AI Structured Summary
Not yet generated for this judgment
Judgment
I. P. MUKERJI, J.
In 2008, a suit under Section 13 of the Hindu Marriage Act, 1955 was instituted by the appellant/husband against his wife, the respondent in the Court
of the learned District Judge, Hooghly. Here, he made very serious charges of adultery and desertion, against her. He said that they were married on
19th May, 1995 according to Hindu rites and custom. The marriage was short lived. It lasted a little over one year. On 2nd July, 1996, a male child
Souvik, was born to them. On 31st July, 2006 the wife left the matrimonial home along with Souvik. The husband alleged that while he and his wife
lived together, his junior colleague started visiting his house. The respondent developed intimacy with him. She left the matrimonial home to live with
him.
Prior to this suit, the appellant instituted a suit asking for restitution of conjugal rights. This suit was filed before the Additional District Judge, 1st, Fast
Track Court, Hooghly. The wife did not contest it. On 18th October, 2006 the appellant obtained a decree in his favour. The respondent never
returned to him. The present suit by the husband for dissolution of marriage by a decree of divorce was also not contested by the respondent wife.
The appellant gave evidence and on that basis the learned judge of the court below held that he had been able to prove his case of adultery and
desertion.
On 16th January, 2009 an ex parte decree was made. She made an application under Section 125 of the Criminal Procedure Code claiming
maintenance for herself and the son. The son got a maintenance order but his mother did not. We are not concerned with that application. In 2012, she
made an application to the learned District Judge, Hooghly, under Section 25 of the Hindu Marriage Act, 1955 claiming permanent alimony for herself
and her son. In this proceeding her claim for maintenance was very seriously opposed by the appellant’s counsel. He argued that in the
matrimonial proceedings it had been established that the respondent had been living in adultery. Even after dissolution of the marriage she was living in
that way, with her husband’s colleague. For this reason her alimony pendente lite application, under Section 24 of the said Act was rejected, he
aruged.
However, learned Counsel was not able to draw the learned judge’s attention to all the parts of Section 25 of the said Act. Neither could he cite
any relevant authority before that Court. The learned District Judge, Hooghly, allowed the Section 25 application on 15th January, 2015 directing the
appellant to pay a lumpsum of Rs.14,00,000 as permanent alimony to the respondent and maintenance amount for the son. The husband appeals to this
Court.
A number of authorities has been cited before us. Moreover, a supplementary affidavit has also filed with the leave of the Court in which the income
tax returns of the respondent have been annexed from where it may be argued that the she has a monthly income of not less than Rs.20,000/-. Now, it
is time to take a look Section 25. It is reproduced below:
“25. Permanent alimony and maintenance:â€"(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 6 [***] 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 eitherparty 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 beenmade 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].â€
The grant of permanent alimony under Section 25 of the said Act is subject to conditions. If the Court is satisfied under Section 25(3) thereof that the
wife has remarried or has not remained chaste, it might modify or rescind the order of maintenance. It follows that if on the date of making the initial
order for maintenance the respondent is able to prove that the applicant wife has been unchaste or has remarried, the Court would not grant any
maintenance to her or order a reduced sum.
The word “unchaste†has been defined in the Oxford English Dictionary as “relating to or engaging in sexual activity, especially of an illicit or
extramarital characterâ€. The accepted notions of chastity or unchastity must change with time. What was unchaste conduct a century ago may not
be so today. But I need not dwell on the modern ideas on the subject, because adultery is certainly unchaste conduct even today and the respondent is
proved to have been living in adultery. Is she entitled to maintenance from her husband?
A learned Single Judge of this Court in Amar Kanta Sen vs Sovana Sen And Anr. reported in AIR 1960 Cal 438 held that even an unchaste wife is
entitled to minimal maintenance from the husband, to save her from starvation, on the condition that she would not be unchaste in future. This case
followed the English decision of Ashcroft Vs. Ashcroft and Roberts reported in 1902 Probate 270. However, in Sachindra Nath Biswas vs Sm.
