Delhi High Court: Denying sex to spouse is mental cruelty & ground for divorce. Shashi Bala vs Rajiv Arora, 21.03.12, Justice Kailash Gambhir

Delhi High Court: Denying sex to spouse is mental cruelty & ground for divorce. Shashi Bala vs Rajiv Arora, 21.03.12, Justice Kailash Gambhir



IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment delivered on: 21.03.2012

FAO No.185/2001

Smt. Shashi Bala ……appellant.
Through: Mr. Atul Bandhu, Adv.

Vs.

Shri Rajiv Arora ……Respondents
Through: Mr. R.G. Srivastava, Adv.

CORAM:

HON'BLE MR. JUSTICE KAILASH GAMBHIR
KAILASH GAMBHIR, J.

1. By this appeal filed under section 28 of the Hindu Marriage
Act, 1955, the appellant seeks to challenge the impugned order and
decree dated 12.2.2001 passed by the learned Trial Court whereby a
decree of divorce in favour of the respondent husband under Section
13(i)(a) of the Hindu Marriage Act was granted and the counter claim
FAO 185/01 Page 2 of 19
filed by the appellant seeking a decree for restitution of conjugal
rights under Section 9 of the Hindu Marriage Act was dismissed.

2. Brief facts of the case relevant for deciding the present
appeal is that the marriage between the parties was solemnized on
17.2.1991 according to Hindu rites and ceremonies. It was stated by
the husband in his divorce petition that after the solemnization of the
marriage, right from the inception, the attitude of the appellant was
indifferent and she complained that the marriage had not been
solemnized with a man of her taste. As per the respondent husband,
the appellant had refused to participate in the traditional ceremony of
dud-mundri by saying that she did not like all this but without
disclosing any reasons. As per the respondent, the appellant also did
not take any interest in the dinner which was served on the wedding
night i.e. 18.2.1991. It is also the case of the respondent that when
both of them went to their bedroom around 11.30 p.m. the appellant
was not responsive and she did not allow the respondent to have
sexual intercourse with her. The respondent has alleged that it is only
on 25.2.1991, that he was allowed to have sexual intercourse with the
appellant for the first time, but again the appellant remained
unresponsive and such conduct of the appellant caused mental cruelty
to the respondent. It is also the case of the respondent husband that
on 13.4.1991, the appellant refused to perform “chuda ceremony”
which not only hurt the sentiments of the respondent but his parents
as well. It was also stated that the appellant in fact removed the
chuda and threw it under the bed by saying that she did not believe in
all these things. It is also the case of the respondent that the appellant
used to visit her parents on her own without even informing the
respondent and finally left the matrimonial home on 16.4.1992 and
since then she did not come back. It is also the case of the respondent
that he had sexual intercourse with the appellant only for about 10-15
times during her stay with him for a period of about 5 months. It is
also the case of the respondent that the appellant used to quarrel with
his old parents and she also used to insist to shift to her parents’
house at Palam colony. The respondent also alleged that on 11th
March, 1991 the appellant tried to illegally remove the jewellery from
the almirah which belonged to his mother and which was kept for his
unmarried sister and while doing so she was caught red handed. It is
also the case of the respondent that the appellant made a false
complaint with the Crime Against Women Cell and Family Counsel
Office, which complaints were ultimately withdrawn by her. Based on
these allegations the respondent husband claimed the decree of
divorce under Section 13(1)(ia) of the Hindu Marriage Act.

3. In the written statement filed by the appellant wife, she
denied all the abovesaid allegations leveled by the respondent
husband. She denied that she had refused to participate in the “Dud
Mundari Ceremony”. The appellant had also stated that after taking
lunch on the wedding day, one lady relative of her in-laws and parents
of the respondent remarked that she did not bring bed and sofa sets
in her dowry and in response she informed them that her father had
given a bank draft of Rs. 30,000/- besides presenting costly clothes,
ornaments, TV, clothes for relatives, utensils and other articles in the
marriage. It is also the defence of the appellant that on the wedding
night the respondent entered the bedroom showering filthy abuses on
the appellant and told her that she had not brought the dowry
according to their expectations. It is also her case that she was also
told by the respondent that the bank drafts should have been
prepared either in the name of the respondent or in the name of his
father. It was denied by the appellant that her attitude was indifferent
at the time of dinner. She also denied the allegation of nonconsummation
of the marriage on the wedding night. The appellant
took a stand that right from the wedding night i.e. 18.2.1991 the
parties had normal physical relationship with each other. She also
denied that she did not perform “chuda ceremony” or threw the chuda
under the bed. She also denied that she left the matrimonial home on
16.4.1992. The appellant also took a stand that on 23.4.1992 the
respondent, his parents and two sisters asked her to bring
Rs. 50,000/- or otherwise leave the matrimonial home and on her
refusal to meet the said demand, she was thrown out of the
matrimonial home. The appellant denied that she had sexual
relationship with the respondent only 10-15 times or she had refused
to have sex with the respondent. She also denied that she never
insisted the respondent to live in the house of her parents. She also
denied that on 11th March, 1991 she made any attempt to steal the
jewellery or she was caught red handed. She also stated that in the
last week of April, 1991 she was told by the respondent to withdraw
Rs. 30,000/- from her bank account as the old sofa lying in the house
required replacement but no new sofa set was purchased when she
brought the said money and gave the same to the mother of the
respondent. The appellant also took a stand that she was prepared to
live with the respondent as she had withdrawn from her society
without any reasonable cause and without any fault on her part.

4. Based on the pleadings of the parties, the learned Trial
Court framed the following issues:-
(i) Whether the respondent has treated the petitioner with cruelty?
(ii) Relief.
(iii) Whether the petitioner has withdrawn from the company of the
respondent without any reasonable cause or excuse? If so, its effect.
The respondent in evidence examined himself as PW2 besides
examining Shri Dalveer Singh, Head Constable as PW1 and Shri
Vishwamitra, father of the respondent as PW 3, his colleague Shri
Vijay Kumar Taygi PW4. The appellant on the other hand examined
herself as RW1 with no other evidence in support.

5. After taking into consideration the pleadings of the parties,
the learned Trial Court found that the refusal of the appellant wife to
participate in the “Dud Mundari ceremony” and thereafter “Chudha
ceremony”, which were customary rituals in the family of the
respondent husband caused embarrassment and humiliation to the
respondent and such acts on the part of the appellant amounted to
cruelty. The learned Trial Court also found that in the span of one
year and two months of the married life, the parties had sex only for
about 10-15 times and also denial of the appellant for sexual
relationship on the very first night of the marriage is a grave act of
cruelty as healthy sexual relationship is one of the basic ingredients of
a happy marriage. The learned Trial Court also found that filing of the
complaints by the appellant with the Crime Against Women Cell and
Family Counsel Office also collectively caused mental cruelty to the
respondent husband. Accordingly, the learned trial court granted a
decree of divorce in favour of the respondent and against the
appellant and consequently also dismissed her counter claim for
restitution of conjugal rights.

6. Mr. Atul Bandhu, learned counsel appearing for the
appellant before this court vehemently argued that the learned Trial
Court did not refer to the evidence of the appellant wife wherein she
has denied all the allegations leveled by the respondent husband in
his petition for divorce. Counsel also contended that the marriage was
consummated on the very first night and the appellant wife never
denied sexual relationship to the respondent husband. Counsel also
submitted that nowhere the respondent husband has stated that as to
when he was refused any such sexual relationship by the appellant.
Counsel thus argued that the learned Trial Court has granted the
decree of divorce merely on the ground that the appellant wife did not
participate in the dud-mundari ceremony and chudha ceremony and
also she did not allow the husband to have sexual intercourse more
than 10-15 times in a period of 5 months and as per the counsel, these
grounds cannot be treated sufficient enough to constitute cruelty as
envisaged under Section 13(ia) of the Hindu Marriage Act. In support
of his arguments, counsel for the appellant placed reliance on the
judgment of the Hon’ble Supreme Court in Savitri Pandey vs Prem
Chandra Pandey AIR2002SC591 and V. Bhagat vs D. Bhagat (Mrs)
(1994) 1 SCC 337.

7. Mr. R.G. Srivastava, learned counsel appearing for the
respondent on the other hand fully supported the reasons given by the
learned Trial Court which entitled him to claim a decree of divorce
under Section 13(ia) of the Hindu Marriage Act. Counsel for the
respondent also submitted that the appellant did not respect the
sentiments of the respondent and his family members by refusing to
perform customary rituals like dud-mundari ceremony and chudha
ceremony. Counsel also argued that the appellant did not discharge
her matrimonial obligations either towards her husband or even
towards his old parents. Counsel also submitted that the appellant
made false complaints to the Crime Against Women Cell and to the
Family Counsel Office, which she later withdrew and such act of the
appellant also caused mental cruelty to the respondent. Counsel also
submitted that by denying normal sexual relationship to the
respondent, the appellant had shaken and destroyed the very
foundation of a sound marriage. Counsel also submitted that the
respondent had duly discharged his burden to prove the case set up
by him where as the appellant failed to discharge her burden and
even could not prove her defence. In support of his arguments,
counsel for the respondent placed reliance on the following
judgments:-
1. Vinita Saxena vs Pankaj Pandit 2006(3) SCALE (SC) 367.
2. Naveen Kohli vs Neelu Kohli 2006(4) SCC 558.
3. Samar Ghosh vs Jaya Ghosh 2007 (4) SCC 511.
4. Praveen Mehta vs Inderjit Mehta AIR 2002 SC 2582
5. Rajinder Bhardwaj vs Anita Sharma AIR 1993 Delhi 135.

8. I have heard learned counsel for the parties and given my
thoughtful consideration to the arguments advanced by them.


9. Cruelty as a ground for divorce is nowhere defined in the Hindu
Marriage Act as it is not capable of precise definition. There cannot be
any straitjacket formula for determining whether there is cruelty or
not and each case depends on its own facts and circumstances. What
may be cruelty in one case may not be cruelty in other and the
parameter to judge cruelty as developed through judicial
pronouncements is that when the conduct complained of is such that
it is impossible for the parties to stay with each other without mental
agony, torture and stress. It has to be something much more than the
ordinary wear and tear of married life. The conduct complained of
should be grave and weighty and touch a pitch of severity to satisfy
the conscience of the court that the parties cannot live together with
each other anymore without mental agony, distress and torture. The
main grievance of the respondent herein is the denial of the appellant
to have normal sexual relationship with the respondent. As per the
case of the respondent, during the short period of 5 months he had
sexual intercourse with the appellant only 10-15 time while the plea
taken by the appellant is that she had never denied sex to the
respondent. The courts have through various judicial pronouncements
taken a view that sex is the foundation of marriage and marriage
without sex is an anathema. The Division Bench of this Court in the
celebrated pronouncement of Mrs. Rita Nijhawan vs. Mr.Bal
Kishan Nijhawan AIR1973Delhi200 held as under:
“In these days it would be unthinkable proposition to suggest that the wife
is not an active participant in the sexual life and therefore, the sexual
weakness of the husband which denied normal sexual pleasure to the wife is
of no consequence and therefore cannot amount to cruelty. Marriage
without sex is an anathema. Sex is the foundation of marriage and without
a vigorous and harmonious sexual activity it would be impossible for any
marriage to continue for long. It cannot be denied that the sexual activity in
marriage has an extremely favorable influence on a woman's mind and
body, the result being that if she does not get proper sexual satisfaction it
will lead to depression and frustration. It has been said that the sexual
relations when happy and harmonious vivifies woman's brain, develops her
character and trebles her vitality. It must be recognised that nothing is
more fatal to marriage than disappointments in sexual intercourse.”
The learned Trial Court referred to the judgment of this court in the
case of Shankuntla Kumari vs. Om Prakash Ghai
AIR1983Delhi53 wherein it was held that:
“(25) A normal and healthy sexual relationship is one of the basic
ingredients of a happy and harmonious marriage. If this is not possible due
to ill health on the part of one of the spouses, it may or may not amount to
cruelty depending on the circumstances of the case. But willful denial of
sexual relationship by a spouse when the other spouse is anxious for it,
would amount to mental cruelty, especially when the parties are young and
newly married.”
Hence, it is evident from the aforesaid that willful denial of sexual
intercourse without reasonable cause would amount to cruelty. In the
authoritative pronouncement of the Hon’ble Supreme Court in Samar
Ghosh vs Jaya Ghosh (2007)4SCC511, the Hon’ble Supreme Court
took into account the parameters of cruelty as a ground for divorce in
various countries and then laid down illustrations, though not
exhaustive, which would amount to cruelty. It would be relevant to
refer to the following para 101 (xii) wherein it was held as under:-
“(xii) Unilateral decision of refusal to have intercourse for considerable
period without there being any physical incapacity or valid reason may
amount to mental cruelty.”
Although it is difficult to exactly lay down as to how many times any
healthy couple should have sexual intercourse in a particular period of
time as it is not a mechanical but a mutual act, however, there cannot
be any two ways about the fact that marriage without sex will be an
insipid relation. Frequency of sex cannot be the only parameter to
assess the success or failure of a marriage as it differs from couple to
couple as to how much importance they attach to sexual relation vis a
vis emotional relation. There may be cases where one partner to the
marriage may be over sexual and the other partner may not have
desire to the same level, but otherwise is fully potent. Marriage is an
institution through which a man and a woman enter into a sacred
bond and to state that sexual relationship is the mainstay or the
motive to be achieved through marriage would be making a mockery
of this pious institution. By getting married, a couple agrees to share
their lives together with all its moments of joy, happiness and sorrow
and the sexual relationship between them brings them close and
intimate by which their marital bond is reinforced and fortified. There
may not be sexual compatibility of a couple right from inception of the
relationship and depending upon physical, emotional, psychological
and social factors, the compatibility between some couples may be
there from the beginning and amongst some may come later.
Undoubtedly, a normal and healthy couple should indulge into regular
sexual relationship but there may be exceptions to this and what may
be normal for some may not be normal for others as it would depend
upon various factors such nature of job, stress levels, social and
educational background, mood patterns, physical well being etc.
Indisputably, there has to be a healthy sexual relationship between a
normal couple, but what is normal cannot be put down in black and
white.

