FAO No.109-M of 2002 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.109-M of 2002.
Date of Decision : January 31, 2014.
Anil Kumar Sharma Son of Narendra Dev Sharma, resident of 370-E, Rail Coach Factory, Kapurthala ...Appellant Versus Asha Sharma wife of Sh.
Anil Sharma, daughter of Sh.
Raj Kumar Sahejpal, resident of House No.1791, Lajpat Lane, Bara Makan, Islamabad Amritsar...Respondent CORAM : HON'BLE Mr.JUSTICE S.S.SARON HON'BLE Mr.JUSTICE S.P.BANGARH Present: Mr.K.S.Nalwa, Advocate for the appellant.
Ms.Anju Sharma, Advocate for the respondent.
*** S.P.Bangarh, J.
Marriage between the parties was solemnised on 16.11.1993, according to Hindu Religious Rites, at Amritsar.
It was a simple marriage and no articles of dowry were given to the appellant or his family membeRs.After the marriage, parties cohabited together at Kapurthala, where the appellant has been serving in Rail Coach Factory.
After his Kanchan 2014.02.06 15:21 I attest to the accuracy and integrity of this document chandigarh FAO No.109-M of 2002 2 appointment in Rail Coach Factory in 1987, the appellant was allotted a railway quarter in Rail Coach Factory vide allotment order No.23-W/Allotment dated 08.11.1998.
The respondent wanted the appellant to shift to Amritsar, whereto, the latter did not accede, because of being on permanent job and it would have been difficult for him to undertake journey everyday to attend his duty from Amritsar to Kapurthala.
Appellant being financially affluent than the respondent, the latter could not compel the former to choose the place of residence as per her wish.
The respondent was posted as Mistress in Sr.Guru Harikishan Public School at Amritsar and was drawing salary less than the appellant.
She accepted this job against the wishes and without the consent of the appellant, in order to satisfy her ego and vanity, with an intention to cause mental agony and harassment to the appellant.
On 21.04.1994, the father of the respondent wrote a letter to the father of the appellant requesting him to send the respondent to Amritsar, as her brother Anil Sahejpal was coming to Amritsar on short leave from Hyderabad on 01.05.1994.
The respondent was sent to Amritsar on 30.04.1994 with full preparation to stay there Kanchan for a month at the request of her father, but the respondent 2014.02.06 15:21 I attest to the accuracy and integrity of this document chandigarh FAO No.109-M of 2002 3 did not return to Kapurthala to join the company of the appellant albeit his repeated visits to Amritsar in the months of August 1994, September 1994 and October 1994.
The father of the appellant sent postal money order for 'Karwa Chauth' to the respondent that was duly received by her at Amritsar, but neither she nor her parents responded.
The respondent refused to join the company of the appellant.
This informal behaviour of the respondent had shaken the mental equilibrium of the appellant, as the behaviour of the former was sufficient to cause mental agony to the latter.
She, thus, deserted the company of the appellant for incessant period of more than two yeaRs.without any sufficient and reasonable cause.
No cohabitation resumed between the parties albeit best efforts made by the appellant and through the intervention of the Panchayat uptill January, 1995.
Thereafter, the respondent lodged an FIR against the appellant and his family members including his father, mother and unmarried sister and they were arrested by the police on 13.05.1995.
The respondent also filed a petition for maintenance under Section 125 Cr.P.C.against the appellant.
This indicated that she had withdrawn herself from the society of the appellant with Kanchan animus desire and to bring cohabitation permanently to an 2014.02.06 15:21 I attest to the accuracy and integrity of this document chandigarh FAO No.109-M of 2002 4 end and to forsake matrimonial alliance, thereby entitling the appellant to the remedy of divorce on the ground of desertion.
The respondent by exercising influence with the police and other local high ups got the FIR lodged in Police Station Civil Lines, Amritsar by levelling false allegations, intentionally and deliberately, against the appellant, his parents and his sister on 20.04.1995.
The appellant was not aware of the registration of such FIR.
On 13.05.1995, the respondent got father of the appellant, his father Narinder Dev Sharma, aged 67 yeaRs.his mother- Kamal Kanta, aged about 60 yeaRs.and his sister-Seema, aged about 34 yeaRs.arrested by the Amritsar police.
Arrest of the appellant and his family members caused untold mental agony and harassment to him as also lowered his social status and of his family members in the society.
False allegations were levelled deliberately with an intention to malign the social status and reputation of the appellant.
It was also alleged in the F.I.R.that the appellant, his parents and sister started making demands of more dowry i.e.Scooter and Colour Television, from the respondent and the latter also levelled false allegations Kanchan regarding the demand of ` 50,000/- from her parents in the 2014.02.06 15:21 I attest to the accuracy and integrity of this document chandigarh FAO No.109-M of 2002 5 month of January, 1994 and also alleged another demand of ` 1 lac in the month of March, 1994 for investing the same in the construction of the house.
The respondent further levelled false allegations that in the mid of April, 1994, the appellant tried to kill her by pressing her neck, when he was under the influence of liquor.
The respondent saved her by confining her in the bathroom and she did not disclose this occurrence to anyone, being Hindu wife.
The respondent further alleged in F.I.R.that she was turned out of the matrimonial house in three wearing apparels with the clear instructions to bring a sum of ` 1 lac from her parents.
All these allegations against him and his family members have been dispelled by the Court of Sh.
B.S.Sandhu, Chief Judicial Magistrate, Amritsar in the judgment in case No.80/1 of 1995, passed on 10.01.2001.
The appellant has not, in any manner, condoned the cruelty of the respondent.
She left the house of the appellant without any cause on 30.04.1994 and is living with her parents and, thus, has deserted the appellant for more than 4 ½ yeaRs.Against this background, the appellant, herein, instituted a petition before the Learned Additional District Kanchan Judge, Amritsar for dissolution of his marriage with the 2014.02.06 15:21 I attest to the accuracy and integrity of this document chandigarh FAO No.109-M of 2002 6 respondent under Section 13 of the Hindu Marriage Act, on the grounds of cruelty and desertion.
Respondent filed the written statement taking preliminary objections of maintainability of petition, estoppel, petition being barred under Section 23 of the Hindu Marriage Act, appellant cannot take advantage of his own wrong, as he himself is guilty of constructive desertion and, therefore, cannot take the plea, that no cohabitation was resumed between them, albiet, his best efforts and of Panchayats, there was incessant neglect or refusal on the part of the appellant to maintain her.
It was averred that she had filed a petition under Section 125 Cr.P.C.that was decided by Sh.
Jaspal Singh Bhatia, Judicial Magistrate Ist Class, Amritsar.
