Aftab H. Saikia, J.@mdashHeard Mr. D. Mazumdar, learned Counsel for the husband/Appellant as well as Ms. R.D. Mazumdar, learned Counsel appearing on behalf of the wife/Respondent.
2. This matrimonial appeal is directed against the judgment and order dated 30.5.2007 passed in EC. (Civil) No. 185/2004 rendered by the learned Principal Judge, Family Court, Guwahati whereby the petition filed by the Appellant/husband for dissolution of marriage against his Respondent/wife on the ground of cruelty was dismissed.
3. Speaking for the Bench, his Lordship Justice Dr. Arijit Pasayat, in the case of
Marriages are made in heaven, is an adage. A bride leaves the parental home for the matrimonial home, leaving behind sweet memories there with a hope that she will see a new world full of love in her groom''s house. She leaves behind not only her memories, but also her surname, gotra and maidenhood. She expects not only to be a daughter-in-law, but a daughter in fact. But the large number of cases flooding the Courts with allegations of torture, harassment for dowry, saddens one''s heart. Where lies the fault? It is lack of communication or adjustment? Or, is it the victory of greed and materialistic needs over love, affection and human values? The answer is difficult to find. There is another angle involved. The evil design to harass the in-laws over petty things by making accusations of dowry demand and torture. In such cases, the vital question again is whether laws which are really dynamic instruments fashioned by society for the purpose of achieving human relations by elimination of social tensions and conflicts have achieved the intended objectives or are being used weapons of an assassin to harass and humiliate others instead of being used as a shield against injustice.
2. There is another social angle involved. When the parents fight out their marital disputes, sometimes acrimoniously, the child who has nothing to do with the fight and is the ultimate victim watches helplessly. The fight goes on unmindful of the fact that in future the child carries the tag of being one of a broken family. It is more stigmatic for a girl child. The stigma becomes more visible when her marriage is thought of in later years. This reality of life, is, in most cases, lost sight of. But sometimes the parties take note of this reality and for the sake of the child iron out their differences.
3. During the hearing of the transfer petition a suggestion was given by learned Counsel for the parties that the marriage has become irretrievably broken and keeping in view the welfare of their daughter it would be better if the petition for divorce filed by the Respondent is allowed, after making sufficient arrangement for the welfare of the daughter.
4. Having heard the learned Counsel for the parties and also on meticulous scanning of the materials available on record, it appears that the Appellant married the Respondent on 24.4.2002 at Guwahati as per Hindu rites and customs and they started living together as husband and wife in the house of the Appellant at Bamunimaidam. On 3.2.2003, they were blessed with a daughter from their wedlock. It is alleged that during the period of stay of her in-laws house i.e., the Appellant''s house, the Respondent ill-treated and misbehaved with the family members and thereby trouble started in their conjugal life. Due to such unbearable attitude and non-chalant behaviour, the Appellant had been suffering mental cruelty. Meanwhile the Respondent had left her in-laws house on 2.5.2004 and since then till date she has been staying in her parents'' house.
5. Being aggrieved by her desertion and alleging cruelty, the husband/Appellant filed a petition before the learned Principal Judge, Family Court, Guwahati seeking divorce by dissolution of their marriage basically on the ground of cruelty. However, the learned Judge, having considered the facts and circumstances of the case in its totality supported by adequate appreciation of the material evidence on record and also upon hearing learned Counsel for the parties, came to the finding that the husband failed to support his allegation of cruelty by adducing any oral and documentary evidence and eventually, the petition so filed by the Appellant was dismissed.
6. Dissatisfied with such rejection of the petition so preferred by him, the Appellant has preferred this instant appeal before this Court. It appears from the careful perusal of the facts and circumstances of the case that since the date of leaving her husband''s house by the Respondent herein on 2.5.2004, both the husband and wife have been living separately and in the process more than 4 (four) years have elapsed.
7. Before hearing the matter today, attempts had been made by this Court on two occasions for reconciliation between the parties so as to arrive at an amicable settlement to save the marriage.