Banamala Biswas, decided a few weeks later and reported in AIR 1960 Cal 575, a division bench of this Court held that where the wife was proved
adulterous she was forever not entitled to any maintenance. Amar Kanta Sen vs Sovana Sen And Anr. was not cited before the division bench. Other
High Courts have interpreted the section in a slightly different way by ruling that unchastity by itself is not a ground to altogether refuse maintenance
under Section 24 or 25 of the said Act but is a factor taken into account to decide the amount of maintenance. (See also Umesh Chand Sharma Vs.
Rameshwari Devi reported in AIR 1982 Rajasthan 83.)
In Yogeshwar Prasad Vs. Smt. Jyoti Rani reported in AIR 1981 Delhi 99 a learned Single Judge of the Delhi High Court held that unchastity of the
wife might determine the amount of maintenance but the same could not be refused on that ground. In Kaithakulangara Kunhikannan Vs. Nellatham
Veettil Malu reported in AIR 1973 Kerala 273, a Division Bench of the Kerala High Court following Amar Kanta Sen vs Sovana Sen And Anr.
reported in AIR 1960 Cal 438 ruled that an unchaste wife was entitled to subsistence allowance. It held that Section 25 gave a discretion to the Court
to order maintenance amount payable to the wife proven to be unchaste. A division bench of the Bombay High Court in Gulab Jagdusa Kakwane Vs.
Kamal Gulab Kakwane reported in AIR 1985 Bombay 88 laid down the following dictum.
“4. The scheme and provisions of S. 25 as we have analysed above, show that an applicant is entitled to maintenance under sub-s. (1) thereof
notwithstanding the kind of matrimonial decree that is passed and the ground on which it is passed. A decree passed and the against the applicant on
the ground of unchastity is no bar to his or her claiming maintenance either at the time of passing such decree or any time subsequent thereto. The
Court has ample discretion to grant or refuse maintenance, and the extent to which to grant the same, depending on the facts and circumstances of
each case. The legislature did not intend to lay down a rule that in all cases there the claimant has been proved to be unchaste., he or she should be
denied maintenance. On the contrary, the legislative approach on the subject appears to be liberal, reformative and conciliatory. The legislature had to
be pragmatic on the subject since all acts of unchastity cannot be painted with the same brush. In one case, a single fall from virtue may brand a
person unchaste while a persistent unchaste conduct in other case may remain unnoticed for a long time. Similarly, a person may become a victim of a
helpless or an uncontrollable situation in one case while another case may reveal a defiant debaucherous conduct.
There may be cases where the opponent is directly or indirectly a contributory party to the unchaste conduct of the applicant. The circumstances in
which decree on the ground of unchastity are passed may also differ from case to case. No two situations are comparable much less similar. Life is
complex and human behaviour inscrutable and complicated. What is mare, in a country like ours inhabited by social groups with diverse social mores,
customs and practices, ethical norms, moral concepts and cultural patterns, no uniform standard of personal and social conduct including that of
matrimonial fidelity can be laid down. Much less can such conduct be judged by a single norm. This consideration appears to have weighed with the
legislature in refraining from being dogmatic on the subject, and in adopting a realistic approach in the matter. The deliberate change in the language
brought about by the amendment amply proves the said intent. Hence, according to us, however repugnant or repulsive may appear the idea to a mind
traditionally steeped in one set of moral code, the section does not disentitle a party to maintenance even if a decree is passed against him or her on
the ground of unchastity.â€
This case considered Amar Kanta Sen vs Sovana Sen And Anr. reported in AIR 1960 Cal 438. It also took into account the later division bench
judgment of this Court in Sachindra Nath Biswas Vs. Smt. Banamala Biswas reported in AIR 1960 Cal 575. I think that after the amendment of
Section 25(3) of the said Act with effect from 27th May, 1976 where the legislature took a liberal view of giving the Court a discretion either to
rescind or to modify an order of maintenance upon, inter alia, unchaste conduct of the wife, even on proof of unchastity of the wife, the Court can
order a subsistence maintenance amount to be paid to her. Our Division Bench decision in Sachindra Nath Biswas Vs. Smt. Banamala Biswas
reported in AIR 1960 Cal 575 is impliedly overruled by this amendment.