10. Adverting back to the facts of the present case, the
marriage between the parties was solemnized on 17.2.1991 and
according to the appellant she was forced to leave the matrimonial
house on 16.4.1992, whereas as per the respondent husband, the
appellant wife practically stayed at the matrimonial home only for a
period of five months as for rest of the period she stayed at her
parental house. The case of the respondent is that he had sex with the
appellant only for about 10-15 times in a span of five months of
married life and that he was denied sexual relationship on the very
first night of their marriage and denial of sex at the wedding night
caused great mental cruelty to him. The respondent husband also
stated that he was allowed to have sexual intercourse by the appellant
for the first time only on 25.2.1991.The appellant wife has denied the
said allegations of the respondent husband and in defence stated that
she was having normal sexual relationship with her husband and even
had sexual intercourse on the wedding night. The learned Trial Court
after analyzing the evidence adduced by both the parties found the
version of the appellant untrustworthy and unreliable while that of the
respondent, much more credible and trustworthy. The appellant on
one hand took a stand that on 18.2.1991 the atmosphere on that night
was very tense so much so that, both the parties could not sleep and
speak to each other and she did not even take proper food and the
whole night there was tension between the parties and the
atmosphere was fully charged, but at the same time in the crossexamination
of PW2 the suggestion was made by counsel that the
appellant touched the feet of the respondent when he entered the
room on the said wedding night and she also admitted that her
husband had never taken liquor in her presence and he had never
come to her in drunken state. It would be appropriate to reproduce
para 55 of the Trial Court judgment to bring to surface the said
contradiction on the part of the appellant.
“55.From the evidence on record, it is gathered that on the
wedding night i.e. on 18.2.91 a “Dud Mundari” ceremony was to
be performed but the respondent wife refused to participate in the
same. This version of PW 2 has been fully corroborated by his
father PW 3. The husband i.e. Rajiv Arora, had entered by both
PW 2 and RW1. RW 1 in her cross-examination has stated that
their marriage had been consummated on that very night and her
husband had come to her and she did not have to persuade the
petitioner. On the other hand the petitioner has stated that their
marriage could not be consummated on their wedding night and
he had sex with his wife for the first time only on 25.2.91. RW1 in
her cross-examination has stated that the atmosphere that night
was very tense and both the parties could not sleep and they did
not speak to each other and her husband had grievance about the
insufficient dowry which had been given in the marriage . RW 1
has also admitted that on 18.2.91, she did not take proper food as
she was not feeling well. This version of RW1 that she did not
take food that night is corroborated by the version of PW1 who
has stated that on the wedding night at the time when the dinner
was served the attitude of the respondent was indifferent and she
did not take any dinner but she took only a little sweet.”


11. In matrimonial cases, more often than not it is a
challenging task to ascertain as to which party is telling truth as
usually it is the oral evidence of one party against the oral evidence of
the other. What happens in the four walls of the matrimonial home
and what goes on inside the bed room of the couple is either known to
the couple themselves or at the most to the members of the family,
who are either residing there or in whose presence any incident takes
place. Whether the couple has had sex and how many times or have
had not had sex and what are the reasons; whether it is due to the
denial or refusal on the part of the wife or of the husband can only be
established through the creditworthiness of the testimonies of the
parties themselves. Consequently, the absence of proper rebuttal or
failure of not putting one’s case forward would certainly lead to
acceptance of testimony of that witness whose deposition remains
unchallenged. In the present case, the testimony of the respondent
that the appellant was never responsive and was like a dead wood
when he had sexual intercourse with her remained unrebutted. It is
not thus that the respondent had sex with her wife only about 10-15
times from the date of his marriage within a period of five months, but
the cruel act of the appellant of denying sex to the respondent
especially on the very first night and then not to actively participate in
the sex even for the said limited period for which no contrary
suggestion was given by the appellant to the respondent in his crossexamination.
The respondent has also successfully proved on record
that the appellant did not participate in the customary rituals of dud
mundri and that of chudha ceremony, which caused grave mental
cruelty to the respondent. It is a matter of common knowledge that
after the marriage, certain customary rituals are performed and the
purpose of these rituals is to cement the bond of marriage. The
question whether there was a refusal on the part of the respondent
not to perform the ritual of dud-mundari and chudha ceremony is
difficult to be answered as on one hand, the appellant has alleged that
she had duly participated in the ceremonies while on the other hand
the respondent has taken a stand that there was refusal on the part of
the appellant to participate in the ceremonies. No doubt the testimony
of the respondent has been supported by the evidence of his father
and there is no corroborative evidence from the side of the appellant,
although her brother had accompanied her in doli and in such
backdrop, adverse inference thus has to be drawn against the
appellant for not producing her brother in evidence who could be the
best witness to prove the defence of the appellant alleging her
participation in the dud-mundari ceremony. Undeniably, these
customary ceremonies are part of the marriage ceremony and refusal
of the same that too in the presence of the family members of the
husband would be an act of cruelty on the part of the wife. The
appellant has also failed to prove any demand of dowry made by the
respondent or his family members as no evidence to this effect was
led by the appellant. The appellant herein also filed criminal
complaints against the respondent and his family members and later
withdrew the same. Undoubtedly, it is the right of the victim to
approach the police and CAW cell to complain the conduct of the
offending spouse, however, frivolous and vexatious complaints like in
the present case led to cause mental torture and harassment to the
respondent and his family members. Thus, taking into account the
conduct of the appellant in totality, this court is of the view that the
same amounts to causing mental cruelty to the respondent.

12. Before parting with the judgment, this court would like to
observe that the sex starved marriages are becoming an undeniable
epidemic as the urban living conditions today mount an
unprecedented pressure on couples. The sanctity of sexual
relationship and its role in reinvigorating the bond of marriage is
getting diluted and as a consequence more and more couples are
seeking divorce due to sexual incompatibility and absence of sexual
satisfaction. As already stated above, to quantify as to how many
times a healthy couple should have sexual intercourse is not for this
court to say as some couples can feel wholly inadequate and others
just fine without enough sex. “That the twain shall become one flesh,
so that they are no more twain but one” is the real purpose of
marriage and sexual intercourse is a means, and an integral one of
achieving this oneness in marriage.

13. This Court therefore, does not find any kind of illegality or
perversity in the findings given by the learned Trial Court in the
impugned judgment dated 12.2.2001 and the same is accordingly
upheld. The present appeal filed by the appellant is devoid of any
merits and the same is hereby dismissed.

KAILASH GAMBHIR, J
21.03. 2012

Uttaranchal High Court: Employed wife NO maintenance u/s125. Even though wife’s salary is only Rs 2200/- pm, Archana Gupta vs Rajeev Gupta, 18.11.09

Uttaranchal High Court: Employed wife : NO maintenance u/s 125. Even though wife’s salary is only Rs 2200/- p.m., Archana Gupta vs Rajeev Gupta, 18.11.2009, Justice Alok Singh.

Uttaranchal High Court

Smt. Archana Gupta & Another vs Sri Rajeev Gupta & Another on 18 November, 2009

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Criminal Revision No. 201 Of 2006

Smt. Archana Gupta & Another .............. Revisionists.

Versus

Sri Rajeev Gupta & Another .............Respondents

Mr. M.K. Goyal, learned counsel for the revisionists. Mr. Rakesh Thapliyal, learned counsel for respondent no. 1. Mr. S.S. Adhikari, learned A.G.A. for respondent no. 2.

Dated: November 18, 2009

Hon'ble Alok Singh, J.

(By the Court)

Present revision has been filed by the wife under Sections 397/401 Code of Criminal Procedure read with Section 19(4) of Family Courts Act challenging the order dated 05.10.2006 passed by Principal Judge, Family Court, Dehradun refusing to grant maintenance to revisionist no.

1.

Heard Mr. M.K. Goyal, learned counsel for the revisionists, Mr. Rakesh Thapliyal, learned counsel for respondent no. 1 and Mr. S.S. Adhikari, learned A.G.A. for respondent no. 2.

Learned counsel for the revisionists contended that finding of the learned Principal Judge, Family Court, Dehradun on issue no. 1 that wife is living separately without any sufficient cause is perverse.

In nutshell, brief facts of the present case are that wife/revisionist no. 1 preferred an application under Section 125 Cr.P.C. against the respondent no. 1 seeking 2

maintenance for herself and for their minor son, revisionist no. 2. The main grounds of claim mentioned in the application are that husband has developed bad habits like consuming alkahol, gambling and adultery. That husband wanted to dispose of House No. 416, Block-III, Khurbuda Mohalla, Dehradun. That husband has taken loan to meet his bad habits. It is further contended that husband is living separately and is not maintaining the wife and son. In paragraph no. 8 of the application, it is pleaded that wife is working in inter-college, Tanko, Saharanpur temporarily from where she is getting Rs. 2200/- per month.

Husband filed his written statement before the trial Court and denied the contentions made by the wife in the application. In defence husband has specifically pleaded that wife is under the influence of her father. That under the pressure of wife and her father husband/opposite party had to execute permanent lease of his property in favour of the wife pertaining to property of House No. 416, Block-III, Khurbuda Mohalla, Dehradun. It is further contended that at the time of execution of lease, it was agreed between the parties that from the date of execution of lease wife would start living with the husband and her father would not interfere in the matrimonial affair of the husband and wife. It was further pleaded by the husband that it is the wife who wanted to live separately under the influence of her father. Further case of husband is that she resigned from the service from where she was getting Rs. 3, 000/- per month and joined the service at Saharanpur for Rs. 2200/- per month, under the influence 3

of her father. No prudent man shall leave the service of the higher pay scale and shall join the service of the lower pay scale. It was further contended by the husband that under the influence of her father, wife neglected the husband. The further case is that wife is residing separately without any cause and reason.

Learned Principal Judge, Family Court, Dehradun has framed three issues in the matter.

1. As to whether wife is living separately without any appropriate reasons from the husband.

2. As to whether the applicant is unable to maintain herself and her son, applicant no. 2.

3. As to whether the applicant is entitled for any maintenance for herself and minor son.

Learned trial Court, while deciding the issue no. 1, has recorded finding of fact that without any sufficient or reasonable cause wife is living separately. Wife has refused to join company of husband despite the fact that husband wanted her to live with him. It was further held by the learned trial court that wife is under the influence of her father and could not prove allegations of bad habits like consumption of alcohol, gambling and adultery against the husband. While deciding the issue nos. 2 and 3, learned trial Court declined to grant any maintenance to the wife on the basis of finding recorded in issue no. 1 and on the ground that wife is employed and getting Rs. 2200/- per month. However, learned trial Court granted Rs. 2000/- per month as maintenance for applicant no. 2, i.e. minor son.

