Smt. Geeta Soni vs Omprakash Soni

Ghulam Minhajuddin, J.—This appeal has been filed u/s 19(1) of the Family Courts Act, 1984 against the judgment and decree dated 22.6.2011 passed by the II Additional Principal Judge, Family Court, Durg, in Civil MJC No. 37/09, whereby the application filed by the appellant u/s 18 of the Hindu Adoptions and Maintenance Act, 1956 for grant of maintenance @ Rs. 10,000/- p.m. from the respondent, has been rejected. The undisputed facts of the case are as follows:

That marriage between the parties was solemnized on 2.7.2002 as per Hindu rites and ceremonies at Raipur and out of their wedlock, a daughter named Ku. Jyoti was born on 31.3.2003. The appellant is residing separately at her parental home at Raipur since 9.3.2006. The appellant had lodged an FIR against the respondent and his family members, on the basis of which a criminal case was instituted against them for the offence punishable u/s 498A of the IPC and after trial, they have been acquitted of the said charge. The respondent had moved an application u/s 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights and the same has been rejected. The appellant had filed an application u/s 125 of Cr. P.C. for grant of maintenance for herself and her daughter Ku. Jyoti, which was allowed and maintenance @ Rs. 2000/- p.m. was granted in their favour, which, on revision being preferred by the respondent, was modified and set aside so far as grant of maintenance to the appellant/wife was concerned.

Case of the appellant/wife, as projected in the application u/s 18 of the Hindu Adoptions and Maintenance Act, 1956, are that just from the next day of marriage, the respondent and his family members started harassing and torturing her for bringing insufficient dowry. After 6-7 months of marriage, they asked her to bring Rs. 1.50 lacs from her parents and on her refusal, she was beaten by the respondent and driven out of the house. Therefore, the appellant went to her parental home at Raipur. Thereafter, the father and the brother of the appellant took her to Dhamdha, where a meeting of the society was convened, in which on assurance being given by the respondent and his family members that they will not torture the appellant in future, the appellant started residing at her matrimonial home.

However, after some time, again they started harassing and torturing the appellant. During this period, on 31.10.2003 the appellant delivered a female child named Ku. Jyoti. However, the respondent and his family members did not take care of the appellant and the newly born child, as a result of which physical condition of the appellant and the child started deteriorating. On being informed, the father of the appellant took the appellant and the child to Raipur and admitted them in hospital. Despite making all possible efforts by the appellant, her family members and the members of the society, the respondent and his family member''s continued to treat the appellant with cruelty and therefore, now it is not possible for the appellant to live with the respondent. The respondent is also not giving maintenance to the appellant, who has no source of income for her livelihood. The respondent is engaged in the business of gold & silver and he has agricultural land also, from which he earns Rs. 5 lacs per annum. Therefore, the appellant prayed for grant of maintenance @ Rs. 10,000/- p.m. from the respondent.

The respondent/husband, in his written statement, denying the averments made in the application u/s 18 of the Hindu Adoptions and Maintenance Act, 1956 (in short "the Act, 1956"), averred that the appellant is a stubborn, quarrelsome and short tempered woman, who often used to quarrel over trivial issues "with the respondent and his parents and used to avoid the household chores, Whenever the respondent and his parents used to advice her to behave properly, she used to threaten them to implicate in a false dowry case. She had left the matrimonial home of her own accord. Though the respondent and his family members tried to bring her back on number of occasions, but she herself does not want to live with the respondent. None of the family members of the appellant had ever come to drop the appellant at her matrimonial home. The respondent had never tortured the appellant in any way. The expenses incurred in delivery of the child were borne by the respondent himself. Neither any meeting of the society was held nor father of the appellant had ever come to settle the matter. The respondent is an innocent person, who is a labour by profession and his earning is Rs. 40-50 per day only. He used to take proper care of his wife (appellant) and daughter Ku. Jyoti. The appellant is an educated woman, she has studied upto Class-X and also does the work of sewing & weaving, for which she had obtained diploma also. The respondent is ready to keep the appellant, however, she herself does not want to live with him, therefore, the application u/s 18 of the Act, 1956 is liable to be rejected.

