Sapna Gupta vs Amit Gupta

Sharad Kumar Sharma, J

There are few facts, which are not disputed amongst the parties. They are to the effect that the parties to the Second Appeal got married on 7th January, 2006, in accordance with the Hindu rites and rituals and subsequent to the marriage, the family shifted to United States to reside over there. As a consequence of the marriage and out of it, a son was born on 17.10.2009 and later on, the respondent husband got an engagement in Tata Consultancy Services in 2007 and, ultimately, in January, 2007, he has returned to India and after returning from USA, it is contended by the respondent/husband that all undue pressure was being created and exerted by the wife to have a separate living from the parents.

On account of certain matrimonial discord and misunderstanding, which has been narrated in the plaint, the respondent/husband contends that he was forced to initiate a proceeding for dissolution of marriage by filing Divorce Suit No. 619 of 2011, before the Principal Judge, Family Court Lucknow on 1st April, 2011, admittedly, the same was dismissed for want of prosecution, as per the provisions contained under Order 9 Rule 3 of the C.P.C.

"3. Where neither party appears, suit to be dismissed. - Where neither party appears when the suit is called on for hearing, the Court may make an order that the suit be dismissed."

The initial argument of the learned counsel for the appellant was that the present suit would be barred by the principle of res judicata on the ground that the earlier suit, the effect of which was already disclosed in para 28 of the plaint was dismissed for want of prosecution as the plaintiff was not able to appear due to illness of widowed mother.

This contention of the learned counsel for the appellant is not accepted by this Court because in view of the provisions contained under Order 9 Rule 4 of the CPC, which is to be read with the provision as contained under Order 9 Rule 2 of the C.P.C., the dismissal of a suit for want of prosecution, will not create a bar in institution of a subsequent suit for dissolution of marriage because that was not an adjudication made on merit and rather the provisions contained under Order 9 Rule 2 to be read with Order 9 Rule 4 of the C.P.C. leaves it open to the plaintiff that if the suit is dismissed for want of prosecution, he may either get the same restored or may institute a fresh suit. Order 9 Rule 2 and Order 9 Rule 4 reads as under :-

"2. Dismissal of suit where summons not served in consequence of plaintiffs failure to pay costs. - Where on the day so fixed it is found that the summons has not been served upon the defendant in consequence of the failure of the plaintiff to pay the court -fee of postal charges, if any, chargeable for such service, or failure to present copies of the plaint as required by Rule 9 of Order VII, the Court may make an order that the suit be dismissed :

Provided that no such order shall be made, if, notwithstanding such failure, the defendant attends in person or by agent when he is allowed to appear by agent on the day fixed for him to appear and answer."

"4. Plaintiff may bring fresh suit or Court may restore suit to file. - Where a suit is dismissed under Rule 2 or Rule 3, the plaintiff may (subject to the law of limitation) bring a fresh suit; or he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for [such failure as is referred to in Rule], or for his non-appearance, as the case may be, the Court shall make an order setting aside the dismissal and shall appoint a day for proceeding with the suit."

Consequently, on account of the ground, which has been narrated in the Petition filed under Section 13 (i-a) and 13 (i-b) of the Hindu Marriage Act, 1955, it was contended by the plaintiff/husband that though son was born on 17th October, 2009, but despite of the birth of the child, the attitude and aptitude of the wife to reside with him and to discharge her matrimonial obligation was not conducive for him and other family members and as a result of which, the necessity arose to file a petition for dissolution of marriage, which he has instituted on 23rd July, 2014, by filing the same before the regular Court, i.e. the Court of Civil Judge (Senior Division), Champawat seeking a relief for dissolution of marriage, which was solemnized between them on 17.01.2006 at Mahanagar, Lucknow.

The said suit was contested by the appellant by filing a written statement, being paper No.20-Kha/1 to 20 Kha/8 and an affidavit paper number 21 Ga2 and she has denied the plaint allegation pertaining to the ground of desertion and cruelty, which was pleaded by the plaintiff in the suit, in question. In the written statement, which she has filed on 4th February, 2015, in additional plea, she has submitted that the theory of desertion and the manner in which, it has been projected in the plaint, the allegation are untenable and they were not being proved by the plaintiff/husband, though the fact of the birth of child on 17.10.2009 was admitted by the defendant/appellant.

The Suit proceeded and, consequently on the suit on being registered as Suit No. 25 of 2014, Amit Gupta Vs. Smt. Sapna Sharda, the learned Trial Court after considering the rival contentions and the pleadings which has been raised by the parties, had framed the following issues for determination between the parties :

"(1) क्या विपक्षी द्वारा याची के साथ विवाह के पश्चात से कू्ररता का व्यवहार किया गया ? यदि हॉ तो प्रभाव ?

