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Court No. - 44 A.F.R

Case :- FIRST APPEAL No. - 241 of 2006

Appellant :- Smt. Vijai Lakshmi

Respondent :- Lalji

Counsel for Appellant :- A.K. Gupta,A.K.Mishra,Ashish

Agrawal,Dinesh Gupta,Dinesh Mishra

Counsel for Respondent :- Satish Kumar Mishra,A.C. Tiwari,Arvind

Kumar Srivastava,H.P. Dubey,Rajesh Kishore Srivastava,Satish Kumar

Mishra

Hon'ble Mrs. Sunita Agarwal,J.

Hon'ble Krishan Pahal,J.

1.No one has put in appearance on behalf of the appellant-wife.

2.A perusal of the order dated 04.10.2021 passed by this Court

indicates that the parties had appeared in the Court personally but they

have not been able to reconcile. The appeal, thus, has been posted for

final disposal.

3.Heard learned counsel for the respondent and perused the

record.

4.This is wife's appeal against the judgment and order dated

17.05.2006 whereby divorce decree had been passed in favour of the

husband.

5.A perusal of the impugned order of the Family Court indicates

that the decree of divorce had been granted on the premise that the

wife had lodged a false complaint namely Case Crime No.6 of 2003

against the husband which had resulted in incarceration of the husband

for 4 days and as such the wife had caused mental cruelty upon the

husband. On account of the trauma, the mother of the respondent-

husband had died. It was further noted that initially on the similar

complaint sought to be filed by the wife, a compromise had been

arrived between the parties in the police station and both the parties

had reconciled with the intervention of the Station House Officer

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which made it evident that there was no serious dispute. However, the

wife had turned around and contacted the Senior Superintendent of

Police again to lodge the report on the allegations of demand of dowry.

The Family Court has, thus, opined that the wife had exaggerated the

whole matter and lodged a false complaint against the husband for

demand of dowry. In such a situation, the marital relationship between

the parties had been completely broken and the decree of divorce was

liable to be granted.

6.Learned counsel for the respondent-husband, has, defended the

decree on the premise that there was no reasonable excuse with the

wife to leave her matrimonial home after the compromise had been

arrived between the parties with the intervention of wise persons and

lastly the police. The wife was guilty of not honouring the terms of the

compromise and leaving her matrimonial home without any reason.

7.It is further submitted that the appellant-wife was harassing the

respondent and pressurising him to leave his mother alone and move to

her paternal home. When the respondent-husband did not accede to the

said request she had threatened him to lodge a false complaint and

with dire consequences. On 21.11.2002, when the respondent-husband

was at home, she had left the house with all jewellery, clothes and

Rs.5,000/- without any information. In the proceeding under Section 9

of the Hindu Marriage Act, however, a compromise had been arrived

between them on 09.02.2003 and thereafter, the wife had returned to

her matrimonial home. But, again on 17.03.2003, she had left with all

the clothes and jewellery in the absence of her husband and despite

best efforts of the husband, she did not return and lodged a criminal

case on the allegations of demand of dowry. On account of the said

cruelty inflicted by his wife, the widow mother of the appellant had

died which had resulted in severe mental cruelty to the respondent-

husband and as such he was constrained to file the divorce suit.

8.Testing these submissions of the learned counsel for the

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respondent, having gone through the findings returned by the Family

Court as also the statements of the appellant-wife and the respondent-

husband, we may note that there are allegations and counter allegations

of the parties against each other. On the one hand, the respondent

husband had pleaded that his wife had left her matrimonial home

without any reasonable excuse and she had taken all clothes and

jewellery alongwith cash of Rs.5,000/- on 21.11.2002 when he was

present in his house but there is no statement of the husband that he

had tried to stop his wife from leaving her matrimonial home. After

compromise between the parties, on 09.02.2003 the wife had returned

to her matrimonial home. As per the version of the husband, the wife

had left her matrimonial home again on 17.03.2003 in his absence

taking all clothes and jewellery.

