.

2

The contention of learned counsel for the appellant is that the appellant is posted as Doctor in Madhya Pradesh. However, the wife is employed as teacher in Government Girls College, Kichha, Nainital, Uttarakhand.

It appears that husband and wife are not living together since 1993. The suit for divorce had been granted and the decree for divorce had been reversed in appeal.

Learned counsel for the appellant states that the wife is not ready to live with husband at his place of posting despite several attempts by him and his relatives. The judgment and decree of the first lower appellate Court is assailed on the ground that it has acted with material irregularity of law and jurisdiction in setting aside the judgment and decree of the trial Court without reversing the findings recorded by it on individual issues. He submits that the behaviour of the wife with the appellant amounts to cruelty and that the lower appellate court has committed an error in holding that her not living with the husband in the facts and circumstances of the case, did not amount to cruelty within the meaning of term as defined under Section 13(1)(1a) of the Hindu Marriage Act. It is stated that from the facts and circumstances of the case as available from the pleading and evidence on record it is established from conduct of the wife that marriage had broken irretrievably due to cruelty which was a valid ground for dissolution of marriage under the Act and that the decree for divorce ought to have been passed on basis of record as the husband and wife have been living separately for the last so many years as such the judgment of the lower appellate Court being against the evidence on record and misinterpretation of the provisions of law can not be sustained and is liable to be quashed.

In support of his submission, learned counsel for the appellant has relied upon the judgment rendered in AIR 2005,SC-3297, Durga Prasanna Tripathy versus Arundhati Tripathy in which it has been held that where the spouses had been living separately for almost 14 years and wife was not prepared to lead conjugal life with husband and in that backdrop an attempt was made by husband and his relatives in getting back wife to matrimonial home failed. It was found to be a fit case for decree of divorce on the ground desertion as record showed that there was no chances of reconciliation and was irretrievable breakdown of marriage. He has also placed reliance upon paragraphs 21 and 22 of the judgment rendered in (2002)(48) ALR-485, Praveen Mehta versus Inderjit Mehta wherein the Court considered the definition of 'cruelty' within the meaning of section 13(1)(1a) of the Act. It was held that mental cruelty is a state of mind. In this case also the court came to the conclusion that despite several attempts by relatives and well-wishers no conciliation between husband and wife was possible, The petition for the dissolution of the marriage was filed in the year 1996. In the mean time, so many years have elapsed since the spouses parted company as such it can reasonably be inferred that the marriage between the parties has broken down irretrievably without any fault on the part of the husband, hence the decree for divorce was not liable to be repaired.

He then submits that in the instant case the husband and wife are living separately since 1993. There is no plausible reason for the wife not to live with the husband, who is a Doctor in Madhya Pradesh and her insistence to leave service for living along with her at Nainital, Uttarakhand was unreasonable and amounts to desertion. The trial Court has rightly granted decree for divorce which has been reversed by the lower appellate court on irrelevant consideration.

After perusal of the judgment it is noted that the parties are not cohabiting together for almost 17 years. Since there has been a long period of continuous separation, it may fairly be concluded that in the facts and circumstances of this case that the matrimonial bond is beyond repair and the marriage has become a fiction as has been held by the Apex Court in (2007) 4 SCC-511, Samar Ghosh versus Jaya Ghosh. The Court in that case held that-

" The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases does not serve the sanctity of marriage; on the contrary it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty. In present case, trial Court had rightly concluded that the various instances in their matrimonial life, and led to grave mental cruelty to the appellant husband. Further, the High Court failed to take into consideration the most important aspect of the case that the parties had admittedly been living separately for more than 16-1/2 years. The entire substratum of marriage had already disappeared."

The law laid down by the Apex Court in the aforesaid cases squarely applies to the facts and circumstances of this case where the spouses have been living separately for a long long period of time. It appears that their bond of marriage can not be repaired which has been extensively damaged by passage of separation. The parties are in their mid's 40. The wife is not ready to cohabit and inspite repeated efforts made by him and their relatives. Every person has a right to live healthy sexual life; hence love and affection from his or her partner in the marriage which has completely vanished in the instant case. It appears that the lower appellate Court has lost sight of this important factor and the guide lines laid down by the Apex Court from time to time through their Lordships' judgments. The marriage in the instant case cannot continue. Ground realities have to be considered before allowing the parties to continue their relationship of married couple till they become too old to have any biological need. Parties are already in their med forty's and if a new lease to their life is to be granted then matter has to be settled now.

