Bom HC- Permanent Alimony cancelled – court acknowledges Perjury by wife but lets her off

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

FAMILY COURT APPEAL NO. 116 OF 2002

WITH

FAMILY COURT APPEAL NO. 47 OF 2007.

Arun Kashinath Deshpande.... ..... .... Appellant.

V/s

Smt.Inumati Ramchandra Deo .... ..... .... Respondent.

Mr.Prasad Kulkarni i/by Mr.P.S.Dani, Adv. For the appellant.

Ms.Shilpa A. Joshi, Adv. For the respondent.

CORAM: A.P.DESHPANDE

AND

SMT. R.P. SONDURBALDOTA, JJ.

8th April, 2010.

ORAL JUDGMENT: (Per Deshpande, J.)

Both these appeals question the legality and validity of the judgment and order passed by the Family Court and the parties being common the appeals are heard together and are being disposed of by this common judgment. The family court as well has disposed of P.A.No.77/01 and MA No.7/01 by common judgment.

Family Court Appeal No.116/02 is filed by the husband whereas Family Court Appeal No.47/07 is filed by the wife. Parties to these appeals would be referred to as the husband and wife.

2. Marriage between the parties took place on 27.9.1984. The husband filed petition for divorce against the respondent being PA No.431/90 in the family court at Pune on the ground of cruelty. Family court passed decree of divorce in favour of the husband on 5.8.91. While passing decree of divorce the family court granted permanent alimony to the wife at the rate of Rs.600/­ per month by exercising discretionary powers under section 25(1) of the Hindu Marriage Act, 1955. The wife thereafter filed PA No.764/1995 for enhancement of quantum of permanent alimony and the court vide its order dated 30.6.96 enhanced the amount of permanent alimony from Rs.600/­ per month to Rs.800/­ per month. At a later point of time the husband filed FA No.77/01 for cancellation of permanent alimony awarded to the wife in PA No.431/90 which was enhanced in PA No.764/95. The main ground on which the husband moved the petition for cancellation of permanent alimony was that the wife had suppressed her income and had obtained the order of permanent alimony by misrepresenting the court that she has no source of income. In Petition No.77/01 the husband has averred that the wife has been carrying on business since long. It is also claimed that she has a shop of her own wherein she is carrying on business. She also has STD booth in her name at Nashik and has also share in the properties situated at Nashik. On the said pleadings it was emphasized that as an order of permanent alimony was obtained by misrepresentation the order be cancelled. Besides filing the said petition for cancellation of permanent alimony the husband also filed MA No.7/01 requesting the court to take action against the wife by lodging a complaint for the offences under sections 193, 182, 196, 199, 200 and 201 of IPC, as the respondent wife had given false evidence before the court in earlier proceedings. The family court decreed FA No.77/01 and thereby cancelled the order of grant of permanent alimony from the date of filing of petition. The incidental relief claimed by the husband which is in the nature of direction for return of amount of maintenance paid by the husband to the wife came to be rejected. The court also rejected the MA No.7/01 for taking action against the respondent wife for leading false evidence before the Court. Dissatisfied by the judgment and order passed by the family court in refusing to issue direction to respondent wife to return the amount of maintenance paid earlier and aggrieved by refusal to take action against the respondent wife for having led false evidence before the court the husband has filed the FCA No.116/02 whereas the wife being aggrieved by the judgment and order passed by family court cancelling the permanent alimony has filed FCA No.47/07. It is relevant to note that the wife has filed the appeal as late as in the year 2007 whereas the appeal filed by the husband is of the year 2002. Thus the questions for determination which arises in these appeals are (i) as to whether the family court is justified in cancelling the order of grant of permanent alimony and in refusing to issue direction against the wife to return the amount of maintenance already received? (ii) Is the court justified in rejecting the request made by the husband to take action against the respondent wife for leading false evidence? The appellant husband has examined in all five witnesses out of which witness Abhijit Bhalchandra Dakwe is the key witness and his evidence has been considered by the trial court in great details. The said witness is examined with a view to establish the fact that the respondent wife carries on business in a shop located in front of Nigdi bus stop at Bombay Pune road. This witness has visited the shop and has seen the respondent wife working therein. He has also made some purchases from the shop and receipts are passed in acknowledgment of having received the amount towards the goods sold by the respondent wife. Besides the oral evidence of Abhijit recorded at Ex.66 other important documents are at Exs.37, 38 and 39. Ex.37 is an application made by the respondent wife to the Pimpri Chinchwad municipal corporation with view to seek allotment of shop admeasuring 20 x 25 sq. ft. The said application is stated to have been submitted by the respondent wife in the presence of witness Abhijit. A format is annexed to the application which is at Ex.38 and Ex.39 is an affidavit accompanying the application at Ex.37. All the three documents i.e. the application, format and the affidavit constitute a proposal submitted by the respondent wife with a view to obtain shop premises from the corporation. The wife had initially denied the execution of the said documents which not only bear the signature of the respondent wife but also a photograph of the respondent is affixed thereon. The said three documents which have bearing on the question involved in these appeals are written in the hand writing of the respondent wife.
As stated herein above though the respondent has denied the writing and the execution of these documents, she was thoroughly cross examined touching the said documents by the advocate for the appellant. From the answers given by the respondent wife to the questions put in searching cross examination by advocate for the husband it can be seen that she has tried to contend that she is not sure as to whether the writing and the signature on the said documents belong to her. The court on comparison of the signatures which could be said to be disputed signatures at Exs.37 to 39 with admitted signatures of the respondent wife has come to a definite conclusion that the writings so also the signature on Exs.37 to 39 are that of the respondent 4 wife. The family court has also obtained specimen of writing and signature of the respondent wife and after comparing the same with the admitted writing and signature has reached the definite conclusion that the said three documents are executed by the respondent wife herself. What is stated by the applicant in the application and the affidavit is that she is educated woman industrialist and has past experience of running an industry so also experience of service rendered prior in point of o time. Touching her income and the sources from which she is receiving the same it is categorically mentioned that she owns one Laxmi Store from which monthly income is Rs.1200 to 1500/­.
It is then stated that she owns a STD booth/general store at Nashik under the name of Vasundhara Enterprises from which she is earning income of Rs. 4000 to 5000. The business place is stated to be owned by her. It is also stated that from typing business she earns more than Rs. 2500/­.