(2) क्या विपक्षी द्वारा प्रार्थना पत्र के उपस्थापन के पूर्व दो वर्ष तक प्रार्थी/याची को अभित्यक्त रखा है ? यदि हॉ तो प्रभाव ?

(3) क्या याची याचित अनुतोष प्राप्त करने का अधिकारी है ?"

The main issue for consideration for the purposes of invoking the provisions contained under Section 13 (i-a) and 13 (i-b) was as to whether the defendant/appellant had exercised any cruelty on the plaintiff/respondent or not and the second issue was pertaining to an act of desertion, which was pleaded by the plaintiff in the suit that he was deserted by the wife, without any justifiable reasons, w.e.f. July, 2010.

In support of their respective contentions, the parties to the suit produced with the oral testimony of PW1 himself as well as the voluminous documents pertaining to the altercations and even the affidavit, which has been exchanged between the parties, which according to the plaintiff goes to show that the matrimonial relationship was not so conducive which could have been permitted to be subsisted and consequently, he prayed that considering the evidence which has been brought on record by way of documents and oral testimony of the plaintiff, the matrimony between them, which was soleminised on 7th January, 2006, deserves to be dissolved. As it was contended in the plaint by the plaintiff/respondent that under the circumstances the marriage between the parties has completely broken down and there is no possibility of revival of the relationship, since there was denial by the defendant/appellant to give divorce. The plaintiff filed the present Suit for dissolution of marriage dated 17.01.2006.

On the contrary, the defendant/appellant, herein, in support of his contention, has produced the oral testimony of DW1 and also the documentary evidence by way of paper No. 65-kha to 65 kha/5, and she has also produced the statement of DW2 and an affidavit in examination in chief.

Considering the evidence brought on record by the parties and the cross examination of the witnesses to the proceedings, which was conducted by the Trial Court, the Trial Court while considering the issue No. 1 pertaining to the cruelty, had recorded a finding that in the written argument, which has been submitted by the defendant/wife, she has admitted that out of the matrimony, a son was born and ever since 2011, she is residing in her parents home. Meaning thereby, there was no subsisting matrimonial relationship at all till the Suit was filed on 23.07.2014.

Apart from the said admission, she has also submitted that the aptitude of the husband was not conducive, which could have resulted into continuance of the matrimonial relationship and in regard thereto, the statement of DW2, Subhash Sharda comes into consideration, where he himself in his statement has recorded that there have never been any demand of dowry to him, which has been raised by the respondent/husband.

He further in his statement, had submitted that he has got no direct proof or evidence on record to the effect that there have been any modalities on record, which has been adopted by the respondent husband or his family members raising any nature of demand of dowry.

However, while considering the issue No. 2 pertaining to the desertion, the learned Trial Court has recorded a finding that in view of the statement recorded by the defendant, she has submitted that ever since 6th July, 2011, she is residing with the parents, because of the atrocities, which was being exercised by the husband and on account of the fear of being mal-treatment by the husband and his family members, she admits that she has left the matrimonial home and has resided with her parents.

She contended in her statement recorded that when on 9th December, 2014, the sister of the defendant/husband had died, she visited the husband's home and thereafter, she went back to her parents home on 14th December, 2014, and, thereafter, she had never returned back to the matrimonial home.

After considering the contention and evidence on record, the learned Trial Court by the judgment and decree dated 11th October, 2017, had decreed the suit and dissolved the marriage dated 17th January, 2006. The said judgment and decree was put to challenge in an Appeal by the defendant/appellant, herein, which was registered as Civil Appeal No. 9 of 2017, Smt. Sapna Gupta Vs. Amit Gupta and the Appellate Court too after scrutinizing the findings which has been recorded by the learned Trial Court on the issue framed, had considered the implication of desertion, which was an admitted fact on part of defendant/appellant, has recorded in para 10 of the said judgment to the effect that ever since 6th July, 2011, she has left the matrimonial home and has started residing with her family members, thus has voluntarily deserted her husband and, thereafter, also by her conduct there has been no attempt made by her to revive the matrimonial relationship.

The Appellate Court too holding that when the wife has voluntarily deserted her husband, hence, while in view of the implications of the ratio as propounded by the Hon'ble Apex Court in a judgment, as considered by the Appellate Court as reported in AIR 1994 SC 710, B. Bhagat Vs. D. Bhagat, the Hon'ble Apex Court has held that on scrutiny of the circumstances, which has been pleaded by the parties to the proceedings, who are in dispute under Section 13 of the Hindu Marriage Act, if the Court comes to the conclusion that the factum of cruelty and desertion stands established beyond doubt and is in league with the evidence, which has been adduced by the parities, which would be in the wider interest of the parties to the suit itself that the matrimony between them should be brought to an end and be dissolved, instead of forcing the parties for directing the parties to live together and discharge the matrimonial obligation unwillingly.