The respondent did not obey a decree for restitution of conjugal rights made on 19th October, 2006. The learned Judge while pronouncing the ex parte
decree of divorce to which the wife deliberately subjected herself, accepted the evidence of the husband that the wife eloped with his colleague and
since then has been living in his house. Whether the respondent wife was leading an adulterous life is an issue closed by the finding of the Court below
trying the matrimonial proceedings for dissolution of marriage, answering it in the affirmative. In other words, the said finding is binding upon them or
res judicata. In our opinion, the said finding of fact is a bar to regurgitation of the self-same issue in this proceeding. The court below, in the
matrimonial proceedings for dissolution of marriage, had also come to a finding that the respondent had deserted her husband.
As I have observed before, living in adultery is unchaste conduct. Having lived in adultery at the time of the divorce which was duly proved before the
matrimonial court, in my opinion, the respondent wife is not entitled to any maintenance. Moreso, because she has a reasonable income. Although in all
probability she continued to live with her husband’s colleague, even after the divorce, I would not call it adultery because after the divorce the
matrimonial relationship ceased. Whether it could still be said that the respondent was living in adultery or was unchaste was neither raised nor argued
before us. I do not express any opinion on the conduct of the respondent after the divorce. However, the respondent is entitled to reimbursement of
the expenses incurred by her in bringing up Souvik upto the age of majority.
In those circumstances I dispose of this appeal by setting aside the order under appeal and directing the Registrar General to encash the sum of
Rs.5,00,000/- lying with him further to an order passed by this Court and handover the entire sum with interest to the respondent as a settled onetime
lump sum payment of her claim for reimbursement of the amount expended by her for bringing up Souvik within two weeks of communication of this
Order. The son is now 22 years of age and is no longer entitled to a maintenance order. I have also taken into account the sum paid or being paid by
the appellant under Section 125 of the Code of Criminal Procedure, to the respondent and Souvik as maintenance.
(I. P. MUKERJI, J.) Amrita Sinha, J.:-
The appellant/husband obtained an order of divorce against the respondent/wife on the ground of desertion and adultery. The wife though initially
contested the matrimonial suit no. 89/08 but thereafter did not take any steps therein. The suit was ultimately decreed ex parte on 16.01.2009.
On the date of the decree the child (son) of the parties was a minor and the wife was receiving Rs. 2,500/- only per month as maintenance on account
of her son pursuant to an order passed under section 125 Cr.P.C. In the matrimonial suit the learned Court below recorded in its order dated
25.09.2008 that there is nothing on record to show that any amount more than that is required for the minor child. The Court held that the said amount
was reasonable for maintenance of the child. The learned Court below further held that the wife had left her matrimonial home on her own accord
and she had been residing with another person for which the suit praying for restitution of conjugal rights being MAT Suit No. 492 of 2006 filed by the
husband was also decreed ex parte. So, the facts and circumstances of the case and the conduct of the wife do not suggest that she is entitled to get
any money towards alimony pendent lite or litigation costs. Both the decrees not being appealed against attained finality.
The instant appeal arises out of the Misc. Case No. 71/2012 filed by the wife under section 25 of the Hindu Marriage Act (herein after referred to as
the Act) praying permanent alimony and maintenance for herself and her son who was born on 02.07.1996. The husband filed objection in the said
Misc. Case. The learned Court below vide order dated 14.01.2016 decreed the said case and directed the husband to pay lump sum of Rs. 14 lack as
one time permanent alimony to the wife and her son. In the instant appeal the husband challenged the said grant by the learned Court below.
The primary thrust of the appellant/ husband is that as their marriage had been dissolved by a decree of divorce on the ground of desertion and
adultery the wife is not entitled to any maintenance. He relies upon the following cases in his support:-
i) Amar Kanta Sen v. Sovana Sen AIR 1960 Cal 438.
ii) SachindraNath Biswas v. Banamala Biswas AIR 1960 Cal 575. iii) Raja Gopalan v. Rajamma AIR 1967 Ker 181. iv) Sardari Lal v. Vashano AIR
1970 (J&K) 150.
v) Sunita Singh v. Rajbahadur Singh and Anr. AIR 1999 Allahabad 69.
vi) DebnarayanHaldar v. AnushreeHaldarAIR 2003 SC 3174.