For all the reasons stated above, the second appeal is allowed and the judgment and order of the lower appellate court is set aside and that of the trial court is confirmed. No order as to costs. Dated 12.7.2010

CPP/-

 

http://www.indiankanoon.org/doc/395463/

Married or no, women maintenance a must- Deserted long-term live-in partner entitled to support, says SC

Married or no, women maintenance a must - Deserted long-term live-in partner entitled to support, says apex court

FULL TEXT

                                                    REPORTABLE





                IN THE SUPREME COURT OF INDIA

                CIVIL APPELLATE JURISDICTION





                CIVIL APPEAL NO._____ OF 2010

       (Arising out of SLP (Civil) No.15071 of 2009)





Chanmuniya                                     ..Appellant(s)





                           Versus





Virendra Kumar Singh Kushwaha & Anr.           ..Respondent(s)





                        J U D G M E N T





GANGULY, J.





1. Leave granted.





2. One   Sarju   Singh   Kushwaha   had   two   sons,   Ram   Saran


  (elder   son)   and   Virendra   Kumar   Singh   Kushwaha



  (younger   son   and   the   first   respondent).   The



  appellant,   Chanmuniya,   was   married   to   Ram   Saran   and



  had   2   daughters-Asha,   the   first   one,   was   born   in





                                1


  1988   and   Usha,   the   second   daughter,   was   born   in



  1990. Ram Saran died on 7.03.1992.





3. Thereafter,   the   appellant   contended   that   she   was


  married   off   to   the   first   respondent   as   per   the



  customs   and   usages   prevalent   in   the   Kushwaha



  community   in   1996.   The   custom   allegedly   was   that



  after   the   death   of   the   husband,   the   widow   was



  married   off   to   the   younger   brother   of   the   husband.



  The appellant was married off in accordance with the



  local   custom   of   Katha   and   Sindur.   The   appellant



  contended   that   she   and   the   first   respondent   were



  living   together   as   husband   and   wife   and   had



  discharged   all   marital   obligations   towards   each



  other.   The   appellant   further   contended   that   after



  some time the first respondent started harassing and



  torturing the appellant, stopped her maintenance and



  also   refused   to   discharge   his   marital   obligations



  towards her.





4. As a result, she initiated proceedings under Section


  125   of   the   Cr.P.C.   for   maintenance   (No.20/1997)





                                2


  before   the   1st  Additional   Civil   Judge,   Mohamadabad,



  Ghazipur. This proceeding is pending.   





5. She   also   filed   a   suit   (No.42/1998)   for   the


  restitution   of   conjugal   rights   under   Section   9   of



  the   Hindu   Marriage   Act,   1955   in   the   Court   of   1st



  Additional District Judge, Ghazipur. 





6. The  Trial Court  decreed the  suit for  restitution of


  conjugal   rights   in   favour   of   the   appellant   on



  3.1.2004 as it was of the opinion that the appellant



  had   remarried   the   first   respondent   after   the   death



  of   Ram   Saran,   and   the   first   respondent   had   deserted



  the   appellant   thereafter.   Thus,   it   directed   the



  first   respondent   to   live   with   the   appellant   and



  perform his marital duties.





7. Hence, the first respondent preferred a first appeal


  (No.110/2004) under Section 28 of the Hindu Marriage



  Act.   The   main   issue   in   appeal   was   whether   there   was



  any   evidence   on   record   to   prove   that   the   appellant



  was the legally wedded wife of the first respondent.





                                 3


  The   High   Court   in   its   judgment   dated   28.11.2007   was



  of   the   opinion   that   the   essentials   of   a   valid   Hindu



  marriage,   as   required   under   Section   7   of   the   Hindu



  Marriage   Act,   had   not   been   performed   between   the



  first respondent and the appellant and held that the



  first   respondent   was   not   the   husband   of   the



  appellant   and   thus   reversed   the   findings   of   the



  Trial Court.





