Chittibomma Veera Venkata Raju Vs Smt.Chittibomma Sakuntala

Chittibomma Veera Venkata Raju, S/O.Late Sri CH. Koteswara Rao, Aged 69 Years, OCC. Pensioner, Habitual Permanent Resident Of New Zealand Address For Communication. 245 A, Hill Road, Manurewa ( PIN-2102) South Auckland, New Zealand.

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...APPELLANT

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AND

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Smt Chittibomma Sakuntala, Ex-W/o. Chittbornm.a Veera Venkata Raju, Aged 59 years, Occ. Housewife, R/o. Plot No.LIG-38, D.No.4-56-1/9, Lawsons Bay Colony, Visakhapatnam. Email. [email protected]

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...RESPONDENT

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Counsel for the Appellant:

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1.METTA CHANDRA SEKHAR RAO

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Counsel for the Respondent:

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1.SRINIVASA RAO BODDULURI

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The Court made the following:

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THE HONOURABLE SRI JUSTICE BATTU DEVANAND

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&

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THE HONOURABLE SRI JUSTICE A. HARI HARANADHA SARMA

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F.C.A. No.133 of 2023

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JUDGMENT: (Per Hon’ble Sri A. Hari Haranadha Sarma)

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Introductory :-

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This is an appeal filed under Section 19 of the Family Courts Act, 1984, directed against the Judgment and Decree dated 30.06.2023 passed in FCOP No.495 of 2011 on the file of Additional Family Court, Visakhapatnam.

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The appellant is the respondent before the Court below. The respondent herein is his wife and petitioner in FCOP No.495 of 2011. The petition was filed invoking Section 18 of the Hindu Adoptions and Maintenance Act, 1956 with a prayer to direct the respondent therein to pay monthly maintenance of Rs.25,000/- from the date of the petition and also past maintenance at the same rate, for the period from August 2008 to April 2011, amounting to Rs.8,00,000/and also for costs etc.

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Learned Judge, Family Court allowed the petition in part, awarding maintenance of Rs.15,000/- per month from the date of the petition, i.e., 07.04.2011 and past maintenance @ Rs.10,000/- per month from August 2008 till 06.04.2011 while permitting the payment of arrears in (10) monthly

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instalments, along with the regular maintenance amount. Aggrieved thereby present appeal is filed.

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Marriage between the parties was performed on 19.11.1980 and they are blessed with two sons during the wedlock. Usual allegations as to ordinary wear and tear in the matrimonial journey like presentation of dowry, demand for additional dowry, contribution of the petitioner/wife for the uplift of the family and purchase of certain properties and clearance of the debts etc., and denial thereof from the end of the husband, are found in the petition and counter, which are referred in the impugned Orders, passed by the learned Judge, Family Court.

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For the sake of convenience, wife will be hereinafter referred as ‘the petitioner’ and the husband will be referred as ‘the respondent’.

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Case of the Wife/petitioner:-

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Case of the petitioner, in brief, relevant for the proceedings is that –

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[i] she was neglected and made to return from New Zealand forcibly

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and she was deserted. Accordingly, she came down to India and started living alone from 2008 at Visakhapatnam.

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[ii] The respondent/husband has initiated proceedings almost simultaneously at Family Court at Visakhapatnam and also before the Court at Auckland in New Zealand, for divorce suppressing the fact as to the pendency of the matter in other Court and got divorce from Auckland

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Court at New Zealand, thereafter not pressed the proceedings initiated for divorce at Visakhapatnam.

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[iii] The divorce granted by the Court at New Zealand is not binding on her.

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[iv] She has been residing separately on desertion and on being neglected by her husband. She has sufficient reasons to live separately including one that the respondent/ husband is guilty of bigamy.

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[v] She has no means to maintain herself, whereas the respondent had sufficient means in the form of properties and income, being the retired employee and pensioner. Therefore, he can provide maintenance as prayed for.

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Case of the husband/respondent:-

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[i] He worked at Andhra Bank, took voluntary retirement in 1999 and

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went to the New Zealand.

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[ii] His wife/petitioner became permanent resident at New Zealand;

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[iii] On the ground of separate living, the Auckland Court granted divorce and the same became final. Hence, the petitioner/wife is not entitled for any relief, more so for maintenance. She has voluntarily deserted him.

