Smt. Poonam Gupta vs Ghanshyam Gupta

Allahabad High Court
Smt. Poonam Gupta vs Ghanshyam Gupta
on 9/10/2002

JUDGMENT

Vineet Saran, J.

1. These two appeals arise out of the same Judgment and order dated
  30.3.2001 passed by the Principal Judge, Family Court, Kanpur Nagar. By
  the impugned order, the suit for divorce under Section 13 of the Hindu
  Marriage Act (hereinafter referred to as the Act) filed by the husband
  Ghanshyam Gupta has been allowed on the condition that the plaintiff
  Ghanshyam Gupta pays a sum of Rs. 5,00,000 for the maintenance of his
  wife and daughter. The First Appeal No. 307 of 2001 has been filed by
  the wife Smt. Poonam Gupta praying for setting aside the judgment and
  order dated 30.3.2001 and to dismiss the suit of the plaintiff, whereas
  the other First Appeal No. 350 of 2001 has been filed by the husband
  Ghanshyam Gupta praying for setting aside that part of the judgment and
  order whereby it directs the appellant Ghanshyam Gupta to pay Rs.
  5,00,000 as maintenance allowance.

2. The brief facts of this case are that the plaintiff Ghanshyam Gupta
  got married to the opposite party Smt. Poonam Gupta on 24.11.1993. Out
  of the wedlock, a daughter was born on 2.12.1994. On the allegations of
  cruelty by the wife, on 22.5.1995, the plaintiff filed a petition under
  Section 13 of the Hindu Marriage Act praying for a decree of divorce.
  According to the allegations in the plaint, after the marriage, the
  plaintiff had taken full care of the opposite party and had also taken
  her to various places for holiday. Later when they returned home, it
  was revealed that the opposite party was not prepared to do any
  domestic work and used to tell the plaintiff and his family members
  that all such domestic work was done by servants at her mother’s place
  and thus expressed her inability to do the same. It was also alleged
  that she refused to meet his relatives and used to misbehave with the
  family members. Further, it was alleged that even though the marriage
  of plaintiffs sister was fixed for 5.11.1994, the opposite party went
  away to her mother’s place on 15.10.1994 and did not turn up to attend
  the marriage. Due to these actions of the opposite party, it was
  alleged by the plaintiff that he had to face humiliation amongst his
  relatives, friends and others. Contending that all these acts of
  misbehaviour amounted to cruelty by the wife, the plaintiff prayed for
  a decree of divorce.

3. An ex parte decree of divorce was passed on 5.5.1997. On coming to
  know of the said ex parte decree, the opposite party filed an appeal
  challenging the said order, which was registered as First Appeal No.
  237 of 2000. The Division Bench hearing that appeal had made efforts
  for reconciliation and in fulfilment of such objective, the parties
  were required to appear before the Bench. Although the opposite
  party-wife, had made a statement that she would like to reside with her
  husband, but the plaintiff husband had expressed his inability to live
  with the opposite party. He even stated that after the passing of the
  ex parte decree, he had performed another marriage with one Sunita
  Gupta through whom they had a son. After arriving at a conclusion that
  the reconciliation was not possible, the Bench heard the matter on
  merits and allowed the appeal with a direction to the Principal Judge.
  Family Court, Kanpur Nagar to dispose of the suit expeditiously. In the
  said judgment dated 14.7.2000. the Division Bench also observed that
  during the process of reconciliation, the plaintiff-husband had made an
  offer to settle the entire dispute with the opposite party-wife, for
  which he was prepared to pay a sum of rupees five lakhs. However, since
  the same was not acceptable to the opposite party-wife, no settlement
  could be arrived at even on such terms.