8. Aggrieved   by   the   aforesaid   judgment   of   the   High


  Court,   the   appellant   sought   a   review   of   the   order



  dated   28.11.2007.   The   review   petition   was   dismissed



  on   23.01.2009   on   the   ground   that   there   was   no   error



  apparent   on   the   face   of   the   record   of   the   judgment



  dated 28.11.2007.





9. Hence, the appellant approached this Court by way of


  a special leave petition against the impugned orders



  dated 28.11.2007 and 23.01.2009.





10.One   of   the   major   issues   which   cropped   up   in   the


  present   case   is   whether   or   not   presumption   of   a





                                 4


  marriage   arises   when   parties   live   together   for   a



  long   time,   thus   giving   rise   to   a   claim   of



  maintenance   under   Section   125   Cr.P.C.     In   other



  words, the question is what is meant by `wife' under



  Section   125   of   Criminal   Procedure   Code   especially



  having regard to explanation under clause (b) of the



  Section.





11.Thus, the question that arises is whether a man and


  woman   living   together   for   a   long   time,   even   without



  a   valid   marriage,   would   raise   as   in   the   present



  case,   a   presumption   of   a   valid   marriage   entitling



  such a woman to maintenance.





12.On   the   question   of   presumption   of   marriage,   we   may


  usefully   refer   to   a   decision   of   the   House   of   Lords



  rendered   in   the   case   of  Lousia   Adelaide   Piers   &



  Florence A.M. De Kerriguen  v.  Sir Henry Samuel Piers



  [(1849)   II   HLC   331],   in   which   their   Lordships



  observed that the question of validity of a marriage



  cannot   be   tried   like   any   other   issue   of   fact



  independent of presumption.   The Court held that law





                                 5


  will   presume   in   favour   of   marriage   and   such



  presumption   could   only   be   rebutted   by   strong   and



  satisfactory evidence.





13.In   Lieutenant  C.W.   Campbell  v.  John   A.G.   Campbell


  [(1867)   Law   Rep.   2   HL   269],   also   known   as   the



  Breadalbane   case,   the   House   of   Lords   held   that



  cohabitation,   with   the   required   repute,   as   husband



  and   wife,   was   proof   that   the   parties   between



  themselves   had   mutually   contracted   the   matrimonial



  relation.   A   relationship   which   may   be   adulterous   at



  the   beginning   may   become   matrimonial   by   consent.



  This   may   be   evidenced   by   habit   and   repute.     In   the



  instant   case   both   the   appellant   and   the   first



  respondent   were   related   and   lived   in   the   same   house



  and   by   a   social   custom   were   treated   as   husband   and



  wife.     Their   marriage   was   solemnized   with   Katha   and



  Sindur.        Therefore,   following   the   ratio   of   the



  decisions   of   the   House   of   Lords,   this   Court   thinks



  there   is   a   very   strong   presumption   in   favour   of



  marriage.     The   House   of   Lords   again   observed   in



  Captain   De   Thoren  v.  The   Attorney-General  [(1876)   1



  AC   686],   that   the   presumption   of   marriage   is   much



                                 6


  stronger   than   a   presumption   in   regard   to   other



  facts.





14.Again   in  Sastry   Velaider   Aronegary   &   his   wife  v.


  Sembecutty Viagalie & Ors. [(1881) 6 AC 364], it was



  held   that   where   a   man   and   woman   are   proved   to   have



  lived   together   as   man   and   wife,   the   law   will



  presume, unless the contrary is clearly proved, that



  they   were   living   together   in   consequence   of   a   valid



  marriage, and not in a state of concubinage.





15.In  India, the  same principles  have been  followed in


  the   case   of  A.   Dinohamy  v.  W.L.   Balahamy  [AIR   1927



  P.C.   185],   in   which   the   Privy   Council   laid   down   the



  general   proposition   that   where   a   man   and   woman   are



  proved   to   have   lived   together   as   man   and   wife,   the



  law   will   presume,   unless,   the   contrary   is   clearly



  proved,         that         they         were         living         together         in



  consequence   of   a   valid   marriage,   and   not   in   a   state



  of concubinage.





                                            7


16.In  Mohabbat   Ali   Khan  v.  Muhammad   Ibrahim   Khan   and


  Ors.  [AIR   1929   PC   135],   the   Privy   Council   has   laid



  down that the law presumes in favour of marriage and



  against   concubinage   when   a   man   and   woman   have



  cohabited continuously for number of years.