A revision was filed against the said order that was dismissed by Sh.
R.K.Tyagi, the then Additional Sessions Judge, Amritsar.
The present petition is nothing, but a counter blast to the petition filed by her under Section 125 Cr.P.C.The appellant and his family members are greedy persons and they harassed and maltreated the respondent and FIR under Section 406/498-A of Indian Penal Code ('IPC' for short) was got registered.
In that case, the appellant was found guilty for commission of offence Kanchan punishable under Section 406 of IPC.
2014.02.06 15:21 I attest to the accuracy and integrity of this document chandigarh FAO No.109-M of 2002 7 On merits in written statement, however, it was admitted that she was married with the appellant at Amritsar and resided with him at Kapurthala.
She also averred that the appellant and his family members had raised a demand of dowry and their demand was fulfilled at the time of marriage by her father.
After marriage, the appellant and his family members were pressing her to bring more dowry.
The father of the respondent had been acceding to their demand and had met considerable demand.
She was maltreated on so many occasions by the appellant and his family members for not bringing sufficient dowry.
The appellant and respondent resided together at Kapurthala and address given by the appellant is wrong.
He had rented out the Government quarter to some third person and he himself was residing in his parental house bearing No.B-II/76 Sheranwala Gate, Kapurthala.
It was denied that she wanted the appellant to shift to Amritsar.
It was further averred in the written statement that indeed, the appellant and his family members were demanding a scooter, colour television, and on her refusal, she was maltreated and beaten by the appellant and his family membeRs.She tolerated the behaviour of the Kanchan appellant and his family members with the hope that some 2014.02.06 15:21 I attest to the accuracy and integrity of this document chandigarh FAO No.109-M of 2002 8 day, good sense would prevail.
In January 1994, the appellant and his family members started demanding ` 50,000/- for construction of his house and she was warned that she could live at Kapurthala, if she would bring ` 50,000/- from her parents.
In the last week of January, 1994, the respondent was turned out of her matrimonial house.
She went to her natal house.
Her father gave ` 50,000/- that were handed over to the appellant, but that amount was not sufficient to satisfy him and his family membeRs.In March 1994, the appellant and his family members again demanded ` 1 lac to invest in the construction of the house.
She told this demand to her father, who was shocked and fell ill.
The appellant and his family members did not stop taunting, maltreating and misbehaving with the respondent.
It was further averred in the written statement that many a time, she was confined in a room without providing her food and water.
Her life became inferno in her in-laws house.
In the month of April 1994, the appellant while in an inebriated condition, took the respondent in the bathroom and tried to strangulate her, but she escaped, because the appellant could not keep control over his balance.
This occurrence was not disclosed to anyone in Kanchan order to keep the dignity of her husband.
On 30.04.1994, 2014.02.06 15:21 I attest to the accuracy and integrity of this document chandigarh FAO No.109-M of 2002 9 the appellant took the respondent in three wearing clothes to Amritsar and left her there and warned her not to come to Kapurthala without ` 1 lac.
Since 30.04.1994, she has been residing at her natal house.
Her parents came to Kapurthala along with Sukhdev Raj and Adrash Pal, but the appellant and his family members refused to rehabilitate the respondent.
It was further averred in the written statement by the respondent that all the dowry articles, jewellery and other valuable articles are still lying in the house of the appellant.
All her efforts, as also of her parents, to rehabilitate her proved to be fruitless.
She never wanted the appellant to shift to Amritsar; rather when the talk regarding the marriage of the respondent and the appellant was going, she was made fully aware that she had to reside at Kapurthala.
There was no demand on her part that the appellant should shift to Amritsar.
It was denied that the appellant being financially affluent has a right to choose the place of residence; rather it was the wish of the respondent to live with the appellant at Kapurthala, but the behaviour and maltreatment of the appellant and his family members compelled her to live at Amritsar, when she was turned out Kanchan of the matrimonial home by the appellant.
The respondent 2014.02.06 15:21 I attest to the accuracy and integrity of this document chandigarh FAO No.109-M of 2002 10 was not doing any job, when she got married.
She was turned out of the house in 1994 and, therefore, she took up the job of a teacher in Sr.Guru Harkrishan Public School, Amritsar in the end of year 1998.
She could not depend upon the amount of maintenance awarded by the Court of Judicial Magistrate Ist Class, Amritsar to the extent of ` 500/- per month.
However, it was averred that her salary is less than that of the appellant.
She obtained this job on temporary basis and she can be terminated from service at any time.
The question of consent of the appellant for taking up of this job did not arise, for he had already been turned out of her matrimonial house by him.
It was further averred in the written statement that the allegations of the appellant that she accepted the job against his wishes and consent, are without any basis.
There was no intention on the part of the respondent to cause mental agony and harassment to the appellant.
On the contrary, the behaviour of the appellant had compelled her to do the job.
The letter written by her father dated 21.04.1994 was misinterpreted by the appellant.
Anil Sahejpal, brother of the respondent, was to come from Hyderabad in May 1994.
He was not to come on Kanchan 01.05.1994.
The appellant wanted to create evidence in his 2014.02.06 15:21 I attest to the accuracy and integrity of this document chandigarh FAO No.109-M of 2002 11 favour on the basis of the said letter, in order to conceal his behaviour and his act and conduct.
It was further averred in the written statement that the respondent was turned out of her matrimonial home on 30.04.1994 by the appellant before the arrival of her brother Anil Sahejpal from Hyderabad.
The appellant did not come along with her, but he had been chasing her, when she was turned out of the matrimonial home.
He was having suspicion that she may not report the matter to the police regarding his ill treatment.
The act and conduct of the appellant compelled her to stay away from him.
The appellant never visited her in the months of August, September and October, 1994.
A sum of ` 51/- was sent on 'Karwa Chauth' just to create evidence.
It is one of the most auspicious day for a Hindu wife, but the appellant tried to make mockery of this day by sending a meager amount of ` 51/-.
It was denied that the respondent ever refused to join the company of the appellant, who had not suffered any mental agony and harassment because of her behaviour.
It was denied that she had deserted the appellant for an incessant period of two years without any sufficient and reasonable cause.
The appellant himself is responsible for Kanchan constructive desertion.
The FIR lodged by the respondent 2014.02.06 15:21 I attest to the accuracy and integrity of this document chandigarh FAO No.109-M of 2002 12 was true and on correct facts.
It was further averred in written statement that the petitioner had committed an offence punishable under Sections 406, 498-A of IPC, therefore, he was liable to be arrested.
In the petition under Section 125 Cr.P.C., the Judicial Magistrate Ist Class, Amritsar had held that the appellant was responsible for deserting the respondent.