In Sachindra Nath Biswas (supra) this Hon’ble Court held that in the exercise of judicial discretion expressly vested in Courts of law under section
25 (1) of the Act, a judge should, unless there be very special grounds, leave a wife, divorced on the ground of proved unchastity or adultery to the
resources of her immorality and deny her the lawful means of support by passing a decree of maintenance in her favour. The Hon’ble Court set
aside the order for maintenance passed in favour of the wife but allowed maintenance in favour of the minor daughter, specifically holding that there is
unrebutted evidence to the effect that the wife was living in adultery even at the time when the case was being heard. Thelearned District Judge
should not have made any order for maintenance in favour of the wife.
In Amar Kanta Sen (supra), this Court relied upon the case of Ashcroft v. Ashcroft and Roberts (IN 1902 P. 270) wherein it was held that the Court
has an absolute discretion in it by the Section (Section 32 of the Matrimonial Causes Act 1857) to be exercised according to the circumstances of
each case. It will order the husband to secure a provision for his guilty wife if the wife is proved to be entirely without means of support and unable,
through ill health, to earn her living. The Hon’ble Court held that the wife is entitled to bare subsistence allowance or starvation allowance. When
she is earning a living and not in helpless position, her right to maintenance, even of the bare subsistence allowance, disappears, for the allowance is
meant to prevent ‘starvation’.
In Raja Gopalan (supra), the learned Judge of the Kerela High Court declined to adopt the reasoning of thelearned Judge in the case of Amar Kanta
Sen (supra). The Court observed that a party has to establish a right under section 25 (1) to be awarded maintenance. If that right is established then
the question will only be regarding the quantum of maintenance. If there is no such legal right, by whatever term we may call it, allowance, starving
maintenance, or similar expressions, such award will be opposed to the provisions of the Statute. Kerala High Court specifically in very clear terms
held that the wife will not be able to claim maintenance if she was unchaste.
The High Court of Jammu and Kashmir in Sardari Lal (supra) set aside the decree for maintenance of the wife on the ground of her unchaste and
adulterous life. The Allahabad High Court in Sunita Singh (supra) held that the wife was not entitled to permanent alimony as she had illicit relation
with a person outside her marriage. I refrain from dealing with the judgement of Debnarayan Haldar (supra) as the same had been passed on a
different perspective which is not applicable in the instant case. Section 25 of the Act has already been set out in the judgement delivered by my
brother Mukerji, J.
The conduct of the parties and other circumstances of the case are extremely important and relevant factors that are to be taken into consideration at
the time of passing order under section 25 of the Act. The learned Court below, in my opinion, did not take into consideration the aforesaid factors at
the time of passing the impugned order and decree. Though the issue opposing grant of permanent alimony was raised by the husband, the learned
Court below without dealing with the same proceeded to deliver its judgement on the basis of ‘acceptable principles of law while considering petition
under section 25 of the Act’. The learned Court below observed that if a Court is satisfied that the wife, after divorce, remains unmarried and
prays for maintenance for the children, the Court can grant such prayer of maintenance to the wife. The learned Court below observed that though
the learned Counsel appearing for the husband opposed the prayer for permanent alimony to the wife, he could not come up with any material to
establish the fact that the wife has remarried or having substantial source of income to lead a comfortable life and/or to rear up the child which was
admittedly born from the wedlock of the parties.
While considering the above facts the learned Court below completely missed and overlooked to take into consideration the mandate of the provisions
of section 25. As already mentioned earlier, the conduct of the parties and the circumstances of the case have not been considered at all by the
learned Court below. It is an admitted fact that the husband filed the suit praying for restitution of conjugal rights which was decreed in his favour on
17.11.2006. As the order for restitution was not complied by the wife the husband was compelled to file the suit for divorce which was ultimately
decreed on 16.01.2009. Both the suits had been filed by the husband alleging adultery and desertion on the part of the wife.
The husband is an employee of the Railway Protection Force. The wife lodged a complaint against the husband and the husband lodged a complaint
against one Bhaskar Jyoti Bandopadhyay, a junior member of the Railway Protection Force for enticing and eloping with his wife. Both the complaints
were filed before the official department of the husband. On receipt of the said complaints the Chief Security Commissioner, Railway Protection
Force, Eastern Railway conducted a detailed enquiry. Vide order dated 06.10.2006 the Chief Security Commissioner came to the specific finding that
the allegations levelled against the husband by the wife was totally false and ill-conceived, whereas, the complaint of the husband against the constable
Bhaskar Jyoti Bandopadhayay was genuine and factually correct. The Chief Security Commissioner came to the aforesaid conclusion after examining
the evidence of at least seven witnesses who had deposed during the enquiry.