17.In   the   case   of  Gokal   Chand  v.  Parvin   Kumari  [AIR


  1952   SC   231],   this   Court   held   that   continuous   co-



  habitation   of   man   and   woman   as   husband   and   wife   may



  raise         the         presumption                   of         marriage,              but         the



  presumption   which   may   be   drawn   from   long   co-



  habitation                is         rebuttable               and         if         there            are



  circumstances                   which         weaken               and         destroy           that



  presumption, the Court cannot ignore them.





18.Further, in the case of Badri Prasad v. Dy. Director


  of   Consolidation   &   Ors.  [(1978)   3   SCC   527],   the



  Supreme   Court   held   that   a   strong   presumption   arises



  in   favour   of   wedlock   where   the   partners   have   lived



  together   for   a   long   spell   as   husband   and   wife.



  Although   the   presumption   is   rebuttable,   a   heavy





                                                8


  burden   lies   on   him   who   seeks   to   deprive   the



  relationship of legal origin.





19.Again, in  Tulsa and Ors.  v.  Durghatiya & Ors.  [2008


  (4)   SCC   520],   this   Court   held   that   where   the



  partners   lived   together   for   a   long   spell   as   husband



  and   wife,   a   presumption   would   arise   in   favour   of   a



  valid wedlock.





20.Sir   James   Fitz   Stephen,   who   piloted   the   Criminal



  Procedure   Code   of   1872,   a   legal   member   of   Viceroy's



  Council,   described   the   object   of   Section   125   of   the



  Code (it was Section 536 in 1872 Code) as a mode of



  preventing   vagrancy   or   at   least   preventing   its



  consequences. 





21.Then came the 1898 Code in which the same provision


  was   in   Chapter   XXXVI   Section   488   of   the   Code.   The



  exact   provision   of   Section   488(1)   of   the   1898   Code



  runs as follows:



     "488.   (1)   If   any   person   having   sufficient

     means   neglects   or   refuses   to   maintain   his

     wife   or   his   legitimate   or   illegitimate

     child   unable   to   maintain   itself,   the





                                 9


     District         Magistrate,          a         Presidency

     Magistrate,   a   Sub-divisional   Magistrate   or

     a   Magistrate   of   the   first   class   may,   upon

     proof   of   such   neglect   or   refusal,   order

     such   person   to   make   a   monthly   allowance

     for   the   maintenance   of   his   wife   or   such

     child, at such monthly rate, not exceeding

     five   hundred   rupees   in   the   whole   as   such

     Magistrate thinks fit, and to pay the same

     to such person as the Magistrate from time

     to time directs."





22.In  Jagir   Kaur   &   Anr.  v.  Jaswant   Singh  [AIR   1963   SC


  1521],   the   Supreme   Court   observed   with   respect   to



  Chapter XXXVI of Cr.P.C. of 1898 that provisions for



  maintenance   of   wives   and   children   intend   to   serve   a



  social   purpose.   Section   488   prescribes   forums   for   a



  proceeding   to   enable   a   deserted   wife   or   a   helpless



  child,   legitimate   or   illegitimate,   to   get   urgent



  relief.





23.In  Nanak   Chand  v.  Chandra   Kishore   Aggarwal   &   Ors.


  [1969   (3)   SCC   802],   the   Supreme   Court,   discussing



  Section   488   of   the   older   Cr.P.C,   virtually   came   to



  the   same   conclusion   that   Section   488   provides   a



  summary   remedy   and   is   applicable   to   all   persons



  belonging   to   any   religion   and   has   no   relationship



  with the personal law of the parties.