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[iv] In F.C.O.P.No.1269 of 2009 filed by him through his GPA, before the Family Court at Visakhapatnam, his wife filed I.A.No.88 of 2010 seeking for maintenance, alleging desertion, whereas the version is contradictory before the Court at Auckland.

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[v] On satisfying with the separate living, divorce was granted by the Court at New Zealand, thereafter he has not pressed the proceedings before the Family Court at Visakhapatnam vide FCOP No.1269 of 2009.

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[vi] Now, there is no matrimonial relationship and the petitioner/wife is entitled for the relief in terms of the Policy of the New Zealand Government, being a job seeker, and she can maintain herself from such amount. He being the pensioner, not liable to pay any maintenance.

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8. Findings of the Family Court at Visakhapatnam:-

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1. Marriage is not in dispute.

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1. Parties are living separately.

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1. As per Section 18 of the Hindu Adoptions and Maintenance Act, wife is entitled for maintenance, where she has been abandoned or deserted.

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Divorce granted in the proceedings at the Auckland Court, are not on merits and not valid outside the New Zealand and said dissolution is valid for the purposes within the New Zealand only, even as per the notice sent by the said Court to the petitioner.

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1. Pendency of the proceedings in one Court, is suppressed before the other Court, therefore, the respondent/husband is not entitled to claim the binding nature of the divorce granted by the Court at Auckland.

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1. The unemployment benefit etc., and payment of amount by the New Zealand Government, to the petitioner/wife, is not fortified with any evidence.

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1. Full text of the Order of the judgment of the Auckland Court, is not placed.

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Ex.A20 placed is only a Notice.

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1. It is evident that the petitioner and the respondent are living separately from 2008 and both are alleging voluntary desertion against each other.

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1. The respondent/husband failed to prove the voluntary desertion; therefore, the petitioner/wife is entitled for maintenance.

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1. The documentary evidence is indicating the means of the husband, therefore, the maintenance at Rs.15,000/- per month from the date of petition, and Rs.10,000/- for the pre-litigation period i.e., from August 2008 to 06.04.2011 is awarded.

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Arguments in the Appeal:-

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Extensive arguments are submitted by both sides.

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The core contention of the learned counsel for the appellant, Sri Metta Chandrasekhar Rao, is that since there was already divorce, the respondent, who is the petitioner before the Family Court, is not entitled for maintenance and

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she is having support of the New Zealand Government, getting an income of Rs.2,00,000/- per month. Therefore, she is not entitled for maintenance. In any event, quantum of maintenance granted is excessive and the appellant is not liable to pay any maintenance.

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Learned counsel for the respondent herein/wife, submitted arguments referring to the evidence and observations of the Family Court that the Orders under challenge are well reasoned and there are no grounds to interfere.

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Now, the points that arise for determination are -

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1. Whether the divorce, said to have been granted by the Auckland

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Court at New Zealand, relied on by the respondent/husband, debars the petitioner/wife in the present case from claiming maintenance? And whether a divorced wife is not entitled to claim maintenance against her husband?

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1. Whether the Order and Decree dated 30.06.2023, directing payment

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of maintenance at Rs.15,000/- per month from the date of petition i.e.,

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07.04.2011 and past maintenance of Rs.10,000/- from August, 2008 to

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06.04.2011 are sustainable in law or on facts? Or whether any

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interference is necessary, if so, on what grounds and to which extent?

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What is the result of the Appeal?

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Point No.1 :- Whether the divorce, said to have been granted by the Auckland Court at New Zealand, relied on by the respondent/husband, debars the petitioner/wife in the present case from claiming maintenance? And whether a divorced wife is not entitled to claim maintenance against her husband?

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13. This point involves the following aspects:

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[i] Whether the family proceedings before the Court at Aukland in New Zealand, relied on by the respondent/husband, being a foreign judgment are in tune with Section 13 of the Civil Procedure Code,1908 [for short CPC] to have binding nature.

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[ii] Whether a divorced wife is entitled for maintenance against her husband?

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Analysis of Evidence:-

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[i] Respondent/husband, vide para 20 and 21 of his counter affidavit filed before the learned Family Court, stated that after living up to 25.7.2008, the petitioner/wife left him and joined her mother at Visakhapatnam. He filed FCOP No.1269 of 2009 on 8.10.2009 before the Family Court at Visakhapatnam

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through GPA, after one year of separation. His wife is filed I.A. No.88 of 2010 on

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10.02.2010 for maintenance, claiming that she is deprived and her husband is having handsome income, wherein he has filed counter. Thereafter, he has filed divorce petition in Auckland Court on 05.08.2010, on the ground of two years separation, which is statutory requirement. [vide para 21]. His wife sent her defence statement dated 21.12.2010 stating that she was forced to go back to India, and leave New Zealand. However, orders were passed by the Registrar of the Auckcland Court, on 11.01.2011 which was sealed on 14.2.2011. It is final.