8. On 16.9.2008, this Court mediated between both the Appellant and Respondent personally in the Chamber and thereafter, expecting some hope and also on request, further time was granted to them. Again on 10.11.2008, both the parties were heard personally in Chamber. However, despite best efforts made by the Court, the reconciliation between the parties so as to arrive at an amicable settlement appeared to be a far cry.
9. Attempt for reconciliation and amiable solution to save the marriage accordingly failed and the matter has been fixed today for hearing.
10. During the discourse on the issue with both the husband and wife as mentioned hereinabove, it transpires that that the wife/Respondent has although initially reluctant, agreed to for dissolution of the marriage as sought by the husband/Appellant subject to payment of Rs. 10 lakhs as permanent alimony for herself and her minor daughter as a lump sum amount.
11. Having considered the entire aspects of this matrimonial case in pragmatic manner and keeping in view the ground realities, we are of the firm view that the marriage between the parties has irretrievably broken and no useful purpose will be served even by refusing the decree of divorce for dissolution of marriage between the parties.
12. However, after giving anxious consideration into the aspects of subsistence of the Respondent along with her minor daughter whose welfare should get the paramount consideration, we hold that Respondent is entitled to get her permanent alimony.
13. At this stage, Mr. D. Mazumdar, learned Counsel for the Appellant has submitted that Appellant is a poor petty businessman and he is not in a position to pay any amount to the Appellant exceeding Rs. 1 Lakh at best.
14. Objecting such submission, learned Counsel for the Appellant, Ms. R.D. Mazumdar, learned Counsel representing the wife/Respondent, has submitted that the Appellant is running fair price shop fetching substantial income and he is a financially sound person having movable and immovable properties in the Guwahati city itself. Besides, it is argued that she has no means to maintain herself and her minor daughter and at present she is residing in her parent''s house. It is forcefully argued that since the birth of the child till date, the Appellant/husband has never visited her place or made any attempt to look after/maintain her only daughter. That being so, it is submitted that she is aggreable for dissolution of marriage only on payment of a lump sum amount of Rs. 10 Lakhs by the Respondent.
15. After discreetfully scrutinized the entire facts situation and also keeping in view the financial position of the husband/Appellant, we are of the considered opinion that payment of a lump-sum amount of Rs. 8 (eight) Lakhs by the husband/Appellant to the wife/Respondent would meet the ends of justice.
16. To arrive at a decision of fixing the permanent alimony of Rs. 8 (eight) Lakhs as stated above, the Court is guided by a catena of decisions including the judicial authorities reported in-
(1) (2006) 13 SCC 272 (Sujata Uday Patil v. Uday Madhukar Patil);
(3)
17. In Naveen Kohli''s case (supra), the Apex Court in paragraph 95, held as under:
95. Consequently, we set aside the impugned judgment of the High Court and direct that the marriage between the parties should be dissolved according to the provisions of the Hindu Marriage Act, 1955. In the extraordinary facts and circumstances of the case, to resolve the problem in the interest of all concerned, while dissolving the marriage between the parties, we direct the Appellant to pay Rs. 25,00,000/- (Rupees Twenty five lacs) to the Respondent towards permanent maintenance to be paid within eight weeks. This amount would include Rs. 5,00,000/- (Rupees five lacs with interest) deposited by the Appellant on the direction of the trial Court. The Respondent would be at liberty to withdraw this amount with interest. Therefore, now the Appellant would pay only Rs. 20,00,000/- (Rupees Twenty lacs) to the Respondent within the stipulated period. In case the Appellant fails to pay the amount as indicated above within the stipulated period, the direction given by us would be of no avail and the appeal shall stand dismissed. In awarding permanent maintenance we have taken into consideration the financial standing of the Appellant.
18. In Manjula''s case (supra), the Supreme Court in paragraphs 6 and 7 held that-
6. We find that acceptably the marriage has irretrievably broken down and there would be no point in making an effort to bring about a conciliation between the parties. However, the welfare of the daughter is of paramount importance and the parties appear to have reconciled to this position.
7. We have considered the suggestion given by the parties. We direct as follows:
1. A sum of rupees five lakhs shall be kept in fixed deposit in a nationalized bank initially for a period of 5 years with monthly interest withdrawal to meet the education expenses of the child.
