Suman Kujur vs Anna Agnes Sundari Toppo

Ratnaker Bhengra, J

Heard learned counsel for the appellant.  Â

This appeal has been preferred by the appellant because though marriage was dissolved and decree passed in favour of the appellant but he is

aggrieved by and dissatisfied with the judgment passed on 6.4.2015 in Matrimonial Suit No. 01/14 by the learned Principal District Judge-cum-

Principal Judge, Family Court, Latehar to the extent of directing payment of Rs.2,50,000/- only as permanent alimony to the defendant (respondent

herein) by the plaintiff (appellant herein). 3. It has been alleged that marriage of plaintiff, appellant herein, Sri Suman Kujur along with Smt. Anna

Agnes Sundari Toppo defendant, respondent herein was performed on 28.12.2009 and marriage took place and was performed at Catholic Church,

Katkahi within District Gumla. Marriage certificate was also issued by the father of the said Church i.e. on the same date vide enrolment No. 53

dated 28.12.2009. It is further alleged that after marriage both lived as husband and wife under one roof and plaintiff had taken a residential house at

Ranchi i.e.at Birsa Chowk, Ranchi. Subsequently, since plaintiff is a military man, he went to join his service and after a month when he returned and

came back to his residential house i.e. at Birsa Chowk, Ranchi he found that his wife defendant Smt. Anna Agnes Sundari Toppo was absent as

she left the house having locked the residence. After that plaintiff went to his sasural i.e. parental house of Smt. Anna Agnes Sundari Toppo and

found her available there, and request was made to her to join the company of the appellant but her parents did not agree for Bidayeegi of defendant

and defendant too did not agree for the restitution of conjugal right and refused to join the company of her husband. It is further alleged that plaintiff

had given ATM card to his wife i.e. respondent Smt. Anna Agnes Sundari Toppo and she had withdrawn Rupees Four Lac from the Bank Account

of the plaintiff for which no account was given. It is further alleged that plaintiff tried on several occasions and went to the house of defendant and

requested for her Bidayeegi but on every occasion defendant Smt. Anna Agnes Sundari Toppo and her parents did not allow her to join the company

of her husband. Plaintiff was beaten by her family members/ his inlaws and after that a panchayati was also convened at village Baskarcha within PS

Mahuadar, district Latehar i.e. on 23.5.2012. In the said panchayati, villagers were present and defendant Smt. Anna Agnes Sundari Toppo had

refused to join the company of her husband, by saying that she is not willing to live along with her husband and further stated that there was no

sexual relation, established in between the spouses after performing marriage so the marriage was never consummated. It is further stated that in the

said panchayati the punch present, had advised both parties to live together peacefully but the defendant and her family members i.e. parents did not

agree to the suggestion of the panch and defendant Smt. Anna Agnes Sundari Toppo too was unwilling to join the company of her husband in spite of

several requests of the plaintiff.

Thereafter, being disappointed with the behaviour of the defendant Smt. Anna Agnes Sundari Toppo, plaintiff who had taken every step and taken a

chance for re-conciliation between spouses, but not succeeding filed the instant matrimonial suit seeking relief of decree of divorce i.e. dissolution of

marriage in between spouses. A valid cause of action accrued in favour of the plaintiff and against the defendant on 23.5.2012 when the defendant

was not ready to agree to the request of the plaintiff husband to join his company and thereafter also further refused on several occasions to live along

with her husband. Hence, the instant matrimonial suit had been filed and dissolution of marriage prayed for in terms of decree of divorce between the

parties and for other relief which the Court may deem fit and proper in favour of the plaintiff.    Â

From the record, it appears that notice both by registered post as well as through Nazarat, was issued but returned unserved. Then order dated

12.08.2014 was passed directing the plaintiff to take steps for publication of notice. After that notice against the defendant Smt. Anna Agnes Sundari

Toppo was published in daily newspaper “Dainik Jagran†dated 03.09.2014. After elapse of more than 30 days from the date of publication,

service of notice through publication has been presumed to be proper and effective and defendant was directed to file written statement and date was

fixed for 22.11.2014 but defendant Smt. Anna Agnes Sundari Toppo did not appear and also failed to file her written statement. Thereafter, the

proceeding was ordered to proceed ex-parte against the defendant Smt. Anna Agnes Sundari Toppo and after that plaintiff was directed to adduce

evidence exparte.