A revision against that order was also dismissed by the then Additional Sessions Judge, Amritsar.
It was denied that she has levelled wild and reckless allegations against the appellant.
It was denied that these allegations have been made with an intention to malign the reputation of the appellant and his family membeRs.rather the act and conduct of the appellant and his family members compelled her to lodge the FIR and in that case, the appellant was convicted.
Because of the behaviour of the appellant, her father suffered a severe attack and is still getting treatment.
It was denied that she has levelled false allegations of demand of ` 50,000/- and further demand of ` 1 lac made by the appellant in the month of April, 1994.
These demands were made by the appellant from time to time.
Her father fulfilled certain demands and paid ` 2.5 lacs and a sum of ` Kanchan 50,000/- to the appellant in order to save her matrimonial 2014.02.06 15:21 I attest to the accuracy and integrity of this document chandigarh FAO No.109-M of 2002 13 life.
It was denied that she had left the matrimonial house without any reason.
Rest of the averments contained in the petition were controverted and prayer for dismissal, thereof, was, thus, made.
In the replication, pleas taken in the plaint were reiterated and those of written statement controverted.
On pleadings of the parties, following issues were framed : “(1) Whether the respondent has deserted the petitioner (now appellant) without just cause?.
OPP.
(2) Whether the respondent has treated the petitioner (now appellant) with cruelty?.
OPP.
(3) Whether the petition has not been properly valued?.
OPR.
(4) Whether the petitioner (now appellant) is entitled to the decree of divorce as prayed for?.
OPP.
(5) Relief”.Appellant examined himself as PW1, Dinesh Singh as PW2, Balbir Singh as PW3, Rajpal Singh as PW4, Narinder Dev Sharma as PW5, Inderjit Singh as PW6 and after tendering copy of the order of Chief Judicial Magistrate, Amritsar (Ex.
PA) and copy of FIR (Ex.
PB) closed the evidence, while the respondent examined herself as RW1, Bal Mukand as RW2, Adrash Pal as RW3, Anil Sahejpal as RW4 and closed her evidence after tendering certain Kanchan 2014.02.06 15:21 I attest to the accuracy and integrity of this document chandigarh FAO No.109-M of 2002 14 documents.
The witnesses of the parties deposed as under :- PW1 Anil Kumar Sharma (appellant) reiterated the averments contained in his petition that have been reproduced in the earlier part of this judgment.
PW2 Dinesh Singh, Junior Clerk, Rail Coach Factory, Kapurthala deposed that the appellant is employed in Rail Coach Factory at Kapurthala, as Section Engineer and was allotted a residential quarter bearing No.640-E in the factory (supra) on 08.11.1988, but he cannot say, as to whether he (appellant) was putting up his residence, therein.
He further testified that on 19.11.1991, the appellant was allotted another quarter bearing No.688-A in place of quarter No.640-E.
Now, he has been allotted Type- III quarter bearing No.361-A.
Again, there was change in quarter on 10.06.2000 from quarter No.361-A to 370-E.
All these quarters are allotted to the employees for purpose of residence.
No employee can leave the station without the permission of the Department.
PW3 Balbir Singh, Head Clerk, Bill Section, Rail Coach Factory, deposed that at present, Anil Kumar is posted against the post of Senior Engineer in Rail Coach Kanchan Factory, Kapurthala.
PW3 brought the record pertaining to 2014.02.06 15:21 I attest to the accuracy and integrity of this document chandigarh FAO No.109-M of 2002 15 the deduction of electricity charges and water charges consumed by the employee of the factory (supra).He also brought the relevant record pertaining to the deduction made by the Department with regard to the consumption of electricity and water charges consumed by Anil Kumar (appellant) with regard to the quarters allotted to him from time to time from the year 1989 till date.
He deposed that during November, 1989, a sum of ` 50/- as rent of quarter and a sum of ` 30/- towards electricity were deducted from the pay of the appellant and the deductions of electricity charges varied, as per the units consumed by the allottee, during each month.
He brought the relevant record for the months of November, 1989, April, 1990, August, 1990, December, 1990, May, 1991, October, 1991, January, 1992 to May, 2001.
He proved the certified copy of the said record consisting of 30 pages that was duly attested by the Senior Personnel Officer of the Rail Coach Factory, Kapurthala.
PW3 identified the signatures of the said Officer and he initials as 'Happy Walia'.
He further deposed that last deduction was made in the month of May, 2001.
A sum of ` 105/- towards electricity charges and a sum of ` 108/- towards rent of quarter was deducted from the pay of the Kanchan appellant.
The certified copy of the same is Ex.
PW3/1.
2014.02.06 15:21 I attest to the accuracy and integrity of this document chandigarh FAO No.109-M of 2002 16 PW4 Rajpal Singh deposed that at present, Anil Kumar (appellant) has been residing in quarter No.370 of Rail Coach Factory and he also knows his wife and is on visiting terms to his residence.
He deposed that only 20 quarters intervene between his quarter and the quarter of the appellant.
There were differences between the parties on account of the fact that the respondent wanted to reside at Amritsar and she intended that the appellant should also live at Amritsar, and in connection with his service, he should daily commute between Amritsar and Kapurthala.
He testified that Anil Kumar was not prepared to agree with the respondent and to reside at Amritsar.
He also testified that there was no other reason for the bitterness of relationship between the parties.
He further testified that Anil Kumar does not take liquor and he had accompanied Anil Kumar in the month of October, 1994 to Amritsar to his in-laws house and Anil Kumar told him that his wife was not prepared to come back to Kapurthala and, therefore, he asked Anil Kumar to take him along with him to his in-laws house and in this connection, he accompanied Anil Kumar to the house of his in-laws and Asha Sharma was not prepared to go back to Kapurthala and she showed her inclination to reside in Kanchan Amritsar and she intended to join job there and she also told 2014.02.06 15:21 I attest to the accuracy and integrity of this document chandigarh FAO No.109-M of 2002 17 Anil Kumar to undertake up and down journey daily and Asha Rani had not made any complaint against Anil Kumar to him.
PW4 Rajpal further deposed that to his knowledge, no complaint was made by the respondent of taking liquor by Anil Kumar or regarding her strangulation by him.
He further deposed that in his presence, no demand of dowry articles was made by Anil Kumar from the respondent.
He also knows the parents of Anil Kumar.
He had gone to the house of parents of Anil Kumar.
He also knows, when the police had arrested the appellant, his parents and his unmarried sister.
He further testified that when people came to know about the arrest of the appellant and his family membeRs.they started withdrawing them from the association of the appellant and his parents.
PW5 Narinder Dev Sharma is the father of the appellant.