9.This version of the respondent that the appellant-wife had again

left her matrimonial home on 17.03.2003 with clothes and jewellery

seems to be false at its face value. The reason being that as per own

version of the husband, while leaving her matrimonial home on

21.11.2002 his wife had taken all her clothes and jewellery then where

was the occasion for her to take the clothes and jewellery again on

17.03.2003, moreso, when the husband had not stated that his wife had

brought back her jewellery on returning to her matrimonial home on

09.02.2003.

10.In the said circumstance, the allegations of husband that the wife

had left her matrimonial home in his absence with all clothes and

jewellery per se appears to be false. We may further note that no report

had been lodged by the husband that the wife had taken jewellery on

17.03.2003 other than her stree-dhan in his absence. Further, apart

from the bald assertions of the husband, there is no other evidence on

record which would substantiate the allegations of the husband that his

wife had refused to discharge her matrimonial obligations without any

reasonable excuse.

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11.On the other hand, the appellant wife in her statement recorded

on 15.05.2006 had categorically stated that she was thrown out of her

matrimonial home by the husband after she was assaulted physically.

Her husband used to demand dowry and assault her on account of

which a report was sought to be lodged by her when a compromise had

been arrived on 23.01.2003 with the intervention of the police. The

copy of the compromise is on record. However, her husband had again

thrown her out and hence she had lodged the report. She has

categorically stated that she did want divorce.

12.We may further note that in terms of the compromise dated

23.01.2003 the wife had returned to her matrimonial home on

09.02.2003, but, thereafter, in barely one month, she had to approach

the Senior Superintendent of Police on 17.3.2003 to lodge the first

information report regarding the demand of dowry after she was

thrown out as per her version.

13.No one knows as to what had happened inside the four walls of

the house. But the record indicates that the marriage was solemnised

on 06.03.2002 and the dispute arose within 4-5 months of the

marriage. The allegations and counter allegations are made by the

couple to assert that the fault lies on the other side. In this

circumstance, it is not possible for the Court to find out as to who was

at fault. But that by itself cannot be a reason to grant divorce. The

respondent-husband, who is the plaintiff in the divorce suit, was

required to substantiate his allegations of commission of cruelty by the

wife by bringing cogent evidence. Mere fact that the wife had lodged

the criminal complaint on the allegations of atrocities committed by

the husband after a compromise had been arrived between the parties

would not be a reason to hold that the complaint was false and the wife

had committed cruelty by lodging the said report. The ground for

seeking the decree of divorce, i.e cruelty, taken by the husband in the

plaint could not be proved by bringing any cogent material on record.

The bald assertion of the husband in his statement recorded before the

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Family Court is not sufficient to prove cruelty on the part of the wife.

14.Considering the discussion in the judgment and order dated

17.05.2006, we find that the Family Court had been swayed away by

the fact of lodging of the first information report under Section 498-A

I.P.C after the wife had left her matrimonial home on 09.02.2003. In

any case, the earlier compromise between the parties with the

intervention of the police or the act of the wife in lodging the first

information report cannot be a reason to presume that only she was at

fault and there was no fault on the part of the husband, moreso, when

the wife had come forward with the categorical assertion that she was

thrown out of her matrimonial home by the husband after beating her.

15.The findings returned by the trial court for granting the divorce

on the ground of cruelty, therefore, are not sustainable.

16.Further contention of the learned counsel for the respondent-

husband is that the couple are separated for the last 18 years and there

are no chances of revival of matrimonial relationship and hence the

husband is entitled for the decree of divorce on the ground of

'irretrievable breakdown of marriage', in view of the decision of the

Apex Court in the cases of Naveen Kohli vs. Neelu Kohli 2006 (4)

SCC 558 and Prakash Chandra Kapoor vs. Smt. Ritu Kapoor 2005

(2) SCC 22.