Plaintiff-appellant Suman Kujur produced and examined altogether five witnesses. These are given as below:

  PW-1 Sri Suman Kujur (plaintiff);

  PW-2 Falabiuse Kujur;

  PW-3 Father Binod Minz;

  PW-4 Palasi Das Tirkey; Â

  PW-5 Kishore Kujur.

Plaintiff produced following documents:

 Ext.1 is panchayati paper written by plaintiff Sri Suman Kujur dated 23.5.2012;

 Ext.2 is panchayati paper dated 23.5.2012 written by defendant Smt. Anna Agnes Sundari Toppo;

 Ext.3 is panchayati paper signed by both parties as well as  witnesses;

 Ext.3/1 is signature of PW-2 Falabiuse Kujur;

 Ext.3/2 is signature of Palasi Das Tirkey on panchayati paper;

 Ext.3/3 is signature of Kishore Kujur, PW-4 on panchayati paper;

 Ext.4 is marriage certificate issued by Father of Catholic Church, Katkahi, District Gumla, Jharkhand, it is in respect to marriage of bothÂ

parties i.e. Sri Suman Kujur and Smt. Anna Agnes Sundari Toppo.

PW-1 Sri Suman Kujur, plaintiff has deposed before the court that the marriage of plaintiff Sri Suman Kujur along with defendant Smt. Anna Agnes

Sundari Toppo was performed at Catholic Church, Katkahi, District Gumla and marriage was performed as per Christian rites and rituals i.e. on

28.12.2009. After marriage both lived in a house as husband and wife and they were residing at Birsa Chowk, Ranchi in a rented house. He further

deposed that PW-1 is working in the army, so after one week he went to join his service leaving the defendant Smt. Anna Agnes Sundari Toppo in the

house and after one month when he returned back, he found the defendant absent and house was locked. Plaintiff went to his sasural at Gumla where

defendant Smt. Anna Agnes Sundari Toppo was present and request was made to join the company of her husband, but it was refused by her. He

further deposed that ATM card of SBI was given to defendant and she had withdrawn Rupees Four Lac on different dates. Defendant did not agree

and refused to join the company of her husband then on 15.5.2012 a panchayati was convened at village Baskarcha, Mahuadar, District Latehar and

in the said panchayati both were advised to live together as wife and husband and both were requested to be present in the next panchayati i.e.

23.5.2012. Both parties appeared on 23.05.2012 and stated that both lived only for one week at village Baskarcha, but they were living separately in

different rooms and no physical relation established in between them and after that in the said panchayati as took place on 23.5.2012, defendant had

refused to live along with her husband Sri Suman Kujur and after that she went to her parents’ house (Maike). He further said that instant

matrimonial suit seeking relief of divorce has been filed. He proved the panchayati paper dated 23.5.2012 signed by himself Ext.1 and also signed

by defendant Ext.2 and said panchayati paper signed by the witnesses vide Ext.3 and also proved it accordingly.Â

PW-2 Falabiuse Kujur has deposed that he knows both the parties who are husband and wife and that both were married at Katkahi, Gumla, as per

the Christian marriage rites and ceremonies. Marriage certificate was prepared by the Father of the Church in his presence and he recognizes the

signature of Father and it bears the stamp of the Church. After the marriage, the petitioner had kept the respondent with him in a rented house at

Birsa Chowk, Ranchi for one week as his wife. Being a military man, thereafter, after a week he left for his duty. When he returned after a month

and went to Birsa Chowk, Ranchi, then he found that his wife after a few days only had returned to her parental home (maike). Then the petitioner

went to the parental home of the respondent and requested her to come with him to Baskarcha, Mahuadar, but she was not ready. Thereafter also

petitioner made many attempts to get her back, but the respondent was not ready. After marriage, before the appellant left for his duty, he gave his

SBI, ATM to the respondent, through which on various dates, she withdrew a total of Rupees 4 lakhs. Since both sides were not able to establish

matrimonial relations, then with consent of both sides and their families, a panchayati was held at Baskarcha, Mahuadar on 15.05.2012; and both

agreed to stay together for a week. Thereafter, one week later, panchayati was held again on 23.05.2012 and both parties informed that relationship

between them was not established and that they had stayed in separate rooms. In the panchayati on 23.05.2012 respondent had given in writing that

she was not satisfied with the petitioner and she is not willing to live with him. After the panchayati, respondent returned with her parents to her

parental home and between both the parties no relationship has been established since then.