                                10


24.In  Captain
               
                
                    Ramesh
                                Chander   Kaushal  v.  Veena   Kaushal



  and   Ors.  [AIR   1978   SC   1807],   this   Court   held   that



  Section 125 is a reincarnation of Section 488 of the



  Cr.P.C.   of   1898   except   for   the   fact   that   parents



  have   also   been   brought   into   the   category   of   persons



  entitled   for   maintenance.   It   observed   that   this



  provision   is   a   measure   of   social   justice   specially



  enacted   to   protect,   and   inhibit   neglect   of   women,



  children,   old   and   infirm   and   falls   within   the



  constitutional   sweep   of   Article   15(3)   reinforced   by



  Article   39.   Speaking   for   the   Bench   Justice   Krishna



  Iyer   observed   that-   "We   have   no   doubt   that   sections



  of   statutes   calling   for   construction   by   courts   are



  not   petrified   print   but   vibrant   words   with   social



  functions   to   fulfill.   The   brooding   presence   of   the



  constitutional   empathy   for   the   weaker   sections   like



  women   and   children   must   inform   interpretation   if   it



  is   to   have   social   relevance.   So   viewed,   it   is



  possible   to   be   selective   in   picking   out   that



  interpretation out of two alternatives which advance



  the   cause-   the   cause   of   the   derelicts."   (Para   9   on



  pages 1809-10)



                                    11


25.Again in  Vimala (K)  v.  Veeraswamy (K)  [(1991) 2 SCC


  375],   a   three-Judge   Bench   of   this   Court   held   that



  Section  125  of  the  Code  of  1973  is  meant  to  achieve



  a   social   purpose   and   the   object   is   to   prevent



  vagrancy and destitution.   Explaining the meaning of



  the word `wife' the Court held:




     "...The   object   is   to   prevent   vagrancy   and

     destitution.   It   provides   a   speedy   remedy

     for   the   supply   of   food,   clothing   and

     shelter   to   the   deserted   wife.   When   an

     attempt is made by the husband to negative

     the   claim   of   the   neglected   wife   depicting

     her   as   a   kept-mistress   on   the   specious

     plea   that   he   was   already   married,   the

     court   would   insist   on   strict   proof   of   the

     earlier   marriage.   The   term   `wife'   in

     Section   125   of   the   Code   of   Criminal

     Procedure,   includes   a   woman   who   has   been

     divorced   by   a   husband   or   who   has   obtained

     a   divorce   from   her   husband   and   has   not

     remarried.   The   woman   not   having   the   legal

     status   of   a   wife   is   thus   brought   within

     the   inclusive   definition   of   the   term

     `wife' consistent with the objective... "





26.Thus,   in   those   cases   where   a   man,   who   lived   with   a


  woman   for   a   long   time   and   even   though   they   may   not



  have   undergone   legal   necessities   of   a   valid



  marriage,   should   be   made   liable   to   pay   the   woman



  maintenance if he deserts her. The man should not be



  allowed   to   benefit   from   the   legal   loopholes   by



  enjoying   the   advantages   of   a         de   facto     marriage




                                  12


  without undertaking the duties and obligations.   Any



  other   interpretation   would   lead   the   woman   to



  vagrancy   and   destitution,   which   the   provision   of



  maintenance in Section 125 is meant to prevent.





27.The Committee on Reforms of Criminal Justice System,


  headed   by   Dr.   Justice   V.S.   Malimath,   in   its   report



  of   2003   opined   that   evidence   regarding   a   man   and



  woman   living   together   for   a   reasonably   long   period



  should   be   sufficient   to   draw   the   presumption   that



  the   marriage   was   performed   according   to   the



  customary rites of the parties. Thus, it recommended



  that   the   word   `wife'   in   Section   125   Cr.P.C.   should



  be   amended   to   include   a   woman   who   was   living   with



  the man like his wife for a reasonably long period.





28.The   Constitution   Bench   of   this   Court   in  Mohammad


  Ahmed   Khan  v.  Shah   Bano   Begum   &   Ors.  reported   in



  [(1985)   2   SCC   556],   considering   the   provision   of



  Section   125   of   the   1973   Code,   opined   that   the   said



  provision   is   truly   secular   in   character   and   is



  different   from   the   personal   law   of   the   parties.   The





                                13


  Court   further   held   that   such   provisions   are



  essentially   of   a   prophylactic   character   and   cut



  across   the   barriers   of   religion.   The   Court   further



  held   that   the   liability   imposed   by   Section   125   to



  maintain   close   relatives,   who   are   indigent,   is



  founded   upon   the   individual's   obligation   to   the



  society to prevent vagrancy and destitution.