Sub Section 4 of Section 125 Cr.P.C. can be pressed in the present matter, which reads as under: 4

"(4) No wife shall be entitled to receive an [allowance for the maintenance or the interim maintenance and expenses of

proceeding, as the case may be,] from

her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living

separately by mutual consent".

From the perusal of sub Section 4 of Section 125, if wife refused to live with her husband without any sufficient reason, she would not be entitled to receive any maintenance. Learned trail court has recorded finding of fact that wife is residing separately from her husband without any reasonable cause and reason and refused to live with her husband despite offer by the husband to live together.

I, myself, carefully perused the statements recorded by learned trial court. I find no perversity in the findings of fact recorded by learned Principal Judge, Family Court, Dehradun of the fact that wife is living separately without any sufficient cause and reason and she refused to live with her husband without any sufficient reason. In view of findings that wife is residing separately from her husband without reasonable cause and reason, her application seeking maintenance was rightly rejected by the learned trial Court.

Wife is entitled for maintenance from the husband under sub Section a (1) of Section 125 Cr.P.C., if she is unable to maintain herself. As per the admission made by the wife in the application under Section 125 CrPC and as per the finding recorded by the learned Principal Judge, 5

Family Court, Dehradun, wife is employed in a school and getting salary of Rs. 2200/- per month. Revisionist/wife nowhere says that out of this amount of Rs. 2200/- she is unable to maintain herself. On this ground also revisionist is not entitled for any maintenance from the husband.

Having perused the record and findings recorded by the Principal Judge, Family Court, Dehradun, I do not find any valid reason to interfere with the findings of fact recorded by the learned trial Court. The impugned judgment is hereby confirmed. Revision is dismissed.

No order as to costs.

(Alok Singh, J.)

18.11.2009

Amit

Kerala High Court: It is not every indigent wife that is so entitled to maintenance, Mammad Kunhi vs Rukhiya, 25.05.1978, Justice P. S. Poti

Kerala High Court: It is not every indigent wife that is so entitled to maintenance, Mammad Kunhi vs Rukhiya, 25.05.1978, Justice P. S. Poti

Kerala High Court

Mammad Kunhi vs Rukhiya on 25 May, 1978

Equivalent citations: 1978 CriLJ 1645

Author: P S Poti

Bench: P S Poti

ORDER

P. Subramonian Poti, J.

1. The petitioner married the respondent Rukhiya in the year 1971 and they lived together thereafter as husband and wife. After living at the husband's place for some time, the wife left for her tarward house where her Karanavan one Moidu was also living. It appears that for some period during that time the petitioner also lived in that house with his wife. In or about 1974 there seems to have arisen some misunderstanding between the petitioner and the Karanavan of the respondent, According to the petitioner, that concerned the failure of the Karanavan to make available a house specifically put up for the petitioner and his wife partly, with funds advanced by the petitioner. It is further his case that due to the unpleasantness that arose on this account the petitioner could not continue to stay with his wife at the tarwad house and so he left it. It was then that a notice was issued to him on behalf of his wife claiming maintenance for her as well as a child who had been born in the marriage. The petitioner replied to it by Ext. P1 dated 11-10-74. In that he mentioned the circumstances under which he had to cease living with the respondent at her tarwad house and he further mentioned therein that he desired to live a proper married life if that was possible. He also mentioned in his reply that it was only a month earlier that he ceased to live with the respondent and for her expenses of that month he had sent a money order. He expressed his desire that proceedings contemplated by the notice must be avoided in the interest of the parties. Nevertheless the petition for maintenance was filed by the wife. This was contested by the husband. The contest survives here only regarding the maintenance allowed to the wife and not that awarded to the child. He refuted the liability to maintain his wife because, according to him, his wife, whom he wanted to take to his house so that she may live with him, was refusing to comply with his request to go over to his house. The learned trial Magistrate who enquired into this question found that on the evidence of the petitioner and the counter petitioner it had to be found that the relationship between the husband and the karanavan of the wife was strained, and in the circumstances it may not be possible for the respondent to reside with the wife in her house. He further found that there was no reasonable ground for the wife to refuse to live with the husband. In this view maintenance was denied to her. It was against this that the wife took the matter in revision before the Sessions Judge, Telli-cherry. The learned Judge found that the offer to maintain the wife in his house was made by the husband only in answer to the petition, that it was belated and hence it was not bona fide. In this view he directed the husband to pay a sum of Rs. 70 per mensem to the wife besides a sum of Rs. 50 directed to be paid on account of the child. The petitioner has resorted to this Court complaining that the learned Sessions Judge ought not to have held in revision that the petitioner was liable to pay maintenance to his wife despite his offer to maintain her in his house. It is particularly urged in the revision before this Court that the wife has not indicated at any time any ground which may justify her conduct in living away from her husband, and in the absence of a finding on the availability of such a ground the learned Sessions Judge was not right in directing payment of maintenance by the petitioner.

2. The facts of the case as it has come out in evidence indicate beyond any doubt that there is no case of mis-conduct on the part of the husband in regard to his wife. It is not as if the husband was inconsiderate towards his wife or that living with him at his house would in any way be harmful to the mind or body of the petitioner. There is no case of ill-treatment at any time by the husband or want of affection which a wife could normally expect from her husband. On the other hand it appears that the wife wanted to live in her own tarwad house and wanted to have the husband also there. According to her she lived only for a few days with her husband in his house and thereafter went to her tarwad house. It was not suggested that this was for any specific reason. It was only a matter of her personal preference or choice. Evidently the husband was accommodating enough to adjust himself to residence with his wife at her tarwad house. Strained relationship between the petitioner and the karanavan developed, as a consequence of which he moved out of the house. This was followed by a notice calling upon the petitioner to pay maintenance for the wife and the child. The petitioner refuted this liability and indicated the circumstances under which he had to move out of the house where he had been living with his wife. Though this reply has been received on account of the wife she has evidently not come to know of the contents of the reply. Probably it was not brought to her notice by the karanavan. That is what she swears. She has come to court claiming maintenance. The petitioner seeks to meet the claim by the plea that he was prepared to take her with him and therefore she should live with him. The Sessions Judge took the view that the offer to maintain the wife at the husband's home was belated and therefore not bona fide. This, it is said, is not in accordance with law. That is what calls for consideration in this revision.

3. Section 125 (1) of the Code of Criminal Procedure confers the right to any wife unable to maintain herself to claim maintenance from her husband if he has sufficient means but neglects or refuses to maintain her. It is not as if every wife is entitled to maintenance irrespective of other factors. It is not every indigent wife that is so entitled to maintenance. Apart from showing that the husband has sufficient means it must further be shown that he neglects or refuses to maintain his wife. If a person is willing to maintain his wife in accordance with his civil obligation, there is neither neglect nor refusal. Therefore the question whether the wife is justified in refusing to live with the husband is not a question independent of Section 125 (1) of the Code of Criminal Procedure. Even in deciding the question of liability of the husband to maintain his wife the court would be called upon to decide one way or other as to whether there was neglect or refusal on his part. If a person is bound only to maintain his wife properly in his own home and that he is ready to do but the wife refuses to live there with him it cannot be said that there is neglect to maintain the wife or there is refusal. Normally a husband who provides a congenial matrimonial home to his wife is under no further obligation to pay maintenance if she, notwithstanding that he has a home where she could live a pleasant life discharging her obligations as wife wants to be in her own home, where she expects the husband to join her company. I am attempting to indicate that where a wife is unreasonably refusing to live with! her husband who is prepared to provide her with a matrimonial home that is a matter which must go into reckoning in passing an order under Section 125 (1).

4. When an order for maintenance is passed the allowance directed to be paid must be paid in accordance with the order by the person who is so directed. There must necessarily be a sanction on non-compliance. That is provided in Sub-section (3) of Section 125. This execution is in the manner indicated in that sub-section. There are two provisos under that subsection and the 2nd proviso is relevant in this context. That reads:

Provided further that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.

The sub-section enables the husband to make an offer to maintain his wife even when execution in accordance with the order of the Magistrate is taken out and that would be an answer for the claim. Evidently that would operate only prospectively in regard to the obligation to maintain. But the provision indicates that an offer to maintain must be assumed as relevant in disposing of a petition for maintenance, That of course must be so for where there is a proper and reasonable genuine offer to maintain a plea of refusal or neglect cannot hold good. Whether the offer is bona fide is another question. But the offer cannot be said to be belated because it is made in answer to a petition. Merely because it is so made in answer to a petition it cannot be said to be wanting in bona fides.

5. An offer to maintain may sometimes be not genuine or good and if, the circumstances under which it is made indicate that it is only a colourable offer just to meet the legal action instituted by the wife it would not be an answer. Several factors may have relevance in the determination of the question whether such offer is bona fide or not. If a person who had been ill-treating his wife as a consequence of which she had to live apart offers to take back his wife to his home when threatened with action, the court may examine the circumstances closely to determine whether the offer is genuine or bona fide. There may be other similar circumstances to which I need not make any particular reference here. Suffice to say that in a case such as that one before me where the parties have been living happily together ever since the marriage but were living separate for some time (for one month before the notice according to the husband and 1 year and 2 months according to the wife) and that is suggested to be due to the conduct of a third party residing along with the wife and husband in the wife's home where the husband also was living and further, there are no other circumstances of relevance one would wonder how i1 could be said that there is any want of good faith in the conduct of the husband in offering to maintain the wife at his home. That is an offer that he could properly make in the circumstances of the case. The fact that he did not make an earlier offer would not derrogate from the earnestness of his offer. It does not suggest in any way that the offer is sham. The relevant question in such a case is why the wife is refusing to live with her husband despite his offer. It is for her to explain her reasons. Want of bona fides in the husband's offer has necessarily to be judged in the background of the justification pleaded by the wife for her refusal to live with him and not divorced of it. Absence of any imputation of misconduct on the part of the husband is relevant. The wife when in the box was asked whether she would live with her husband. She shows no justification for refusing to live with him except one and that is that by convention and usage in the area wives are entitled to call upon their husbands to live in their houses, the validity of which plea, I will consider hereafter. For the time being suffice to state that I am not impressed with the plea. If that is the only excuse the wife has, and if that is the only reason for not living with the husband I find that she has no justification for her refusal. Things may be different where the plea is that the matrimonial home offered by the husband is not a congenial home or that there would be third party interference to domestic peace.

6. Is the refusal of a wife to live with the husband in his house legitimate even if there is a case that it is the practice in the locality for the husband to live in the wife's home? There is no law that I know of obliging the husband to be a resident at the family home of the wife nor is any practice or convention shown assuming that this would make any difference. May be that in Muslim tarwads husbands may choose to live with their wives at the tarwad house whenever it is convenient. That only means that it is open to him to do so and does not oblige him to live at the tarwad house of his wife if he wants the company of the wife and that otherwise he will be forfeiting the conjugal company of his wife. If there is obligation to maintain one's wife the husband may choose his home and it is at that home that the wife has to live unless there are specific and valid reasons why that may not be practicable in any given instance. There is an obligation on the part of the wife to give her attention to the husband and if she does not feel inclined to discharge such obligation the husband is not without any remedy. The law enables a husband to seek the assistance of an order for restitution of conjugal rights, where he is aggrieved by the conduct of a wife refusing to live with her husband on the plea that she wishes to remain at her tarwad house where the husband, if he so desires may visit her or stay with her and have her company. It goes without saying therefore that it is not a justifiable reason for the wife to contend that the husband may live in her family house.

7. On the above facts it appears to be clear beyond doubt that in this case the husband cannot be called upon to pay maintenance to his wife for he has neither neglected nor refused to maintain his wife. He is willing to maintain his wife as law obliges him by providing a house where she would get all attentions and affections which normally a wife could expect from her husband. Merely because the petitioner made his offer to take her to his home only in the reply statement such offer would not militate against the good faith particularly in the background of the case indicated in this judgment.

8. Before I close I think I should advert to Section 125 (4) of the Code of Criminal Procedure, for, my attention has been drawn to a decision of my learned brother(?) (Colleague) Janaki Amma J. in a case where there was a claim for maintenance by a wife and the question of applicability of Section 125 (4) of the Cr. P.C. was considered by the learned Judge. Section 125 (4) reads thus:

Section 125 (4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.

