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Smt. Nidhi vs Shri Nishant Dubey on 29 July, 2019

F.A.No.2306/2018 F.A.No.141/2019 1

HIGH COURT OF MADHYA PRADESH BENCH AT INDORE

DIVISION BENCH : Hon’ble Shri Justice S.C. Sharma
and Hon’ble Shri Justice Virender Singh
F.A.No.2306/2018

Nishant Dubey Vs. Dr.Nidhi

F.A.No.141/2019

Smt. Nidhi Vs. Nishant

******************

Shri A.P.Wachasundar learned counsel for the appellant/husband
in F.A.No.2306/2018 and counsel for respondent in
F.A.No.141/2019.

Shri Mohd. Khalid Khokar, learned counsel for the
respondent/wife in F.A.No.2306/2018 and counsel for petitioner
in F.A.No.141/2019 .

********************

JUDGMENT

(Delivered on 29 July, 2019)

Per : Virender Singh, J.

1. With consent of the parties, both the matters are heard
finally.

2. Both these counter appeals have been preferred by husband
and wife against each other challenging judgment and decree
dated 25.10.2018 passed by Second Additional Principal Judge,
F.A.No.2306/2018 F.A.No.141/2019 2

Family Court, Indore in H.M.A. No.1902/2017; whereby the
learned Family Court has granted ex-parte divorce to wife Dr.
Nidhi Nishant Dubey along with one time permanent alimony of
Rs.10,00,000/- (Ten Lacs).

3. Husband Nishant has challenged both the reliefs; divorce as
well as one time alimony granted to the wife, while wife Nidhi has
challenged inadequacy of permanent alimony granted in her
favour and she has demanded Rs.50 (fifty) Lacs in that count.

4. Wife Nidhi had preferred the petition before the Family
Court stating that she married to Nishant on 24.11.2016 as per
Hindu rights and rituals, but after the marriage she came to know
that her husband is a habitual and heavy drunkard. He used to
come back home at night in drunk condition. Many a times he did
not return home for several days. She was also subjected to
cruelty by her husband and even by her in-laws. Her Mother-in-
law was pressurizing her to hand over jewelry gifted by her
parent in the marriage. She was also taunting her that she
should have brought at-least Rs.1.5 Lacs in ‘Faldan’. She also
came to know that her husband had borrowed money from
several persons, who were behind him. Once her husband got
annoyed and scolded her when she unknowingly accepted a
notice of dishonour of cheque worth Rs.4,00,000/- (four lacs)
sent by Court in Marathi language. She also saw several
messages on his mobile demanding money from him. He was
also having illicit relation with some lady. Once she saw a
message on his mobile sent by his friend indicating that he had
F.A.No.2306/2018 F.A.No.141/2019 3

relation with one ‘Mohini’, a bar dancer, and had a son with this
relation. On 10.2.2017, she was forced to hand over her jewelry
to fulfill his demand of Rs.1.5 lacs. On 17.3.2017, he got
annoyed, when she asked to bring back the same. Once she was
forced to give Rs.20,000/- from her credit card. Thus, she was
suffering a lot in the hands of her husband. When she complained
to her parents-in-law, they also revealed that he used to do the
same things with them also and once he had stolen Rupees Ten
Lacs from their locker also. Perplexed with his behaviour
ultimately she walked out of her marital home in April, 2017, but
came back again after some time on intervention of elders of
both the families. On 6.10.2017, he again abused and hit her in a
state of intoxication. Her in-laws did not pay heed to her
grievance. Ultimately; on 9.10.2017, she intimated the Police
(Chandanagar Police Station, Pune) and left her marital home
finally for maternal home and took shelter there.

5. She filed petition for divorce. The Family Court issued notice
to the husband by registered A.D. at his home as well as at office
address. Notice sent to the office was received by authorized
signatory and duly signed acknowledgment was received back.
On the date of hearing, none appeared for the husband,
therefore the Family Court proceeded ex-parte. After taking
evidence of the petitioner wife, final arguements were heard on
11.9.2018 and the case was fixed to pronounce judgement on
22.09.2018.

F.A.No.2306/2018 F.A.No.141/2019 4

6. Claiming that the notice sent by the Court was never
received to him and only on 20.9.2018 he came to know about
filing of the petition, the husband approached the Court and filed
application to set aside ex-parte order, but as by that time,
hearing of the petition was over and the case was fixed for
judgement, his application was dismissed as not maintainable
and ultimately the Family Court pronounced the judgement on
25.10.2018.