29.In a subsequent decision, in  Dwarika Prasad Satpathy


  v.  Bidyut   Prava   Dixit   &   Anr.  [(1999)   7   SCC   675],



  this   Court   held   that   the   standard   of   proof   of



  marriage   in   a   Section   125   proceeding   is   not   as



  strict   as   is   required   in   a   trial   for   an   offence



  under   Section   494   of   IPC.   The   learned   Judges



  explained   the   reason   for   the   aforesaid   finding   by



  holding that an order passed in an application under



  Section 125 does not really determine the rights and



  obligations   of   parties   as   the   section   is   enacted



  with a view to provide a summary remedy to neglected



  wives to obtain maintenance. The learned Judges held



  that   maintenance   cannot   be   denied   where   there   was



  some   evidence   on   which   conclusions   of   living



  together could be reached. (See para 9)



                               14


30.However,   striking   a   different   note,   in  Yamunabai


  Anantrao   Adhav       v.       Anantrao   Shivram   Adhav   and



  another,   reported   in   AIR   1988   SC   644,   a   two-Judge



  Bench   of   this   Court   held   that   an   attempt   to   exclude



  altogether         personal         law         of         the         parties         in



  proceedings under Section 125 is improper. (See para



  6).  The learned Judges also held (paras 4 & 8) that



  the   expression   `wife'   in   Section   125   of   the   Code



  should   be   interpreted   to   mean   only   a   legally   wedded



  wife.





31.Again   in   a   subsequent   decision   of   this   Court   in


  Savitaben   Somabhat   Bhatiya  v.  State   of   Gujarat   and



  others,   reported   in   AIR   2005   SC   1809,   this   Court



  held   however   desirable   it   may   be   to   take   note   of



  plight   of   an   unfortunate   woman,   who   unwittingly



  enters   into   wedlock   with   a   married   man,   there   is   no



  scope to include a woman not lawfully married within



  the   expression   of   `wife'.   The   Bench   held   that   this



  inadequacy   in   law   can   be   amended   only   by   the



  Legislature.   While   coming   to   the   aforesaid   finding,





                                      15


  the   learned   Judges   relied   on   the   decision   in   the



  Yamunabai case (supra).





32.It is, therefore, clear from what has been discussed


  above that there is a divergence of judicial opinion



  on   the   interpretation   of   the   word   `wife'   in   Section



  125.





33.We   are   inclined   to   take   a   broad   view   of   the


  definition   of   `wife'   having   regard   to   the   social



  object   of   Section   125   in   the   Code   of   1973.   However,



  sitting   in   a   two-Judge   Bench,   we   cannot,   we   are



  afraid,   take   a   view   contrary   to   the   views   expressed



  in the abovementioned two cases.





34.However,  law in  America has  proceeded on  a slightly


  different   basis.   The   social   obligation   of   a   man



  entering   into   a   live-in   relationship   with   another



  woman,   without   the   formalities   of   a   marriage,   came



  up   for   consideration   in   the   American   courts   in   the



  leading   case   of  Marvin  v.  Marvin  [(1976)   18   Cal.3d



  660].   In   that   context,   a   new   expression   of





                                 16


  `palimony'   has   been   coined,   which   is   a   combination



  of `pal' and `alimony', by the famous divorce lawyer



  in the said case, Mr. Marvin Mitchelson.





35.In   the  Marvin   case  (supra),   the   plaintiff,   Michelle


  Marvin, alleged that she and Lee Marvin entered into



  an   oral   agreement   which   provided   that   while   "the



  parties   lived   together   they   would   combine   their



  efforts and earnings and would share equally any and



  all   property   accumulated   as   a   result   of   their



  efforts whether individual or combined." The parties



  allegedly further agreed that Michelle would "render



  her   services   as   a   companion,   homemaker,   housekeeper



  and cook." Michelle sought a judicial declaration of



  her   contract   and   property   rights,   and   sought   to



  impose   a   constructive   trust   upon   one   half   of   the



  property         acquired         during         the         course         of         the



  relationship.     The   Supreme   Court   of   California   held



  as follows:



     (1)   The   provisions   of   the   Family   Law   Act   do   not


     govern   the   distribution   of   property   acquired


     during   a   non-marital   relationship;   such   a


     relationship   remains   subject   solely   to   judicial


     decision.



                                      17


     (2)   The   courts   should   enforce   express   contracts


     between non-marital partners except to the extent


     that   the   contract   is   explicitly   founded   on   the


     consideration of meretricious sexual services.





