Swarna Devi vs Ramesh Lal

Upon an application of respondenthusband the marriage between the parties was dissolved by a decree of divorce passed under section 13 of

the Jammu and Kashmir Hindu Marriages Act by the trial court vide the judgement and decree impugned in this appeal. The husband had claimed

divorce mainly en the ground of mental cruelty.

On the pleadings of the parties the trial court framed the following issues on 82.1985

Whether the treatment of the respondent towards the petitioner and other members of the family caused cruelty to the petitioner to such an

extent that it is not possible for the petitioner to live with respondent ? OPP

Whether the respondent remained missing during July, 1983 and August, 1984 and led an immoral life during this period? OPP

Whether the respondent had removed cash, ornaments and clothes from the house of the petitioner, if so, what is its effect on this petition. OPP

Relief.

The husband examined Suraj Prakash, Puran Ram and Shanti Devi as his witnesses and also appeared himself in support of his claim. The wife

besides appearing herself as witness produced Kashturi Lal in rebuttal.

On an appreciation of evidence led by the parties, the trial court decided issue No. 1 in favour of the husband, issue No. 2 against him. Issue No.

3 in his favour and while granting the relief passed the decree as stated herein above.

The judgment and decree has been assailed mainly on the ground that the court below had not properly appreciated the evidence led in the case

and committed an error in deciding issue No. 1 as the evidence produced by the wife was alleged to be neither reliable nor trustworthy. The

husband is alleged to have taken advantage of his own wrong disentitling him to claim the relief under the provisions of J&K Hindu Marriages Act.

It is prayed that the judgment and decree impugned in the appeal be set aside and the appellantwife be granted any other additional or appropriate

relief to which she is held entitled under the circumstances of the case.

I have heard the learned counsel for the parties and have perused the record.

Mr. Raina the learned counsel appearing for the appellant submit that the court below has not properly appreciated the evidence led in the case

and has thus arrived at wrong conclusions. I have perused the statements of the witnesses produced in the case and thoroughly examined the

statement of the parties. From the statement of the parties I am convinced that marriage between them in fact has broken and there is no possibility

of rehabilitation of the matrimonial ties between them. From the statement of the witnesses produced in the case it cannot be said that the husband

had not discharged the onus of proof of issue No. 1. Once the onus of proof of issue No. 1 was discharged, the consequences had to follow and

the trial court was justified in dissolving the marriage between the parties. The evidence has been properly appreciated and there being no error of

justification I am not inclined to interfere with the finding of fact arrived at by the trial court on proper appreciation of the evidence of the parties.

Mr. Raina the learned counsel for the appellant has, however, drawn my attention towards Sec. 31 of the J&K Hindu Marriages Act and

submitted that the trial court has committed a mistake of law by not making a provision for permanent alimony in the decree at the time of passing

of the same. The argument though attractive is without any force because it has not been pointed out as to whether the wife had actually made any

application for the grant of permanent alimony and the court below did not have the jurisdiction to pass the order suomoto. However, such an

application being CMP No. 157 of 1986 has been filed in this court in which the husband has also filed the objections. The court vide its order

dated 23.4.1986 has already granted interim relief Section 31 provides that any court exercising jurisdiction under the Act may pass appropriate

orders in term of the aforesaid Section by directing the payment of permanent alimony. The appeal being the continuation of the original

proceedings, the appellate court is also a court competent to pass such an order under the provisions of Sec. 31 of the J&K Hindu Marriages Act.

In a matrimonial dispute between the parties if no application for the grant of payment of alimony is filed by any of the parties in the trial court, that

would not debar any one of them from filing the application for the grant of permanent alimony or maintenance in the appellate court. Sec. 31 of the

Hindu Marriages Act was enacted with the object to grant permanent alimony and maintenance to any of the party to a marriage at the time of

passing any decree under the Act or at any time subsequent thereto. Such alimony or the maintenance can be granted for a term not exceeding the

life of the spouse.

Applying for it I he court can rescind any such order, if it is satisfied that the party in whose favour an order has been made has remarried, or if

such party is the wife that she has not remained chaste or, if such party the husband, that he has had sexual intercourse with any woman outside the

wed lock.

During the pendancy of this case, the appellant filed CMP No. 157 of 1986 praying therein that she be granted Rs. 200/ as maintenance

pendentelite and Rs 500/ as interim relief for meeting the litigation expenses. In the objections filed by the respondent, it is submitted that he was

appointed in the police department in the grade of 210300 and thereafter his grade was revised to 41012700 in the year 198283. The learned

counsel appearing for the respondents has however admitted in the court that his client was getting about Rs. 1200/ inclusive of allowances It is

submitted that he is the only earning member of his family consisting of the parents, two young sisters and a crippled brother. He has also admitted

of owning 12 kanals of Khushki land and six kanals of Banjar Qadeem land. Keeping in view the facts and circumstances of the case I am of the

opinion that the ends of justice would be met if the appellantwife is paid permanent alimony at the rate of Rs. 125/ in terms of section 31 of the

J&K Hindu Marriage Act.

While dismissing this appeal I confirm the judgement and decree of the trial court dissolving the marriage between the parties by a decree of

divorce and direct that the respondenthusband shall pay to the appellantwife maintenance at the rate of Rs. 125/ per month from the date of appeal

in this court during the life time of the appellantwife or till she remarries. The claim of the appellant shall always the first charge on the property of

the respondenthusband. The parties are left to bear their own costs. CMP 127/986 & 72/86 are disposed of and the order of this court dated 7

2.1986 shall stand vacated.