Other particulars are also furnished by the respondent wife such as estimated initial capital to be invested in the premises proposed to be taken on lease from the Corporation and the expected income from the said business. If the statements made in the affidavit are taken to be true and correct then definitely the Respondent wife has suppressed material facts while obtaining an order of permanent alimony. Nondisclosure of relevant facts and suppression of material facts have induced the family court to award permanent alimony of Rs.600/­ on 5.8.91 so also enhancing to Rs.800/­ per month in the year 1995. The trial court being of the view that the respondent wife has deliberately suppressed her income and thus obtained an order from the court by misrepresentation has proceeded to cancel the grant of permanent  alimony with effect from the date of filing of the petition by the husband. We have perused the judgment and order passed by family court under section 25(2) of the act. We do not see any reason to interfere with the appreciation of evidence by the family court touching the income of the respondent wife.
The view taken is very much possible view. It does not call for any interference.

3. Learned counsel for the appellant husband has submitted that the family court ought to have issued necessary direction against the respondent wife to for return of the amount received by her towards maintenance. The amount received is trivial sum of Rs. 600/­ per month from the year 1991 to 1995 and thereafter to Rs. 800/­ from 1995 onwards. The respondent wife was neither granted nor has she received any huge amount which necessitates directing recovery of that amount, more so, having regard to the fact that the parties were husband and wife by relation. It is then submitted that the Court ought to have taken action against the respondent for having led false evidence. The trial court has taken a pragmatic view of the matter in not permitting scope of dispute being widened between the parties. There is no point in forcing the parties in further litigation that too of criminal nature. Though the wife has stated in the affidavit that she is earning a sum of Rs.4000 to 5000 per month by way of income it is hardly a substantial amount. In our considered view, the approach of the family court is just and reasonable. Hence no interference is called for. In the result both the appeals stand dismissed with no order as to costs. Needless to mention that interim order, if any, stands vacated.

8.4.2010.

http://bombayhighcourt.nic.in/data/judgements/2010/CFCA4185302.pdf

SC- Divorce cannot be purchased by husband. But can only wife sell it at her price ?

                                               REPORTABLE
                  IN THE SUPREME COURT OF INDIA
                   CIVIL APPELLATE JURISDICTION

                CIVIL APPEAL NOS. 8196-8197 OF 2010
           (Arising out of S.L.P. (Civil) Nos.5289-5290 of 2010)

Sanjeeta Das                                                     ....Appellant

                                    Versus

Tapan Kumar Mohanty                                             ....Respondent

                                JUDGMENT

AFTAB ALAM, J.

1. Leave granted.

2. The order of a division bench of the Orissa High Court that is before us in this appeal, though passed in a judicial proceeding, appears to us to be completely alien to the law. The relevant facts to see the impugned order in perspective may be stated thus.