He deposed as per the averments contained in the petition that have been reproduced in the earlier part of this judgment.
PW6 Inderjit deposed that Anil Kumar (appellant) is his nephew and his father is related to him, as his brother and he is on visiting terms to the house of his brother at Kanchan Kapurthala, who resides near Sheranwala Gate there.
He 2014.02.06 15:21 I attest to the accuracy and integrity of this document chandigarh FAO No.109-M of 2002 18 further testified that he attended the marriage of Anil Kumar, who resided with his parents for a period of 20 days or one month and, thereafter, he shifted to quarter allotted to him by Rail Coach Factory, Kapurthala and he had been going to him once or twice to see him in the Rail Coach Factory at Kapurthala.
He had gone to Anil Kumar once or twice in his quarter after marriage.
There were differences between the parties on account of the reason that the respondent wanted to reside at Amritsar and she used to say that Anil Kumar should undertake journey from Amritsar to Kapurthala everyday and should stay at Amritsar.
PW6 Inderjit further testified that Anil Kumar did not agree to stay at Amritsar, as desired by his wife.
He further testified that Anil Kumar and his parents or any member of his family had never made a demand either of television, scooter or fridge from the respondent or her parents.
He had been on visiting terms with the appellant.
He had been occasionally visiting in the office of his brother Narinder Dev Sharma, father of the appellant, and latter never put demand of ` 50,000/- or ` 1 lac or any other demand of dowry articles in his presence.
He further testified that with the blessing of God, Narinder Dev Sharma Kanchan is possessed of everything and he was not present, when 2014.02.06 15:21 I attest to the accuracy and integrity of this document chandigarh FAO No.109-M of 2002 19 the police arrested the appellant, his parents and unmarried sister.
He further testified that the social status of the appellant, his parents and his unmarried sister has lowered significantly, as the people around them started underestimating them and that gave them mental agony and torture.
A talk regarding the marriage of unmarried sister of the appellant was going on, but after the arrest of the appellant, matrimonial talk could not mature, on account of their arrest by the police.
RW1 Asha Sharma-respondent deposed as per her averments made in the written statement that have been reproduced in the earlier part of the judgment.
RW2 Bal Mukand Tiwari, Clerk, Manav Public Schoo, Amritsar brought the record relating to salary of Asha Sharma-respondent.
He deposed that she got salary on 01.04.1991 and up to September, 1992, she remained posted in this school.
He proved the copy of the salary register of April 1991 as Ex.
RW2/1.
He also proved the copy of the salary register of September 1992, as Ex.
RW2/2.
He also deposed that after September, 1992, Asha Sharma did not draw any salary and after September, 1992, she has not been working in Manav Public School.
He deposed that Kanchan Principal of Manav Public School is Gurpal Tuli.
He brought 2014.02.06 15:21 I attest to the accuracy and integrity of this document chandigarh FAO No.109-M of 2002 20 the original certificate (Ex.
RW2/3) signed by Gurpal Tuli.
RW3 AdaRs.Pal testified that he has been on visiting terms to the house of the respondent, as he is her brother's friend, who was his class fellow up to M.Sc.
in the same department.
He deposed that he attended the marriage of Asha Sharma with the appellant and it was performed in Shiraj Hotel, Amritsar.
The marriage was performed with great pomp and show and was not a simple marriage.
He testified that he intervened in the dispute of the parties and the appellant demanded more dowry articles and the father of the respondent paid ` 50,000/- to the parents of the appellant.
Some of the money that was arranged by the respondent was borrowed from his father.
He testified that he arranged loan from two other persons for arranging ` 50,000/-.
He went to the house of the appellant 5-6 times to rehabilitate the respondent but the appellant and his parents refused to rehabilitate her and raised a demand of ` one lac.
RW4 Anil Sahejpal is the brother of Asha Sharma- respondent.
He also deposed as per the averments contained in the written statement that have been reproduced in the earlier parts of this judgment.
Kanchan After hearing both the sides, the trial court 2014.02.06 15:21 I attest to the accuracy and integrity of this document chandigarh FAO No.109-M of 2002 21 decided issues Nos.1, 2 and 4 against the appellant and in favour of respondent, issue No.3 in favour of the appellant and against the respondent, being not pressed, and dismissed the petition of the appellant under Section 13 of the Hindu Marriage Act with costs, vide judgment and decree dated 31.01.2002.
Aggrieved thereagainst, the appellant, who was petitioner before the trial court, has come up in this appeal with prayer for acceptance thereof, and for acceptance of his petition under Section 13 of Hindu Marriage Act, for dissolution of his marriage with the respondent on the grounds of cruelty and desertion.
Learned counsel for the appellant contended that there is sufficient evidence on record to establish that the respondent had left her matrimonial house, because she did not want to live at Kapurthala which is much smaller town than Amritsar and also because in Amritsar, her qualification could be fully utilized and rewarded.
He also contended that the date of departure of the respondent from her matrimonial house is also admitted by her i.e.30.04.1994, and the letter of her father in pursuance, whereof, she left her matrimonial house, has also been admitted by her.
Learned counsel for the appellant also contended Kanchan that the respondent left her matrimonial house, on the 2014.02.06 15:21 I attest to the accuracy and integrity of this document chandigarh FAO No.109-M of 2002 22 pretext that her brother was coming from Hyderabad to her natal house and, therefore, she wanted to spend sometime with him, but she did not return to Kapurthala, albiet, numerous efforts made by the appellant to bring her back to Kapurthala.
Learned counsel for the appellant also contended that the learned trial court has unjustifiably disbelieved authentic oral and documentary evidence that after about 15 days of the marriage, the appellant had shifted to a Railway quarter in Rail Coach Factory, Kapurthala.
He also contended that the learned trial court heavily relied upon the order of the Judicial Magistrate, whereby, maintenance under Section 125 Cr.P.C.was awarded to the respondent and totally overlooked the legal position, and while deciding the application under Section 125 Cr.P.C., burden of proof on the appellant is very light, but the order under Section 125 Cr.P.C.cannot be relied upon to decide important issues arising in the petition under the Hindu Marriage Act.
Learned counsel for the appellant also contended that the learned trial court also failed to analyse the impact on the matrimonial relations by the arrest of the appellant, his old parents and sister of marriageable age after Kanchan registration of the FIR by the respondent under Sections 2014.02.06 15:21 I attest to the accuracy and integrity of this document chandigarh FAO No.109-M of 2002 23 406/498-A of IPC at Amritsar.
He also contended that it is admitted in evidence of the respondent that the family members of the respondent and friends were present in full force in Kapurthala at the time of their arrest and it is noticeable that the appellant's parents and sister have been acquitted of all the charges and the appellant has been acquitted of the charge under Section 498-A of IPC.