2. A sum of Rs. 3,60,000 will be deposited in the name of the child Arugraha Mahesh represented by the mother guardian Manjula, the Petitioner, in a bank account will ABN AMRO Bank in a unit linked policy of AVIVA for a period of 12 years. As noted above, it has been indicated in the documents filed by the Respondent that after a period of 12 years the assured sum upon maturity would be Rs. 8,70,000 with a three-year lock-in period.
19. The Apex Court in Sujata Uday Patil''s case in paragraphs-14 and 15, held as follows:
14. We are of the opinion that the offer made by the Respondent regarding giving of some immovable properties to the Appellant and her son Charul @ Chaitanya in lieu of maintenance may not be workable and may create complications, specially in view of the fact that the Respondent has asserted the said properties to be the joint family properties and there is no such enforceable document on record by which the consent of the father and other brothers may be clearly and unequivocally accepted. We, therefore, consider it proper that the Respondent should pay a lump sum amount to the Appellant, interest income whereof may be enough for her maintenance and also that of her son Charul @ Chaitanya. It has come on record that the Appellant is living with her father and she is getting Rs. 2000 per month. The Respondent is working as a Junior Engineer in Municipal Corporation of the city of Jalgaon. Though he has produced a salary certificate wherein his basic salary is shown to be Rs. 2360 per month and gross salary as Rs. 8423 but the same has been seriously challenged by the Appellant on the ground that the Respondent has not opted for the grade which is payable in accordance with the recommendations of the Fifth Pay Commission and is deliberately drawing salary in a lower grade. However, we do not want to enter into this controversy. In our opinion, payment of a lump sum amount of rupees eight lakhs by the Respondent to the Appellant would meet the ends of justice.
15. In view of the discussion made above the appeals are disposed of in the following terms:
(i) The decree of divorce passed by the learned District Judge on 12.11.2002 is affirmed.
(ii) the Respondent is directed to pay a lump sum amount of rupees eight lakhs to the Appellant as maintenance here herself and her son Charul @ Chaitanya. The Respondent is granted three months'' time to pay mpees four lakhs and the balance in the next three months and thus the entire amount should be paid within six months.
(iii) The proceedings initiated by the Appellant or by her son against the Respondent under (a) the Hindu Adoptions and Maintenance Act, (b) Section 125 of the Code of Criminal Procedure, and (c) criminal case u/s 494, IPC shall remain suspended for a period of three months and if the amount is paid as indicated earlier, for a further period of three months.
(iv) After the entire amount of rupees eight lakhs has been paid by the Respondent to the Appellant, the proceedings of the cases instituted u/s 125, Code of Criminal Procedure and Section 494, IPC shall stand quashed and the proceedings u/s 18 of the Hindu Adoptions and Maintenance Act shall be abated.
(v) If the sum of rupees eight lakhs is not paid by the Respondent to the Appellant as indicated above, it will be open to the Appellant to execute the decree and recover the said amount from the Respondent in accordance with law.
20. Having regard to the ratio Laid down in the cases as indicated above, we fixed Rs. 8,00,000/- (rupees eight lakhs) as permanent alimony to the wife/Respondent to carry on her post divorce life with 6 (six) years old girl who was born out of the wedlock of the Appellant and the Respondent on 3.2.2003.
21. The amount so fixed as permanent alimony to the wife/Respondent shall be paid by the Appellant in 8 (eight) equal monthly instalments, 1 (one) lakh in each instalment starting from the month of January, 2009.
22. The amount as fixed above as permanent alimony be deposited with the Registrar General (Principal Seat), Gauhati High Court within the period mentioned above and on such deposit 50% of the amount be deposited in Fixed Deposit Account in any nationalized Bank in the name of the minor daughter and the wife/Respondent shall be at liberty to withdraw the rest 50% on being duly identified by her engaged Counsel.
23. Be it made clear that in default of payment of the amount within the time framed mentioned above, the Respondent shall be at liberty to recover the same from the husband/Appellant in accordance with law.
24. Consequently, the appeal stands allowed with the directions as indicated above.