3. The respondent and the appellant were married in accordance with the Hindu religious rites. About three years after the marriage, he filed a petition (Civil Proceeding No.136 of 1997) before the Family Court, Rourkela for 2

dissolution of his marriage with the appellant on grounds of cruelty and desertion [clauses (ia) and (ib) of section 13(1) of the Hindu Marriage Act, 1955]. The appellant strongly resisted the grounds taken by the respondent for dissolution of their marriage and took the plea that in reality she had been deserted and subjected to cruelty by the respondent. For the purpose of the present appeal, there is no need for us to go into the details of the allegations made by the respondent in his petition or the counter-allegations made against him in the written statement filed by the appellant. Suffice it to note that on the basis of the evidences adduced before it, the Family Court in its judgment dated October 29, 2005 arrived at findings against the respondent on both the issues of desertion and cruelty.Invoking, however, the provision of section 23A of the Act, it directed the appellant to resume cohabitation with her husband, the respondent, within 3 months from the date of the judgment. The operative order of the Family Court is as follows: "In the ultimate analysis, while rejecting the prayer of the petitioner seeking for grant of dissolution of his marriage with the respondent by a decree of divorce, I pass a decree of restitution of the conjugal life of the parties. Accordingly, the respondent-wife is directed to restitute her conjugal life with the petitioner-husband within 3 months, hence on the event of the respondent coming to the fold of the petitioner to restitute her conjugal life with the latter, he shall co-operate with the former and that consequent upon success of the restitution of conjugal life between the parties, the impact/gravity of the criminal proceeding u/s. 498A IPC started against the petitioner and his family members at the instance of the respondent shall be loosen"

4. Against the judgment and order passed by the Family Court, the respondent preferred appeal (MATA No.59 of 2005) before the Calcutta High Court. The appeal was disposed of by a division bench of the High Court by order dated September 2, 2009. From that order it appears that the respondent filed an affidavit before the court declaring his willingness to pay a sum of Rs.10,00,000.00 (rupees ten lakhs only) as life term maintenance of the appellant and for the expenses of marriage of their daughter Kumari Ayushi Mohanty (Richi), in consideration of the dissolution of his marriage with the appellant by a decree of divorce and compounding of a criminal case instituted against him by the appellant. The respondent further stated in the affidavit that he would pay the sum of Rs.5,00,000.00 (rupees five lakhs only) within 4 months from the date of passing of the decree of divorce and the balance amount of Rs.5,00,000.00 (rupees five lakhs only) in 4 equal installments spread over a period of 2 years from the date of the passing of the decree of divorce. The High Court in its order dated September 2, 2009 simply paraphrased the statements made in the affidavit filed by the respondent and made it the order of the court. The order dated September 2, 2009 was later modified by order dated November 20, 2009 to the further advantage of the respondent. It was clarified that the payment of Rs.10,00,000.00 (rupees ten lakhs only) was not only for the lifetime maintenance of the appellant but also for the maintenance of the daughter, Kumari Ayushi Mohanty (Richi) till she got married besides the expenses that might be incurred for her marriage.

5. These two orders passed by the High Court, by which it purported to grant a decree of divorce for dissolution of the respondent's marriage with the appellant are now before us in appeal and plainly speaking we are unable to put any meaning to the order of the High Court. The marriage between the respondent and the appellant was admittedly solemnized in accordance with the Hindu religious rites. A Hindu marriage can be dissolved only on any of the grounds plainly and clearly enumerated under section 13 of the Hindu Marriage Act. The law does not permit the purchase of a decree of divorce for consideration, with or without the consent of the other side.

6. Leaned counsel appearing for the respondent urged us not to interfere in the matter submitting that the respondent and the appellant had lived together barely for four months. He stated that the marriage had taken place on April 29, 1994 and from August 24, 1994 they are living separately. He also tried to argue that the order of the High Court was passed with the consent of the parties and for that reason also this Court should not interfere in the matter. We are not prepared to accept the submission for a moment. First, there is nothing to indicate that the order was passed with the consent of the appellant. All that is said in the order is as under: "On consideration of such affidavit and the submission of the learned counsel appearing for the parties, we dispose both these appeals with the following directions" (Emphasis added)

7. The affidavit referred to in the order is the one filed by the respondent and consideration of submission of counsel for the parties does not indicate that the appellant had given her consent for dissolution of her marriage with the respondent on payment of Rs.10,00,000.00 (rupees ten lakhs only). Secondly, and more importantly, the consent of the parties is of no relevance in the matter. No court can assume jurisdiction to dissolve a Hindu marriage simply on the basis of the consent of the parties de hors the grounds enumerated under section 13 of the Act, unless of course the consenting parties proceed under section 13B of the Act.

8. In the light of the discussions made above, we find the order of the High Court completely unsustainable. It is set aside and the appeal against the judgment and order passed by the Family Court is restored to its file. The High Court must now hear and dispose of the appeal along with the connected appeal afresh, in accordance with law. Since the matter is somewhat old, the High Court may give the appeals some priority and dispose them of at an early date.

9. In the result, the appeals are allowed with costs, quantified at Rs.15,000.00 (rupees fifteen thousand only).

.....................................J (AFTAB ALAM)

.......................................J (R.M. LODHA)

New Delhi

September 22, 2010.

SOURCE - http://judis.nic.in/supremecourt/chejudis.asp