17.Considering this contention of the learned counsel for the

appellant we may note that no such ground for divorce exists in the

Hindu Marriage Act. In an appropriate cases, the Apex Court has

granted decree of divorce exercising its unique jurisdiction under

Article 142 of the Constitution of India, to do complete justice

between the parties. Such a course had been adopted in various kinds

of cases where there were inter se allegations between the parties and

in order to put a quietus to the matter, where the parties withdrew those

allegations and by mutual consent.

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18.It has been noted by the Apex Court in Shivsankaran vs.

Santhimeenal reported in 2021 (5) ALD 286 that the Law

Commission in its 71

st

report made recommendation while departing

from the fault theory of divorce to recognise situations where a

marriage has completely broken and there is no possibility of

reconciliation. It had recommended for incorporation of the situation

where neither party need individually be at fault for a breakdown of

the marriage which may be the result of prolonged separation, clash of

personalities, or incompatibility of the couple. As noted in the Law

Commission report, such marriages are merely a shell out of which the

substance is gone. For such situations, the Law Commission

recommended that the law be amended to provide for 'irretrievable

breakdown of marriage' as an additional ground of divorce. This

recommendation was reiterated in its 217

th

report in the year, 2010 by

the Commission. But, these recommendations, have not been

implemented. The bill introduced by the Government in the year 2010

namely the Marriage Laws (Amendment) Bill, 2010, reintroduced as

the Marriage Laws (Amendment) Bill, 2013, was never passed.

19.It is observed therein that under the Hindu Law, the institution of

marriage is sacramental in character and is supposed to be an eternal

union of two people. The society at large does not accept divorce,

given the heightened importance of marriage as a social institution in

India. It is more difficult for women to retain social acceptance after a

decree of divorce. This, coupled with the law's failure to guarantee

economic and financial security to women in the event of a breakdown

of marriage; is stated to be the reason for the legislature's reluctance to

introduce irretrievable breakdown as a ground for divorce-even

though, there may have been a change in social norms over a period of

time. Not all persons come from the same social background, and

having a uniform legislative enactment is thus, stated to be difficult. It

is in these circumstances that the Apex Court has been exercising its

jurisdiction, despite such reservations, under Article 142 of the

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Constitution of India.

20.As regards the proceedings before us, the present appeal under

Section 19 of the Family Courts Act is nothing but an extension of the

proceedings of the trial court. While exercising the power of appellate

Court, we can grant the decree of divorce in a petition under Section

13(1) of the Hindu Marriage Act, only, in case, any of the grounds for

seeking divorce as provided under the said Section is found to be in

existence. The 'irretrievable breakdown of marriage' not being a

ground of divorce under Section 13(1) of the Hindu Marriage Act, the

decree of divorce cannot be granted on the said ground while deciding

the appeal arising out of the proceeding under Section 13(1) of the

Hindu Marriage Act.

21.The contention of the learned counsel for the respondent seeking

dismissal of the appeal on the ground that there are no chances of

revival of matrimonial relationship and the husband is entitled for the

decree of divorce on account of “irretrievable breakdown of marriage”,

therefore, is found devoid of merits.

22.As noted above, the respondent-husband has not been to

establish the plea of cruelty by the wife i.e. the ground taken by him to

seek the decree of divorce in the petition under Section 13(1) of the

Hindu Marriage Act filed in the year 2003. The wife has made a

categorical claim that she had been thrown out of her matrimonial

home as the husband was demanding dowry. The criminal case had

been lodged by the wife upon intervention of the Superintendent of

Police. Nevertheless, during pendency of the present appeal, on the

application filed by the appellant-wife, vide order dated 01.04.2013,

monthly maintenance of Rs.10,000/- w.e.f. 01.04.2013 onwards had

been awarded. The order-sheet indicates that the order of interim

maintenance was not complied with. As a result of which, on

26.05.2014, direction was issued to the respondent to clear all arrears

of interim maintenance till June, 2014. The arrears of maintenance had

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been paid only upon the intervention of the Court. Again, the order

dated 06.10.2016 in the order sheet indicates that the respondent-

husband did not pay the interim maintenance. It was, therefore,

observed in the order dated 17.10.2016 that the appellant-wife was at

liberty to recover the amount of maintenance as arrears of land revenue

as was due till that date and for future.

