ROOPA DEVI vs SHISIR KUMAR

The appellant is the petitioner in O.P.No.1136 of 2012 on the file of the Additional Family Court, Hyderabad. The respondent is her husband. Their marriage was performed as per the tradition prevailing in the Marwadi community on 24.02.2000. The marriage was consummated and they had a son in the year 2005.

The petitioner filed the abovementioned O.P. for dissolution of marriage on the ground that she has been subjected to cruel treatment by the respondent and his family members and was ultimately driven out of the matrimonial home in October, 2010, and that ever since, she is living separately along with the minor child. In addition to the dissolution of marriage, the petitioner also sought for the relief of permanent alimony of Rs.50 lakhs and also return of the jahez articles and net cash given at the time of marriage. The list is appended to the schedule of dowry articles consists of the following items:- 1) An amount of Rs.8,00,000/- given in a brief case.

2) Silver articles weighing 500 gm (approximately) i.e., a bowl containing dry fruits.

One silver plate and silver coconut of Rs.1,00,000/- towards harabara (Fruits, Dry Fruits, Nasta, Sweet etc.,) which included 100 plate, 100 spoon, 100 catories and 100 glasses all of stainless steel.

200 silver coins (Old Charminar Coins) towards milaye of male members i.e., 50 people @ 4 coins each and one Gold Coin of 8 grams and Rs.51,000/- towards milaye of female members.

An amount of Rs.1,50,000/- towards furniture of respondent''s room and an amount of Rs.1,50,000/- towards clothes.

200 Grams of gold towards "Til" for the female members of the respondent side and also one Gold Diamond Ring of 8 gram to respondent, one Gold Bracelet of 3 tolas to the respondent, one gold chain with diamond locket weighing 25 grams to the respondent, cash of Rs.1,00,000/- to the father of the respondent, cash of Rs.20,000/- to the respondent.

A new Maruti Zen Car bearing No.AP 12 C 2580 purchased in the name of the petitioner to the respondent.

200 silver coins (old Charminar coins) towards Milaye for male members i.e., @ 4 coins for 50 members.

Television, Fridge, A.C., Audio Deck, Household articles, bed sheets, decorative pieces, 51 numbers of fancy sarees, 51 numbers other sarees, and one Diamond Set with Bangles worth Rs.5,00,000/-, one Rube set with Bangles worth Rs.3,00,000/-, one emerald with full set with bangles worth Rs.2,00,000/-.

One gold chain with big locket containing ruby to the petitioner, Silver plates (6), silver catories (6), silver glasses (6), Silver spoons (6), approximately weighing 6 Kgs., one silver box Pandan, one silver key chain, one pair Toe rings, 6 pairs of chain patties, total silver articles weighing about 6 Kgs.

Apart from small household articles Rs.20,000/- towards first night gift apart from performing the marriage of the petitioner and the respondent on grand scale at Paigah Palace, Begumpet by spending huge amount for the gathering of about 1000 people, thus the parents of the petitioner have spent about Rs.40,00,000/- for the marriage of the petitioner and the respondent in the form of gold and silver gifts, clothes, furniture, and other items apart from meeting the marriage expenses.

116.64 grams gold biscuit, one gold chain for the respondent, milaye for male and female members and 5 gold "Til" items of about 10 gms.

2 Nos. Diamond Kangans worth Rs.6,00,000/- one gold chain for the respondent about 15 grams, apart from gold ornaments for the child weighing about 30 grams, silver articles of about 400 gms., Rs.51,000/- towards "milaye" for the ladies on the side of the respondent, about 40 silver coins towards "Milaye".

In support of her case, the petitioner examined herself as PW.1, examined her father as PW.2 and produced Exs.P.1 to P.27. The affidavit in lieu of chiefexamination of the husband as RW.1 was filed but the right of the petitioner to cross-examine the respondent was forfeited. Challenging that order, it appears that the petitioner filed C.R.P.No.945 of 2016 and it is stated that even before the C.R.P. could be heard by the High Court, the trial Judge has disposed of the O.P.