After the culmination of the argument of the present Second Appeal, the learned counsel for the appellant, apart from the questioning the veracity of the judgment, had submitted that the ratio, on which, reliance has been placed by the Appellate Court pertaining to the circumstances for dissolving the marriage, which is prevailing between the relationship of husband and wife in the instant case and considering the circumstances, it is not practically possible under the compelling circumstances to carry on the matrimonial relationship, it was incumbent on the Courts below that they should have considered the impact of Section 25 of the Hindu Marriage Act for the grant of permanent alimony, because the Court ought to have taken into consideration that the wife thereafter has to take care of herself and her son, the birth of which, stands admitted by the respondent and in order to bring up the child, she needs to have a financial assistance and viability sufficient enough to sustain herself and her son in the life.

Consequently, the Court is also of the view that though this discrepancy might have crept in in the judgment rendered by the both the Courts below while affirming the finding of cruelty and desertion at the hands of defendant/appellant, but considering the language, which has been used under Section 25 of the Hindu Marriage Act, which is quoted hereunder :-

"25. 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), it may at the instance of either party, vary, modify or rescind any such order in such manner as the court may deem just.

(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 intercourse 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]."

The Court may at any stage of the proceedings, which will include in itself the stage of Second Appeal also when the issue of dissolution of marriage is under consideration that when the Court comes to a conclusion, that the accusation levelled across the parties in the pleading, when the situation germinates, if it is not possible for them to sustain the relationship, then it is the duty contemplated under Section 25, which is casted upon the Court to consider the circumstances and to settle the controversy by imposing a permanent alimony, while exercising its powers under Section 25 of the Act. The Legislature while incorporating Section 25 has also laid down the precaution, which has to be taken to the effect that while the Court is considering the implication imposed by Section 25 of the Act that in order to permanently severe the relationship of husband and wife, the Court will have to take into consideration the financial capacity of the husband, the source of income accruing to him or her and also viz-a-viz the liability, which the wife has to undertake as a consequence of the severement of the relationship in pursuance to the grant of a decree of divorce.

Hence, considering the language of the provision contained under Section 25 of the Hindu Marriage Act, since admittedly, in the case at hand, there is not even a single iota of evidence, which has been brought on record by the husband to show that the wife was having any independent source of earning, in such an eventuality, when the fact of the husband being a software engineer and having rendered his services in USA and thereafter, had settled in India since 2007, he would be having a sufficient paying capacity to meet the obligations contemplated by Section 25 of the Hindu Marriage Act.

Considering the qualification and the nature of appointment of the respondent husband and also considering the difficulty, which is being faced by the appellant/wife in up-keeping herself in this inflated era, where price index is consistently on rise, this Court is of the view that if the husband is directed to pay a sum of Rs.25 lacs by way of permanent alimony as provided under Section 25 of the Act, within a period of two months from the date of passing of this judgment, the matrimony between them, which was held on 17th January, 2006, would be treated to be dissolved. In addition to the levying or quantifying of the above money as determined by this Court to be payable to the appellant wife, the respondent husband though has recorded her objection that it is on a higher side and it should be reasonably reduced so as to enable the husband to pay the amount, particularly considering his own financial condition. This objection taken pertaining to the quantification of the alimony as determined by this Court, this Court is of the view that considering the circumstances and source of income, which the husband is having and also considering the age of the appellant and the liability, which she is fastened with, which she has to accrue as a consequence of dissolution of marriage, this Court is of the view that the amount as determined/ payable under Section 25 of the Hindu Marriage Act by the plaintiff/respondent quantifying it to be Rs.25 lacs as to be paid by the respondent to the appellant wife is absolutely just and appropriate amount under the circumstances, which are prevailing in the instant case.

The determination of the amount of a sum of Rs.25 lacs is also being sought to be opposed by the respondent/husband on the ground that he has already been remitting a sum of Rs.22,000/- p.m. to the wife in compliance of the order passed under Section 125 of the Cr.P.C.. Remittance of an amount under Section 125 Cr.P.C. can never be a ground or foundation for the purpose of determining the alimony under Section 25 of the Hindu Marriage Act as both the provisions are independent to one another having altogether a different nature and implications, apart from the factors, which is to be considered, which is to be levied on the husband by the orders of Court. Hence, this objection too that the husband has remitted a sum of Rs. 22,000/- pm. In the proceedings under Section 125 of the Cr.P.C. will have no bearing for the purposes of the determination of alimony under Section 25 of the Hindu Marriage Act.

In view of the above finding, which has been assigned in the judgment, the marriage of 17th January, 2006, between the plaintiff/respondent and defendant/appellant would be deemed to be dissolved subject to the remittance of a sum of Rs.25 lacs by the husband/respondent to the appellant/wife within a period of two months from today.

Subject to above exceptions, the Second Appeal is dismissed.

However, there would be no order as to costs.