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[ii] Petitioner/wife claimed that their marriage was not performed as per New Zealand Laws, by the time of filing divorce O.P.No.1269 of 2009, she was not in New Zealand. By the time of filing Divorce petition in New Zealand Court, the petition filed before the Family Court at Visakhapatnam was pending. Her husband did not inform the Family Court at Visakhapatnam, about the case filed at New Zealand Court and he did not mention in the petition filed before the Auckland Court about the pendency of proceedings before the Family Court at Visakhapatnam. He did not issue any legal notice to the petitioner through any Form, prior to filing of divorce petition, in either of the Courts.

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[iii] For a specific question of Family Court, whether the Auckland Court passed Orders of Decree, after recording oral and documentary evidence on merits?, respondent has stated that petitioner /wife, did not apply notice of hearing to Auckland Court in FB-20 and basing on the documentary evidence, i.e., affidavit of the petitioner filed in I.A.No.88 of 2010 in O.P.No.1269 of 2009

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that he deserted her for two years, Auckland Court passed the orders dissolving marriage.

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[iv] He has denied the suggestion that he misled the Auckland Court and obtained the orders. He has stated that the petitioner is living separately since 2008.

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[v] Further, it was suggested to the respondent that as per the averments in Ex.A20-notice, issued to the petitioner by Auckland Court, granting divorce is not maintainable outside the New Zealand.

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[vi] It has been the specific case of the wife/petitioner that the respondent is living with a woman i.e., Ms.Tapaswini Mahapatra of Orissa State and that a case is registered against him for Bigamy, in terms of Section 494 IPC and other allied Sections 498-A IPC.

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[vii] There is no denial, added to that during the cross-examination done

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on 10.03.2012, RW.1/respondent stated that there are no children born through

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the second wife and that he got divorce with his second wife also. His second wife filed Domestic Violence Case [DVC] against him at New Zealand Court and he has volunteered that said D.V.C. was filed on the instigation of the petitioner and her son.

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[viii] It is pertinent to note that the son of the petitioner and the respondent, i.e., Ch.Jatinchand gave evidence as PW.3, against the respondent

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in support of the assertions made by the petitioner/wife, and also about the respondent living with Ms.Tapaswini Mahapatra. During the cross-examination of PW.1, the petitioner/the witnesses, who stated about the respondent living with said Ms.Tapaswini Mahapatra, there is neither denial by the respondent nor at least suggestion theory was resorted to.

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From the evidence, it is clear that the petitioner/wife is living separately on account of desertion and on being neglected by the respondent/husband and for the reason of respondent living with one Ms.Tapaswini Mahapatra. So she has shown justification for separate living.

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The allegation of respondent/husband that the wife has voluntarily deserted him, does not stand for the test of law, as he did not even issue any notice prior to filing divorce proceedings either before the Court at Visakhapatnam or before the Court at Auckland.

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When the matter sub judice before the Court at Visakhapatnam, initiating proceedings before the Auckland Court is one aspect. Of course, on information of previously instituted proceedings, subsequent proceedings can be stayed. However, by virtue of explanation to Section 10, the pendency of a Suit in a Foreign Court does not preclude the Courts in India from trying the suit on the same cause of action. But here the pendency of the proceedings at India is not informed to Auckland Court and pendency of the matter at Auckland Court is not

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informed to the Indian Court. After obtaining divorce from Auckland Court, the proceedings at India are withdrawn.

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Now the matter requires examination from the angle of Section 13 of CPC

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which deals with the ‘foreign judgment’: Section 13 CPC reads as follows:-

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“13. When foreign judgment not conclusive :-

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A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except-

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(a) where it has not been pronounced by a Court of competent jurisdiction;

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(b) where it has not been given on the merits of the case;

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(c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of [India] in cases in which such law is applicable;

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(d) where the proceedings in which the judgment was obtained are opposed to natural justice;

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(e) where it has been obtained by fraud;

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(f) where it sustains a claim founded on a breach of any law in force in India. “

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[i] Section 13 (a) of CPC deals with competency of the Courts. The

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first objection for this is, the petitioner was not residing in Auckland by the time of proceedings. Admittedly, notices were sent to India and it is admitted by the respondent that notices were addressed to the advocate of the petitioner. How the notice addressed to the advocate of the petitioner in India bind her in respect

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of proceedings before the Auckland Court is an important question, left unanswered by the respondent/husband.