During the pendency of the O.P, in view of certain developments, the petitioner filed an Interlocutory Application on 20.01.2014 under Order XXIII Rule 1 C.P.C. seeking the permission of the Court to withdraw the relief of divorce which she had originally sought for. Not only filing an application seeking leave of the Court to withdraw the relief of divorce, even in her evidence as PW.1, recorded on 10.06.2015, the petitioner specifically deposed that she does not want her marriage to be dissolved. As a matter of fact, even before the petitioner filed the present O.P., for the reliefs stated above, the respondent filed O.P.No.438 of 2011 for restitution of conjugal rights. It is not known as to what happened to that O.P.

The learned trial Judge, by the impugned Judgment dated 29.02.2016, had decreed the petition for dissolution of marriage, which relief the petitioner retracted upon, and dismissed the relief of return of jahez articles and permanent alimony which the petitioner prayed for.

Aggrieved by the said Judgment and Decree, the appellant preferred the present appeal wherein the first ground of attack is with regard to the trial Court granting the decree of divorce even though she has not pressed her claim to that extent. However, during the course of hearing of the appeal, learned Counsel appearing for the appellant submitted that the said ground is not being insisted and that she is reconciled to the fact that in view of the conduct of the respondent, she cannot lead matrimonial life with the respondent and therefore she does not intend to challenge the decree insofar as granting the decree of divorce, as originally sought for by the appellant/petitioner. As a matter of fact, during the course of hearing, the appellant along with her father was present and they categorically stated that they do not intend to press the appeal insofar as it questioned the decree of divorce.

It is contended by the learned counsel for the appellant/petitioner that the learned trial Judge refused to grant the relief of permanent alimony, which the Court was bound to consider, more particularly, when it was granting the relief of dissolution of marriage. It is further contended that even though the petitioner sought for a sum of Rs.50 lakhs, nothing has been awarded to her either by way of maintenance or permanent alimony.

The other relief of the petitioner in the O.P, contended by the learned counsel, is for return of jahez articles, which are valued at about Rs.40 lakhs. That even though voluminous documentary evidence has been produced by the petitioner, comprising photographs and C.Ds, the Court below on flimsy grounds rejected the evidence and held that the petitioner has failed to prove the giving of the said articles by her parents either before at the time or subsequent to the marriage, more so when it is not denied by the respondent that since they belong to a traditional marwadi family, there will be several items which will be given and taken at the time of ring ceremony, marriage, nuptials, birth of a child etc. He has further contended that the learned trial Judge has refused to consider the evidence in proper perspective and rejected the same on irrelevant grounds and did not grant the said relief.

The admitted fact is that the marriage of the parties was performed in February, 2000 and the child Sudhansh was born on 06.04.2005. It is not denied that due to some medical reasons and health of the respondent, the petitioner could not conceive in normal course and therefore the couple had to resort to the procedure of IUI and under the supervision of an infertility centre, the child was conceived and successfully delivered. There are of course galore of allegations from the side of the petitioner that the respondent, due to his addiction to drugs and high consumption of alcohol has become incapable of procreating children since his sperm count has become minimal. Several acts of omission and commission are attributed to the respondent and his people which would come within the ambit of treating the wife with cruelty entitling her to claim the relief of divorce.

The petitioner, in addition to the present petition, has also filed M.C.No.29 of 2014 under Section 125 Cr.P.C. for grant of maintenance to her and the child. The same Court has disposed of the said M.C., on the same date, on which it dismissed the O.P filed by the petitioner, i.e., on 29.02.2016, by granting a sum of Rs.60,000/- per annum towards school fee of the minor child and Rs.2,000/- per month towards maintenance. The claim of the petitioner is that the respondent belongs to a wealthy and affluent business family, that the respondent and his family are running various businesses such as two shops under the name and style of Tarun Furniture, Amar Enterprises and Amar Furniture, Bhavani Steels, Siddhanth Furniture, Gopathi Furniture and they have big godowns for storing the furnitures, big industrial shed at Katedan, two four storied houses at Ghansi Bazar having a lift, four storied building at Moosabowli and also a commercial complex at Abids. The respondent on his part did not deny the above aspect but instead contended that in view of several cases filed by the petitioner including a case under Section 498-A IPC., a case under the Domestic Violence Act, maintenance case and the present O.P., he could not concentrate on his business and he had to spend huge amount for engaging Advocates and consequently, he had to start his own business under the name and style of Bhavani Steels after getting separated from his father. It may also be stated here that even though the trial Court has granted the decree of divorce, the respondent did not prefer any appeal.