PW-5 Kishore Kujur deposed that marriage was performed on 28.12.2009 at Catholic Church, Gumla and after marriage both lived only for one

week at Birsa Chowk, Ranchi i.e. in a rented house. Thereafter plaintiff Suman Kujur being an army man went to join his service. He returned back

after one month and found his wife absent in the house and after that he went to parental house of defendant and requested to join the company of her

husband but she had refused to join the company of her husband. Thereafter a panchayati was convened on 15.5.2012 and after that on 23.5.2012 at

Baskarcha, Mahuadar, District Latehar, and in the said panchayati respondent had given in writing that she was not satisfied and not willing to live

together. Kishore Kujur had identified his signature in the said panchayati paper i.e. Ext.3/3.

PW-3 Father Binod Minz of Catholic Church, Katkahi, Gumla has also deposed before the court that marriage in between plaintiff Suman Kujur

and defendant Smt. Anna Agnes Sundari Toppo was performed on 28.12.2009 and PW-3 was present at the time of marriage. Marriage certificate

was issued by him, it is proved and marked as Ext.4.Â

PW-4 Plasi Das Tirkey has deposed that he knows both the parties, who are husband and wife and they were married as per Christian rites on

28.12.2009 at Catholic Church, Katkahi, Gumla. After marriage, the plaintiff lived with the respondent for one week at Birsa Chowk, Ranchi in a

rented house. Plaintiff is a soldier and thus after one week of living with his wife, he left to join his work. After one month, when he returned to Birsa

Chowk, Ranchi, he came to know that some days after he left, his wife had left for her maternal home. He then went to see his wife, the respondent

at her maternal home, and asked her to come to his house at Baskarcha, Mahuadar, but, she was not ready. Even after this, the plaintiff went many

times to respondent’s paternal home to get her. However, the respondent was not willing to do so, and neither were the parents willing to let her

go. He further deposed that the plaintiff prior to joining his duty, had left his ATM with the respondent and the respondent withdrew money at various

times amounting to Rupees Four Lac. When matrimonial relationship was not being established between the parties then on 15.5.2012, the families of

both parties mutually held a panchayati at Baskarcha, Mahuadar, and the respondent accepted all the aforesaid. Then with the agreement of both

sides, it was decided that they would live together for one week and the panchayati would be held afresh on 23.5.2012. Both sides reported on

23.5.2012 before the panchayati and said that they had stayed for a week but lived in separate rooms. On 23.5.2012, the respondent had given in

writing to the panchayat that she was not satisfied with the plaintiff and she cannot live with him. After the panchayati, the respondent returned to her

paternal home, and since then they have had no relationship between them. Finally, he has deposed that the proceedings of the panchayati of

23.5.2012Â was put to paper and many participants signed, and his signature was marked as Ext.3/2.

  Arguments of the learned counsel for the appellant:

Learned counsel for the appellant had while arguing his case referred to the various relevant provisions pertaining to alimony under different

legislations. He had referred to the Hindu Marriage Act, 1955; the Hindu Adoptions and Maintenance Act, 1956; the Parsi Marriage and Divorce Act,

1936; the Muslim Women (Protection of Rights on Divorce) Act, 1986; the Special Marriage Act, 1954; the Code of Criminal Procedure, 1973 and

finally the Divorce Act, 1869. With reference to the Divorce Act, 1869, which was the relevant act under consideration, counsel had argued that

under the law the respondent would only be allowed alimony if she had obtained the divorce herself, which he pointed was not the situation in the case

on hand, since it was the husband who had instituted the divorce proceedings.Â

Learned counsel apart from the aforesaid has also argued on the facts and circumstances of the case that divorce has already been decreed on

his behalf due to the respondent’s own misconduct. She also does not deserve any alimony even on this score. Learned counsel has narrated that

appellant was married to the respondent on 28.12.2009 at Catholic Church, Katkahi, Gumla. Both lived under one roof as husband and wife for only

one week. Being a military man, thereafter, he went to join duty. On his return after one month, he found that his wife, respondent had gone to her

parental home (maike). Therefore, he went there and requested the respondent to join his company but she refused to do so. Thereafter also, he made

many more requests to her to join him but she steadfast, refused to do so. Petitioner had prior to joining his duty, in good faith left his SBI, ATM card

with the respondent, and she had drawn Rupees Four lakhs in such a short period. Learned counsel for the plaintiff-appellant also pointed out that on

one occasion he was also beaten by family members of his in-laws when he had gone to ask his wife to join him. Subsequently, a panchayati was held

on 15.05.2012 at Baskarcha, Mahuadar where it was resolved that the couple would stay together for a week. On 23.05.2012, panchayati was