The facts of the instant case clearly indicate that the marriage between the parties came to an end due to the unfaithful conduct of the wife. Had the
wife not been guilty of adultery then may be the holy bond of marriage could have been saved. The immoral act of the wife led to the breakdown of
the marriage and the family fell apart. Since the wife took the son along with her the husband remained bereft of the love and affection of the son,
similarly the son was also left craving for love, care and affection from his father.
The legislature thought it wise to incorporate ‘conduct of the parties and other circumstances of the case’ as factors relevant for the purpose of
grant of maintenance to an applicant. The Act does not provide for grant of permanent alimony and maintenance to each and every applicant who
files a case under section 25 of the Act. The objective of incorporating the aforesaid conditions would be rendered redundant if the same are ignored
and order for permanent alimony and maintenance is passed in all cases. The aforesaid are determining factors which should compulsorily be looked
into at the time of consideration of applications under section 25 of the Act. Kerala High Court categorically observed that if a subsequent conduct of
the wife can form the basis for cancellation of an order passed under section 25 (1), then unchastity of the wife must and should be taken into account
even at the first instance when an order is being passed under section 25 of the act.
In the present case the order for restitution of conjugal rights and divorce were passed on the ground of adultery and desertion. The report of the
domestic enquiry conducted by the Chief Security Commissioner, Railway Protection Force held the wife to be adulterous and unchaste. The wife
never appealed against any of the aforesaid orders. Granting permanent alimony and maintenance to such a wife would surely amount to give
premium to the act of unchastity.
In modern society marriages are broken on various grounds, adultery and/or immorality being one of them. Awarding permanent alimony and
maintenance to an applicant without consideration of the mandate of the section regarding ‘income and property of the parties, conduct of the
parties and other circumstances of the case’ would, in my opinion, be contrary to the provisions laid down for such grant. Bigamy being an
offence in our country and punishable under law unchastity should also be viewed as a negative factor for passing order under section 25 of the Act.
In none of the cases referred above does the Court come to a finding that an order under section 25 is to be passed on mere filing of an application for
the same. In fact, way back in the 1960s the Hon’ble judge rejected the order for grant of maintenance to an adulterous wife in the case of
Sachindra Nath Biswas (supra) and also in the case of Raja Gopalan (supra). In Amar Kanta Sen (supra) the Hon’ble Court held that as the wife
had joined service, she was not entitled to any allowance.
The appellant/ husband obtained leave from this Court and filed supplementary affidavit annexing copy of the income tax return filed by the wife for
the assessment years 2009-10, 2014-15 and 2015-16 to prove that the wife had a steady source of income and was not entitled to receive any
maintenance from the husband.
From the discussions made herein above, in my considered opinion, the conduct of the wife disentitles her to receive any amount as permanent
alimony and maintenance under section 25 of the Act. Moreover the income tax returns of the wife proves that she has an independent source of
income and the same stands in the way of granting an order of maintenance in her favour. However, it is true that the son remained with the wife and
she must have made necessary expenses for his upbringing and education. Even though the wife is not entitled to maintenance as held herein above,
the son who was a minor on the date of making the application under section 25 is entitled to the same. Keeping in mind the income of the husband,
the sum of rupees five lakh which had been deposited by the appellant before the Registrar General of this Court pursuant to interim order passed in
the instant case would be sufficient reimbursement of the amount spent by the wife in bringing up her son.
The Registrar General is directed to hand over the aforesaid sum of rupees five lakh along with interest accrued thereon to the respondent/wife as one
time full and final settlement of the maintenance claim for her son. The impugned order and decree passed by the learned court below is set aside.
The appeal is allowed to the extent indicated herein above. Ordering part shall be as per judgment and order of Mukerji, J. There will however be no
order as to costs. Urgent certified photocopy of this judgment, if applied for, be supplied to the parties or their advocates on record expeditiously in
compliance of usual legal formalities.