Learned Family Court after hearing the respective parties and on close scrutiny of the material available on record, by the impugned judgment and decree rejected the application of the appellant u/s 18 of the Act, 1956.

Heard learned counsel for the parties, perused the LCR as also the impugned judgment and decree.

Before proceeding further, it is necessary to quote the relevant provisions of Section 18 of the Act, 1956, which are as under:

Maintenance of wife.-(1) Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her life time. (2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance-

(a) if he is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wish, or willfully neglecting her;

(b) if he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband.

The moot question to be decided in this appeal is-whether for living separately from the respondent/husband, the appellant/wife has a just and reasonable cause?

The appellant/wife in support of her averments made in the application u/s 18 of the Act, 1956, has examined herself and her father Narayan Soni as PW-1 and PW-2 respectively. Whereas the respondent/husband in support of the averments made in his written statement has examined himself and his father Ganesh Ram Soni as DW-1 and DW-2 respectively. In addition to the oral evidence, the respondent/husband has filed documents Ex. D/1 and Ex. D/1C (photocopy), which is certified copy of the judgment dated 20.10.2009 passed by Family Court, Durg in the case instituted by him Hipr restitution of conjugal rights u/s 9 of the Hindu Marriage Act, 1955. As per statement of the appellant/wife, immediately after marriage, the respondent and his family members were harassing and torturing her for bringing insufficient dowry and had driven her out of the house, on account of which she had gone to her parental home at Raipur. She has further stated that after this, on the very next day, her father had brought her back to her in-laws'' house and had enquired about the ill-treatment, on which the respondent and his family members had given assurance that they will not repeat the same in future, whereupon she (appellant) resumed cohabitation with her husband (respondent). She has further stated that out of the wedlock, a daughter named Ku. Jyoti was born on 31.10.2003, after which the attitude of the respondent and his family members was indifferent and negligent towards her and her daughter and their medical treatment was got done by her (appellant) father. According to the appellant Geeta Soni (PW1), the expenses of her delivery were also borne by her father. After delivery, she had resided with her husband (respondent) for some time and thereafter, again she was harassed and tortured in connection with demand of dowry and was driven out of the house and therefore, she is residing separately at her parents'' house at Raipur since then.

Although appellant Geeta Soni (PW1) has stated that immediately after marriage, she was tortured and harassed by the respondent/husband and his family members in connection with demand of dowry, but her father Narayan Soni (PW2) has not stated even a single word in his statement about the demand of dowry by the respondent or his family members. As per statement of the appellant (PW1) and her father Narayan Soni (PW2), the appellant has no source of income for her livelihood and the expenses of the appellant as well as her daughter Ku. Jyoti, which is about Rs. 3,0007/- p.m. is being borne by Narayan Soni (PW2).

Respondent/husband Omprakash Soni (DW1) as well as his father Ganesh Ram Soni (DW2), have stated that the appellant is a woman of stubborn and adamant nature and is also short tempered. She used to quarrel with the respondent as well as with his family members on petty matters and on being advised/persuaded, she used to threaten them that she will implicate them in a false dowry case. Both of them have further stated that the appellant was never tortured or harassed by the respondent or any of his family members, and the appellant of her own accord had left the house of the respondent along with her child and is residing at her parents'' house at Raipur since 9.3.2006. All the attempts made by the respondent for bringing her back have failed.

In substance, the appellant/wife (PW-1) has stated that after marriage she resided with the respondent/husband at her in-laws'' house for about 6 months and after that the respondent and his family members started harassing and torturing her in connection with demand of dowry and number of times she had teten driven out of the house by them on account of which since 9.3.2006 she (appellant) is residing separately from the respondent at her parents'' house.