convened again where it was reported by the couple that they had not lived together, rather stayed in separate rooms during the week. Moreover,

the respondent then stated in writing that she is not satisfied with the plaintiffhusband and is not willing to live with him. Only thereafter he took

steps for divorce. In the lower-court below, notice was served upon the respondent both by registered post as well as through Nazarat and also via

publication in Dainik Jagaran dated 03.09.2014 but Anna Agnes Sundari Toppo, the respondent had failed to appear in the court-below and did not file

her written statement and the proceeding was thus held ex-parte against her. PW-1 plaintiff-appellant himself, PW-2, PW-4 and PW-5 have all

consistently supported the case of the plaintiff-appellant as made out in his petition. PW-3 has supported the factum of a Christian marriage.

Appellant had also submitted documents as exhibits pertaining to the Panchayati that was held, including the written statement of the respondent,

wherein she expressed her discontent with the petitioner and her unwillingness to live with him.

Learned counsel submitted that even in this appeal in the High Court, though being noticed, she has failed to turn up and it appears she is least

concerned whether the decision of the Hon’ble Court goes one way or the other, hence, the prayer of the appellant deserves to be

allowed. Learned counsel for the appellant-husband has also otherwise argued on the facts and circumstances of the case, and submitted that the

husband has already been granted a decree of divorce by the learned court-below and he has only come up against the alimony of Rs.2,50,000/-

granted. Counsel has further argued that right from the inception of marriage in 2009, the respondent party has herself not shown any interest to live

with the appellant, and due to her conduct throughout she is in no position to deserve the alimony granted. She has further also shown no interest in

the proceeding right from the beginning, and therefore not interested in one way or the other and for this the appellant, who also appeared to be a loyal

and deserving soldier of the nation should not be made to suffer. Â

  FINDINGS

We have heard counsel for the appellant-husband, gone through the records of the case and evidence, and in the facts and circumstances of the

case the following conclusions are arrived at for the reasons indicated herein. Â

At this moment, we also note that the wife, defendant in the matrimonial suit and respondent herein has for reasons best known to herself failed to

appear at any stage, in spite of valid service of notices.

Learned counsel for the appellant had argued the case on two broad bases, one was on what he considered to be the law on the issue, and also

on the facts and circumstances as alleged. While hearing his argument on both bases, this Court considered to decide the appeal on the basis of the

facts and evidence of the case and the conduct of the respondent as made out from the records available to us.

In his presentation of the law on the issue, learned counsel had argued that since the case was instituted under the Divorce Act, 1869 by the

appellant-husband, and a decree of divorce was granted by the Family Court, Latehar, the wife having no role in obtaining the same, is not entitled for

any relief, and neither is she entitled for alimony as per law or the sum of Rs. 2,50,000/- as has been directed by the learned court-below. Counsel has

referred to the provision under Section 37 of the Divorce Act, 1869-

  “37-Power to order permanent alimony.-

Where a decree of dissolution of the marriage or a decree of judicial separation is obtained by the wife, the District Court may order that the husband

shall to the satisfaction of the court, secure to the wife such gross sum of money, or such annual sum of money for any term not exceeding her own

life, as, having regard to her fortune (if any), to the ability of the husband, and to the conduct of the parties, if thinks reasonable; and for that purpose

may cause a proper instrument to be executed by all necessary parties.â€​

 Counsel for the appellant-husband has stressed on the words “where a decree of dissolution of the marriage or a decree of judicial separation is

obtained by the wife..…â€​ then only can alimony be ordered to her by the learned court.

Learned counsel for the appellant has also taken us through the gamut of other provisions as given under the other legislation and law on the issue.

The relevant provisions had had referred to Section 25 of the Hindu Marriage Act, 1955; the Hindu Adoptions and Maintenance Act, 1956; the Parsi

Marriage and Divorce Act, 1936; the Muslim Women (Protection of Rights on Divorce) Act, 1986; the Special Marriage Act, 1954 and the Code of

Criminal Procedure, 1973. It is noted that under the Hindu Marriage Act, 1955, both husband and wife may apply for alimony, under the Hindu

Adoptions and Maintenance Act, 1956, there is provision for maintenance of a Hindu wife under Section 18, under the Parsi Marriage and Divorce

Act, 1936, Section 40 provides for permanent alimony subject to wives remaining chaste and unmarried, and the Muslim Women (Protection of Rights

on Divorce) Act, 1986, which goes as far as to facilitate maintenance to divorced women not only from her husband but also from her relatives.