23.Again on 21.01.2016, this Court had to issue a non-bailable

warrant to ensure presence of the respondent in custody to provide

interim maintenance to the appellant-wife. And only after the

respondent-husband had appeared in custody before this Court on

05.12.2016, he had deposited the arrears of maintenance by way of

cheque in the account of appellant-wife. Again, by the order dated

08.11.2017, with a view to end the ordeal of the wife, it was directed

by this Court that the monthly maintenance of Rs.10,000/- shall be

transferred directly in her bank account through RTGS by 7

th

of each

succeeding month.

24.Further, an application No.83384 of 2017 supported by an

affidavit was filed by the wife seeking for enhancement of

compensation as determined vide order dated 01.04.2013 as well as to

grant litigation expenses in lump sum.

25.While disposing of the said application, it has been noted in the

order dated 12.12.2017 that there had been repeated defaults in

payment of monthly maintenance as fixed by this Court though the

respondent was earning a handsome amount on monthly basis being

employed as permanent driver in Railways and after enforcement of

7

th

Pay Commission, there had been substantial increase in his salary.

An additional income of Rs.20,000/- per month was stated to be earned

by the husband in view of the lease rent of the property owned by him.

The husband, however, did not respond to the application of wife and

hence, having noted that the assertions of wife remained

uncontroverted, monthly maintenance of Rs.30,000/- per month was

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fixed from December, 2017 payable by 7

th

of each succeeding month.

In addition to the same, the appellant-wife has been held entitled to

litigation expenses in lump sum for Rs.30,000/-, payable within a

period of one month.

26.The recall application seeking recall of the order dated

12.12.2017 filed by the respondent-husband had been dismissed vide

order dated 10.12.2018 with the observations as under:-

"2. This is an application seeking recall of this Court's order

dated 12.12.2017 whereby amount of maintenance was

enhanced to Rs. 30,000/- per month considering the fact that

monthly salary of respondent-husband w.e.f. 01.01.2016 is

more than Rs. 1 lac.

3. This factum of salary, we find is not in dispute and,

therefore, looking to entire facts and circumstances, we do

not find any reason to recall the order dated 12.12.2017.

Application is accordingly rejected."

27.The order dated 28.09.2020 further indicates that the learned

counsel for the respondent-husband was directed to prepare a draft of

the entire defaulted amount outstanding against the appellant-wife and

produce the same on the next date fixed. There is nothing on record to

indicate whether the draft had been presented by the respondent-

husband.

28.The above facts make it evident that the respondent-husband, in

utter disregard of the directions of this Court, has refused to maintain

his legally wedded wife since 2013. Prior to that, the wife was not

getting maintenance as neither interim maintenance was awarded by

the Family Court nor permanent alimony was granted while decreeing

the divorce suit. Resultantly, the appellant-wife has been neglected by

the respondent-husband since the year 2003 when, according to him,

she had left her matrimonial home on her own. The vague assertions in

the divorce petition of the wife of leaving her matrimonial home

without any reasonable excuse could not be established by bringing

any cogent material on record. It, thus, appears that the respondent-

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husband has utterly failed to discharge his matrimonial obligation. For

the fact that the dependent wife has failed in matrimonial alliance, she

cannot be left as a destitute. The moral and legal duty of the husband

to maintain his wife is not discharged by the institution of the divorce

suit.

29.It is settled that the maintenance laws have been enacted as a

measure of social justice to provide recourse to dependent wife and

children for their financial support; so as to prevent them from falling

into destitution and vagrancy. Article 15(3) of the Constitution of India

reinforced by Article 39 of the Constitution of India envisages a

positive role of the State in fostering change towards the

empowerment of women and has led to the enactment of various

legislations from time to time. In Romesh Chander Kaushal vs. Veena

Kaushal reported in 1978 (4) SCC 70, Krishna Ayyar J., while

considering the object of maintenance laws observed as under:-

"9. This provision is a measure of social justice and specially

enacted to protect women and children and falls within the

constitutional sweep of Article 15(3) reinforced by Article 39.

