Narmada Gupta vs Manoj Gupta

Heard.

This appeal is under Section 19 (1) of the Family Courts Act, 1984 is preferred by appellant-wife against the judgment and decree dated 11.01.2018 passed in Civil Suit No.20-A/2017 by which learned Judge, Family Court Jashpur, District Jashpur (CG) allowed petition filed by respondent husband under Section 13 (1-A) of the Hindu Marriage Act, 1955 (for short 'the Act of 1955') for dissolution of his marriage with respondent wife by way of a decree of divorce.

Brief facts of the case, as pleaded by husband before the Court below, are that the marriage between appellant and respondent was solemnized on 06.12.2001 as per social customs and out of their wedlock, two sons were born. Since 2008, wife is living separately in her matrimonial home without any sufficient cause. The husband filed petition for divorce, in which wife appeared and at the stage of recording of evidence, she filed an application for stay of proceedings. When she did not appear and adduce any evidence, ex-parte proceeding was drawn against wife on 06.01.2015 and thereafter ex-parte order was passed on 29.1.2015. Subsequently on 18.7.2017 said ex-parte order was set aside. Before filing divorce petition, husband filed an application under Section 9 of the Act of 1955 for restitution of conjugal rights, which was decreed in favour of husband and wife was directed to resume cohabitation with husband, but the wife did not join the company of her husband and eventually the execution proceeding for restitution of conjugal rights was also dismissed due to non-cooperation of wife, and the wife is living separately from the husband, therefore, he is entitled for decree of divorce.

The wife in her reply, stated that she was subjected to inhuman torture and disrespect by husband. Husband used to demand money and on account of non-fulfillment of demand, he used to abuse, beat and subjected her physical and mental harassment. Due to harassment of husband and for the fear of life, she along with her children left matrimonial home and started residing at her parental home. Due to threats given by husband, the wife did not appear in proceedings of restitution of conjugal rights and therefore, an ex-parte decree was passed in favour of husband.

On the basis of pleadings of the parties, learned Family Court framed three issues. Issue No.1 relates to whether the wife is not discharging her marital obligation without any sufficient cause. This issue was answered by family Court in affirmative and consequently, decree of divorce was granted to the husband.

Learned counsel for appellant wife would submit that the learned Court below failed to consider the fact that in fact the wife was subjected to torture by the husband and therefore, there was sufficient reason with wife for not joining company of the husband. He further submits that because of torture meted out to wife, she was living separately at a distance of 200 km and due to threats given to her, she could not attend the Court where application for restitution of conjugal right was filed. Eventually, she could not join. He further submits that arrears of maintenance, which has been ordered and is more than Rs.8 lakh, has not been paid by husband. This conduct of husband itself shows that he failed to maintain his wife.

Per contra, learned counsel for the respondent Husband submits that the wife herself had left the company of husband without any sufficient cause. It is stated the wife filed complaint under Section 498A of IPC alleging false allegation against the husband, based on which criminal case was registered against husband, but he was acquitted in such criminal case, which goes to show that false allegation was made against the husband by the wife. Under these circumstances, husband was entitled for divorce and hence, the order of the Court is well merited.

We have heard learned counsel for the parties at length, perused the pleadings and the evidence.

Respondent husband was examined as PW-1 before the Court below. He deposed that after marriage in the year 2001, two sons were born. The relations between the two were cordial till 2008. In the year 2008, on being called by Sita Bai, mother of the wife, he along with his wife went to village Kudekela where he stayed for two days and on the request of his mother-in-law, he left his wife and children there and he came back alone. Thereafter, he waited for return of his wife from village Kansabel for some time and when she did not return for sufficient long time, he made various attempts to bring her back but she did not return. It is stated that he served notice through his advocate to wife calling upon her to join his company, but she did not join. Further, he has stated that he filed a petition under Section 9 of the Act of 1955 for restitution of conjugal rights and in which restitution order was passed on 31.07.2009 (Ex.P-5) by the Family Court directing the wife to join company of the husband. He further stated that thereafter he filed an application for execution of decree of restitution of conjugal rights, but she did not join instead lodged report against the family members under Section 498A of IPC wherein eventually an acquittal order was passed on 16.05.2012, which is marked as Ex.P-4.