4. After remand of the case, the opposite party-wife filed her written
  statement admitting the fact of the marriage on 24.11.1993. However,
  she denied the allegations that she was not performing her duties at
  her matrimonial home at Kanpur. On the contrary, she stated that she
  was discharging her part of matrimonial obligations and was rendering
  her services throughout by looking after the household, serving her
  in-laws and husband and performing all necessary social obligations.
  She also denied that she ever refused to meet the family members and
  relatives of the plaintiff. As regards her absence at the time of
  marriage of the plaintiffs sister, she stated that the marriage was
  performed on 5.12.1994 and not on 5.11.1994. She further stated that
  prior to the said marriage, she had gone to her mother’s place because
  she was due for delivery. Since there was complication in the pregnancy
  and as proper care was not being taken by her In-laws, she went to her
  parent’s house at Sasaram for delivery of the child. However, close to
  the time of delivery, as further complications had arisen which could
  not be tackled at Sasaram, on medical advice she was shifted to a
  nursing home at Lucknow where she delivered a female child on
  2.12.1994. It was stated that in these circumstances, she was unable to
  attend the wedding of her husband’s sister on 5.12.1994. There were
  also counter allegations by her that her husband used to cause physical
  assault and behaved abnormally in a barbaric manner and used to abuse
  her with filthy and obnoxious language in a vociferous manner. It was
  also alleged that she was virtually thrown out of the house by her
  husband and in-laws before delivery of the child. It was stated by the
  opposite party wife that despite having given information to the
  plaintiff and other members of his family about the birth of a female
  child, no one attended or even came to see her and the child. In the
  additional pleadings, it was mentioned that in September, 1997, she had
  got a complaint case registered against her husband, father-in-law,
  mother-in-law and brother-in-law under Sections 498A, 323 and 504,
  I.P.C. as well as Sections 3 and 4 of the Dowry Prohibition Act. In
  response to the said complaint, the plaintiff husband, his brother and
  father were arrested and were brought from Kanpur to Sasaram where they
  remained in jail. The husband remained behind bars for sixty three days
  before he was granted bail and the other two were released on bail
  after about twenty to twenty five days. It was further stated that
  after the delivery of the child, when she regained normal health, she
  went back to her in-laws place in the month of April, 1995 and on the
  condition that a Maruti car would be made available to them, they
  allowed her and the child to stay with them. Consequently, a Maruti car
  No. U.P. 78G-9151 was given to the plaintiff by the brother of the
  opposite party. It has been further alleged that despite the car having
  been given, the plaintiff and his family members continued to demand
  further dowry of Rs. 2,00,000 and tortured her both mentally and
  physically. However, it was alleged that in the month of May, 1997, she
  was again thrown out of the house by her in-laws and thus she returned
  back to Sasaram, her parent’s house. It was also stated that after the
  filing of the complaint in September, 1997, the Maruti car was seized
  from the possession of the plaintiff and was released in favour of the
  brother of the opposite party.

5. The trial court recorded the statement of the plaintiff who
  reiterated the plaint allegations. He further mentioned that after the
  ex parte decree was passed on 5.5.1997, he had remarried in July, 1997
  and had two children from the subsequent marriage. He also stated that
  in the complaint case filed by the opposite party wife under Sections
  498A, 323 and 504, I.P.C. and the Dowry Prohibition Act, he had to
  remain in jail for over two months and his brother and father were
  jailed for about 20 to 25 days and because of the influence of the
  brother of the opposite party, who is an advocate at Sasaram, they
  could not be granted bail easily. It was stated by him that because of
  the action of the opposite party and her family members, he was greatly
  troubled mentally as well as physically and specially after having
  remained in jail for more than two months on the complaint of the
  opposite party, it was now impossible for him to stay with the opposite
  party. In his statement, he has categorically asserted that in the
  circumstances, he was left with no other option except for divorce. In
  support of his case, the father and brother of the plaintiff were also
  examined as witnesses who also reiterated the plaint case.

6. The statement of the opposite party Smt. Poonam Gupta was also
  recorded by the trial court and she reiterated the allegations made by
  her in the written statement. She also alleged that despite having
  performed all the marital obligations and her good behaviour at her
  in-laws place at Kanpur, she was always treated badly by her husband
  and in-laws. She had denied that her husband had remarried after the ex
  parte decree and stated that she is still prepared to live with the
  plaintiff. In support of her case, her brother and one Prem Chand Gupta
  were also examined who also reiterated the case set out by the opposite
  party wife.

7. After considering the contentions of the learned counsel and the
  evidence adduced by the parties, the trial court came to the conclusion
  that the plea of cruelty of the opposite party-wife as against the
  plaintiff husband could not be proved. But considering the fact that
  since both the parties have made allegations and counter allegations
  against each other and the matter had further precipitated after filing
  of a criminal complaint and the arrest of the plaintiff-husband as well
  as his father and brother, it was not practically possible for the
  plaintiff and the opposite party to live together as husband and wife.
  Even though no application was filed under Section 27 of the Hindu
  Marriage Act, still considering the statement recorded by the Division
  Bench of this Court on 14.7.2000, while deciding the First Appeal
  against the ex parte decree, since it had come on record that the
  plaintiff was prepared to pay a sum of rupees five lakhs to the
  opposite party-wife for settling the matter, the learned trial court
  passed a conditional decree of divorce subject to payment of Rs.
  5,00,000 to the opposite party-wife by the plaintiff for her
  maintenance and that of their daughter.

8. We have heard Sri Rajesh Tandon, learned senior counsel assisted by
  Sri Some Narayan Mishra for the wife Smt, Poonam Gupta, as well as Sri
  Ramendra Asthana, learned counsel for the husband Ghanshyam Gupta, at
  length.