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[ii] Section 13 (b) of CPC requires the disposal of the case on merits. Learned Family Court clearly observed that, detailed Orders are not filed and it is admitted by the respondent as RW.1 that the wife did not appear nor applied for further notice. Therefore, it is clear that foreign judgment relied on by the respondent is not on merits.

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[iii] Further it is also the case of the respondent that the Registrar of the Court has granted the divorce basing on the affidavit of the petitioner herein. In the affidavit of the petitioner she has stated that she was deserted by her husband. It is clear from the record that, the parties not residing together for two years and irretrievable breakdown of the marriage is the reason, on which divorce was granted by the Court of the New Zealand as per its local law. Irretrievable breakdown of marriage is not a statutory ground recognized under Indian law, legal position in that regard is settled.

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[iv] Such ground can be invoked by the Supreme Court only in terms of article 142 of the Constitution, in Shilpa Sailesh Vs. Varun Sreenivasan¹ vide paras 73 to 76, under the caption of conclusions the Supreme Court found that, in exercise of power under article 142 of the Constitution of India, when there is

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1 2023(14) SCC 231= 2023 SCCOnline 544

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complete and irretrievable break down of marriage, the divorce can be granted to do complete justice.

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“ 73. In view of the aforesaid discussion, we decide this reference by answering the questions framed in the following manner:

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( i ) The scope and ambit of power and jurisdiction of this Court under Article 142(1) of the Constitution of India

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74. This question as to the power and jurisdiction of this Court under Article 142(1) of the Constitution of India is answered in terms of paras 9 to 21, inter alia, holding that this Court can depart from the procedure as well as the substantive laws, as long as the decision is exercised based on considerations of fundamental general and specific public policy. While deciding whether to exercise discretion, this Court must consider the substantive provisions as enacted and not ignore the same, albeit this Court acts as a problem solver by balancing out equities between the conflicting claims. This power is to be exercised in a “cause or matter”.

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( ii ) In view of, and depending upon the findings of this Bench on the first question, whether this Court, while hearing a transfer petition, or in any other proceedings, can exercise power under Article 142(1) of the Constitution, in view of the settlement between the parties, and grant a decree of divorce by mutual consent dispensing with the period and the procedure prescribed under Section 13-B of the Hindu Marriage Act, and also quash and dispose of other/connected proceedings under the Domestic Violence Act, Section 125CrPC, or criminal prosecution primarily under Section 498-A and other provisions of IPC. If the answer to this question is in the affirmative, in which cases and under what circumstances should this Court exercise jurisdiction under Article 142 of the Constitution of India is an ancillary issue to be decided.

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75. In view of our findings on the first question, this question has to be answered in the affirmative, inter alia, holding that this Court, in view of settlement between the parties, has the discretion to dissolve the marriage by passing a

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decree of divorce by mutual consent, without being bound by the procedural requirement to move the second motion. This power should be exercised with care and caution, keeping in mind the factors stated in Amardeep Singh [ Amardeep Singh v. Harveen Kaur , (2017) 8 SCC 746 : (2017) 4 SCC (Civ) 804 : (2017) 3 SCC (Cri) 505] and Amit Kumar [ Amit Kumar v. Suman Beniwal , (2023) 17 SCC 648] . This Court can also, in exercise of power under Article 142(1) of the Constitution of India, quash and set aside other proceedings and orders, including criminal proceedings.

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( iii ) Whether this Court can grant divorce in exercise of power under Article 142(1) of the Constitution of India when there is complete and irretrievable breakdown of marriage in spite of the other spouses opposing the prayer?