Evaluating the aforesaid facts, reading of the order for restitution of conjugal rights and judgment of acquittal under Section 498A of IPC would show that when the wife was asked to join the company, she lodged report against the respondent husband and his family members wherein eventually acquittal order was passed. Case like this, as held in Rani Narasimha Sastry v. Rani Suneeta Rani, reported in 2019 SCC OnLine SC 1595, the Hon'ble Supreme Court observed that when a prosecution was launched against the husband on a complaint made by the wife under Section 498A of IPC making serious allegations in which the husband had to undergo trial which ultimately resulted into acquittal, then in such a situation, it cannot be accepted that no cruelty was meted out on the husband, therefore, he can make a ground for grant of decree of dissolution of marriage as mentioned under Section 13 (1) (i-a) of the Act of 1955. In instant case, perusal of judgment of acquittal dated 16.5.2012 (Ex.P-4) would show that apart from respondent Manoj, his father Mahaveer Prasad, mother Smt. Rajkumari Gupta, brothers namely Arun Kumar Gupta, Pramod Kumar Gupta, Mukesh Kumar Gupta, Sandeep Gupta and sister Seema Gupta, were also arrayed as accused in Criminal Case No.477/09, which eventually culminated into their acquittal by trial Court. Furthermore, from the statement of husband PW-1, it is apparent that it is the wife who left company of husband without any reason since 2008.

The wife (DW-1) in her reply/statement stated that sometimes husband used to demand Rs.50,000/-, sometimes Rs.30,000/- and sometimes Rs.3,00,000/- and on non-fulfillment of demand, he used to subject her to cruelty by beating and abusing her filthily, which has constrained her to leave the company of husband. This issue of demand of money has been set at rest as the acquittal order was passed on the complaint filed by the wife which eventually attained its finality and therefore, the fact that wife was living separately for valid reason was not established. Further, in the cross-examination of her statement, the wife (DW-1) has admitted that she is aware about the fact of passing of decree of restitution of conjugal rights under Section 9 of the Act of 1955, but she did not resume company of her husband in compliance thereof as she had already lodged FIR against her husband and therefore, she does not want to reside with him. She has further admitted that no effort was made by her or through her family members to go and live with the husband. She also admitted that neither she got convened society meeting nor she lodged any complaint in police station in respect of assaults made by her husband.

The overall conduct of appellant wife would show that she is living separately since 2008 and despite knowing that an order for restitution of conjugal rights was passed against her, she did not join company of the husband and thereby she had failed to honour the said decree. In backdrop of the facts of case, an inference can be drawn that the wife has deserted her husband and is residing separately for more than 13 years with her parents without any sufficient reason. So, after evaluation of the facts, we are of the opinion that the impugned judgment and decree passed by the Court below granting decree of divorce to the husband do not call for any interference. Accordingly, the impugned judgment and decree passed by the Court is hereby affirmed.

Now coming to the grant of alimony to wife. During the course of hearing before this Court, the appellant and the respondent both were directed to place on record their source of income as also the assets.

Consequently, the wife her affidavit with covering memo dated 7.9.2022 stating that she does not have any source of income except maintenance amount being paid by respondent-husband. She has given details of income and properties of husband. Respondent-Husband also filed his affidavit stating that he earns Rs.70,000/- per month from tractor trolley and construction equipments (JCB). Further, he owns land bearing khasra No.368 ad-measuring 0.573 hectare and Khasra No.482/1 ad-measuring 0.430 hectare situated at village Naryardand Tahsil Bagicha District-Jashpur (CG); land bearing Khasra No.191/5 ad-measuring 0.047 hectare, which is self-acquired property of husband situated in village Kansabel on which he constructed a house (2BHK) in an area of 1000 sq. ft.

With respect to tractor-trolley bearing registration No. CG14-E-2074 and JCB machine bearing registration number CG10-DA-3133, it is stated that the same have been purchased by availing finance facility from two different financial institutions i.e. Magma ITL Finance and HDB Finance Service Ltd. and he is paying monthly EMI of Rs.11,220/- and Rs.28,647/- respectively. This apart, husband is paying EMI of Rs.11,200/- per month as against home loan of Rs.13,10,000/- obtained from State Bank of India. As per affidavit, approximately Rs.8,00,000/- is to be paid to the wife as arrears of maintenance.

From the documents relating to income and liabilities filed by both the parties along with affidavits, it is apparent that husband owe liability of more than Rs.8,00,000/- towards the wife and children. Apart from monthly salary of Rs.70,000/-, the husband earns considerable amount as house rent. Accordingly, it is directed that respondent husband shall pay maintenance amount of Rs.20,000/- per month to appellant wife as permanent alimony amount. In respect of the arrears of maintenance amount, appellant wife would be entitled to recover the same by attachment of movable and immovable properties of respondent husband.

With such observation appeal stands disposed off.