He also contended that the appellant filed an appeal against his conviction and sentence under Section 406 of IPC and that appeal has been accepted and he has been acquitted of the offence punishable under Section 406 of IPC.
So, he contended that the acquittal of the appellant and his family members of offences punishable under Sections 406 and 498-A of IPC proves their innocence and they now cannot be held to be guilty of cruelty toward respondent and of defalcation of her Istridhan.
Learned counsel for the appellant further contended that on the contrary, this acquittal of the appellant and his family members indicates that, indeed, the respondent had been cruel to the appellant and if the appellant and his family members would have been cruel towards the respondent, in that event, they would not have Kanchan been acquitted of offences punishable under Sections 2014.02.06 15:21 I attest to the accuracy and integrity of this document chandigarh FAO No.109-M of 2002 24 406/498-A of IPC.
Learned counsel for the appellant also contended that the charge of the respondent that the appellant tried to strangulate her suffers from so many infirmities and it deserves to be repelled.
He also contended that the learned trial court has tried to read into the letter of the respondent's father to the appellant's father much more than even the respondent's side has tried to read and has, therefore, proceeded on its own theory, which is supported by version of neither party.
He also contended that the learned trial Court proceeded on the presumption that the girl's side cannot be unreasonable and cannot take an intransigent or rigid posture in the matter of matrimonial adjustment.
Learned counsel for the appellant also contended that it should not be overlooked that the respondent lived at the matrimonial house for less than six months and lodged FIR against the husband, old parents-in-law and sister-in-law of marriageable age within less than one and half years of marriage and got them arrested and, in this case, she has averred that she is ready to live with the appellant.
So, learned counsel for the appellant contended that if the Kanchan respondent, indeed, wanted to live in the company of her 2014.02.06 15:21 I attest to the accuracy and integrity of this document chandigarh FAO No.109-M of 2002 25 husband, in that event, she would not have got the case registered against him and his family members within less than one and half years of marriage.
Learned counsel for the appellant also contended that the respondent is guilty of cruelty toward the appellant as also of his desertion from an incessant period of more than two years preceding the institution of the petition before the learned trial court and, therefore, his petition that was dismissed by the trial court, may be allowed by allowing this appeal and the marriage between the parties may be dissolved on the grounds of cruelty and desertion.
On the other hand, the learned counsel for the respondent contended that the impugned judgment and decree do not suffer from any illegality and impropriety and, thus, may be upheld and affirmed, as there was no ill-will on the part of the respondent to get the case under Sections 406/498-A of IPC registered against the appellant and his family membeRs.as she made this attempt simply to get herself rehabilitated in her matrimonial house.
He also contended that the respondent never refused to live with the appellant at Kapurthala and she never compelled the appellant to daily commute between Amritsar and Kanchan Kapurthala, where he is employed in the Rail Coach Factory.
2014.02.06 15:21 I attest to the accuracy and integrity of this document chandigarh FAO No.109-M of 2002 26 So, learned counsel for the respondent contended that the impugned judgment and decree may be upheld and affirmed and the appeal may be dismissed.
We have given our thoughtful consideration to the contentions raised by the learned counsel for the parties, as also with their assistance, we have perused the evidence and material on record of the learned trial court.
So far as, marriage between the parties is concerned that was admittedly solemnized on 16.11.1993 at Amritsar according to Hindu Rites.
As per the appellant, this was a simple marriage and no dowry articles were given to the appellant or his family membeRs.After the marriage, the parties resided and cohabited at Amritsar.
The appellant was serving in Rail Coach Factory.
Appellant was living separately from his parents.
After his appointment in Rail Coach Factory in 1987, the appellant was allotted a railway quarter in the premises of Rail Coach Factory itself.
It is the allegation of the appellant that the respondent wanted the appellant to shift to Amritsar, but he did not accede to that demand, as it would have been difficult for him to undertake this journey everyday to attend his duty from Amritsar to Kapurthala.
Kanchan Admittedly, the appellant was financially better 2014.02.06 15:21 I attest to the accuracy and integrity of this document chandigarh FAO No.109-M of 2002 27 than the respondent.
He had a government job at Kapurthala.
In these circumstances, it was appropriate for him to live at Kapurthala, where he was provided government accommodation in the premises of Rail Coach Factory itself.
Dinesh Singh (PW2) confirmed the allotment of Govt.
House in the premises of Rail Coach Factory, Kapurthala.
He also deposed that no employee can leave the station without the permission of the Department.
During cross-examination, evidence of PW2 Dinesh Singh could not be shattered.
One thing is every much certain that the appellant was permanently employed in a government job at Kapurthala and he could not leave the station everyday.
From the facts and circumstances, it is made out that the bone of contention is the place of residence.
It is the case of the respondent that she wanted to live with the appellant at Kapurthala, while on the contrary, it is the stand of the latter that the former does not want to live with him at Kapurthala.
The stand taken by the appellant is acceptable.
It is his case that the respondent is qualified and at Amritsar, she could get some good job because job opportunities, admittedly, at Amritsar, were more.
Possibility cannot be Kanchan ruled out that the respondent had been compelling the 2014.02.06 15:21 I attest to the accuracy and integrity of this document chandigarh FAO No.109-M of 2002 28 appellant to live at Amritsar and commute daily from Amritsar to Kapurthala.
This demand being unreasonable was rightly repelled by the appellant, as he could earn wrath of his department, if he had left the station daily without informing his seniORS.Even such permission to leave the station daily being irrational could not be accorded to him by his employeRs.The respondent is M.A./M.Phill and, therefore, she thought that she would get a job and which she, indeed, got at Amritsar, as earlier, she was employed in Manav Public School, Amritsar and now, she is employed in Guru Harikishan Public School, G.T.Road, Amritsar.
It was the matrimonial obligation of the respondent to stay with the appellant and not vice versa.
She lived with the appellant up till 30.04.1994, when she left her matrimonial house.
Thereafter, she did not join the company of the appellant.
She did not file a petition under Section 9 of the Hindu Marriage Act for restitution of her conjugal rights.
If she, indeed, wanted to stay with the appellant, she would have filed a petition before an appropriate court for restitution of her conjugal rights.
Her silence in this matter, whereon, she should have acted with alacrity is indeed intriguing and it Kanchan must lead to inevitable conclusion that she herself did not 2014.02.06 15:21 I attest to the accuracy and integrity of this document chandigarh FAO No.109-M of 2002 29 want to join the company of the appellant, as his wife.
It is the case of the respondent that she was maltreated on the demand of dowry articles, as also, on the demand of ` 50,000/- and ` one lac.