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76. This question is also answered in the affirmative, inter alia, holding that this Court, in exercise of power under Article 142(1) of the Constitution of India, has the discretion to dissolve the marriage on the ground of its irretrievable breakdown. This discretionary power is to be exercised to do “complete justice” to the parties, wherein this Court is satisfied that the facts established show that the marriage has completely failed and there is no possibility that the parties will cohabit together, and continuation of the formal legal relationship is unjustified. The Court, as a court of equity, is required to also balance the circumstances and the background in which the party opposing the dissolution is placed. ”

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[v] While referring to the jurisdiction of the High Courts, in this regard, the Division Bench of the Hon’ble High Court of Delhi in a case between Deepti Vs. Anil Kumar² vide para 24 referred to Shilpa Sailesh ’s case and in para 25 observed that such power to grant divorce on the ground of irretrievable break down of marriage is not vested in High Courts leave alone Family Courts. This

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2 2023 SCC OnLine Del 5829

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view is acceptable and any argument contra, found not tenable. Para 24 and 25 of the judgment of the Hon’ble High Court of Delhi, reads as follows:

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“ 24. With regard to the powers of the Supreme Court under Article 142 of the Constitution of India, the Constitution Bench of the Supreme Court in Shilpa Sailesh v. Varun Sreenivasan ,[2023 SCC OnLine SC 544] has held as under:

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“24. Exercise of jurisdiction under Article 142(1) of the Constitution of India by this Court in such cases is clearly permissible to do ‘complete justice’ to a ‘cause or matter’. We should accept that this Court can pass an order or decree which a family court, trial court or High Court can pass. As per Article 142(1) of the Constitution of India, a decree passed or an order made by this Court is executable throughout the territory of India. Power of this Court under Articles 136 and 142(1) of the Constitution of India will certainly embrace and enswathe this power to do ‘complete justice’, even when the main case/proceeding is pending before the family court, the trial court or another judicial forum. A question or issue of lack of subject-matter jurisdiction does not arise. Settlements in matrimonial matters invariably end multiple legal proceedings, including criminal proceedings in different courts and at diverse locations. Necessarily, in such cases, the parties have to move separate applications in multiple courts, including the jurisdictional High Court, for appropriate relief and closure, and disposal and/or dismissal of cases. This puts burden on the courts in the form of listing, paper work, compliance with formalities, verification etc. Parallelly, parties have to bear the cost, appear before several forums/courts and the final orders get delayed causing anxiety and apprehension. In this sense, when this Court exercises the power under Article 142(1) of the Constitution of India, it assists and aids the cause of justice.

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25. However, there is a difference between existence of a power, and exercise of that power in a given case. Existence of power is generally a matter of law, whereas exercise of power is a mixed question of law and facts. Even when the power to pass a decree of divorce by mutual consent exists and can be exercised by this Court under Article 142(1) of the Constitution of India, when and in which of the cases the power should be exercised to do ‘complete justice’ in a ‘cause or matter’ is an issue that has to be determined independent of existence of the power. This discretion has to be exercised on the basis of the factual matrix in the particular case, evaluated on objective criteria and factors, without ignoring the objective of the statutory provisions. In Amit Kumar v. Suman Beniwal (2021 SCC OnLine SC 1270), this Court has held that

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reading of sub-sections (1) and (2) to Section 13-B of the Hindu Marriage Act envisages a total waiting period/gap of one and a half years from the date of separation for the grant of decree of divorce by mutual consent. Once the condition for waiting period/gap of one and a half year from the date of separation is fulfilled, it can be safely said that the parties had time to ponder, reflect and take a conscious decision on whether they should really put the marriage to end for all times to come. This period of separation prevents impulsive and heedless dissolution of marriage, allows tempers to cool down, anger to dissipate, and gives the spouses time to forgive and forget. At the same time, when there is complete separation over a long period and the parties have moved apart and have mutually agreed to separate, it would be incoherent to perpetuate the litigation by asking the parties to move the trial court. This Court in Amit Kumar (supra) has observed that, in addition to referring to the six factors/questions in Amardeep Singh v. Harveen Kaur (2017) 8 SCC 746, this Court should ascertain whether the parties have freely, on their own accord, and without any coercion or pressure arrived at a genuine settlement which took care of the alimony, if any, maintenance and custody of children, etc.