In view of the above, we need to consider the two other reliefs sought for by the appellant/petitioner viz., the grant of permanent alimony of Rs.50 lakhs and return of jahez articles as mentioned in the O.P filed by her and her evidence, which the learned trial Judge had rejected.

Insofar as the grant of permanent alimony is concerned, there is no hard and fast rule for determining the quantum but the Courts are required to bear in mind the social status of both the parties, their financial capacities and the future life of the wife after separation from her husband. In the instant case, the parties belong to Marwadi community and it is on record that both the families are in business while the father of the appellant/petitioner is having Jewellery Shops in the name and style of Saibaba Jewellers and GVR Jewellers at Chirag Ali Lane, Abids, Hyderabad, the family of the respondent is having several business establishments which are mentioned in the preceding paragraph. The marriage between the parties was performed in the year 2000 and in the year 2005 the son was born who is at present in the custody of the appellant and studying in Howard Public School. From 2010, the parties are living separately. Both of them are aged less than 40 years.

In VINNY PARMVIR PARMAR v. PARMVIR PARMAR, 2011 AIR(SC) 2748 it is laid down as under in para 12:- "As per Section 25, while considering the claim for permanent alimony and maintenance of either spouse, the respondent''s own income and other property, and the income and other property of the applicant are all relevant material in addition to the conduct of the parties and other circumstances of the case. It is further seen that the Court considering such claim has to consider all the above relevant materials and determine the amount which is to be just for living standard. No fixed formula can be laid for fixing the amount of maintenance. It has to be in the nature of things which depend on various facts and circumstances of each case. The Court has to consider the status of the parties, their respective needs, the capacity of the husband to pay, having regard to reasonable expenses for his own maintenance and others whom he is obliged to maintain under the law and statute. The Courts also have to take note of the fact that the amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and mode of live she was used to live when she lived with her husband. At the same time, the amount so fixed cannot be excessive or affect the living condition of the other party. These are all the broad principles Courts have to be kept in mind while determining maintenance or permanent alimony."

In U.SREE v. U.SRINIVAS, 2013 AIR(SC) 415 while fixing the permanent alimony at Rs.50 lakhs, the Supreme Court observed as under in paras 33 and 34:- "We have reproduced the aforesaid orders to highlight that the husband had agreed to buy a flat at Hyderabad. However, when the matter was listed thereafter, there was disagreement with regard to the locality of the flat arranged by the husband and, therefore, the matter was heard on merits. We have already opined that the husband has made out a case for divorce by proving mental cruelty. As a decree is passed, the wife is entitled to permanent alimony for her sustenance. Be it stated, while granting permanent alimony, no arithmetic formula can be adopted as there cannot be mathematical exactitude. It shall depend upon the status of the parties, their respective social needs, the financial capacity of the husband and other obligations. In Vinny Parmir Parmar v. Parmvir Parmar, 2011 AIR(SC) 2748 while dealing with the concept of permanent alimony, this Court has observed that while granting permanent alimony, the Court is required to take note of the fact that the amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with her husband. At the same time, the amount so fixed cannot be excessive or affect the living condition of the other party. Keeping in mind the aforesaid broad principles, we may proceed to address the issue. The respondent himself has asserted that he has earned name and fame in the world of music and has been performing concerts in various parts of India and abroad. He had agreed to buy a flat in Hyderabad though it did not materialize because of the demand of the wife to have a flat in different locality where the price of the flat is extremely high. Be that as it may, it is the duty of the Court to see that the wife lives with dignity and comfort and not in penury. The living need not be luxurious but simultaneously she should not be left to live in discomfort. The Court has to act with pragmatic sensibility to such an issue so that the wife does not meet any kind of man-made misfortune. Regard being had to the status of the husband, the social strata to which the parties belong and further taking note of the orders of this Court on earlier occasions, we think it appropriate to fix the permanent alimony at Rs.50 lakhs which shall be deposited before the learned Family Judge within a period of four months out of which Rs.20 lakhs shall be kept in a fixed deposit in the name of the son in a nationalized bank which would be utilized for his benefit. The deposit shall be made in such a manner so that the respondent wife would be in a position to draw maximum quarterly interest. We may want to clarify that any amount deposited earlier shall stand excluded."