She also deposed as RW1 that in April 1994, the appellant tried to strangulate her and she went to the bathroom and bolted the door from inside and saved herself.
She also deposed that the appellant was in an inebriated condition at that time.
If this incident had, in fact, taken place, the respondent would have reported the matter to the police or she would have reported the matter to some respectable persons or relatives.
Strangely enough, she did not report the matter to the police or to the relatives.
Again, her silence in this matter, whereon, she should have acted with utmost alacrity is indeed intriguing and must lead to the conclusion that this incident had not happened.
AdaRs.Pal (RW3) deposed that the appellant demanded dowry articles and the father of the respondent paid ` 50,000/- to the parents of the appellant and some of the money that was arranged by the respondent, was borrowed from his father.
This evidence is not believable as it is admitted by this witness that Asha Sharma-respondent Kanchan lodged prosecution against the appellant, his parents and 2014.02.06 15:21 I attest to the accuracy and integrity of this document chandigarh FAO No.109-M of 2002 30 unmarried sister.
Police case was got registered by the respondent against the appellant, his parents and unmarried sister for commission of offences punishable under Sections 406/498-A of IPC.
In FIR No.43 dated 20.04.1995 under Sections 498-A, 406 of IPC that was registered with Police Station Civil Lines, Amritsar, the respondent, who was complainant of the FIR, alleged that in the marriage that was solemnized between the parties on 16.11.1993 at Shiraj Hotel according to Hindu Rites, huge amount of dowry in the form of jewellery, electrical appliances, furniture, utensils, cash and other valuables were given by her parents to the appellant, his father Narinder Dev Sharma, his mother Kamal Kanta and his sister Seema and even the detail of articles was given in the list (Annexure-A) that was provided to the police.
It was alleged in the FIR that immediately after marriage, the appellant, his parents and sister (supra) started making demands of more dowry and started maltreating her.
They also started demanding scooter, colour television and gave her beatings to pressurize her to bring these articles from her parents.
Her parents showed their inability to fulfill those demands because of their Kanchan poverty and economic position.
She tolerated all these mal- 2014.02.06 15:21 I attest to the accuracy and integrity of this document chandigarh FAO No.109-M of 2002 31 treatments with the hope that with the lapse of time, the in- laws of the complainant may change the attitude, but in the month of January 1994, they demanded a sum of ` 50,000/- from her parents to build a house.
In fact, almost all averments that have been made in the written statement, were made in the FiRs.Information Report (supra) to state that the appellant, his parents and sister took huge dowry and defalcated that, as also, treated her with cruelty.
On the basis of FIR No.43 dated 20.04.1994 under Sections 498-A, 406 IPC, police of Police Station Civil Lines, Amritsar investigated the allegations levelled, therein, by the respondent against the appellant, his parents and sister.
The appellant, his parents and his sister were arrested in this case.
Alleged dowry articles were also recovered from the possession of the appellant on 13.05.1995 that were taken into possession by the police vide recovery memo.
After the completion of investigation, Station House Officer of Police Station Civil Lines, Amritsar instituted police report in terms of Section 173 Cr.P.C.in the court of learned Chief Judicial Magistrate, Amritsar to the effect that it appears that the appellant, his parents Narinder Dev Sharma and Kamal Kanta and his sister-Seema Kanchan committed offences punishable under Sections 498-A, 406 of 2014.02.06 15:21 I attest to the accuracy and integrity of this document chandigarh FAO No.109-M of 2002 32 IPC.
On presentation of the police report, charge for commission of offences punishable under Sections 406/498- A of IPC was framed against the appellant, his parents and his sister, where to, they pleaded not guilty and claimed trial.
During trial of that case, prosecution witness Dr.
AdaRs.Pal, who is RW3 in this case, was examined.
He deposed as per averments of the respondent that are also her averments in the present case in her written statement.
She also examined her father Raj Kumar.
She also examined herself as PW3 and stated on the lines of complaint that was moved by her to the Senior Superintendent of Police, Amritsar, which formed basis of formal FIR.
It may be mentioned here that prosecution examined at least eight witnesses.
After the closure of the prosecution evidence in the FIR case that was got registered by the respondent against the appellant, his parents and his sister, the latter were examined in terms of Section 313 Cr.P.C., wherein, they denied the allegations of the prosecution, pleaded innocence and false implications in this case.
Their version was that no dowry was entrusted to them, the appellant Kanchan never took cash amount from the parents of the respondent.
2014.02.06 15:21 I attest to the accuracy and integrity of this document chandigarh FAO No.109-M of 2002 33 He also did not demand dowry from his parents-in-law.
He never maltreated the respondent.
On the contrary, he tried his level best to take the respondent to his matrimonial house, but she refused to accompany him.
He also stated that he never consumes alcohol.
Father of the appellant also stated during his examination in terms of Section 313 Cr.P.C.that Asha Sharma (respondent) was sent to Amritsar on the request of her father, as her brother was reaching at Amritsar on 01.05.1994.
He also sent her Shagun by money order in the month of October, 1994 and that was received by Asha.
The letter and money order receipt were proved as Ex.
PW-1/A and PW-1/B, respectively.
The version of the respondent that has been set out by her in the written statement was admittedly her version in the police case that was got registered by her against the appellant, his parents and his sister.
In that criminal case also, it was her case that she was treated with cruelty by the appellant, his father and sister.
Learned trial court came to the conclusion in its judgment (Ex.
RX/3) dated 10.01.2001 that the appellant, his parents and his sister did not subject Asha Sharma to cruelty for demand of Kanchan dowry.
It was held that the prosecution has failed to bring 2014.02.06 15:21 I attest to the accuracy and integrity of this document chandigarh FAO No.109-M of 2002 34 home, the guilt of any of the accused including the appellant, for having committed offence punishable under Section 498-A IPC.
So, vide judgment (Ex.
RX/3).the appellant, as also, his parents and sister were acquitted of offence punishable under Section 498-A IPC.
Besides, parents and sister of the appellant were also acquitted of the offence punishable under Section 406 of IPC.
Only the appellant was convicted for commission of offence punishable under Section 406 IPC vide order of sentence dated 10.01.2001 which is part of judgment Ex.
RX/3.
The appellant was sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of ` 1000/- and in default of payment of fine, to undergo further rigorous imprisonment for a period of two months for commission of offence punishable under Section 406 of the IPC.
Appellant, being aggrieved by the judgment and order (supra).filed appeal against his conviction and sentence that was accepted and he was acquitted of the offence punishable under Section 406 IPC, too, by the Appellate Court.