7. The husband has now preferred this appeal. Besides, denial
of allegations of cruelty, harassment and ill-treatment leveled by
his wife, he even denied the marriage stating that after all
arrangements of marriage were completed and “Saptpadi” was
about to start, their priest informed them that being ‘Sapind’
both the parties to the marriage falls under prohibited degree
and, therefore, their marriage cannot be solemnized. After
getting this information, the ceremony was aborted and thus, no
legal and valid marriage between both of them exists.

8. It is also averred that the postal notice was served at
different address of his employer; then the place he was working,
therefore, such service cannot be treated as a proper and valid
service.

9. Decree of divorce is also challenged on the ground that
mandatory provisions of reconciliation under Section 9(1) and
Section 23 (2) of the SectionHindu Marriage Act, 1955 and Order 32(A)
Rule 3 of CPC were not followed by the Family Court.

F.A.No.2306/2018 F.A.No.141/2019 5

10. Permanent alimony is opposed on the grounds that life time
maintenance is governed by the provisions of Section 18 of the
Hindu Adoption and SectionMaintenance Act, 1956, therefore, granting
maintenance under Section 24 or 25 of the SectionHindu Marriage Act is
contrary to the law.

11. Quantum of permanent alimony is challenged on the ground
that the wife herself is a well educated and professionally
qualified having completed four and half years bachelor’s degree
in Physiotherapy and doing well in his profession and is earning
sufficiently. She is member of various professional organizations
as a qualified Physiotherapist, like All India Sports Physiotherapy,
Quality Physiotherapy Services etc. As per her own
advertisement on the internet, she gives services as a
Physiotherapist in the name and style of “Arthros Clinic” and also
works as a Physiotherapist in “Sahaj Hospital”, Indore. On a
professional networking site, viz; ‘Linkedin’, she has publicized
that she is a physiotherapist with “Sahaj Hospital” since March
2013 and has experience of work since 5 years in the said field.

12. It is further pleaded that the learned Family Court has not
considered his income properly. It has considered his income as
Rs.6.4 Lacs per annum, which is actually his gross income.
Several deduction being made from his salary are not considered.
In view of his net salary, he is not in a condition to pay such
huge amount as life time maintenance.

13. Another ground for contesting the life time maintenance is
that it is without jurisdiction as the same is granted without any
F.A.No.2306/2018 F.A.No.141/2019 6

application in that behalf and without considering the equity
amongst the parties.

14. Suppression of facts is also taken as a ground to challenge
the ex-parte decree. It is pleaded that wife had also initiated a
proceeding under domestic violence act against her husband and
other family members, who were appearing to defend themselves
in that proceeding but the fact of pendency of divorce petition
was never disclosed before them and this suppression of fact dis-
entitles the wife for any relief prayed for.

15. The wife has suppressed all the material facts regarding her
qualification, profession and earnings, intentionally, misguided
and misled the family Court, therefore, she is not entitled to any
equitable relief for life time maintenance.

16. On the aforesaid grounds, the husband prayed for quashing
and setting aside judgment and decree of divorce dated
25.10.2018. In alternate, he prayed that the case be remanded
back to the Family Court for denovo trial after giving him
opportunity to defend his case.

17. In reply, the wife has refuted all the allegations made by
her husband. By producing “Shajra Khandhan” (family tree); she
has vehemently denied that the parties to the marriage are
“Sapind”. To rebut the claim of the husband that as per Hindu
Law; their marriage was never solemnized, she has produced
several photographs of different ceremonies performed during
their marriage.

F.A.No.2306/2018 F.A.No.141/2019 7

18. To support the relief of enhancement in the amount of one
time maintenance, the wife has claimed that her husband earns a
lot. He is only son of his parents. His parents are working and
earning handsome salaries. His father is civil engineer and is
working as professor in Raisoni College, Pune. His mother is
electronic engineer and is Director in Polytechnic College. He has
good amount of property. Her life is spoiled. Though she has
decree of Physiotherapy but due to marriage she left her place
and never practiced or earned anything in her marital home and
even after coming back at her maternal home, she has not
started practice and is not earning anything. Her father was an
officer in Co-operative bank but is now retired. She is totally
dependent on her mother, who is a school teacher and is going to
retire soon. Besides, she is fifth stage kidney patient and needs
dialysis twice a week. Therefore, she need Rs.50 lacs to lead a
dignified life.

19. We have considered rival contentions of the parties and
have gone through the record.

20. Undisputedly, the notice of the petition filed by the wife for
divorce before the family Court was sent by Registered A.D. post
to the office of the respondent and was received and
acknowledged by the authorized signatory of the office. Deepak
Sharma, who is Manager in the same ‘Motilal Oswal Securities
Limited’ where the husband Nishant was admittedly working at
that time, has stated on oath before the Family Court that
Nishant Dubey was Sales Manager in the Pune Branch of the
F.A.No.2306/2018 F.A.No.141/2019 8

Company. Salary slips and account statement of HDFC Bank of
Nishant have been proved by this witness as Exhibit P-17,18
19, which makes it vividly clear that at least since September,
2017 to July, 2018, Nishant was working in the same Branch of
the Company where the notice of the petition was received.
Therefore, his contention that he was not duly served the notice
of the petition; cannot be accepted.