Bearing in mind the above referred authoritative pronouncements and applying the same to the facts of the present case, we feel that Rs.50 lakhs is just and reasonable amount which can be determined towards permanent alimony to the appellant as claimed by her.

The next aspect of the matter is about the return of jahez articles, the details of which have been mentioned in para 2 supra. It is not in dispute and as a matter of fact, it is admitted that there is a custom of giving and taking of valuables at the time of marriages in the community. The appellant has specifically averred about the items which were given before, at the time and subsequent to the marriage. In the O.P filed by her, the appellant/petitioner averred in para III (1) and (2) as under:- "III. The petitioner submits as under:- 1. It is submitted that the marriage of the petitioner was performed with respondent on 24.02.2000 as per the Hindu customs of marriage. The said marriage was arranged. It is submitted that the parents of the petitioner on the demand of the parents, brothers and sisters-in-law of the petitioner have given a Diamond Ring during the engagement function/ring ceremony held at Residency Hotel at Nampally apart from bearing the expenses of the Hotel including food for about 60 people, the petitioner''s parents have also given an amount of Rs.8,00,000/- in a brief case, silver articles weighing 500 gm (approximately) i.e., a bowl containing dry fruits and one silver plate and silver coconut and Rs.1,00,000/- towards harabara (Fruits, Dry Fruits, Nasta, Sweet etc.) which include 100 plate, 100 spoon, 100 catories and 100 glasses all of stainless steel and 200 silver coins (old Charminar coins) towards milaye of male members i.e., 50 people @ 4 coins each and one Gold Coin of 8 grams and Rs.51,000/- towards milaye of female members as per the demands of the respondent and his parents, brothers and sisters-in-law.

It is submitted that the parents of the petitioner after engagement as per the demands of the respondent and his parents, brothers and sisters-inlaw have paid an amount of Rs.1,50,000/- towards furniture of respondent''s room and an amount of Rs.1,50,000/- towards clothes and have given 200 grams Gold towards "Til" for the female members of the respondent side and also given one Gold Diamond Ring of 8 grams to respondent, one gold bracelet of 3 tolas to the respondent, one gold chain with diamond locket of weighing 25 grams to the respondent, cash of Rs.1,00,000/- to the father of the respondent, cash of Rs.20,000/- to the respondent and a new Maruthi Zen Car bearing No.AP12C 2580 purchased in the name of the petitioner to the respondent, and gave 200 silver coins (old Charminar coins) towards Milayee for male members i.e., @ 4 coins for 50 members, apart from the above articles the parents of the petitioner gave one TV., Fridge, A.C., Audio deck, Household articles, bed sheets, decorative pieces, 51 numbers of fancy sarees, 51 numbers other sarees, also gave one Diamond Set with Bangles worth Rs.5,00,000/-, one Rube set with Bangles worth Rs.3,00,000/-, one emerald with full set with bangles worth Rs.2,00,000/-, one gold chain with big locket containing ruby to the petitioner, silver plates (6) silver catories (6), silver glasses (6), silver spoons (6), approximately weighing 6 kgs., one silver box pandan, one silver key chain, one pair of Toe rings, 6 pairs of chain patties, total silver articles weighing about 6 kgs., apart from small household articles and also gave Rs.20,000/- towards first night gift apart from performing the marriage of the petitioner and the respondent on grand scale at Paigah Palace, Begumpet, by spending huge amount for the gathering of about 1000 people, thus the parents of the petitioner have spent about Rs.40,00,000/- for the marriage of the petitioner and the respondent in the form of gold and silver gifts, clothes, furniture, and other items apart from the marriage expenses as narrated above on the demand of the petitioner, his father, two brothers, and two sisters-in-law."

The above aspects are reiterated by the appellant who examined herself as PW.1 and also by her father who is examined as PW.2. Nothing significant is elicited from them for disbelieving their evidence. As a matter of fact, the documentary evidence that is produced by the appellant clearly establishes her claim. Ex.P.11 is the bunch of ''11'' photographs and Ex.P.20 is the CD of the marriage. A perusal of these documents leaves no room for doubt that the articles as mentioned by the petitioner/appellant and in her evidence were given at the time of marriage to the respondent and his family.