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 has to have social

relevance. So viewed, it is possible to be selective in picking

out that interpretation out of two alternatives which advances

the cause- the cause of the derelicts."

30.The Apex Court in the case of Rajnesh vs. Neha & another

reported in 2021 (2) SCC 324 considering the scope of the law of

interim maintenance has held that the pre-requisite for grant of

maintenance under Section 24 of the Hindu Marriage Act is that the

applicant does not have independent income, which is sufficient for

her or his support, during pendency of the lis. Section 24 of the Hindu

Marriage Act provides for maintenance pendente lite, where the Court

may direct to pay the expenses of the proceedings and pay such

monthly amount, which is considered to be reasonable, having regard

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to the income of both the parties. While considering the criteria for

determination of the quantum of maintenance, it is observed that there

can not be any straitjacket formula and the quantum would depend

upon the factual situations and the Court should mould the claim for

maintenance based on various factors before it. The objective of

granting interim/permanent alimony is to ensure that the dependent

spouses is not reduced to destitution or vagrancy on account of the

failure of the marriage.

31.In the instant case, it is admitted on record that the appellant-

wife has no source of income whereas the respondent-husband is a

permanent driver in Railways and is earning a handsome salary. For a

long time, during the pendency of the present appeal, the respondent-

husband has succeeded in flouting the orders of this Court granting

interim maintenance to sustain the appellant-wife. Payments of some

arrears had been made only upon intervention of the Court and at one

point of time, the Court had to require the presence of the respondent-

husband in custody. This situation, further leads to the belief that the

fault lies on the part of the husband in not honouring his matrimonial

obligations. It is settled law that a person seeking a relief in the Court

of law cannot take benefit of his own wrong.

32.The appellant-wife has already suffered a lot on account of

negligence of her husband. The respondent husband being a wrongdoer

cannot be allowed to walk away out of the matrimonial alliances on

the ground that the marriage has broken down. For this reason also, the

plea for grant of decree of divorce on the ground of “irretrievable

breakdown of marriage” is not acceptable.

33.Lastly, we may note that the respondent-husband has sought

decree of divorce on irrelevant grounds based on reckless allegations

and the wife is living separately since 2003 without any financial

support. In order to prevent the appellant-wife from reaching the stage

of destitution, in the peculiar facts and circumstances of the present

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case, we find it just and proper that monthly maintenance be awarded

to the appellant-wife as has been fixed by this Court to the tune of

Rs.30,000/-, which shall be payable to her regularly even after the

decision of the present appeal.

34.We are conscious of the situation that we are denying the decree

of divorce to the respondent-husband while allowing the present

appeal and the result is that the matrimonial relationship between the

parties subsist. Consequently, the husband and wife are obliged by law

to live together and in such case the respondent-husband would

obviously maintain his wife. However, in this case, the possibility of

the parties living together seems remote. The respondent has been

neglected his wife who is living separately for a long time for no

reason.

35.Section 18 of the Hindu Adoptions and Maintenance Act, 1956

recognises the right of a Hindu wife to seek maintenance from her

husband during her life-time while living separately from her husband.

Sub-Section (2) of Section 18 provides that a Hindu wife shall be

entitled to live separately from her husband without forfeiting her

claim to maintenance; if he is guilty of desertion, i.e. abandoning her

without reasonable cause and without her consent or against her wish,

or of willfully neglecting her.

36.In the instant case, it is evident from the record that the

respondent-husband has abandoned his wife without any reasonable

cause and filed the suit for divorce on irrelevant grounds to get rid of

her. He has been willfully neglecting her during the continuation of the

divorce proceedings and denied payment of interim maintenance (bare

means of sustenance) fixed by this Court during the pendency of the

present appeal.