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

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41. Having said so, we wish to clearly state that grant of divorce on the ground of irretrievable breakdown of marriage by this Court is not a matter of right, but a discretion which is to be exercised with great care and caution, keeping in mind several factors ensuring that ‘complete justice’ is done to both parties. It is obvious that this Court should be fully convinced and satisfied that the marriage is totally unworkable, emotionally dead and beyond salvation and, therefore, dissolution of marriage is the right solution and the only way forward. That the marriage has irretrievably broken down is to be factually determined and firmly established. For this, several factors are to be considered such as the period of time the parties had cohabited after marriage; when the parties had last cohabited; the nature of allegations made by the parties against each other and their family members; the orders passed in the legal proceedings from time to time, cumulative impact on the personal relationship; whether, and how many attempts were made to settle the disputes by intervention of the court or through mediation, and when the last attempt was made, etc. The period of separation should be sufficiently long, and anything above six years or more will be a relevant factor. But these facts have to be evaluated keeping in view the economic and social status of the parties, including their educational qualifications, whether the parties have any children, their age, educational qualification, and whether the other spouse and children are dependent, in which event how and in what manner the party seeking divorce intends to take care and provide for the spouse or the children. Question of custody and welfare of minor children, provision for fair and adequate alimony for the wife, and economic

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rights of the children and other pending matters, if any, are relevant considerations. We would not like to codify the factors so as to curtail exercise of jurisdiction under Article 142(1) of the Constitution of India, which is situation specific. Some of the factors mentioned can be taken as illustrative, and worthy of consideration.”

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25. In terms of the Judgment of the Constitution Bench of the Supreme Court in Shilpa Sailesh (supra), the power to grant divorce on the ground of irretrievable breakdown of marriage is exercised by the Supreme Court under Article 142 of the Constitution of India to do complete justice to both the parties. Such a power is not vested in the High Courts leave alone the Family Courts.” [emphasis is supplied by this Court].

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[vi] Section 13(c) of CPC provides that where there is refusal to

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recognise the Indian law, the foreign judgment need not be considered as conclusive between the parties. The Indian law, particularly the Hindu Marriage Act, 1955 by which the parties are governed, does not recognise the irretrievable breakdown of marriage as a ground for divorce. Further, mere living separately for two years etc., is also not a ground, there shall be voluntary desertion by the respondent. If the wife deserts the husband, he can initiate proceedings for divorce. Likewise, if the husband deserts the wife, she can. But the party, who is at default having deserted, cannot take the advantage of his own desertion as a ground of separate living, and claim for divorce. Here is a case where the wife alleged that husband deserted her and she initiated the proceedings for maintenance. Thereafter, the husband initiated divorce proceedings. Merely on

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the ground of separate living, the Registrar of Auckland Court has granted the divorce. Therefore, the husband’s contention cannot be accepted. Further, it is

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relevant to note that Ex.A20 is only a notice to appear, where the respondent is residing in outside the New Zealand. It shows that the application for dissolution

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of marriage was made on the ground that the marriage was broke down irretrievably. Admittedly wife has sent a reply for the same, indicating that she was forced to go back to India and she has been residing on desertion. Therefore, from the evidence, it is clear that the ground on which the dissolution sought by the husband is not the ground that can be invoked before the Indian Courts.

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[vii] Principles for relying the ‘foreign judgment’ in a matrimonial dispute are addressed by the Hon’ble Supreme Court in a case, Y.Narasimha Rao and Others Vs. Y.Venkata Lakshmi and Another³ , the observations in para 13 to 17 are found relevant and applicable to the present context of the case, particularly with regard to binding nature of the ‘foreign judgment’ relied on by the respondent, which reads as follows:

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“13. We cannot also lose sight of the fact that today more than ever in the past, the need for definitive rules for recognition of foreign judgments in personal and family matters, and particularly in matrimonial disputes has surged to the surface. Many a man and woman of this land with different personal laws have migrated and are migrating to different countries either to make their permanent abode there or for temporary residence. Likewise there is also immigration of the nationals of other countries. The advancement in communication

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3 1991(3) SCC 451

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and transportation has also made it easier for individuals to hop from one country to another. It is also not unusual to come across cases where citizens of this country have been contracting marriages either in this country or abroad with nationals of the other countries or among themselves, or having married here, either both or one of them migrate to other countries. There are also cases where parties having married here have been either domiciled or residing separately in different foreign countries. This migration, temporary or permanent, has also been giving rise to various kinds of matrimonial disputes destroying in its turn the family and its peace. A large number of foreign decrees in matrimonial matters is becoming the order of the day. A time has, therefore, come to ensure certainty in the recognition of the foreign judgments in these matters. The minimum rules of guidance for securing the certainty need not await legislative initiative. This Court can accomplish the modest job within the framework of the present statutory provisions if they are rationally interpreted and extended to achieve the purpose. It is with this intention that we are undertaking this venture. We are aware that unaided and left solely to our resources the rules of guidance which we propose to lay down in this area may prove inadequate or miss some aspects which may not be present to us at this juncture. But a beginning has to be made as best as one can, the lacunae and the errors being left to be filled in and corrected by future judgments.