     (3)   In   the   absence   of   an   express   contract,   the


     courts   should   inquire   into   the   conduct   of   the


     parties   to   determine   whether   that   conduct


     demonstrates   an   implied   contract,   agreement   of


     partnership or joint venture, or some other tacit


     understanding between the parties. The courts may


     also   employ   the   doctrine   of   quantum   meruit,   or


     equitable   remedies   such   as   constructive   or


     resulting   trusts,   when   warranted   by   the   facts   of


     the case.





36.Though in our country, law has not developed on the


  lines   of   the  Marvin   case  (supra),   but   our   social



  context   also   is   fast   changing,   of   which   cognizance



  has   to   be   taken   by   Courts   in   interpreting   a



  statutory   provision   which   has   a   pronounced   social



  content like Section 125 of the Code of 1973.





37.We   think   the   larger   Bench   may   consider   also   the


  provisions   of   the   Protection   of   Women   from   Domestic



  Violence   Act,   2005.   This   Act   assigns   a   very   broad



                                18


  and   expansive   definition   to   the   term   `domestic



  abuse'   to   include   within   its   purview   even   economic



  abuse.   `Economic   abuse'   has   been   defined   very



  broadly   in   sub-explanation   (iv)   to   explanation   I   of



  Section   3   of   the   said   Act   to   include   deprivation   of



  financial and economic resources.





38.Further, Section 20 of the Act allows the Magistrate


  to   direct   the   respondent   to   pay   monetary   relief   to



  the aggrieved person, who is the harassed woman, for



  expenses   incurred   and   losses   suffered   by   her,   which



  may   include,   but   is   not   limited   to,   maintenance



  under Section 125 Cr.P.C. [Section 20(1)(d)].





39.Section   22   of   the   Act   confers   upon   the   Magistrate,



  the   power   to   award   compensation   to   the   aggrieved



  person,   in   addition   to   other   reliefs   granted   under



  the Act.





40.In   terms   of   Section   26   of   the   Act,   these   reliefs


  mentioned   above   can   be   sought   in   any   legal



  proceeding,   before   a   civil   court,   family   court   or   a





                                 19


  criminal   court,   affecting   the   aggrieved   person   and



  the respondent.





41.Most   significantly,   the   Act   gives   a   very   wide


  interpretation   to   the   term   `domestic   relationship'



  as   to   take   it   outside   the   confines   of   a   marital



  relationship,           and          even         includes         live-in



  relationships   in   the   nature   of   marriage   within   the



  definition   of   `domestic   relationship'   under   Section



  2(f) of the Act.





42.Therefore,   women   in   live-in   relationships   are   also



  entitled to all the reliefs given in the said Act.





43.We   are   thus   of   the   opinion   that   if   the


  abovementioned   monetary   relief   and   compensation   can



  be   awarded   in   cases   of   live-in   relationships   under



  the   Act   of   2005,   they   should   also   be   allowed   in   a



  proceedings under Section 125 of Cr.P.C. It seems to



  us  that  the  same  view  is  confirmed  by  Section  26  of



  the said Act of 2005.





                                      20


44.We   believe   that   in   light   of   the   constant   change   in


  social   attitudes   and   values,   which   have   been



  incorporated   into   the   forward-looking   Act   of   2005,



  the   same   needs   to   be   considered   with   respect   to



  Section   125   of   Cr.P.C.   and   accordingly,   a   broad



  interpretation of the same should be taken.





45.We,   therefore,   request   the   Hon'ble   Chief   Justice   to


  refer   the   following,   amongst   other,   questions   to   be



  decided   by   a   larger   Bench.   According   to   us,   the



  questions are:





  1.    Whether the living together of a man and woman



        as   husband   and   wife   for   a   considerable   period



        of time would raise the presumption of a valid



        marriage   between   them   and   whether   such   a



        presumption         would         entitle         the         woman         to



        maintenance under Section 125 Cr.P.C?





  2.    Whether   strict   proof   of   marriage   is   essential



        for   a   claim   of   maintenance   under   Section   125



        Cr.P.C.   having   regard   to   the   provisions   of



        Domestic Violence Act, 2005?