37.The right to claim maintenance under Section 18 of the Act,

1956 is a substantive right. The Family Courts constituted under the

Family Courts Act, 1984 have jurisdiction exercisable by a Civil Court

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in respect of the suits and proceedings, of the nature referred to in the

explanation to Section 7(1) of the Family Courts Act, which includes a

suit or proceeding for maintenance.

38.Under the scheme of the Act' 1984, the Family Courts have been

given liberty to lay down their own procedure with a view to arrive at

the truth of the facts alleged by one party denied by the other, i.e. for

effective determination of the dispute before it under Section 10(3) of

the Family Courts Act' 1984. Strict rule of evidence is not applicable in

the proceedings before the Family Courts and the evidences are

generally accepted on affidavits.

39.The present appeal under Section 19 of the Family Courts Act is

extension of the proceedings of the Family Court. Meaning thereby,

this Court can exercise the same jurisdiction as has been conferred

upon the Family Court under the Family Courts Act, 1984.

40.For the claim of maintenance under Section 18 of the HAM Act,

the appellant wife has to approach the Family Court. The appellant has

suffered for long having been neglected by her husband who took vow

to maintain her. We cannot be oblivious of the fact that in case the

appellant-wife is directed to approach the Family Court, she may be

dragged in a long drawn litigation to get the bare means of sustenance,

i.e. maintenance from her husband. The respondent who did not obey

this Court's order will not easily agree to pay the maintenance. In the

said scenario, we see no reason to leave the wife abandoned and

relegate her to seek maintenance by instituting fresh proceedings

before the Family Court which may take years.

41.For the above reason, exercising the jurisdiction of the appellate

court under Section 19 of the Family Court Act' 1984 invoking the

provisions of Section 18 of the Hindu Adoption and Maintenance Act,

1956, we are of the considered opinion that while the wife is forced to

live separately as the respondent-husband has deserted her without any

reasonable excuse, she is entitled for monthly maintenance during her

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life-time which is being fixed to the tune of Rs.30,000/- per month as

has been determined by this Court, after consideration of the affidavits

of the parties.

42.However, the appellant-wife is at liberty to seek enhancement of

the maintenance amount by moving a proper application (by bringing

fresh action) before the competent court in accordance with law.

43.Further, in case the husband is ready to discharge his

matrimonial obligations by keeping his wife alongwith him and the

appellant-wife agrees to his request, i.e. if the parties agree to live

together in future, the above direction to pay interim maintenance shall

stand automatically modified in terms of the agreement and the

liability of the respondent-husband to maintain his wife by paying the

fixed monthly maintenance, would stand exhausted.

44.However, the appellant wife is held entitled to the arrears of

monthly maintenance from the date it has been fixed by this Court

vide order dated 01.04.2003, and enhanced by the order dated

12.12.2017, till the date of this order. In addition to the same, the cost

of the proceedings to the tune of Rs.30,000/- in lump sum, as

determined by the order dated 12.12.2017, is also liable to be paid, if

remained unpaid.

45.We further provide that the arrears of monthly maintenance and

the litigation expenses, if not paid in full, shall be paid within a period

of two months from today.

46.In case of any default on the part of the respondent-husband to

pay the monthly maintenance or the arrears thereof and the litigation

expenses as directed above, it would be open for the appellant-wife to

seek execution by approaching the competent Court and in that case

the entire outstanding amount would be liable to be recovered as

arrears of land revenue. In the alternative, the appellant wife would be

at liberty to approach the employer of the respondent-husband to seek

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deduction directly from his salary and to transmit the monthly

maintenance and the outstanding arrears in her saving bank account.

47.For the above discussion, the judgment and order dated

17.05.2006 passed by the Additional Family Judge, Allahabad in

Marriage Petition No. 26 of 2003 granting the decree of divorce is

found suffering from serious infirmity and is hereby set aside. The

Matrimonial Petition no.26 of 2003 (Lalji vs Vijay Laxmi) stands

dismissed.

48.With the observations and directions made above, the appeal is

allowed.

Order Date :- 27.10.2021

P Kesari