Sub-section (1) of Section 125, Cr.P.C. puts the burden on the husband to provide maintenance to wife, his legitimate or illegitimate minor child, his

legitimate or illegitimate child who has attained majority but who by reason of physical or mental abnormality is not able to maintain oneself, or his

father and mother who are unable to maintain himself or herself. In sub-section (5) of Section 125, Cr.P.C. it lays down, inter alia, that if a wife

without sufficient reason refuses to live with her husband, then the Magistrate shall cancel the order. Under the Special Marriage Act, 1954, only

wives can claim permanent alimony and not the husbands. Finally, as per the Divorce Act, 1869, under Section 37, a Christian wife may apply for

alimony/ maintenance.Â

By having a glance at the legislation provided on the case, it is noted that the Hindu Marriage Act, 1955, prescribes maintenance for wives as long

as they remain chaste and are unmarried. Section 18 of the Hindu Adoptions and Maintenance Act, 1956 specifically deals with maintenance of wife.

Parsi Marriage and Divorce Act, 1936 provides for permanent alimony for wives, subject to remaining chaste and unmarried. The Muslim Women

(Protection of Rights on Divorce) Act, 1986 goes far to facilitate maintenance to divorced women not only from her husband but also from her

relatives. Under the Special Marriage Act, 1954, only wives can claim alimony and not husbands. The scope of Section 125 Cr.P.C. for maintenance

is not only for a wife, but also for children, even illegitimate children, and even father and mother, indicating its wide social welfare intent. Finally,

Sections 36 and 37 of the Divorce Act, 1869Â essentially deal with the claim of alimony by a woman. One cannot but be compelled to note that the

provision of maintenance under the various legislations are essentially social welfare legislations, particularly for wives and even children.Â

Even on the facts itself the appellant has reasonable grounds. From the facts of the case, it is noticed that the marriage of the couple was

solemnized in the year 2009. They lived briefly together for a week, and then the appellant being a military man had to report for duty. On returning

after a month, he found the house where he had left her locked, and therefore he went to her parental home and located her. Meanwhile in the period

he had been away, being a loving husband, he had left his ATM with her, and in that short period she had already withdrawn Rupees Four lakhs.

On reaching her parental house, he requested his wife and her parents that the respondent-wife join his company but the wife refused. Thereafter

also he made many such requests but the wife simply refused to join him. Two panchayaties were held on 15.05.2012 and 23.05.2012 to resolve the

issue, but they reported that they had failed to live together, and in fact resided in separate rooms. Wife claimed the marriage was not consummated

and she also expressed that she did not want to live with the appellant. Thereafter, the husband had filed the Matrimonial Suit No. 01/14 wherein in

spite of being served through, registered post as well as Nazarat and paper publication she failed to appear, and the proceedings proceeded exparte.

Apart from the appellant, who was PW-1, other witnesses, PW-2 Falabiuse Kujur, PW-3 Father Binod Minz, PW-4 Palasi Das Tirkey and PW-5

Kishore Kujur had all supported the case of the appellant. Finally, the Family Court had by judgment dated 6.4.2015 decreed the divorce in favour of

the appellant and against the respondent, however with permanent alimony of Rs.2,50,000/- being granted to the wife or respondent herein. Hence,

appeal by the appellant-husband.

In the appeal also, the wife or respondent has demonstrated her singular lack of interest in the proceeding though being adequately noticed. She

has not appeared and here too, she is not interested in the proceeding one way or the other. From the record and evidence, it is shown that she had

withdrawn herself from the company of the husband and even given in writing that she is not willing to live with the appellant, in spite of the best

efforts of the appellant-husband to bring her back and live with him.Â

We see no reason, why the husband should then bear the cost of maintaining the respondent in spite of such an inexplicable attitude and behaviour.

Moreover, it is to be noted that she had already withdrawn Rupees four lakhs within a very short period, which has remained unaccounted, and even

for this reason, it is not appropriate to allow her the alimony granted. Hence, the alimony of Rs.2,50,000/- granted by the Family Court, Latehar by

judgment dated 6.4.2015 cannot be upheld.

The prayer of the appellant, to set aside the order, for payment of permanent alimony to the defendant, respondent herein, amounting to

Rs.2,50,000/-, by the learned Principal District Judge-cum-Principal Judge, Family Court, Latehar dated 6.4.2015 in Matrimonial Suit No. 01/14, is

allowed.

Accordingly, this appeal stands allowed. Decree accordingly. Â

             I agree.