On the other hand, the respondent in his counter in paras 5, 6, 7, 8 and 9 stated as under:- "In reply to para No.III (1) of the petition, it is true that the marriage of the petitioner was performed with the respondent on 24.02.2000 as per Hindu customs of marriage and that it was an arranged marriage. It is false that parents of the petitioner on the demand of "parents, brothers and sister-in-law of the petitioner" have given a diamond ring during the engagement function or ring ceremony held at Residency Hotel at Nampally apart from bearing the expenses of the hotel including food for about 60 people. It is equally false that the petitioner''s parents gave Rs.8,00,000/- in a brief case, silver articles weighing 500 grams approximately i.e., a bowl containing dry fruits and one silver plate and silver coconut and Rs.1,00,000/- towards alleged hara bhara including 100 plates, 100 spoons, 100 catories, 100 glasses of stainless steel and 200 old Charminar silver coins towards milaye of male members and one gold coin of 3 gram and Rs.51,000/- towards milaye of female members as per alleged demands of the respondent and his parents, brothers and sisters-in-law. The respondent denies that the parents of the petitioner had any financial capacity to spend such huge amount at all and therefore the question of spending such huge amount by them does not arise. So far as the financial capacity of the parents of the petitioner is concerned, the same can be proved by way of filing their income tax returns and also the proof of arrangement of such huge amount of funds in cash, which is also against the rules of Income Tax Department. In reply to para No.2 of the petition, all the contents thereof are prima facie false, incorrect and far away from truth, except performance of a few customs during the course of marriage. Even as per the contents of the para under reply, gold chain with big locket with ruby was given to the petitioner and marriage expenses were incurred on the demand of the petitioner. The same rule of financial capacity of the parents of the petitioner as stated in the earlier para is applicable for contents in the present para also and they are put to strict proof of the same. In reply to para No.3 of the petition, the contents therein are all false, baseless and far away from truth. The respondent is neither alcoholic nor drug edict nor admitted in hospital for alleged reasons nor he was admitted in the said hospitals nor his organs are spoiled to such an extent that he is unable to lead happy married life and that he does not have sufficient sperm count to procure children. So far as the alleged demand and extraction of huge amount of alleged dowry to an extent of Rs.40,00,000/- is concerned, the petitioner is put to strict proof of the same and particularly by producing the income tax returns of her parents."

It is pertinent to mention here that the respondent did not specifically deny the demand and extraction dowry of Rs.40 lakhs, but merely stated that the appellant/petitioner is put to strict proof of the same which she has to prove by producing the income-tax returns of the her parents. Such a denial of the material fact that a sum of Rs.40 lakhs was paid by way of dowry in the above words cannot be taken as sufficient for holding that the appellant has to prove the said aspect.

Learned Counsel appearing for the petitioner/appellant has relied upon the certain authorities in support of his contention that in the absence of specific denial about the fact pleaded by the petitioner that substantial dowry, both in terms of cash and kind were given to the respondent at the time of marriage, the same shall be deemed to have been admitted by the respondent.

A four Judge Bench of the Supreme Court in the decision report in JAHURI SAH AND OTHERS v. DWARIKA PRASAD JHUNJHUNWALA AND OTHERS, 1967 AIR(SC) 109 in para 10 held that Order VII Rule 5 C.P.C. provides that every allegation of fact in the plaint, if not denied specifically or by necessary implication or stated to be not admitted in the pleading of the defendant shall be taken to be admitted. To say that the defendant has no knowledge of a fact pleaded by the plaintiff is not tantamount to a denial of the existence of that fact, not even an implied denial.