21. Facts regarding academic qualification of wife have been
mentioned in paragraph 11 of the original petition preferred by
the wife before the Family Court. Fact regarding pendency of
divorce petition is mentioned in para 8(c) of the petition filed by
the wife under Section 12 of the Domestic Violence Act and this
fact is mentioned in para 7.1 of the reply of stay application filed
by the husband. This fact is no where rebutted by the husband;
therefore, allegation of suppression of fact is not true or in fact is
contrary to the record.

22. So far as contention of the husband that right at the time of
marriage, the Priest informed them that they are ‘Sapind’ and
therefore, their marriage cannot be solemnized is beyond truth
as sufficient evidence is available on record to rebut this
averment of the husband. Several photographs to show that all
the rituals were performed step by step at the time of marriage
are produced by the wife. In his rejoinder, the husband has not
specifically denied them. Otherwise also it is unbelievable that
after making all arrangements and performing several rituals at
the time of ‘Satpadi’ the marriage was stopped all of sudden on
F.A.No.2306/2018 F.A.No.141/2019 9

the information of the priest as it can easily be assumed from the
claim of the husband himself that both the families of this case
were well known to each other and it is a tradition and is a fact of
common knowledge that prior to fixing marriage, usually both the
families remain in touch for considerable long period and before
settling a relation like marriage they inquire about the Religion,
Caste and Gotra and even they match ‘Janam Kundalis’ and only
thereafter they proceed further to settle the relation. Any
statement contrary to this deep rooted custom, which is being
invariably followed in all marriages in ‘Hindus’ has to be
established by the party making such statement by cogent and
unambiguous evidence, but here; in the case in hand, the things
are different. Nothing is on record to support the pleadings of the
husband. On the contrary there is ample evidence to show that
the marriage was solemnized between the parties, therefore, this
contention of the husband appears to be misleading.

23. Averment that the parties to this case are ‘Sapind’ and they
are cousins by blood relation is misconceived as in reply, the wife
has produced ‘Shajra Khadhan’ (family tree) making it amply
clear that the parties of the marriage do not fall in the prohibited
category. Husband has filed rejoinder but, no cogent statement
has been made to rebut the claim of the wife; therefore, this
averment cannot be countenanced.

24. The husband has made repeated pleadings that it was the
first and foremost duty of the Family Court to make efforts for
reconciliation of the parties to the marriage as per scheme of the
F.A.No.2306/2018 F.A.No.141/2019 10

SectionHindu Marriage Act, SectionFamily Court Act and other relevant laws. He
has asserted that no attempts for reconciliation were ever been
made, therefore, the decree passed by the Family Court is
contrary to the provisions of Section 9(1) and Section 23 (2) of
the SectionHindu Marriage Act, 1955 and Order XXXIIA Rule 3 of the
CPC and is against the spirit of marriage laws, but here also the
law is misconstrued. The husband never appear before the family
Court even after service of the notice, therefore, the Court was
having no occasion to make any efforts for reconciliation. Even
after appearing before the Family Court prior to passing of the
decree of Divorce, he filed an application for setting aside ex-
parte order but has never made any proposal that he is
interested in compromise or reconciliation. Even before this
Court, no such proposal was made by him.

25. In our attempt of reconciliation, we directed both the parties
to be present in person before us. We tried at our level best to
reconcile the matter, but of no avail. Looking to the inexorability
of the husband, age of the parties and the nature of the dispute,
we decided to hear this matter finally and with consent of the
parties heard it finally, but neither any desire is expressed by the
husband that he is interested in reconciliation or needs some
more time for this purpose nor he came forward with any
concrete proposal of reconciliation. His disinterest can also be
presumed from the fact that he has even denied the marriage.

26. Thus, in the case in hand, as stated above, the family Court
was not having any occasion to make such attempts and efforts
F.A.No.2306/2018 F.A.No.141/2019 11

made by us have been foiled by the husband. The husband has
never shown interest in reconciliation. He has come before this
Court with a plea that marriage was not solemnized as both the
parties were ‘Sapind’, therefore, his plea for reconciliation
appears to be only an eyewash. When a person is not accepting
the marriage how can he be interested in any type of
reconciliation? In such a situation, the claim of the husband that
the decree of divorce passed against him is a nullity or contrary
to the law governing the field, is antonymous to his conduct and
to the facts of the case and his plea that efforts were not made
for reconciliation is not tenable.