It may be mentioned here that it is not in dispute that the appellant, his parents and sister have been Kanchan acquitted of all the offences punishable under Sections 406, 2014.02.06 15:21 I attest to the accuracy and integrity of this document chandigarh FAO No.109-M of 2002 35 498-A IPC, wherefor, they were tried on the basis of FIR No.43 dated 20.04.1995 under Sections 498-A, 406 IPC, Police Station Civil Line, Amritsar that was got registered by the respondent.
It is not in dispute that the application under Section 125 Cr.P.C.moved by the respondent was allowed by the Judicial Magistrate Ist Class, Amritsar against the appellant, but that order was summary in nature and that was not sufficient for discharging of onus placed on the respondent to prove that, indeed, she was treated with cruelty on the demand for dowry.
In the FIR case, the onus was upon the respondent to prove that the appellant, being her husband, subjected her to cruelty.
As per Section 498-A IPC, cruelty means : (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
The acquittal of the appellant and his parents Kanchan 2014.02.06 15:21 I attest to the accuracy and integrity of this document chandigarh FAO No.109-M of 2002 36 would reveal that the respondent failed to prove that she was harassed by the appellant, his parents and sister with a view to coerce her to bring money or other articles from her parents.
When once the respondent had chosen to bring the appellant, his parents and his sister to criminal justice system and she failed to prove the allegations of cruelty, as also, demand for money and dowry articles, it follows that her allegations were false.
At least the appellant, his parents and sister were innocent.
They could be held guilty of cruelty towards the respondent, if they would have been convicted and sentenced in the case that was got registered by the respondent against them.
The acquittal of the appellant in the FIR (supra) by the Appellate Court, would lead to the inference that he is innocent in this case.
If he would have been guilty of cruelty, then, he would have been punished.
Though, the judgment of the criminal court is not binding but that must have persuasive value and that becomes relevant, so far as, allegations of cruelty and demand of money and dowry articles levelled against the appellant by the respondent are concerned.
Indeed, the registration of FIR No.43 dated 20.04.1995, wherein, appellant, his parents and his sister Kanchan were acquitted, would reveal that it was respondent who 2014.02.06 15:21 I attest to the accuracy and integrity of this document chandigarh FAO No.109-M of 2002 37 was cruel to the appellant.
At least, it may be held that the appellant was not cruel to the respondent and the registration of the FIR on the contrary caused extreme mental cruelty to the appellant as held by the Hon'ble Apex Court in case K.
Srinivas Rao versus D.A.Deepa, 2013(2) CivCC152: 2013(2) RCR (Civil) 232, where a case under Section 498-A IPC was got registered by the wife.
The allegations were found to be false.
It was held that the wife, thus, caused extreme mental cruelty to the husband who was granted divorce on the ground of mental cruelty.
In this case, the husband and wife had separated two years after the marriage and were living separately for ten years and indulged in litigation.
Divorce petition filed by the husband was allowed by holding that this separation has created an unbridgeable distance between the two.
Refusal to severe tie may lead to mental cruelty.
It was held that though irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act, 1955, but where marriage is beyond repair on account of bitterness created by the acts of the husband or the wife or of both, the courts have always taken irretrievable breakdown of marriage as a very weighty circumstance amongst others necessitating Kanchan severance of marital tie.
It was also held that a marriage 2014.02.06 15:21 I attest to the accuracy and integrity of this document chandigarh FAO No.109-M of 2002 38 which is dead for all purposes cannot be revived by the court's verdict, if the parties are not willing.
In the case in hand, the marriage took place on 16.11.1993.
the parties have been living separately since 01.05.1994 and, thereafter, they have not been able to live together.
Indeed, as already held that respondent-wife lodged FIR against the appellant-husband under Sections 498-A and 406 IPC.
Now, they have been living separately from each other for a period of more than 19 years and this separation has created an unbridgeable distance between the two.
Refusal on the part of the respondent to severe matrimonial tie must lead to mental cruelty to the appellant.
This marriage is now beyond repair on account of bitterness created by the respondent, who unsuccessfully prosecuted the appellant and his family members for commission of offences punishable under Sections 406, 498-A of IPC and he has been acquitted of these offences.
It is proved through the testimony of PW1-Anil Kumar Sharma (appellant) that has been corroborated by his father-Narinder Dev Sharma (PW5) that the respondent insisted upon appellant to live at Amritsar.
That is the reason, why the respondent deserted the appellant.
So, it Kanchan must follow that she left the matrimonial home and did not 2014.02.06 15:21 I attest to the accuracy and integrity of this document chandigarh FAO No.109-M of 2002 39 join the company of the respondent.
As already noticed, she did not file any case under Section 9 of the Hindu Marriage Act.
Possibility cannot be ruled out that she lodged case under Section 498-A and 406 of IPC against the appellant, his parents and sister simply to compel him to live with her at Amritsar and commute daily to his work place at Kapurthala from Amritsar.
In Smt.
Santosh Devi versus Prem Chand Saini, 2008 (2) RCR (Civil) 713, a Division Bench of Hon'ble Rajasthan High Court granted decree of divorce in favour of the husband on the ground of cruelty, as the wife had left the matrimonial home without informing anybody and she did not return and also filed a criminal case under Section 498-A IPC against the husband.
In Kotti Veera Venkata Padmavathi versus Kotti Sriram, 2003(2) HLR67 the wife filed a criminal case under Section 498-A of IPC against the husband and the case ended in acquittal and it was held by a Division Bench of Hon'ble Andhra Pradesh High Court, that unfounded case under Section 498-A of IPC filed by the wife against her husband in counter blast to his divorce petition would amount to cruelty against the husband.
Kanchan So, the failure of the respondent in criminal case 2014.02.06 15:21 I attest to the accuracy and integrity of this document chandigarh FAO No.109-M of 2002 40 that was lodged by her against the appellant, his parents and sister for alleged commission of offences punishable under Sections 406, 498-A of IPC must be treated as a mental cruelty to the appellant.
Apart from that, she did not make any effort by filing a petition under Section 9 of the Hindu Marriage Act for restitution of her conjugal rights.
Non-filing of such case would lead to the conclusion that she herself is guilty of desertion of the husband and she did not want to live with her.
If her allegations under Sections 406, 498-A of IPC would have been proved by her before the criminal court, in that event, her grouse could be held genuine and it could be held that it was the appellant who was cruel to her and, therefore, his instant appeal would have been dismissed.
Learned trial court overlooked these facts and did not examine the case in the light of acquittal of the appellant, his parents and sister of charge of commission of offences punishable under Sections 406, 498-A of IPC.
Learned counsel for the respondent placed reliance upon Raj Kishan versus Smt.