9. During the hearing of these appeals, we had once again made efforts
  for reconciliation between the parties. On 9.5.2002, both the parties
  appeared before us. We found that the appellant Smt. Poonam Gupta was
  still keen to go and life with her husband but her husband Ghanshyam
  Gupta categorically stated that he was not prepared to life with her,
  mainly because of her misbehaviour as well as the fact that she had
  lodged a criminal complaint case against him and his family members
  because of which he, his father and brother had to remain in jail at
  Sasaram for a considerably long period. After having talked to the
  parties individually, as well as to both of them together, we found
  that reconciliation or settlement in any manner was not possible. Thus,
  we proceeded to hear both the appeals on merits.

10. Sri Ramendra Asthana, learned counsel for the husband Ghanshyam
  Gupta has strenuously argued that the behaviour of the wife Smt. Poonam
  Gupta was such that his client could not live with her as she used to
  regularly lower his position in public as well as before his family
  members. It was further urged that besides hot doing any domestic work
  at home, she used to misbehave with the family members and abuse them
  all ; she also threw tantrums by locking herself in the room and even
  threatened to commit suicide. Although these allegations have not been
  substantially proved by the plaintiff husband but still Sri Asthana
  urged that in the totality of the circumstances, because of the unusual
  and improper behaviour of the wife Smt. Poonam Gupta, the same amounted
  to cruelty and thus the plaintiff was entitled to a decree of divorce.
  He also submitted that the condition imposed by the trial court for
  payment of rupees five lakhs for the maintenance of wife and daughter
  is totally unreasonable and uncalled for as no such prayer was even
  made by the wife. Sri Asthana has further stated that because of the
  subsequent developments, as after passing of the ex parte decree of
  divorce, the husband had remarried and had children by the subsequent
  marriage, and also the conduct of the wife and her family members by
  lodging the criminal complaint and the subsequent arrest of the husband
  and his father and brother, the position had further aggravated and in
  such a situation it was not possible for the parties to live together
  as husband and wife.

11. Sri Rajesh Tandon, learned counsel appearing for the wife Smt.
  Poonam Gupta has contended that in the absence of any finding of
  cruelty, the decree of divorce under Section 13(1)(i-a) of the Hindu
  Marriage Act ought not to have been granted by the trial court. He has
  reiterated the stand taken by the wife that she was still prepared to
  go back and live with her husband even if he is remarried and has
  children, although the remarriage was not admitted by the wife.

12. In his statement before the trial court, the plaintiff husband
  initially only reiterated the allegations made in the plaint but was
  unable to give any concrete evidence to establish that the conduct of
  the opposite party wife actually amounted to cruelty. He then mainly
  narrated the developments subsequent to the filing of the suit, like
  the filing of the criminal complaint by the wife and he having thus
  been arrested along with his brother and father ; as well as his
  remarriage and he having two children from such marriage. Ram Sunder
  Gupta, father of the plaintiff was also examined as P.W. 2. He merely
  stated that the opposite party Smt. Poonam Gupta did not do the
  domestic work, like cooking, etc. and that she did not mix with the
  other members of the family and did not even attend the marriage of the
  plaintiffs sister. He further stated that she had filed a false
  criminal complaint against them. Vinod Kumar Gupta P.W. 3, brother of
  the plaintiff also deposed on the same lines. From the statements of
  the witnesses of the plaintiff, it appears that the main endeavour was
  not with regard to proving cruelty by the opposite party-wife but to
  show that the circumstances had been so created that now the two of
  them could not live together.

13. The opposite party wife in her deposition before the trial court,
  stated that the plaintiff had filed a false case for divorce by making
  wild and wrong accusations against her. She categorically asserted that
  it was not she who was cruel to her husband and in-laws, but on the
  contrary her husband and father-in-law used to torture her by abusing
  and beating her after getting drunk and her in-laws also used to harass
  her for dowry, like car and cash. The statements of her brother, Sushil
  Kumar (D.W. 2) and another relative, Prem Chandra Gupta (D.W. 3) were
  also on the same lines.

14. In the light of the facts as enumerated above and after having gone
  through the evidence adduced by the parties and hearing the counsel at
  length, we are in agreement with the finding recorded by the trial
  court that the plaintiff-husband was unable to prove the case of
  cruelty by his wife, as in the facts on record, .the same could not be
  established. However, on considering the totality of the circumstances
  and taking a pragmatic and practical approach that since there are
  allegations and counter-allegations of misbehaviour, physical and
  mental torture by both the parties, we find that it would not be
  actually possible for the two to live together. Besides this, there is
  also the fact that during the pendency of the petition for divorce, the
  husband has remarried and has two children. Coupled with this, due to
  the criminal complaint filed by the wife, the husband remained in jail
  for sixty three days and also his father and brother were jailed for
  twenty to twenty five days. Taking all these circumstances into
  consideration, we are of the opinion that the two parties cannot now
  live together as husband and wife.