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14. We believe that the relevant provisions of Section 13 of the Code are capable of being interpreted to secure the required certainty in the sphere of this branch of law in conformity with public policy, justice, equity and good conscience, and the rules so evolved will protect the sanctity of the institution of marriage and the unity of family which are the cornerstones of our societal life.

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15. Clause (a) of Section 13 states that a foreign judgment shall not be recognised if it has not been pronounced by a court of competent jurisdiction. We are of the view that this clause should be interpreted to mean that only that court will be a court of competent jurisdiction which the Act or the law under which the parties are married recognises as a court of competent jurisdiction to entertain the matrimonial dispute. Any other court should be held to be a court without jurisdiction unless both parties voluntarily and unconditionally subject themselves to the jurisdiction of that court. The expression “competent court” in Section 41 of the Indian Evidence Act has also to be construed likewise.

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16. Clause (b) of Section 13 states that if a foreign judgment has not been given on the merits of the case, the courts in this country will not recognise such judgment. This clause should be interpreted to mean (a) that the decision of the foreign court should be on a ground available under the law under which the parties are married, and (b) that the decision should be a result of the contest between the parties. The latter requirement is fulfilled only when the respondent is duly served and voluntarily and unconditionally submits himself/herself to the jurisdiction of the court and contests the claim, or agrees to the passing of the decree with or without appearance. A mere filing of the reply to the claim under protest and without submitting to the jurisdiction of the court, or an appearance in the court either in person or through a representative for objecting to the jurisdiction of the court, should not be considered as a decision on the merits of the case. In this respect the general rules of the acquiscence to the jurisdiction of the court which may be valid in other matters and areas should be ignored and deemed inappropriate.

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17. The second part of clause (c) of Section 13 states that where the judgment is founded on a refusal to recognise the law of this country in cases in which such law is applicable, the judgment will not be recognised by the courts in this country. The marriages which take

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place in this country can only be under either the customary or the statutory law in force in this country. Hence, the only law that can be applicable to the matrimonial disputes is the one under which the parties are married, and no other law. When, therefore, a foreign judgment is founded on a jurisdiction or on a ground not recognised by such law, it is a judgment which is in defiance of the law. Hence, it is not conclusive of the matters adjudicated therein and, therefore, unenforceable in this country. For the same reason, such a judgment will also be unenforceable under clause (f) of Section 13, since such a judgment would obviously be in breach of the matrimonial law in force in this country.”

¶172

The foreign judgment relied on by the respondent/husband; firstly not on merits; secondly, merely because a reply was sent, it does not amount to submission to jurisdiction; thirdly, the petitioner did not participate in the proceedings; fourthly detailed order copy is not filed by the respondent, on whom burden lies.

¶173

Therefore, in view of the above legal and factual aspects, unhesitatingly this Court finds that the foreign judgment relied on by the respondent/ husband is of no help to him and that he is unable to prove the divorce as required by Law.

¶174

Learned counsel for the appellant/ husband/ respondent, would submit that the wife as PW.1 and her son as PW.3 admitted about the granting of divorce by

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Auckland Court. Granting of divorce is different from binding nature of divorce. Even if it is to be understood that divorce is granted, the next question is whether the divorced wife is not entitled for maintenance?

¶177

Section 125 of Criminal Procedure Code [Cr.P.C.] provides that the divorced wife is entitled for maintenance, so long as she does not remarry. Further, the explanation under (b) provides that ‘ wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.”

¶178

Learned counsel for the appellant would submit that the present proceedings were initiated under Section 18 of the Hindu Adoptions and Maintenance Act, but not under section 125 of Cr.P.C.

¶179

Family Court has jurisdiction in respect of the proceedings for maintenance

¶180

in terms of Cr.P.C. as well as Suit or proceedings of maintenance on civil side by virtue of Section 7 of the Family Courts Act. Even otherwise, the right of maintenance is fundamental and is inherent, following jural relationship. It is a

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social obligation having a larger and laudable object.

¶182

Section 18 of the Hindu Adoptions and Maintenance Act, invoked by the petitioner, reads as follows:-

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18. Maintenance of wife. —

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(1) Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her life time.