There are three circumstances under which the normal obligation of the husband to maintain the wife will stand negatived. That is by reason of the subsection. These are : (a) where the wife is living in adultery, (b) where the wife and husband are living separately by mutual consent and (c) where the wife refuses to live with her husband without sufficient reason. It goes without saying that if the husband sets up any of these as answer to the claim of the wife it is for him to prove. That the wife is living in adultery is a matter necessarily to be proved by the husband. That the parties are living separately by mutual consent is also to be proved by the husband if he wants to meet the claim for maintenance on that plea. Similarly it is also to be proved that the wife refuses to live with him. 'Refusal' is not shown by the proof of the fact of not living with the husband. It is not sufficient to show that the wife is not living with him. The refusal can be proved only by the husband indicating that he is willing to allow the wife to live with him, that he is ready to take her to his home for residence with him, but nevertheless she is not willing. There may be cases where the wife is not living with the husband because she has been driven out of his house. The burden that the wife is 'refusing' to live with him is to be discharged by the husband. But when once that is proved I would assume that it is for the wife to show that there are reasons for her living apart from the husband. One of the grounds for denying maintenance, as already indicated, is refusal to live with the husband without any sufficient reason and the burden on the husband to prove this would be discharged by showing that there is refusal by the wife to live with him. The existence of a reason cannot be anticipated by the husband and he cannot be expected to prove that such reason does not exist. One can imagine a number of reasons for a wife refusing to live with the husband. It may be that the wife does not consider the husband sufficiently healthy, sufficiently fair, that the house in which she is asked to live is not good enough for her, that she does not like the surroundings, the home is not congenial, she does not like the presence of the proverbial mother-in-law, that she objects to the pets brought up in the same house and the like. But how can any husband anticipate the reason the wife may possibly have and answer it by showing that such circumstance does not exist. The burden of proof of showing the Justifiable reason must in such circumstances rest not on the husband. If the wife alleges any reason it is such reason that may have to be examined. For instance in this case until the wife indicated her mind that the reason for not living with the husband was that the people in the locality usually lives with the wives in their wives' house one would not have known of that reason. Once that is disclosed whether that is a justifiable reason is easy of determination.

9. In the decision in Sarada v. Kumaran 1977 Ker LT 942 : 1978 Cri LJ NOC 215 Janaki Amma J. has said:

Evidently Section 125 (4) is an exception to the general liability to maintain referred to in Section 125 (1). He who claims exemption from liability has to prove the existence of circumstances which entitle him to put forward such a claim. Viewed in the above light it is for the respondent to prove that there has been an improper refusal on the part of the petitioner to live with him.

I understand the learned Judge to say that the burden of proving the refusal on the part of the wife to be on the husband and I do not think that the learned Judge further indicated the view that the husband should anticipate the reasons which the wife may have for not living with him and answer that too. Anyhow, it is not necessary to go into this question further for in any view of the case on the facts and circumstances here an improper refusal on the part of the wife to live with the husband has been proved. Hence the question of burden of proof is academic in this case.

10. In the result the revision petition is allowed. The order of the learned District and Sessions Judge is vacated and the order of the Chief Judicial Magistrate restored. Allowed as above. No costs.

Delhi High Court: Wife to pay 20,000/- pm maintenance to Husband u/s24 HMA, 31.03.2011, Rani Sethi vs Sunil Sethi, Justice G.S. Sistani

Delhi High Court: Wife to pay 20,000/- pm maintenance to Husband u/s24 HMA, 31.03.2011, Rani Sethi vs Sunil Sethi, Justice G.S. Sistani

CM(M)NO.169/2009 Page 1 of 14
07.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) 169/2009
% Judgment Delivered on: 31.03.2011

RANI SETHI ..... Petitioner
Through : Mr. G.K. Sharma, Adv.

versus

SUNIL SETHI ..... Respondent
Through : Mr. B.P. Singh, Adv.

CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI

1. Whether the Reporters of local papers may be allowed to see
the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes

G.S.SISTANI, J. (ORAL)

1. Present petition is directed against the order dated 24.2.2009
passed by learned Additional District Judge, Delhi, on an application
filed by respondent (husband) under Section 24 of Hindu Marriage
Act, seeking maintenance from the petitioner (wife). By the
abovesaid order, trial court has directed the petitioner (wife) to pay
maintenance to the respondent (husband) @ `20,000/-, per month,
and `10,000/- as litigation expenses and also to provide Zen Car for
the use of the respondent (husband).

2. Learned counsel for the petitioner submits that learned trial court
has exceeded its jurisdiction and has erroneously come to a finding
with regard to the income of the petitioner. While it is not in dispute
that petitioner is carrying out the business of running paying guest
CM(M)NO.169/2009 Page 2 of 14
hostels in the name of Pradise PG, it is submitted by counsel for the
petitioner that the trial court has failed to consider the expenses of
running the business which includes providing the students with
boarding, lodging and transportation facilities and the earnings
from the business are barely sufficient to maintain herself and her
two children, whom she is solely supporting. It is further contended
that the financial condition of the petitioner has been ignored by
the trial court. Counsel next submits that in fact the financial
condition of the petitioner would be evident from the fact that
petitioner is residing in a rented accommodation and is paying rent
@ `12,500/-, per month. Mr.Sharma submits that trial court has
completely lost sight of the fact that petitioner has to maintain and
provide for two unmarried children – one son, who is 26 years of
age, and a daughter, who is 24 years of age. Counsel next submits
that petitioner has to not only provide for their maintenance but
also plan their marriages and ensure a secured future for the
children. Besides petitioner has to look after herself. It is further
submitted that petitioner is medically unfit and is suffering from
Leucoderma and arthritis and she has to spend on doctors,
medicines and other tests. Copies of medical prescriptions have
been placed on record in support of her contention.

3. Learned counsel for the petitioner submits that even otherwise the
respondent is an able bodied person and he is in a position to
maintain himself. Counsel further submits that respondent is
CM(M)NO.169/2009 Page 3 of 14
carrying on a business in the name and style of Sethi Contractor
and accordingly the respondent is not entitled to any maintenance.
A copy of the visiting card of Sethi Contractor has been placed on
record. Stress has also been laid by counsel for the petitioner on
the conduct and character of the respondent. Various instances
have been cited in the present petition by the petitioner to show
that respondent has an immoral character. It is also contended that
learned trial court has relied purely on the guess work to assess the
income of the petitioner and, thus, the impugned order is liable to
be set aside.

4. Learned counsel for the petitioner submits that petitioner has
subsequently been able to lay her hands on documents to show
that respondent is earning and is able to maintain himself,
however, the documents were neither filed along with this petition
nor the same were filed before the trial court at the relevant time.
However, it is submitted by counsel for the petitioner that an
application has already been moved before the trial court for
modification of the impugned order and the petitioner will rely upon
those documents before the trial court.

5. Learned counsel for the respondent submits that despite the fact
that the business was set up by the respondent and the petitioner
together initially, out of the funds received from selling ancestral
property of the respondent, and the business is making a good
profit, the trial court has been extremely conservative in granting
CM(M)NO.169/2009 Page 4 of 14
only `20,000/-, per month, as maintenance, for the respondent.
Counsel further submits that in the affidavit filed by the respondent
on 20.1.2009 before the trial court, the respondent has enlisted the
assets of the business, which are reproduced below:
(a) 300 room on rent fully equipped
and furnished with double bed
18000x300.00
(b) Taa Bus 1.50 Seaters 54 lacs
(c) One Tata Winger (9+1) 8 lacs
(d) Three Maruti Vans 6 lacs
(e) One Maruti Zen 3 lacs
(f) One Accent Viva Car 4 lacs
(g) One Mess kitchen Modular with all
apparatus, uttencils, equipments,
etc. sufficient for 600 inmates
along with all other required
faculties
8 lacs
(h) One Modern Zim with all
equipments
2 lacs
(i) One General Store with stock 2 lacs
(j) One Cyber Café with four
computers and other necessary
equipments
1 ½ lacs
(k) House-hold articles including
laptop, Fridge, Air Conditioners (3),
Two LCD TVs, etc. Three bed rooms
fully equipped with one drawing
room and kitchen with jewellery
articles common family ornaments,
ancestral, etc.
20 lacs

6. It is submitted by counsel for the respondent that a perusal of the
abovementioned assets of the business would show that petitioner
is running a flourishing business. It is further submitted that the
assets of the business, business investments and other personal
assets owned by the petitioner would give some idea of the status
of the petitioner. It is next submitted that petitioner had filed an
additional affidavit before the trial court where she had herself
admitted that she is running business in the name and style of
Paradise Hostel for the purposes of which she has taken 81 flats in
CM(M)NO.169/2009 Page 5 of 14
two societies on rent, for which she is paying `5,07,000/- as rent;
`65,800/- as maintenance + electricity and other expenses towards
hostel, bus payments, etc. Petitioner has also admitted in the
additional affidavit that she is paying `25,000/-, per month, towards
house keeping; `48,000/-, per month, towards kitchen expenses;
`50,000/- towards the salary of drivers, electrician, plumbers, etc;
`2,50,000/-, per month, towards Hostel‟s Ration, Grocery
Expenditure, for a strength of 386 students.

7. Learned counsel for the respondent submits that respondent was
unceremoniously thrown out of his house and it is only by the order
of the court that few articles were returned, which have been
noticed by the trial court in para 12 of its order. Relevant portion of
which reads as under:
“… an application in the Court for taking his clothes and
chapels lying at the house of the non applicant and the non
applicant has given only two pairs of pants and shirts, one
kurta paijama, three bainyans, two underwears and one pair
of chappals and two sweaters in the court on 21.1.2009 and
other articles of the applicant mentioned in his application
have not yet been given by the non-applicant/ wife.”

8. It is next submitted that the respondent tried setting up another
business and starting life afresh. However, the business was
unsuccessful and the partnership which was entered into for the
purpose of business was dissolved on 1.12.2009. The respondent
has placed a copy of the dissolution of partnership deed dated
1.12.2009 in support of his contention. Counsel further submits
that there is no infirmity in the order of the trial court, which would
CM(M)NO.169/2009 Page 6 of 14
call for interference in the proceedings under Article 227 of the
Constitution of India.

9. I have heard counsel for the parties, who have also drawn the
attention of the Court to various documents placed on record as
also the affidavits filed by both the parties before the trial court. In
this case, the undisputed facts, which emerge, are that marriage
between parties was solemnized on 6.12.1982. A son, who is at
present 26 years of age, and a daughter, who is at present 24
years, were born out of their wedlock. Admittedly, the parties
started residing separately since September, 2006, and thereafter
with the intervention of friends and relations, the petitioner and
respondent stayed together for a brief period in the matrimonial
home, however, the parties again separated on 6.9.2008.
Allegation of the respondent is that he was thrown out of the
matrimonial home, which prima facie appears to be correct as few
of his articles were handed over to him on 20.1.2009 in the Court,
as observed by the trial court.

10. It is settled position of law that the law makes provision to strike a
balance between the standard of living, status and luxuries that
were enjoyed by a spouse in the matrimonial home and after
separation. It has been held by the Apex Court that the needs of
the parties, capacity to pay etc. must be taken into account while
deciding quantum of maintenance.
CM(M)NO.169/2009 Page 7 of 14

11. In the case of Jasbir Kaur Sehgal (Smt.) v. District Judge,
Dehradun & Others, reported at (1997) 7 Supreme Court Cases
7, it has been held as under:
“8. The wife has no fixed abode of residence. She says she
is living in a Gurudwara with her eldest daughter for
safety. On the other hand the husband has sufficient
income and a house to himself. The Wife has not
claimed any litigation expenses in this appeal. She is
aggrieved only because of the paltry amount of
maintenance fixed by the courts. No set formula can be
laid for fixing the amount of maintenance. It has, in the
very nature of things, to depend on the facts and
circumstance of each case. Some scope for liverage
can, however, be always there. Court has to consider
the status of the parties, their respective needs,
capacity of the husband to pay having regard to his
reasonable expenses for his own maintenance and of
those he is obliged under the law and statutory but
involuntary payments or deductions. The amount of
maintenance fixed for the wife should be such as she
can live in reasonable comfort considering her status
and the mode of life she was used to when she lived
with her husband and also that she does not feel
handicapped in the prosecution of her case. At the
same time, the amount so fixed cannot be excessive or
extortionate. In the circumstances of the present case
we fix maintenance pendente lite at the rate of
Rs.5,000/- per month payable by respondent-husband
to the appellant-wife.”