27. The petitioner has pleaded that relief of one time
maintenance is granted to the wife without asking for the same.
Reliance has been placed on the case of D.Balakrishnan Vs.
Pavalamani reported in AIR 2001 Madras 147. In this case,
the Division Bench of the Madras High Court has ruled that order
of permanent alimony under Section 25 can be passed only after
making application furnishing all details regarding income or
other properties.

28. But no specific format is provided in SectionHindu Marriage Act for
filing any application under Section 25 of the Hindu Marriage Act
for granting permanent alimony. Facts regarding academic
qualification, job and family status have been mentioned in the
petition preferred by the wife before the family Court itself. In
the relief clause of the petition preferred by the wife before the
family Court, relief of permanent alimony has been prayed for.

F.A.No.2306/2018 F.A.No.141/2019 12

By filing the present appeal, the wife has come with the sole
prayer for enhancement of permanent alimony granted by the
family Court. Therefore, judgment of Division Bench of the
Madras High Court in D. Balakrishnan (supra) is distinguishable
on facts and wife cannot be denied permanent alimony in this
case.

29. The wife has stated and has proved that her husband is
working at a package of Rs.6.4 Lacs per annum. Her statement is
supported by Deepak Sharma and further corroborated by his
Salary slips and account statement of HDFC Bank (Ex. P-17

19). The husband has denied his income as claimed by his wife,
but he has not denied that earlier he was working with “Motilal
Oswal Securities Limited”. Further, nothing is on record to
contradict the statement of Deepak Sharma and the documents
proved by him.

30. The wife has admitted that she is a qualified Physiotherapist
having a Bachelor’s Degree in the said stream. The husband has
claimed that she is providing services in the name and style of
‘Arthros Clinic’ and also attached with ‘Sahaj Hospital’ and
providing services. She has membership of various Professional
Organizations like ‘Qualified Physiotherapist Society’, ‘All India
Sports Physiotherapy’, ‘Quality Physiotherapy Services’ etc. A
print out of the advertisement on internet is annexed and marked
as Anx-F (Pg 91 92).

31 Having regard to the facts emerged from the averments and
evidence of both the parties that husband was working on
F.A.No.2306/2018 F.A.No.141/2019 13

package of Rs.6.4 Lacs per annum and keeping in mind that the
wife is a well qualified Physiotherapist and is working with some
Organizations and also providing services in the name and style
of ‘Arthros Clinic’, in our considered opinion, the amount
determined by the learned trial Court appears to be just and
proper in the peculiar facts and circumstances of the case,
therefore, we are not inclined to interfere in that part of the
decree of the Family Court also.

32. Learned counsel for the appellant (husband) has placed
reliance on various judgments of the Hon’ble Supreme Court
passed in the cases of Jagraj Singh Vs.Birpal Kaur reported in
(2007) 2 SCC 564, Vinny Parmvir Parmar Vs. Parmvir
Parmar (2011) 13 SCC 112, K.Srinivas Rao Vs. D.A.Deepa
(2013)5 SCC 226, Suman Singh Vs. Sanjay Singh (2017) 4
SCC 85, Abbayolla M. Subba Reddy Vs. Padmamma AIR
1999 Andhra Pradesh 19 Full Bench, and Kaminiben
Mangaldas Shah Vs. Bharatbhai Rasiklal Shah AIR 2005
Gujarat 279.

33. In the case of A.M. Subba Reddy (supra) Hon’ble the
Supreme Court has held that when admittedly marriage is nullity
then the wife is not entitled for any permanent alimony under
Section 25 of the Hindu Marriage Act. This situation does not
exist in the present case; therefore, this judgment is not
applicable in favour of the husband.

34. In the case of Kaminiben Mangaldas Shah (supra) the
ex-parte decree of divorce was passed even when the wife
F.A.No.2306/2018 F.A.No.141/2019 14

appeared in the petition. No such situation exists in the present
case; therefore, this judgment is distinguishable on the facts.

35. Other judgements cited by the learned counsel for the
husband speak about necessity of attempts or efforts for
reconciliation for passing a decree of divorce. But in this case the
family Court was not having any opportunity to conduct the
reconciliation proceedings and our attempts for the same were
not successful, therefore the judgments cited by the husband are
not beneficial to him.

36. In view of the foregoing discussion, we find no merits in the
appeals preferred by both; the husband and the wife. We do not
see any illegality or perversity in the order passed by the learned
Family Court. Therefore, admission of both the appeals is
declined and both the appeals are dismissed hereby.

37 All the I.As pending, stands closed.

(S.C. Sharma) (Virender Singh)
Judge Judge

Digitally signed by
REENA PARTHO
SARKAR
Date: 2019.07.31
11:18:25 +05’30’

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