A feeble attempt is made by the respondent to say that several of the items which are mentioned in the schedule were taken away by the appellant when she left the house. It may be recalled that the specific case of the appellant is that due to merciless beating by the father of her husband in the year 2007, the appellant fell down from the staircase and developed a slip disk problem, that the respondent and his family members, after that incident never got the petitioner treated and have unceremoniously sent her to her parents'' house to get her treated, that her parents got her treated both in Hyderabad and Chennai, that whenever the appellant was slightly unhealthy, she was being dropped at her parents'' house for treatment, that the respondent and his family members were not prepared to accept the petitioner unless the parents of the petitioner met the illegal demand for additional dowry of Rs.20 lakhs, and that on 15.10.2010 during Dusserah festival, she was dropped at her parents'' house with wearing apparels for treatment of the of the slip disk problem and she was not allowed to take anything from the house, and that thereafter, the respondent and his family refused to take back the petitioner unless their illegal demand is met. This contention of the petitioner that on 15.10.2010 she was dropped at her parents'' house only with wearing apparels, is not denied by the respondent in the counter but what is all that is mentioned in para 15 thereof is that in fact it is the petitioner who withdrew her company from the respondent and refused to come and join the respondent inspite of his repeated requests and pleadings which forced him to file a petition for restitution of conjugal rights. Therefore, that material allegation remained uncontroverted. Since the petitioner left the house, in the manner in which she stated, it cannot be believed that she took away all her jewellery at that time when she finally went away from the house of her husband.

Section 27 of the Hindu Marriage Act provides that "In any proceeding under this Act, the Court may make such provisions in the decree as it deems just and proper with respect to any property presented, at or about the time of marriage, which, may belong jointly to both the husband and the wife."

In BALKRISHNA RAMACHANDRA KADAM v. SANGEETA BALAKRISHNA KADAM, 1997 AIR(SC) 3562 in paras 10 and 13 the Supreme Court held as under:- "On a plain reading of the Section, it becomes obvious that the Matrimonial Court trying any proceedings under the Hindu Marriage Act, 1955 has the jurisdiction to make such a provision in the decree as it deems just and proper with respect to any property presented "at or about the time of marriage" which may belong jointly to both the husband and the wife. This Section provides an alternative remedy to the wife so that she can recover the property which is covered by the Section, by including it in the decree in the matrimonial proceedings, without having to take recourse to the filing of a separate Civil Suit and avoid for the litigation. ........ Moreover, the property, as contemplated by Section 27 is not the property which is given to the wife at the time of marriage only. It includes the property given to the parties before or after marriage also, so long as it is relatable to the marriage. The expression "at or about the time of marriage" has to be properly construed to include such property which is given at the time of marriage as also the property given before or after marriage to the parties to become their "joint property", implying thereby that the property can be traced to have connection with the marriage. All such property is covered by Section 27 of the Act."

In the instant case, it is admitted that in Marwadi community to which the parties belong, there is custom of giving and taking of valuables at the time of marriage. Therefore, the properties given in connection with the marriage either at the time of marriage, before marriage or after the marriage fall within the purview of Section 27 of the Act and they can be dealt with by the court accordingly. Even the ornaments and wearing apparels of the wife can be dealt with there under.

Considering the evidence on record and the above authoritative pronouncement in Balakrishna Ramachandra Kadam''s case (4 supra), we have no hesitation in holding that the petitioner has proved by cogent evidence, more particularly, the photographs and C.D. that the items mentioned in the schedule were given to the respondent or his people at the time of the marriage. She is therefore entitled to return of the same and the Court below has erroneously rejected the said relief.

In view of the foregoing discussion, the appeal is allowed to the extent of return of the jahez articles as mentioned in the O.P filed by the petitioner and the schedule appended thereto and granting of permanent alimony of Rs.50 lakhs (Rupees fifty lakhs only) to the appellant. The decree insofar as it dissolves the marriage in between the petitioner and the respondent performed on 24.02.2000 is concerned, the same is hereby confirmed.

In the result, the appeal is partly allowed. The Judgment and decree dated 29.02.2016 in O.P.No.1136 of 2012 on the file of the Additional Family Court, Hyderabad, is set aside to the extent of grant of permanent alimony and return of jahez articles. The respondent is directed to return the jahez articles as mentioned in the petition and the schedule appended thereto the appellant within two months from today. The respondent is further directed to pay a sum of Rs.50 lakhs (Rupees fifty lakhs only) to the appellant by way of permanent alimony within two months from today, in full and final settlement of all the future claims of the appellant. Out of the said amount, a sum of Rs.20 lakhs (Rupees twenty lakhs only) shall be kept in fixed deposit in the name of the minor son Sudhansh in any nationalized bank for a period of ten years with the condition that it should not be prematurely withdrawn, but, however, permitting the appellant to withdraw the interest accrued thereon quarterly and utilize the same for the benefit of the son. Pending miscellaneous applications, if any, shall stand closed in consequence.