12. A Single Judge of this Court in the case of Bharat Hegde v. Saroj
Hegde, reported at 140 (2007) DLT 16, had culled out following 11
factors, which can be taken into consideration for deciding the
application under Section 24 of Hindu Marriage Act, relevant
portion of which reads as under:
8. Unfortunately, in India, parties do not truthfully reveal
their income. For self employed persons or persons
employed in the unorganized sector, truthful income never
surfaces. Tax avoidance is the norm. Tax compliance is
CM(M)NO.169/2009 Page 8 of 14
the exception in this country. Therefore, in determining
the interim maintenance, there cannot be mathematical
exactitude. The court has to take a general view. From the
various judicial precedents, the under noted 11 factors can
be culled out, which are to be taken into consideration
while deciding an application under Section 24 of the
Hindu Marriage Act. The same are:
(1) Status of the parties.
(2) Reasonable wants of the claimant.
(3) The independent income and property of the
claimant.
(4) The number of persons, the non applicant has to
maintain.
(5) The amount should aid the applicant to live in a
similar life style as he/she enjoyed in the
matrimonial home.
(6) Non-applicant‟s liabilities, if any.
(7) Provisions for food, clothing, shelter, education,
medical attendance and treatment etc. of the
applicant.
(8) Payment capacity of the non-applicant.
(9) Some guess work is not ruled out while
estimating the income of the non-applicant when all
the sources or correct sources are not disclosed.
(10) The non-applicant to defray the cost of litigation.
(11) The amount awarded under Section 125, Cr.P.C. is
adjustable against the amount awarded under
Section 24 of the Act.

13. The Supreme Court of India in the case of Jasbir Kaur (Smt.)
(supra), has also recognized the fact that spouses in the
proceedings for maintenance do not truthfully disclose their true
income and therefore some guess work on the part of the Court is
permissible. Further the Supreme Court has also observed that
“considering the diverse claims made by the parties one inflating
the income and the other suppressing an element of conjecture
and guess work does enter for arriving at the income of the
husband. It cannot be done by any mathematical precision”.
CM(M)NO.169/2009 Page 9 of 14

14. Further in a recent decision the Apex Court in Neeta Rakesh Jain
v. Rakesh Jeetmal Jain reported at AIR 2010 SC 3540, has laid
guidelines which the courts may keep in mind at the time of fixing
the quantum of maintenance.
“In other words, in the matter of making an order for interim
maintenance, the discretion of the court must be guided by
the criterion provided in the Section, namely, the means of
the parties and also after taking into account incidental and
other relevant factors like social status; the background from
which both the parties come from and the economical
dependence of the petitioner. Since an order for interim
maintenance by its very nature is temporary, a detailed and
elaborate exercise by the court may not be necessary, but, at
the same time, the court has got to take all the relevant
factors into account and arrive at a proper amount having
regard to the factors which are mentioned in the statute”.

15. While, in this case, petitioner has placed copies of income tax
returns for the assessment years 2007-2008 on record, a copy of
balance sheet as on 31.3.2007 as also a copy of Profit and Loss
Account for the year ended as on 31.3.2007, have also been placed
on record. The Profit and Loss Account of the guest house of the
petitioner reads as under:
“PARADISE PG HOUSE
PROP. MRS. RANI SETHI
B-75, DUGGAL COLONY
KHANPUR, NEW DELHI – 110062
PROFIT & LOSS ACCOUNT FOR THE YEAR ENDED ON 31.03.2007
PARTICULARS AMOUNT PARICULARS AMOUNT
To Establishment 695900.00 By Receipts 8380178.00
To Rent for Flats 3191660.00
” Mess Expenses 1521958.00
” Electricity & Water 295800.00
” Bank Charges 39870.63
” Staff Welfare 51270.00
” Transportation 478756.00
”Telephone Expenses 229234.00
” Vehicle Running & Maintenance 252859.93
” Hire Charges 121000.00
CM(M)NO.169/2009 Page 10 of 14
” Bedsheets & Lined 152540.00
” Medicines & Doctor‟s Fee 24128.00
” Printing & Stationery 42190.00
” Travelling & Conveyance 44262.00
” Insurance 15078.00
” Misc. Expenses 37383.00
” Security Expenses 164500.00
” Repair & Maintenance 286856.00
” Interest on Car Loan Amount
Written Off
24571.72
” Amount written Off
” Audit Fee 23697.00
” Depreciation 16200.00
” Net Profit transferred to Capital 191222.07
8380178.00 8380178.00

16. A perusal of the Profit and Loss Account shows that this business is
incurring a profit of `83,80178/- for the year ending on 31.3.2007.

17. The affidavits filed by both the petitioner and the respondent
before the trial court also unfold the details of the business, which
was initially being carried out by both the petitioner and the
respondent and subsequently admittedly by the wife along.
Relevant portion of the affidavit of the respondent reads as under:
“Affidavit of Sunil Sethi s/o late J.N. Sethi R/o A-43, Street No.10, Madhu
Vihar, I.P. Extension, Delhi-110092 (however presently without any
accommodation).

I the above-named deponent do hereby solemnly affirm on oath and state
as under:-

1. I say that being petitioner in the above mentioned case, I am
entitled to swear the present affidavit.

2. I say that the respondent is proprietor of M/s Paradise P.G. House
Informative Society, Sector-VI, Greater Noida, (U.P.).

3. That the said firm established by me and started with the capital
investment of Rs.8,00,000/- in the year of 2003 which I had got
from my share in my ancestral/parental property.

4. I say that the total asset of the said firm owned by the respondent
is about Rs.1,00,000/- approximately. This assessment is dated
05.09.08 when I forced to leave the business.

5. I say that asset of the respondent’s firm as on 05.09.08 were as
under:-
S. Particulars Approx.
CM(M)NO.169/2009 Page 11 of 14
No. value
(in Rs.)
1. 300 room on rent fully equipped and
furnished with double bed
18000x300.00
54 lacs
2. Tata Bus 1.50 Seaters
17 lacs
3. One Tata Winger (9+1 seater)
8 lacs
4. Three Maruti Vans
6 Lacs
5. One Maruti Zen
3 Lacs
6. One Accent Viva Car
4 lacs
7. One Mess Kitchen Modular with all
apparatus, utensil, equipments etc.
sufficient for 600 inmates along with all
other required facilities
8 lacs
8. One Modern Zim with all equipments
2 lacs
9. On General Store with stock
2 lacs
10. One Cyber Cafe with four computers
and other necessary equipments
1 ½ lacs
11. House-hold articles including Laptop,
Fridge, Air Conditions (3), Two LCD TVs
etc. Three bed rooms fully equipped
with one drawing room and kitchen with
jewellery articles common family
ornaments, ancestral etc.
20 lacs

6. I say that on 05.05.08, the liability over the firm namely M/s Paradise
was namely Rs.15,00,000/- approx.”

18. The petitioner herein also filed her affidavit before the trial court.
Affidavit of petitioner reads as under:
“I, Rani Sethi w/o Mr. Sunil Sethi r/o Rajdhani Nikunj, Plot no.94, I.P.
Extension, Patparganj, Delhi do hereby solemnly affirm on and declare as
under:

A. ………

B. That following are the details of the monthly expenditure incurred by
me in my business of running Paradise Hostel.
i. That I have hired on rent 50 and 31 flats respectively in two
societies namely informatics and Khushboo whose details
are as follows:
Rent of Flats Maintenance Electricity Bills
Informatics Rs.2,59,000/- Rs.34,800/- +Electivity Bills
Khusboo Rs.2,48,000/- Rs.31,000/- +Electivity Bills
CM(M)NO.169/2009 Page 12 of 14
Total Rent Rs.5,07,000/- Rs.65,800/- +Electivity
Bills

C. That the expenditure incurred and the monthly installments due for
the following are as under:
Hotel Bus EMI-22,216/- PER per month + 9 Lakh
invested in Bus down payment.
Winger’s EMI-10,450/- per month + 2,60,000/-
down payment
Viva’s EMI-10209/- per month
Zen’s EMI-10,540/- per month
Van’s EMI-17,365/- per month
Total EMI-71,365/- per month

D. Staff Salary – Home Keeping 25,000/- per month
Kitchen 48,000/- per month
Drivers and electrician
Total Salary of Staff 1,23,000/- per month
Hostel’s Ration + Grocery Exp.+ Snacks item etc. 2,50,000/- per month
for 386 strength of students
Maintenance Exp. 30,000/- per month
Diesel for Bus 25,000/- per month
Diesel for Generator- Informatics 38,800/- per month
Khushboo 19,400/- per month
House rent 12,500/- per month
House Maintenance 15,000/- per month+Electricity bill
Transport charge of hostel 27,000/- per month
Three buses on hire

E. That it is also submitted that session starts in August of every month.”

19. Taking into consideration the documents, which have been filed on
record of this court and the affidavit of the petitioner, the balance
sheet, the Profit and Loss Account of the guest house and the
income and expenditure of the guest house, it is clear that the
CM(M)NO.169/2009 Page 13 of 14
petitioner has a substantial income from the business, which was at
one time started jointly by both the petitioner and the respondent.
The purpose of section 24 of Hindu Marriage Act is to provide
support to a spouse who has no independent source of income and
is incapable of maintaining himself/herself. It is trite law that the
term „support‟ is not to be construed in a narrow manner so as to
mean bare subsistence. It means that the other spouse, who has no
independent source of income, is provided with such maintenance
so as to live in a similar status as was enjoyed by them in their
matrimonial home. It is the purpose of section 24 that the wife or
the husband who has no sufficient source of income for her or his
support or for the expenses of the proceedings must be provided
with such reasonable sum that strikes equity between the spouses.

20. Taking into consideration the facts of this case and the settled
position of law, I am of the view that learned trial court has
correctly considered the relevant factors and has also rightly relied
upon the judgments of this court as also the Apex Court. I find no
infirmity in the order dated 24.2.2009, which requires interference
by this court in the proceedings under Article 227 of the
Constitution of India. Accordingly, present petition is without any
merit and the same is dismissed.

21. Interim order dated 4.3.2009 stands vacated. All arrears shall be
cleared by the petitioner within a period of three months from
today, which shall be paid by the petitioner to the respondent in
CM(M)NO.169/2009 Page 14 of 14
equal installments and the first installment shall be paid by the
petitioner within 15 days from today.
CM NO.3129/2009 (STAY).

22. Application stands dismissed in view of the orders passed in the
petition.

G.S. SISTANI, J.

March 31, 2011
'msr‟

Madras High Court: Divorce Cancellation by wife Rejected. P. Nirmala vs K. Muruguselvam, 21.02.2012, Justice Elipe Dharma Rao, Justice M. Venugopal

Madras High Court: A woman,who levels an unsubstantiated "disgusting accusation" that her husband had an illicit relationship with his own mother, cannot seek cancellation of divorce, as her allegations amount to cruelty.




IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated:21.02.2012

Coram

THE HONOURABLE Mr. JUSTICE ELIPE DHARMA RAO
AND
THE HONOURABLE Mr. JUSTICE M.VENUGOPAL

C.M.A.No.2148 of 2008 and
M.P.No.1 of 2008

P.Nirmala ... Appellant
Vs.

K.Muruguselvam ... Respondent

Prayer: Appeal filed under Section 282 of the Hindu Marriage Act, 1955 r/w. Section 19 of the Family Court Act against the Fair and Decretal Order dated 12.05.2008 made in F.C.O.P.No.1835 of 2002 on the file of the II Additional Family Court, Chennai.

For Appellant : Mrs.K.M.Nalinishree

For Respondent : Mrs.Hema Sampath
Senior Counsel
For Mr.C.Packiaraj

JUDGMENT
M.VENUGOPAL,J.
The Appellant/Respondent (Wife) has filed the instant Civil Miscellaneous Appeal as against the order dated 12.05.2008 in F.C.O.P.No.1835 of 2002 passed by the Learned II Additional Family Court Judge, Chennai.

2.Before the Learned II Additional Family Court Judge, Chennai, during the trial of main F.C.O.P.No.1835 of 2002, on behalf of the Respondent/Petitioner (Husband), witnesses P.W.1 and P.W.2 have been examined (though in the list of witnesses in the Order, it is inadvertently mentioned as P.W.1 to P.W.4) and Exs.P.1 and P.2 have been marked. On the side of the Appellant/Respondent (Wife), no witness has been examined for oral evidence, but Ex.R.1 has been marked for documentary evidence.