Sudesh, 2004(1) HLR122 wherein, this Court held that dismissal of criminal complaint under Section 498-A of IPC is not a ground for Kanchan divorce.
2014.02.06 15:21 I attest to the accuracy and integrity of this document chandigarh FAO No.109-M of 2002 41 Learned counsel for the respondent also placed reliance upon Radha Rani versus Har Bhagwan, 2003(3) RCR (Civil) 637, Jagdeep Singh versus Poonam, 2004(3) RCR (Civil) 799, Sant Ram versus Kamlesh, 2005(3) RCR (Civil) 790 and Vishnu Dutt Sharma versus Manju Sharma, 2009(2) RCR (Civil) 506.
These judgments have been perused, but are inconsequential to the respondent, in view of the view taken by the Hon'ble Supreme Court of India in K.
Srinivas Rao versus D.A.Deepa (supra).wherein, it was held that where wife filed FIR against the husband under Section 498- A of IPC, it is extreme mental cruelty to the husband.
As already noticed, it has been held in this judgment that the parties have been living separately for 10 years and the wife has been living with her parents and the case under Section 498-A of IPC got registered by the wife was found to be false and it was held that the wife caused extreme mental cruelty to the husband, who was granted divorce on the ground of mental cruelty.
Efforts were made in this case to reconcile the differences.
Even the case was referred to the Mediation that has failed.
Now, the parties have already crossed 50 Kanchan years of age.
If the appeal is dismissed, no scope shall be 2014.02.06 15:21 I attest to the accuracy and integrity of this document chandigarh FAO No.109-M of 2002 42 left for their reconciliation and rehabilitation and both parties will not be in a position to re-marry, in view of the subsistence of the valid marriage that must be dissolved.
The learned trial court wrongly held while deciding issue No.1 that the respondent has not deserted the appellant without just cause, as also, while deciding issue No.2 wrongly held that the respondent has not treated the appellant with cruelty.
The findings of the learned trial court on issues Nos.1 and 2 are erroneous.
At the cost of repetition, it is held that the parties have been living separately since 01.05.1994 and during this period, instead of getting herself rehabilitated in her matrimonial house by filing a petition under Section 9 of Hindu Marriage Act before the Matrimonial Court, the respondent filed a criminal case vide FIR No.43 dated 20.04.1995 under Sections 498A, 406 of IPC in Police Station Civil Lines, Amritsar, wherein, the appellant, his parents and sister were acquitted.
The respondent willfully deserted the appellant and she unsuccessfully prosecuted the appellant for commission of offences punishable under Sections 406, 498- A of IPC.
So, the findings of the learned trial court on issues Nos.1 and 2 are reversed and these issues are held in Kanchan favour of the appellant and against the respondent.
Issue 2014.02.06 15:21 I attest to the accuracy and integrity of this document chandigarh FAO No.109-M of 2002 43 No.3 was not pressed by the respondent.
As a result of reversal of findings on issues Nos.1 and 2, the decision on issue No.4 by the learned trial court is also reversed and in view of reversal of findings on issues No.1 and 2, the appellant must become entitled for decree of divorce as prayed for on the grounds of cruelty and desertion enshrined in Section 13(1)(ia)(ib).So, issue No.4 is also held in favour of the appellant and against the respondent.
Issue No.5 is an issue of relief that is connected with issue No.4.
So, the findings of the learned trial court on issue No.5 are also reversed and the appellant is held entitled for decree of divorce.
Resultantly, the appeal succeeds and is, hereby, allowed with no order as to cost; impugned judgment and decree are set-aside and the petition of the appellant dismissed, thereby, is, hereby, allowed with no order as to cost and marriage between the parties solemnized on 16.11.1993 is ordered to be dissolved w.e.f.today on the grounds of cruelty and desertion, as enshrined in Section 13 (1)(ia)(ib) of the Hindu Marriage Act.
Before parting with this judgment, it is very much essential to fix permanent alimony and maintenance for the Kanchan respondent in terms of Section 25 of the Hindu Marriage Act, 2014.02.06 15:21 I attest to the accuracy and integrity of this document chandigarh FAO No.109-M of 2002 44 which reads as under : Permanent alimony and maintenance – (1) Any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent's own income and other property, if any, the income and other property of the applicant, the conduct of the parties and other circumstances of the case, it may seem to the court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent.
(2) If the court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under sub-section (1).if may at the instance of either party, vary, modify or rescind any Kanchan such order in such manner as the court may deem just.
2014.02.06 15:21 I attest to the accuracy and integrity of this document chandigarh FAO No.109-M of 2002 45 (3) If the court is satisfied that the party in whose favour an order has been made under this section has re-married or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he has had sexual intercouRs.with any woman outside wedlock, it may at the instance of the other party vary, modify or rescind any such order in such manner as the court may deem just.
While determining the quantum of permanent alimony, the income of the husband has to be kept in mind.
On 19.09.2013, the appellant had submitted that his gross salary is ` 53181/- per month and his net pay is ` 43119/- per month, as on date.
He is working as Senior Section Engineer at Rail Coach Factory, Kapurthala.
Respondent had also submitted that she is working as TGT Teacher and drawing gross salary of ` 23276/- per month and net salary after deduction of provident fund is ` 22496/-.
So far as the income is concerned, the monthly earning of the appellant is more than the monthly earning of the respondent.
The net pay of the appellant is ` 43,119/- per month while that of the respondent is ` 22496/-.
The monthly income of the respondent being less than that of Kanchan the monthly income of the appellant, she must be granted 2014.02.06 15:21 I attest to the accuracy and integrity of this document chandigarh FAO No.109-M of 2002 46 permanent alimony, so that her monthly earning comes at par with the appellant.
If the net salaries of both the parties are merged together, the average monthly salary shall be ` 33,248/-.
In this manner, monthly income of the respondent is deficient by ` 10,752/- than the appellant.
So, keeping in view that the average salary per month of the respondent is deficient by ` 10,752/-, from the appellant, and the age of the respondent is about 50 yeaRs.some balance has to be struck for assessing the permanent alimony and maintenance payable to the respondent.
So, she must be held entitled for permanent alimony and maintenance to the tune of ` 12 lacs, which be paid to her by the appellant within a period of six months, failing which he shall pay interest, thereon, @ 8% per month from today till the realization of the entire amount.
(S.S.SARON) (S.P.BANGARH) JUDGE JUDGE January 31, 2014.
kanchan 1.
Whether the Reporters of the Local papers may be allowed to see the judgment?.
Yes.
2.
To be referred to the Reporters or?.
Yes.
3.
Whether the judgment should be reported in the Kanchan digest?.
Yes.
2014.02.06 15:21 I attest to the accuracy and integrity of this document chandigarh