NO MAINTENANCE TO CHILD IF CHILD REFUSES TO STAY

Kolkata High Court (Appellete Side)
Smt. Mousumi Banerjee vs Sri Bidyut Kumar Banerjee on 11 September, 2009

Form No. J(2)

IN THE HIGH COURT AT CALCUTTA

Appellate/Revisional/Civil Jurisdiction

Present:The Hon’ble Mr. Justice Bhaskar Bhattacharya
And
The Hon’ble Mr. Justice Prasenjit Mandal

F.A. 07 of 2007

Smt. Mousumi Banerjee
Versus
Sri Bidyut Kumar Banerjee

For the Appellant-Wife: Mr. Probal Mukherjee, Mr. Soma Priya Chowdhury.

For the Respondent-Husband: Mr. Gopal Ghosh, Mr. Om Narayan Rai.

Heard on: 20.08.09. & 27.08.09

Judgment on: 11th September, 2009.

Bhaskar Bhattacharya, J.:

This appeal is at the instance of a wife in a suit for divorce on the ground of cruelty and is directed against the judgment and decree dated 16th May, 2005 passed by the Additional District Judge, Third Court, Barassat in Matrimonial Suit No.17 of 2002 by which the learned Trial Judge granted the decree for divorce.

Being dissatisfied, the wife has come up with the present first appeal.
The husband filed a suit being Matrimonial Suit No.1294 of 2001 in the Court of the learned District Judge, Barasat for divorce on the ground of cruelty. The said suit was subsequently transferred to the Court of the learned Additional District Judge, Third Court, Barasat and was renumbered as Matrimonial Suit No.17 of 2002.

The case made out by the husband may be summed up thus: (a) After the
marriage of the parties, they started staying together at the house of the
husband at 12/1, Mahajati Nagar, Birati and immediately after the marriage, the
trouble started in the family of the husband at the instigation of the mother
of the wife who used to visit the house of the husband quite often. On her
advice, the wife stated misbehaving with the husband and his parents and the
main object of the mother of the wife was to separate the husband from his old
parents or to make him a domesticated son-in-law in the house of the wife at
Salt Lake. (b) In the meantime, a child was born on 26th November, 1994 but
the wife at the instigation of her mother deprived the husband and his parents
from the love and affection of the child. The wife left the matrimonial home
with her child without informing the parent of the husband and continued to
stay at Salt Lake. After long persuasion and through the intervention of the
Mahila Samity, although the wife returned to her matrimonial home, when the
parents of the husband approached the child, the wife reacted violently and she
denied the access of the child to the parents of the husband and again left the
matrimonial home on 19th April, 1996 without informing the husband and his
parents and then came back on 3rd May, 1996. Thereafter, the wife again left
the matrimonial home on 15th August, 1996 without any information and came back
after a short span and finally on 14th October, 1996 she left without informing
anybody just leaving a sheet of paper indicating her departure. The husband
approached the respondent at her residence at Salt Lake for returning to her
matrimonial home which she flatly refused. As a result, the husband filed a
proceeding for restitution of conjugal right under Section 9 of the Hindu
Marriage Act. However, the said petition was ultimately withdrawn by the
husband. The wife, however, served a notice to the employer of the husband
making baseless allegation that amount of alimony was due to her under the
order of the Court and she took step for attachment of the salary. She also by
going to the office of the husband abused him in the presence of his colleagues
thereby affecting his social status and dignity in the esteem of his
colleagues. Ultimately, the wife on 10th August, 2001 again came back to the
matrimonial home being armed with an order under Section 144 of the Cr.P.C.
with the help of police by occupying the entire ground floor consisting five
rooms by denying access to the husband and his parents in the ground floor. The
respondent also used to threat the husband of initiating proceeding under
Section 498A of the Indian Penal Code; as a result, the husband with his parents
had left the place and started living in a rented house.

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The suit was contested by the wife by filing written statement denying the
material allegation made in the petition for divorce and according to her, the
mother of the husband subjected the wife to cruelty and also manhandled her
during her stay in the matrimonial home. According to her, she was abused in
filthy language by the father of the husband. It was denied that she had
voluntarily abandoned her matrimonial home on 14th October, 1996. She expressed
her desire to stay in her matrimonial home with the male child. As indicated
earlier, the learned Trial Judge on the basis of evidence on record came to the
conclusion that the husband has proved cruelty on the part of the wife and
consequently, granted a decree for divorce. Being dissatisfied, the wife has
come up with the present first appeal. After hearing the learned counsel for
the parties and after going through the materials on record, we find that it
has been well established from the Exbt.3, the handwritten note of the wife,
that she had left the house without disclosing the reason. The learned Trial
Judge, as it appears from the judgment impugned, rightly recorded that the
mother of the wife made deliberate false statement on oath before the Court at
the time of deposition. She stated that she was very much disappointed in the
family of the applicant. She openly expressed that her daughter had no duty to
take care of the old parents. The wife in her evidence stated that she did not
like her in-laws and wanted her husband separately. The learned Trial Judge has
further found that in spite of specific direction for production of the child
in the Court, the wife did not give access of the son to the husband. The
learned Trial Judge has further found that a false Money Execution Case No.64
of 2000 was filed by the wife for issue of warrant of arrest against the
husband and the same was issued by the Judicial Magistrate but the learned
District Judge, Barasat in Criminal Revision Case No.438 of 2001 recalled said
warrant of arrest with a finding that there was no such due. It further appears
that after leaving the house she came back with police and occupied the entire
ground floor consisting of five rooms and threatened the husband with
initiation of proceeding under Section 498A of the Indian Penal Code, as a
result, the husband was compelled to take shelter in a rented house leaving his
own house.

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From the aforesaid material it is clear that the act of the wife
amounted to cruelty within the meaning of Section 13(1) (i)(a) of the Hindu
Marriage Act and we find no reason to take different view from the one taken by
the learned Trial Judge.

At the time of hearing of this appeal, the husband produced before us his
monthly salary certificate which shows that his monthly income is Rs.27,000/-
and odd and after deduction of income-tax and other necessary deduction we can
safely treat his monthly income to be Rs.25,000/-. In such circumstances, we are
of the view that the wife should be entitled to get a onetime permanent alimony
of Rs.6 lakh from the husband in full satisfaction of the claim for future
alimony.

The only son of the parties is living with the wife and is a student of class
IX. After taking into consideration the expenditure of his studies and other
maintenance, we, for the time being, direct the husband to pay a sum of
Rs.5,000/- for the maintenance of the son on condition that the son will stay
with the husband for a day in a week. The husband should pick up the son from
his wife’s house on every Saturday evening and return the child in the afternoon
of Sunday. He will go on sending the money by account payee cheque in the joint
account of the mother with the son. If the son refuses to comply with the
direction of staying with his father for a day in a week, he will not be
entitled to get the maintenance ordered by us by this order.

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We, therefore, affirm the decree for divorce on the ground of cruelty and in
addition, grant a decree for permanent alimony for the wife and also for the
maintenance of the only child of the parties as indicated above. The appeal
is, thus, disposed of with the aforesaid observation. In the facts and
circumstances, there will be, however, no order as to costs.

(Bhaskar Bhattacharya, J.)

I agree.

(Prasenjit Mandal, J.)

3 thoughts on “NO MAINTENANCE TO CHILD IF CHILD REFUSES TO STAY

  1. can a Muslim son claim maintenance from her father after attained the age of eighteen?and now the father is in pakisthan.or file any case for not maintaining caring or even about him in his minority?

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