3.The Learned II Additional Family Court Judge, Chennai, while passing orders in F.C.O.P.No.1835 of 2002 on 12.05.2008, has, inter alia, observed that 'the Respondent has seriously alleged that the Petitioner/Husband having illicit intimacy with his own mother and her father-in-law leading an adulterous life separately without any basis and such an unproved allegation amounts to cruelty to the Petitioner' and resultantly, granted the relief of Divorce on the ground of cruelty, by dissolving the marriage that has taken place between the parties on 01.10.1999 at No.31, S.V. Koil Second Street, Chennai 600 011, in favour of the Respondent/Husband (Petitioner in F.C.O.P.No.1835 of 2002).
4.The Petition Facts:
(i)The marriage between the Respondent/Petitioner (Husband) and the Appellant/Petitioner (Wife) was solemnised on 01.10.1999 at Shri Bhagyalakshmi Thirumana Arangam, No.407, Poonamallee High Road, Chennai 600 102 as per Hindu rites and customs in the presence of elders and relatives. But the Respondent/Husband and the Appellant/Wife were living together as Husband and Wife at No.31, S.V. Koil Second Street, Chennai 11 and out of the wedlock, a female child was born on 11.10.2000. The child has been Christened name of 'Elaveneil'.

(ii)From the date of marriage, the Appellant/Respondent (Wife) developed a hatred towards the Respondent/Petitioner (Husband) and she started to treat him as an inferior to her status and also used to call him as less educated and utter as 'after all a diploma holder'. The Appellant/Wife used to call him in singular and even in the presence of guests and relatives, she used to call him as 'deiy Murugu/Peri' in an indecent manner without any due respect. Also, the Appellant/Wife used to utter that the Respondent/Husband is not possessing any masculine characters.

(iii)Moreover, the Appellant/Wife treated the parents of the Respondent/Husband in a shabby manner and she used to abuse his mother and used to utter that he and his mother are having illegal relationship.

(iv)The Appellant/Wife has not even spared the father of the Respondent/Husband and on one occasion, she commented that his father is unfit to the little finger of her mother's feet and worthless person. The Respondent/Husband's family is a middle class family and therefore, the Appellant/Wife has not liked it and also she remarked that they are living in a house fit for pigeon and called it as a pigeon- hole house.

(v)Added further, the Appellant/Husband used to utter that her brother wanted to give her in marriage after paying Rs.10 or 15 lakhs as dowry in a rich family. But, due to some reason or other, she has been forced to marry in low earning family and which is unfit to her status.

(vi)Continuing further, the Respondent/Husband has also averred that the Appellant/Wife wanted him to arrange for a car to attend one of her friend's marriage at Tambaram. Since he could not provide the car, the Appellant/Wife tried to kill the child by throwing it in the terrace and after arranging a vehicle, she got satisfied. Further, often she used to demand money from him to send to her friend at her place and when he refused to give the money, she used to threaten that she would commit suicide and to put the blame on the Respondent/Husband, to get himself involved in criminal matters.

(vii)On the advise of his parents, he kept her in a separate residence, hoping that she could rectify and correct herself from the rude and shabby activities, at Raghavachari Road, Chennai. On one occasion, when he returned from the airport duty late, she made him to stand outside the house and she has not opened the door for long hours. Therefore, he has been forced to seek the help of his parents for sleep. She has not allowed the child to be taken to the parent's home and she also wanted not to see the parents. She used to sleep all the day with a view not to sleep night hours and to create problems with him. She also used to criticise him and create problems and also used to threaten if any of her wishes are not satisfied by him. When her cruelty became intolerable, she made him hungry, her brothers and sisters advised the parties to vacate the house to rejoin his parents. His parents also rejoined the family after forgiving the respondent with a hope that she might have reformed herself. After rejoining, she demanded share in the property and created problems with his parents. She caused mental agony and torture, not only to him but also to his parents. Even after rejoining his parental home, she has not allowed the child to go to his parents and when the child wanted to reach them, she used to beat the child mercilessly and create noisy scene. He being a Government servant working in the Ministry of Health and Family Planning and dealing with the medicines, her acts and words have been intolerable and create much disturbance to his mental balance. He has been affected mentally and physically due to the cruelty of her. This may lead to his committing some error in official duties. Hence, he has filed the petition praying for a Decree of dissolving the marriage between him and the Appellant/Wife that has taken place on 01.10.1999 at Chennai.

5.The Counter Averments:
(i)There is no enmity between the Respondent/Husband and herself. The female child aged 2 = years is with her. There is no good grounds for filing the petition. As a dutiful wife, she is ready and willing to live with the Respondent/Husband. The child is also very much interested in seeing her father. The Respondent/Husband should consider the interest of the child.
(ii)In the additional counter, the Appellant/Wife has stated that the name of the child has been selected by her husband and his family members and that the Respondent/Husband showered his most affection towards her and used to give her a lot of gifts on many occasions and that he also used to take her out daily for shopping and various other entertaining venues. He used to address her in a nick name of 'Sona' which he felt that other should not know about this. She never addressed her husband in a singular name and used to call him only as 'Ennanga' with due respect. He was never addressed in an inferior manner and has been taken care off by her in great fashion.

(iii)The Appellant/Wife never allowed her mother-in-law to do any household duties and has seen that her old mother-in-law has been at rest. Her husband's parents used to address her that she is an orphan and has no remedy except to touch their feet for her livelihood because they felt that they are the parents of her husband. She has been informed by her husband's parents that her brother cheated them by not paying Rs.20 lakhs as dowry because they belonged to rich family. Her father-in-law, who is a practising Advocate in the High Court of Madras, City Civil Court at Chennai and also assisting her husband, used to abuse her that she is coming from a family which is lower to their status. Her father-in-law used to abuse her in filthiest language like daughter of a prostitute, a witch and lady of low profile, when her husband was not at home and used to act in the presence of him that they cared for her more.

(iv)On one occasion, her husband wanted to take her for a marriage, since he is in Madras by engaging a taxi for which, the in-laws vehemently objected to it and threatened that they would throw the female child from the terrace. She was shocked at the actions of their in-laws and convinced her husband that he could go alone to the marriage and she will remain at home along with the child.
(v)The in-laws used to demand money very often when she used to visit her brother at Achirapakkam and she used to satisfy their demands with great difficulty. In spite of the same, her in-laws used to threaten her that she would be forced to commit suicide one day when her husband is away and the blame will be put on her that she is an insane woman. She used to inform various criminal acts of her in-laws to her husband. But he used to tell her that he was fond of her and he used to see that nothing would happen in her matrimonial house.
(vi)She used to cook various nice dishes as per demands of the in-laws and her husband. Her husband's relatives who are abroad used to visit her matrimonial home very often and they always praised her conduct in a high esteem. Her sister-in-law, who has come from Singapore, informed her husband's parents that they should be happy that they got a nice daughter-in-law, who was fond of them. Her brother-in-law, who is living in London, also cautioned her husband and parents that they would face the consequences if they continue to act in that manner towards her. She is loved by her brother-in-law and sister-in-law and her husband and only stumbling block is her in-laws.

(vii)Her husband, after realising the acts of the in-laws, has decided to take a separate matrimonial home and in-laws compelled her husband to come and stay with them and never allowed to go to his residence and they have seen that she is slept alone along with her two years child. When she questioned her husband about this, he requested her to tolerate for a short span of time and assured that he would see that the in-laws will correct themselves and believing his words, she continued to remain in her house. Whenever her husband not returned home, she used to call her in-laws house over phone and her in-laws used to chide her saying that she will be separated from her husband soon. On one occasion, her in-laws directed her husband to drop her at Maduranthakam for a week and informed her brother over telephone that they are sending her for short holidays to his house and would take her back after a week. She has gone to Achirapakkam, but her husband did not take her back even after a week.
(viii)The Appellant/Wife along with her brother returned to the house of in-laws to see her husband. But her in-laws refused to entertain her into the house. She has been compelled to go to her house viz., to the address mentioned in the petition and she was shocked to see that the house was locked and no one was there. She has gone back to Achirapakkam and made several telephone calls to her husband for which there was no response from him. Her relatives tried to meet her husband at his office to know as to when will he join with her. But, he avoided their visit and told them that he could join her as soon as his parents would agree for it. She is affected mentally, physically due to the cruelty of the in-laws and her husband is still fond of her and used to talk to her whenever he is alone. She knows very well that her husband is willing to resume his conjugal rights and she is willing to discharge her duties as a devoted and dutiful wife.

6.The Point for determination that arises in this Appeal is that:
Whether the Order dated 12.05.2008 in F.C.O.P.No.1835 of 2002 passed by the II Additional Family Court Judge, Chennai, in granting the relief of Divorce in favour of the Respondent/Husband, is sustainable in the eye of law?

The Contentions, Discussions and Findings on Point:
7.According to the Learned Counsel for the Appellant/Wife, O.P.No.1835 of 2002 filed by the Respondent/Husband is devoid of merits when there is a specific admission that both herself and her husband were living under the same roof when the petition was filed.

8.It is the submission of the Learned Counsel for the Appellant/ Wife that the Learned II Additional Family Court Judge should have seen that after filing the petition, the Respondent/Husband has shifted the matrimonial home though the Appellant/Wife has continued to live in the matrimonial home.

9.The plea of the Appellant/Wife is that the Respondent/Husband has not substantiated his pleadings with sufficient evidence and as such, the allegations of cruelty have not been established by him.
10.The Learned Counsel for the Appellant/Wife urges before this Court that her father-in-law (P.W.2) has not let in sufficient evidence to dislodge the allegation of his adulterous life and therefore, the allegation made in this regard does not amount to cruelty.

11.The Appellant/Wife has taken a ground in the Appeal that her husband has admitted that he has not chosen to file any police complaint and not communicated to his wife's elder family members and therefore, he has not proved the allegation of cruelty inflicted on him.

12.The Learned Counsel for the Appellant/Wife takes a plea that the Learned II Additional Family Court Judge, Chennai has failed to appreciate that her husband has not chosen to examine his mother when serious allegations have been made against her and this proves that he has inflicted cruelty on the Appellant/Wife by making scandalous allegations against her.

13.Lastly, it is the contention of the Learned Counsel for the Appellant/Wife that the Appellant/Wife has denied all the allegations made in the petition and she has also denied the allegation of illicit intimacy with his own mother in her counter and that the Learned II Additional Family Court Judge, Chennai has erroneously held that the Appellant/Wife is admitted the false allegations and committed cruelty towards her husband.

14.The Learned Counsel for the Appellant/Wife contends that the aspect of 'Cruelty' is to be decided based on facts and circumstances of each case by taking note of the attendant surrounding circumstances and to lend support to her contention cites the Division Bench Judgment of this Court in Jayakumari V. Balachander, [2010 (3) CTC 785] (one of us is the party] wherein, in paragraph 30, it is held as follows:
"30.The term 'cruelty' consists of unwarranted and unjustifiable conduct on the part of defendant causing other spouse to endure suffering and distress thereby destroying peace of mind and making living with such spouse unbearable, completely destroying real purpose and object of matrimony. It would of course be difficult to define the expression "cruelty'. There cannot be any hard and fast rule in interpreting the same. As pointed out, the word & quot; cruelty & quot; cannot be put in a strait-jacket of judicial definition. It must be judged on the facts of each case having regard to the surrounding circumstances. Whether one spouse is guilty of cruelty is essentially a question of fact and previously decided cases have little, if any, value. The term 'cruelty' is not defined in the Act. It is to be judged by taking into consideration the status of life, the standard of living, the family background and the society in which the parties are accustomed to move because particular behaviour may amount to cruelty in one set of circumstances and may not be so in other set of circumstances."
15.She also relies on the decision in Naval Kishore Somani V. Poonam Somani [AIR 1999 Andra Pradesh 1], wherein it is observed as follows:
"It is no doubt open for the petitioner husband in a petition for divorce on ground of 'cruelty' to seek a decree of divorce on grounds arising out of charges levelled in the written statement by the respondent wife which amounts to 'cruelty'. However, such a right to claim a decree of divorce does not extend to cases where the respondent has merely failed to prove the charges. It is necessary to prove further that the charges levelled by the respondent apart from being unproved, are false, baseless vexatious and malicious. The proof of falsity of such charges is a sine qua non for claiming a decree on ground of events alleged in the counter. How much proof and from what source, should come for proving falsity is a pure question of fact depending upon case to case. In the instant case it has not been proved that the averments made in the counter by the respondent are false, malicious, baseless or vexatious. Thus the husband would not be entitled to decree of divorce."

16.The Learned Counsel for the Appellant/Wife draws the attention of this Court to the decision of the Hon'ble Supreme Court in V.Bhagat V. Mrs.D.Bhagat [AIR 1994 Supreme Court 710] wherein, in paragraph 17, it is laid down as follows:
"17.Mental cruelty in Section 13(1)(i-a) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be Determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made."