                                          21


  3.    Whether   a   marriage   performed   according   to



        customary          rites         and          ceremonies,               without



        strictly   fulfilling   the   requisites   of   Section



        7(1)   of   the   Hindu   Marriage   Act,   1955,   or   any



        other   personal   law   would   entitle   the   woman   to



        maintenance under Section 125 Cr.P.C.?





46.We   are   of   the   opinion   that   a   broad   and   expansive


  interpretation should be given to the term `wife' to



  include   even   those   cases   where   a   man   and   woman   have



  been   living   together   as   husband   and   wife   for   a



  reasonably   long   period   of   time,   and   strict   proof   of



  marriage           should         not         be         a         pre-condition         for



  maintenance   under   Section   125   of   the   Cr.P.C,   so   as



  to   fulfil   the   true   spirit   and   essence   of   the



  beneficial   provision   of   maintenance   under   Section



  125.





47.We also believe that such an interpretation would be


  a   just   application   of   the   principles   enshrined   in



  the   Preamble   to   our   Constitution,   namely,   social



  justice and upholding the dignity of the individual.





                                           22


                         .....................J.

                         (G.S. SINGHVI)





                         .....................J.

                         (ASOK KUMAR GANGULY)





New Delhi           

October 07, 2010





                         23

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OUR LEGAL CORRESPONDENT

New Delhi, Sept. 25: The Supreme Court has said that any woman in a long-term live-in relationship is entitled to maintenance if deserted.

It is immaterial whether the woman was legally married to the man or not, the court said. What matters is whether she was completely dependent on him for sustenance.

“Women can’t be left vagrant. Right to life (guaranteed under the Constitution) includes the right to live with dignity. It is not possible to live with dignity when a woman has no food and leads the life of a destitute,” said Justice A.K. Ganguly, sitting with senior judge G.S. Singhvi.

Justice Singhvi added: “Someone has to take care of her if she is not able to, just to prevent vagrancy.”

“Leaving women to vagrancy threatens social stability and public order,” Justice Ganguly underlined. Women are, after all, the source of all power, he said.

The two judges were hearing the petition of a woman, Chunmuniya, who claimed that after her husband Ram Sharan died on March 7, 1992, she was “married” off to his younger brother Virendra Kumar Singh Kushwaha, as was the practice in her caste. Among some communities in northern India, the widow of an older brother is forced to live with any surviving brother. The marriage was performed simply by doing a katha, she said.

Virendra, who was 10 years younger than Ram Sharan, deserted her in 1996. She moved an application for maintenance on March 26, 1997, but he married another woman in 1998 while it was pending.

A family court upheld Chunmuniya’s plea for maintenance. But Virendra went to the high court denying that he had been married to her. He claimed she had fraudulently inserted her name as his wife in the family register with the panchayat to get a share of the property.

The high court ruled in his favour on November 11, 2007, saying Chunmuniya had not been able to prove marriage. Invocation before a sacred fire and saptapadi were the two ceremonies essential to the validity of a marriage, it said, setting aside the family court order. Chunmuniya then appealed to the Supreme Court.

The Supreme Court decided that the issue needed consideration and appointed Altaf Ahmad and P.S. Patwalia as the amicus curiae to assist the judges in deciding the issue. Both contended that the law could be interpreted to include all such women in the definition of “wife” to enable them to get maintenance.

Ahmed said that if a woman marries under personal laws, she immediately gets several rights and obligations. Those who do not, do not get any rights. “If such dependent women are provided for, this trend (of living-in) will also be discouraged,” he contended.

The bench agreed that the status of a wife need not be a pre-requisite for getting maintenance before reserving orders in the case. A prolonged domestic relationship resembling marriage is enough to entitle a deserted woman to maintenance, it observed.

Patwalia said that living-in was a fast-catching “urban phenomenon” which the law must address. “Here, the man has no obligations or responsibilities of any kind. Let the law reach out to them,” he said.

The bench also expressed anguish over the use of such words as “illegitimate” children and “other woman” in various laws and blamed the “patriarchal” mindset of law-makers for this. “The use of the word illegitimate stigmatises these children the day they are born,” Justice Singhvi said.

At another point, the court criticised law-makers for enshrining Rs 500 as the maximum maintenance per month in a 1973 law. “Whoever fixed the amount was miserly,” the judges observed. The Code of Criminal Procedure, 1973, enshrines this as the maximum maintenance for all dependants — wife and children.

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