So far as harassing and torturing of the appellant by her husband/respondent and her in-laws in connection with demand of dowry is concerned, although her father Narayan Soni (PW-2) has stated that his son-in-law/respondent and his family members used to drive away the appellant from the house time and again, but he (PW-2) has not stated a single word in his statement that his daughter/appellant was driven out of the house by the respondent and his family members on account of non-fulfillment of their demand of dowry. Had the appellant been tortured and harassed on account of demand of dowry, then there was no reason for Narayan Soni (PW-2), father of the appellant, not to have stated about such a fact in his statement. As such, so far as torturing and harassing of the appellant by the respondent and his family members on account of demand of dowry is concerned, the statement of the appellant is not worthy of credence.

It is not in dispute that the appellant had lodged an FIR against the respondent and his family members in connection with an offence u/s 498A of the IPC at a police station at Raipur, on which after investigation charge sheet has been filed for the said offence against the respondent and his family members and a criminal case is pending against them. As per the respondent, he had tried a number of times for bringing his wife/appellant back to her matrimonial home, but failed. It is not in dispute that the respondent had moved an application u/s 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights before the Family Court, Raipur and the same was dismissed.

Appellant Smt. Geeta Soni (PW-1) as well as her father Narayan Soni (PW-2) have admitted that while dropping the appellant at her matrimonial home at Dhamdha, Narayan Soni (PW-2) had advised the respondent as well as his family members and also his daughter/appellant that her living at her matrimonial home will be in the interest of her married life.

It is not in dispute that the appellant/wife had moved an application u/s 125 of Cr. P.C. for grant of maintenance and allowing the same, Rs. 1000/ - per month each was granted to the appellant and her minor child. It is also not in dispute that a criminal revision bearing No. 13/07 against the said order was filed by the respondent before this Court and by order dated 10th August, 2009, the said revision was partly allowed and the maintenance order, so far as it relates to the appellant, was set aside on the ground that the appellant is residing separately from her husband/respondent without any justifiable cause. The order passed in the said revision was not challenged by the appellant/wife and the same has attained finality. After passing of the said order, the appellant filed an application u/s 18 of the Act, 1956 for grant of maintenance to her.

Learned counsel for the appellant has placed reliance on the judgment of the Gujarat High Court passed in the case of Aher Mensi Ramsi Vs. Aherani Bai Mini Jetha, and contended that the remedy available u/s 125 of Cr. P.C. and Section 18 of the Act, 1956 are co-existent and supplementary and it cannot be said that any order u/s 125 of Cr. P.C. can foreclose the right available to the wife u/s 18 of the Act, 1956.

From perusal of the provisions of Section 18 of the Act, 1956, it is clear that for claiming maintenance under the said provisions, the requirements of sub-section (2) of Section 18 of the Act, 1956 are to be fulfilled. It is not in dispute that the appellant''s paternal house is situated at Raipur and her in laws'' house is situated at Dhamdha, Distt. Durg. The appellant/wife has in para-5 of her statement admitted that she does not want to live with her husband/respondent. In the same para-5, she has also stated that even if the respondent is willing to reside with her at Raipur, then also she is not willing to reside with him. In view of this categorical statement made by the appellant, it is clear that she is not ready to reside with her husband/respondent under any conditions. The ground of torture and harassment by the respondent and his family members in connection with demand of dowry, on account of which, as per the appellant, she is residing at her parents'' house, has not been established on the basis of evidence adduced by the parties. As such, in view of the material available on record as well as the categorical statement of the appellant, it is found that the appellant since 9.3.2006 is residing separately from the respondent at her parents'' house without any just and reasonable cause and has thereby deserted the company of the respondent. This Court while partly allowing the criminal revision No. 13/07 filed by the respondent has also observed that the appellant/wife is residing separately from the respondent/ husband without any justifiable cause. This finding has also attained finality. Therefore, it cannot be said that the requirements of the provisions of subsection (2) of Section 18 of the Act, 1956 have been fulfilled by the appellant entitling her to grant of maintenance under the said provision.

On the basis of aforesaid discussions, we are of the opinion that the learned Family Court has not committed any illegality or irregularity in passing the impugned judgment rejecting the application of the appellant u/s 18 of the Act, 1956, the same deserves to be and is hereby affirmed.

In the result, the appeal fails and is, accordingly, dismissed. No order as to costs.