17.Per contra, it is the contention of the Learned Senior Counsel for the Respondent/Husband that the Appellant/Wife, in her counter, has not repudiated the allegation of her husband that she abused him with a remark that he and his mother have been in illegal relationship and that her father-in-law who has been examined as P.W.2 has also stated that the Appellant alleged that his son viz., the Respondent/ Husband is having illicit intimacy with his own mother and further that the Appellant/Wife has not cross examined her father-in-law-P.W.2 in regard to the averments made by him in his proof affidavit before the Family Court and also that she has not examined herself as a witness to establish her allegations made against her husband and when the Appellant/Wife has not substantiated her allegations made against the Respondent/Husband, then, her unproved allegations are clear acts of cruelty which perforce the Respondent/Husband to get the relief of Divorce against the Appellant/Wife.

18.The Learned Senior Counsel for the Respondent/Husband cites the decision of the Hon'ble Supreme Court in Vijaykumar Ramchandra Bhate V. Neela Vijaykumar Bhate [(2003) 6 Supreme Court Cases 334 at page 335] wherein it is held as follows:
"Levelling disgusting accusations of unchasity and indecent familiarity with a person outside wedlock and allegations of extramarital relationship constitute grave assault on the character, honour, reputation, status as well as the health of the wife. Such aspersions of perfidiousness attributed to the wife, viewed in the context of an educated Indian wife and judged by Indian conditions and standardsm would amount to worst form of insult and cruelty, sufficient by itself to substantiate cruelty in law, warranting the claim of the wife being allowed. Such allegations made in the written statement or suggested in the course of examination and by way of cross-examination satisfy the requirement of law. On going through the relevant portions of such allegations, it is clear that no exception could be taken to the findings recorded by the Family Court as well as the High Court. They are of such quality, magnitude and consequence as to cause mental pain, agony and suffering amounting to the reformulated concept of cruelty in matrimonial law causing profound and lasting disruption and driving the wife to feel deeply hurt and reasonably apprehend that it would be dangerous for her to live with a husband who was taunting her like that and rendered the maintenance of matrimonial home impossible."

19.She also relies on the decision in Harendra Nath Burman V. Sm.Suprova Burman and another [AIR 1989 Calcutta 120 (1)] wherein it is held that 'unfounded allegation of adultery by one spouse against other Constitutes mental cruelty of gravest character to warrant divorce.'

20.Also, the Learned Senior Counsel for the Respondent/ Husband cites the Division Bench Judgment of this Court in The Superintending Engineer, Suruliyar Hydro Electric Project, Madurai and others V. The Green Lands New India Construction Company and others [1993 (2) MLJ 228] wherein it is observed that 'the defendants have failed to produce the best evidence before the Court. Hence the Court is entitled to draw an adverse inference against the defendants as regards the disputed facts.'

21.At this stage, it is useful for this Court to make a reference to the evidence of P.W.1 and P.W.2 for better appreciation of the merits of the case.

22.P.W.1 (Respondent/Husband), in his evidence, has deposed that one month after marriage, the Appellant/Wife has started to exhibit her dominance and even for trivial matters, she used to get angry and at that point of time, she has become pregnant and has taken her to the doctor who examined her and the doctor informed that she has fibroid and assigning that reason, she has not done any work in the house and his mother has done all works for her.

23.The evidence of P.W.1 (husband) is also to the effect that the Appellant/Wife assigning reason of ill-health has demanded certain things from him, which he purchased and given her and at that time, he has been blessed with a female child and he has incurred the expenses of Caesarean operation through which the child has born.

24.Added further, it is the evidence of P.W.1 that when the doctor has prescribed a chit to examine the fibroid, the Appellant/Wife immediately harassed him to take scan and in case if he has not taken her for examining the said fibroid, she informed him that she has come as a daughter-in-law of a beggars family. Also, on one occasion, when his father has been proceeding to Singapore, the Appellant/Wife informed him to purchase a costly gift for her friend's brother's marriage and when he refused to buy the same, she threatened that she will commit suicide and on one night, she has taken the child to the terrace and threaten that she will commit suicide and he pacify her and send her in an auto for the said marriage and she returned only at 11.00 p.m. in the night and therefore, he has been affected very much mentally and that he has not been in a position to discharge his daily works.

25.P.W.1, in his evidence, proceeds to state that his parents have returned from Singapore after a week and they informed the person who arranged his marriage to advise the Appellant/Wife and at that time, the Appellant/Wife informed that his mother has spoken ill of her conduct and asked his father over the phone as to whether he is equal to her father and based on mediation of Rajanga Nadar, he has permitted the Appellant/Wife to be in his house and further, she spoke in singular term in front of his parents like 'thlh nghlh' and later in their house separate food has been prepared and one day when he has taken his mother's food preparation, the Appellant/Wife has thrown the child from the cot and picked up a quarrel and when he act any contrary to wish of his wife, then, she used to show the same on the child and because of these her continued acts, his parents have kept him in a separate residence and the Appellant/Wife desired to see house in Anna Nagar side and he has seen a house near his house at Perambur and she used to quarrel daily with him since she has not liked the same. Further, the Appellant/Wife asked him to see a different house and when he has not agreed for the same, she started scolding him and his parents in vulgar manner and one day when he has been proceeding to his office, she asked him to see a different house and when he refused and when he returned from the house at 11.00 p.m. in the night, he knocked the door of the house for half an hour and still she has not opened the same and therefore, he has gone to his parents house and slept there and when he returned to his house on next day, again the Appellant/Wife has not behaved with him properly and since he is holding an important post in the office, because of the Appellant/Wife's activity, he is not able to concentrate of his work.


26.Continuing further, P.W.1 has also stated, in his evidence, that he filed a petition seeking the relief of judicial separation and because of his brother's efforts, he has been affected mentally on different counts because of the action of the Appellant/Wife he has filed the petition for divorce.

27.P.W.2 (father-in-law of the Appellant/Wife), in his evidence, has stated that his son's marriage (Respondent/Husband) has been arranged his relative N.Rajanga Nadar and his son viz., P.W.1 has been reluctant for this proposal as the age between him and the Appellant/Wife has not been matched and he compelled his son (P.W.1) to agree for the marriage based on the assurance given by his relative Rajanga Nadar that the Appellant/Wife is suitable for the family and that he never demanded money and also her brothers never promised to pay a sum of Rs.20 lakhs as dowry.

28.P.W.2, also goes on to add, in his evidence, that the Appellant/Wife wanted to take a dominant role in the family and outside that they should be under her control and when this has not been possible, she started finding fault with them and also created scene on many occasions and she used to abuse him as an 'immoral and bastard' and further, she caused lot of irritation on many occasions and inspite of it he tolerated and set up a separate family for his son. Furthermore, it is his evidence that the Appellant/Wife (his daughter-in-law) used to abuse him as worthless and unfit to run the family and also she abused him that he is in illicit intimacy with his wife and all these are derogatory and provocative words and she used to treat his wife as slave and openly used to tell that she is running an immoral family. Moreover, she has stated in the additional counter that he is running an adulterous life with another woman when his first wife is living and it is derogatory.

29.This Court aptly points out the decision in J.Shyamala V. P.Sundar Kumar [1990 (2) MLJ 198] wherein it is held that 'if the husband wants to have divorce on the ground of cruelty by the wife, he must specifically and clearly state in what way the wife treated him with cruelty'.

30.This Court worth recall the decision in Neena Malhotra V. Ashok Malhotra [2007 (1) Hindu Law Reporter 327] at page 331 & 332 in paragraph 17, it is held as follows:
"In the present case also, it was submitted by the learned Counsel for the appellant that she has only quoted what the respondent was telling her that he had given Mangal Suttar to his mother. Similarly, she was quoting her mother in law that the respondent was the husband of his mother. Actually, by quoting the respondent and his mother, she was making direct allegations against the respondent and his mother of having illicit relations particularly when she has levelled the allegations that her husband used to leave her bed room at night time and used to come back at about 5 or 6 AM. She further stated that whenever she got up at mid night, she noticed her husband to be in the bed room of her mother in law and the door of the room of her mother in law was bolted from inside. These allegations are totally suggestive of the fact that the respondent was having illicit relations with his mother. Therefore, the principle of law laid down by the Hon'ble Supreme Court in A. Jayachandra is clearly applicable to this case. The appellant appears to be a woman who has no control over her tongue. Therefore, it is clearly proved that she has caused acute mental agony to the respondent by making false, unfounded and immoral allegations against the respondent which amounts to cruelty of highest degree."

31.In V.Bhagat V. D.Bhagat [AIR 1994 SC 710], it is observed that 'irretrievably broken marriage is not a ground by itself but it can be borne in mind from the evidence on record on being properly scrutinized, to see whether the ground(s) as alleged are made out.'

32.In Naveen Kohli V. Neelu Kohli [AIR 2006 Supreme Court 1675] at page 1676, the Hon'ble Supreme Court has stated thus:
"A law of divorce based mainly on fault is inadequate to deal with a broken marriage. Under the fault theory, guilt has to be proved; divorce courts are presented concrete instances of human behaviour as bring the institution of marriage into disrepute. Once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be harmful to society and injurious to the interest of the parties. Where there has been a long period of continuous separation, it may fairly be surmised that the matrimonial bond is beyond repair. The marriage becomes a fiction, though supported by a legal tie, by refusing to sever that tie the law in such cases does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. Public interest demands not only that the married status should, as far as possible, as long as possible, and whenever possible, be maintained, but where a marriage has been wreckede beyond the hope of salvage, public interest lies in the recognition of that fact. Since there is no acceptable way in which a spouse can be compelled to resume life with the consort, nothing is gained by trying to keep the parties tied for ever to a marriage that in fact has ceased to exist. Human life has a short span and situations causing misery cannot be allowed to continue indefinitely. A halt has to be called at some stage. Law cannot turn a blind eye to such situations, nor can it decline to give adequate response to the necessities arising therefrom."
Also, in paragraph 96 of the Judgment, it is observed that 'Court recommended to Union of India to seriously consider bringing an amendment in H.M. Act to incorporate irretrievable break down of marriage as a ground for grant of divorce.'

33.In Sujata Uday Patil V. Uday Madhukar Patil [(2007) 8 MLJ 797 (SC)], the Hon'ble Supreme Court, in para 7 and 8, has observed as follows:
"7. The word "cruelty" and the kind or degree of "cruelty" necessary which may amount to a matrimonial offence has not been defined in the Act. What is cruel treatment is to a large extent a question of fact or a mixed question of law and fact and no dogmatic answer can be given to the variety of problems that arise before the court in these kind of cases. The law has no standard by which to measure the nature and degree of cruel treatment that may satisfy the test. It may consist of a display of temperament, emotion or pervasion whereby one gives vent to his or her feelings, without intending to injure the other. It need not consist of direct action against the other but may be misconduct indirectly affecting the other spouse even though it is not aimed at that spouse. It is necessary to weigh all the incidents and quarrels between the parties keeping in view the impact of the personality and conduct of one spouse upon the mind of the other. Cruelty may be inferred from the facts and matrimonial relations of the parties and interaction in their daily life disclosed by the evidence and inference on the said point can only be drawn after all the facts have been taken into consideration. Where there is proof of a deliberate course of conduct on the part of one, intended to hurt and humiliate the other spouse, and such a conduct is persisted, cruelty can easily be inferred. Neither actual nor presumed intention to hurt the other spouse is a necessary element in cruelty.
On a careful consideration of the findings recorded by the learned District Judge and also by the High Court and in our opinion they are fully borne out from the material on record and cannot be faulted with on any ground. Therefore, the decree for divorce has to be maintained."

34.In Amaravathy V. R.A.Pakkirinathan [1998 (3) MLJ 377 at page 378] wherein it is held as follows:
"The substance is that the husband is unable to cope with the conduct of the wife. So no useful purpose will be served in keeping the matrimonial tie. For almost a decade they have been fighting. Even the good offices of the counsels were of no avail. In the circumstances, no useful purpose will be served in allowing to continue the relationship as husband and wife in name."

35.Admittedly, the term 'Cruelty' is a mixed question of law and fact. The Hindu Marriage Act has been enacted based on social, economic and political changes in India. Of course, the initiation of marriage takes a pivotal place and has a key role to play in the society and cruelty may be of different crimes like, physical or mental, intentional or unintentional changes from time to time, place to place and person to person based on status, human, cultural values, educational standards and finally on social economic conditions.
36.The term 'Cruelty' should be of a such a nature that the parties cannot reasonably be expected to live together and situation must be such the wrong person cannot reasonably be required to put up with the other party. Moreover, intention to hurt another is not an essential element. In the absence of possible act of cruelty, a party is not entitled to obtain a decree for divorce as per decision in Sankara Prasad Pal V. Sabita Pal [1997 CWN 747].