15. While dealing with matrimonial cases, the Court has to strike a
  balance between the strict compliance of law and the situation emerging
  from the facts of the particular case. It is a totally different
  situation where the Court has to judge the rights of the parties with
  regard to certain property. But when the Court is to deal with human
  relationships, their lives and also their future living, it is
  obligatory on the part of the Court to consider whether the two persons
  whose matter is put before it, would in any way be benefited by the
  strict compliance of legal principles. We are duty bound to consider
  the welfare of the parties and come out with a workable solution. Under
  the scheme of the Act, dissolution of a marriage is normally the last
  option which the Court should exercise. But when a situation comes up,
  like the present one, where living together for the two of them is no
  longer possible or practical, directing the parties to live together as
  husband and wife would be totally meaningless. The purpose of
  continuance of such a marriage only for name-sake would be futile. In
  such circumstances, for all practical purposes, the marriage has become
  dead, both emotionally and practically, with no chances of revival. In
  the present case, even though the case of cruelty may not have been
  proved but as the facts emerging from the record clearly indicate that
  the living of the two as husband and wife would not only be difficult,
  but impossible, we are left with no alternative but to grant a decree
  of divorce.

16. While granting such prayer, even though there may not be an
  application for maintenance filed by the wife, the interest of the wife
  and the child would be of paramount consideration and ought to be taken
  care of by the Court. Such a direction for maintenance can be given by
  the Court under the provisions of Section 25 of the Act. During the
  discussions when the parties were called by us for the purpose of
  reconciliation, it has come to light that the plaintiff husband has a
  prosperous business. Taking advantage of the ex parte decree, he
  immediately remarried making a situation impossible for the wife to
  return and live together. In fact, the circumstances indicate that the
  plaintiff-husband was responsible in creating a situation in which the
  Court may not be left with any other alternative but to grant a decree
  of divorce, as under no circumstances, can the marriage now be
  retrieved. Considering the status of the families and the basic
  requirement for maintenance of the wife as well as the child, her
  education and upbringing, etc., we find that an ‘amount of Rs. 5,00,000
  as offered ‘by the plaintiff-husband in the year 2000 before the
  Division Bench of this Court in the earlier appeal would be
  insufficient. Considering the depreciating value of money and the
  expenses incurred in running an average middle class household, In our
  opinion, an amount of Rs. 6,00,000 (rupees six lakhs) for the wife and
  further Rs. 2,00,000 (rupees two lakhs) for the child would be just and
  proper for their maintenance, so that the wife may not have to depend
  on her parents and brothers for the rest of her life.

17. Thus, we are of the opinion that the decree of divorce is liable to
  be confirmed, and we further consider it just and proper that a decree
  of Rs. 8,00,000 (rupees eight lakhs) be also passed against the
  plaintiff-husband and in favour of the opposite party-wife, which
  amount shall be deposited by the plaintiff Ghanshyam Gupta in the trial
  court within four months from today.

18. In the result, the impugned judgment and decree of the Principal
  Judge, Family Court, Kanpur Nagar, is modified. The plaintiffs suit for
  divorce is decreed and the marriage is dissolved and the defendant is
  entitled to a decree of Rs. 8,00,000 (rupees eight lakhs). The
  plaintiff husband Ghanshyam Gupta, shall deposit Rs. 8,00,000 with the
  trial court within a period of four months from today, failing which
  the opposite party-wife Smt. Poonam Gupta shall be entitled to get the
  decree executed in accordance with law. Out of the said amount of Rs.
  8,00,000, a sum of Rs. 6,00,000 (rupees six lakhs) shall be paid to the
  opposite party-wife, Smt. Poonam Gupta forthwith and the balance amount
  of Rs. 2,00,000 (rupees two lakhs) shall be transmitted by the trial
  court to the Court of District Judge, Sasaram, within three weeks of
  such deposit. The District Judge, Sasaram, shall place the said amount
  of Rs. 2,00,000 in fixed deposit in the name of the child, with a
  nationalised bank so as to fetch maximum interest. The interest
  accruing on such fixed deposit would be payable to the opposite party
  Smt. Poonam Gupta every six months, which would be spent by her for the
  maintenance of the child. The amount kept in fixed deposit shall be
  made available to the child on her attaining majority.

19. Both the appeals are decided in the manner as indicated above.

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