37.In Neha Khuller V. Rakesh Khuller [I 2004 DMC 719 (MP)], it is observed and held that 'in view of the statement of the appellant Neha Khullar (N.A.W.1) on oath that she does not want to live with her husband and he is not fit for her and that he is less educated and lame. I have no hesitation in believing the statement of the respondent /husband on oath that his wife tortures him by speaking insulting words that he is lame and that she has deserted him for more than 4 years.'

38.If bitter waters are flowing, it is not necessary to enquire from which source they spring. It is necessary for the Petitioner in a matrimonial proceedings to make out a specific case that the conduct of the other person alleged, indeed amounts to cruelty.

39.In an American case, in Jem V. Jem 33 reported in [1937] 34 Haw 312, the Hon'ble Supreme Court of Hawii has observed that 'cruel treatment not amounting to physical cruelty is mental cruelty.'

40.In Halsbury's Laws of England [Vol.13, 4th Edition, para 1269], it is observed as follows:
"The general rule in all cases of cruelty is that the entire matrimonial relationship must be considered, and that rule is of special value when the cruelty consists not of violent acts but of injurious reproaches, complaints, accusations or taunts. In cases where no violence is averred, it is undesirable to consider judicial pronouncements with a view to creating certain categories of acts or conduct as having or lacking the nature or quality which renders them capable or incapable in all circumstances of amounting to cruelty; for it is the effect of the conduct rather than its nature which is of paramount importance in assessing a complaint of cruelty. Whether one spouse has been guilty of cruelty to the other is essentially a question of fact and previously decided cases have little, if any, value. The court should bear in mind the physical and mental condition of the parties as well as their social status, and should consider the impact of the personality and conduct of one spouse on the mind of the other, weighing all incidents and quarrels between the spouses from that point of view; further, the conduct alleged must be examined in the light of the complainant's capacity for endurance and the extent to which that capacity is known to the other spouse. Malevolent intention is not essential to cruelty but it is an important element where it exists.

41.It cannot be gainsaid that a mere evidence/admission for enduring cruelty cannot be reckoned as condonation under Section 23 of the Hindu Marriage Act.

42.The disgusting acquisition made by the Appellant/Wife that the Respondent/Husband is having illicit relationship with his mother and further, accusing her father-in-law viz., P.W.2 that he is leading an adulterous life, are nothing but a serious assault on character, honour, reputation and status of not only the Respondent/Husband but also on P.W.2, in the considered opinion of this Court. The Appellant/Wife after making allegations against the Respondent/Husband and her father-in-law P.W.2 and not proving such allegations against them, but yet resisting the divorce proceedings in F.C.O.P.No.1835 of 2002 would mean a resolve to live in mental turmoil only to make the life miserable to both parties. Further, the term 'Cruelty' cannot be decided on the sensitivity of Homo Sapiens. It has to be adjudged based on the course of conduct of a particular party.

43.We deem it appropriate to cite the decision of the Hon'ble Supreme Court in Vijayakumar Ramchandra Bhate V. Neela Vijaykumar Bhate [AIR 2003 Supreme Court 2462 at page 2463] wherein the Hon'ble Supreme Court has laid down as follows:
"To satisfy the requirement of Clause (i-a) of Sub-section (1) of Section 13 of the Act, it is not as though the cruel treatment for any particular duration or period has been statutorily stipulated to be necessary. As to what constitute the required mental cruelty for purposes of the said provision, in our view, will not depend upon the numerical count of such incidents or only on the continuous course of such conduct, but really go by the intensity, gravity and stigmatic impact of it when meted out even once and the deleterious effect of it on the mental attitude, necessary for maintaining a conducive matrimonial home. If the taunts, complaints and reproaches are of ordinary nature only, the Courts perhaps need consider the further question as to whether their continuance or persistence over a period time render, what normally would, otherwise, not be a so serious an act to be so injurious and painful as to make the spouse charged with them genuinely and reasonable conclude that the maintenance of matrimonial home is not possible any longer. A conscious and deliberate statement leveled with pungency and that to placed on record, through the written statement, cannot so lightly be ignored or brushed aside, to be of no consequence merely because it came to be removed from the record only. The allegations leveled and the incidents enumerated in the case on hand, apart from they being per se cruel in nature, on their own also constitute an admission of the fact that for quite some time past the husband had been persistently indulging in them, unrelated and unmindful of its impact. That the husband in this case has treated the wife with intense cruelty is a fact, which became a fait accompli the day they were made in the written statement. The continued on record at any rate till 5.10.1988 and the indelible impact and scar it initially should have created, cannot be said to have got ipso facto dissolved, with the amendments ordered."

44.Also, we pertinently point out the decision in Smt.Rajna Choudhary V. Sh.Raghubir Singh [AIR 2011 Himachal Pradesh 27 at page 28] wherein, in paragraph 7, it is held as follows:
"7.Appellant while in the witness box admitted that she had lodged complaint Ext.PA with the Deputy Commissioner and forwarded copies thereof to various other authorities, but denied that in the said complaint she had levelled the allegation that respondent was having illicit relations with his brother's wife. Complaint, which she lodged with the Deputy Commissioner, is Ext.PA. She was shown this complaint. She admitted as Respondent/Wife-1 that she had lodged this complaint and it bore her signature. In the complaint there is a specific allegation that the respondent had been having illicit relations with his deceased brother Om Prakash's wife Kanta and had been squandering all his earnings to keep her happy. Thus her plea that she did not make the allegation that the respondent was having illicit relations with his brother's wife is proved to be false, by the complaint Ext.PA, which she made to the Deputy Commissioner. This allegation definitely amounts to mental cruelty."

45.In the present case on hand, when the Respondent/Husband in his F.C.O.P.No.1835 of 2002 on the file of II Additional Family Court, Chennai has come out with a specific plea that the Appellant/Wife used to ill treat him with ugly, foul language without any respect in front of third persons and further, when the Appellant/Wife has been accused by the Respondent/Husband that she used to abuse his mother and remarked that her husband and his mother having illegal relationship, which has not been denied by her either in the counter of F.C.O.P.No.1835 of 2002 filed by the Respondent/Husband or in additional counter and all the more, when she has not been examined as a witness on her side to rebut or repudiated the serious allegations levelled against her by the Respondent/Husband, then, the evidence adduced by the Respondent/Husband as P.W.1 and her father-in-law P.W.2 clearly prove that the Appellant/Wife has committed an act of cruelty on the Respondent/Husband and any amount of heeling touch or heeling words projected on the side of Appellant/Wife that she has not treated the Respondent/Husband in a cruel manner will not wipe out the scar and viewed in that perspective, this Court comes to an irresistible conclusion that the abnormal act of the Appellant/Wife is a clear case of mental cruelty which is more painful than physical cruelty, in the considered opinion of this Court.

46.That apart, the father-in-law of the Appellant/Wife has also deposed before the Family Court that Appellant/Wife has abused him as immoral and employed vulgar words on numerous occasions, she has caused irritation and also that in the counter affidavit, the Appellant/Wife (his daughter-in-law) has alleged that he is leading an adulterous life with another woman when his first wife is living, which is derogatory in character. Admittedly, the Appellant/Wife has not been examined as a witness in the proceedings in F.C.O.P.No.1835 of 2002 on the file of the Family Court, Chennai. The non-examination of the Appellant/Wife as a witness to rebut the averments or allegations made against her by the Respondent/Husband in his F.C.O.P.No.1835 of 2002 and also in his evidence not controverting the evidence of P.W.2 that the Appellant/Wife viz., his daughter-in-law has called him as immoral etc. and further, making allegation against him that he is leading an adulterous life with another woman when his first wife is living etc., are all clear adverse circumstances which go against the Appellant/Wife.

47.In the instant case on hand, the parties have separated themselves on 06.03.2002 and they are leading a separate family life of their own accord to their own choice. There is also no possibility for them to live in unison. The marriage has broken down between the parties beyond repair, as opined by this Court. Further, the marriage between the parties cannot be safe and kept intact because of the fact that their appears to be a love lost between the parties. Therefore, a Court of Law has to take a purposeful, meaningful and pragmatic approach in dealing with the matrimonial disputes based on factual ground scenario prevailing in a given case which float on the surface.

48.To put it succinctly, the Appellant/Wife has not substantiated her allegations made against the Respondent/Husband and also against her father-in-law viz., P.W.2., the Family Court has rightly weighed and assessed the oral and documentary evidence available on record in a proper manner and has come to the right conclusion that the Appellant/Wife has committed an act of cruelty and accordingly, granted the relief of Divorce in favour of the Respondent/Husband, by dissolving the marriage that has taken place between the parties on 01.10.1999, which warrants no interference in the hands of this Court. Consequently, the Civil Miscellaneous Appeal fails.

49.Dealing with the plea of the Learned Counsel for the Appellant/Wife that the Appellant/Wife has filed M.C.No.329 of 2008 on the file of II Additional Family Court, Chennai and later transferred to III Additional Family Court, Chennai praying for maintenance amount of Rs.5,000/- per month for the Appellant/Wife and Rs.7,000/- for the minor daughter and that the said matter is to have been listed before the Learned II Additional Family Court though an order has been obtained by the Respondent/Husband in his favour for transfer of the case to III Additional Family Court Judge, Chennai and further, the matter is set at the stage of cross examination of P.W.1.

50.Further, it transpires that in I.A.No.1621 of 2003 in O.P.No.1835 of 2002 though the Appellant/Wife has claimed a sum of Rs.5,000/- towards litigation expenses and an interim maintenance amount of Rs.1,500/- per month for herself and Rs.1,000/- per month for her daughter aggregating in all, a sum of Rs.2,500/-, the Learned Principal Family Court Judge, Chennai on 28.04.2004 has granted a sum of Rs.750/- per month each to the Appellant/Wife and her daughter as interim maintenance from the date of petition till the disposal of O.P. and also awarded a sum of Rs.2,000/- as litigation expenses. As against the said order in I.A.No.1621 of 2003 in O.P.No.1835 of 2002 on the file of Learned Principal Family Court Judge, Chennai, Civil Revision Petition has been filed by the Appellant/ Wife praying for enhancement of maintenance amount awarded to her and her daughter. The said Civil Revision Petition is said to be pending on the file of this Court.

51.It is to be pointed out that the Hon'ble Supreme Court in the decision Satish Sitole V. Ganga (Smt) [(2008) 7 SCC 734] following the precedent in Romesh Chander V. Savitri [(1995) 2 SCC at page 7)], while invoking Article 142 of the Constitution of India, dissolved the marriage subject to the husband paying permanent alimony of Rs.Two Lakhs and cost of the Appeal assessed at Rs.25,000/-.

52.Admittedly, in I.A.No.1621 of 2003 in O.P.No.1835 of 2002 on the file of Learned Principal Family Court Judge, Chennai, a sum of Rs.750/- each as interim maintenance has been ordered to the Appellant/Wife and her daughter and further a sum of Rs.2,000/- has also been granted as litigation expenses, to be paid by the Respondent/Husband. Taking note of the paramount welfare and interest of the Appellant/Wife and her daughter, their status, keeping in mind the rise in prices of essential commodities, spiralling cost of inflation, this Court, exercising its inherent powers to Award permanent alimony based on Equity, Fair Play and Good Conscience, directs the Respondent/Husband to pay a sum of Rs.750/- each to the Appellant/Wife and her daughter as monthly maintenance and the litigation expenses of Rs.2,000/- as ordered in I.A.No.1621 of 2003 in O.P.No.1835 of 2002 till date and further, he is directed to pay a sum of Rs.1,00,000/- each to the Appellant/Wife and her daughter towards permanent maintenance in full and final settlement, within a period of one month from the date of receipt of a copy of this Judgment.

53.In the result, the Civil Miscellaneous Appeal is dismissed, leaving the parties to bear their own costs. Consequently, M.P.No.1 of 2008 is closed.

(E.D.R.J.) (M.V.J.)
21.02.2012
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Index :Yes

Internet :Yes

Sgl

To
The II Additional Family Court Judge,
Chennai.
ELIPE DHARMA RAO,J.
AND
M.VENUGOPAL,J.

Sgl









JUDGMENT IN
C.M.A.No.2148 of 2008



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21.02.2012