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(2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance—

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(a)if he is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wish, or wilfully neglecting her;

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(b)if he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband;

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(d)if he has any other wife living;

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(e)if he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere;

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(f)if he has ceased to be a Hindu by conversion to another religion;(g)if there is any other cause justifying living separately.

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(3)A Hindu wife shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by conversion to another religion.”

¶193

As per Section 18(2) (a), Hindu wife is entitled to live separately without forfeiting her claim for maintenance, if her husband is guilty of desertion and abandoned her without any reasonable cause and without her consent or wilfully neglected her and if treated. As per section 18(2) (d) if he has any other wife

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living, Hindu wife is entitled to live separately from her husband, without forfeiting her claim for maintenance.

¶196

In the present case, admittedly, the respondent has second wife by name Ms.Tapaswini Manopatra and she has also initiated certain legal proceedings against him. Therefore, right of the petitioner’s/wife is absolutely intact in the present case. The ground that respondent got divorce as alleged by him is not available in view of Section 13 of CPC reasons stated above. Even if the divorce is granted, as per Hindu Marriage Act, the wife is entitled to claim permanent alimony in terms of Section 25 of Hindu marriage Act, as a sequel to the divorce proceedings.

¶197

Section 25 of the Hindu Marriage Act reads as follows:-

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“25. Permanent alimony and maintenance .-

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(1) Any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent's own income and other property, if any, the income and other property of the applicant , the conduct of the parties and other circumstances of the case, it may seem to the court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent.

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(2) If the court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under sub-section (1), it may at the instance of either party, vary, modify or rescind any such order in such manner as the court may deem just.

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(3)If the court is satisfied that the party in whose favour an order has been made under this section has re-married or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, it may at the instance of the other party vary, modify or rescind any such order in such manner as the court may deem just.

¶203

As per Section 25 of the Act, either at the time of passing of decree or at any time subsequent thereto, on application made to it, by the wife, direction can be given for maintenance and support, such gross sum or such monthly or periodical payment for a term not exceeding the life of the wife. Therefore, the right is continuous. Further, the provision/section also provides that in a case of remarriage, modification is permissible. By virtue of Section 25 of Hindu Marriage Act, divorce does not cease the right of a wife to have the maintenance.

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Hindu Marriage is a sacrament. Promise before the sacred fire by husband that he will take care of his wife is required to be kept in view. The legislative framework recognizing, sacramental bond, followed by customs, traditions and rituals, conferred certain rights to the wife. Particularly, the framework of the provisions under Section125 of Cr.P.C., Section 25 of Hindu Marriage Act and Section 18 of the Hindu Adoptions and Maintenance Act, and the provisions of Domestic Violence Act, although overlapping in some respects,

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each one is safeguarding interest of a woman’s right to maintenance. Respect for woman is deeply rooted in Indian ethos and in legal principles too. They are based on the socio-economic and legal culture of Indian society. Therefore, upon divorce, a husband cannot completely wash away his hands, stating that he is not responsible for the remaining part of the life of his wife, unless there are legally recognized exceptions and excusable reasons, under the statute, such as her remarriage or proven adultery etc.. Grounds such as cruelty, desertion etc. contemplated for divorce shall be strictly construed for that purpose alone. Even if some findings are made in this regard in divorce proceedings, they may be helpful to disconnect the jural relationship as wife and husband, but they cannot take away the right of wife for maintenance, which is an incident follows with social institution of marriage and the marital bond. Disconnection of marital tie does not, by itself, terminate the right to maintenance, when such right is recognized by the statute.

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The law providing for divorce under Section 13 of Hindu Marriage Act is to

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be read along with the provisions under Sections 24 and 25 of the Hindu Marriage Act. The provisions under Section 13 cannot be read in isolation. If permanent alimony is not settled in terms of Section 25, relief granted to the husband under Section 13 of Hindu Marriage Act does not, by itself, deprive the wife to have maintenance in terms of Section 18 of the Hindu Adoptions and Maintenance Act, especially when she is able to establish the grounds

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contemplated under the said provisions. In the case on hand, admittedly no maintenance is settled in divorce proceedings relied by the respondent/husband.

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The foreign judgment relied upon by the respondent/husband, granted by the Auckland Court, is not complying the requirements of Section 13 of the C.P.C. This is also a relevant fact to be kept in view. In any view of the matter, this

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Court is unable to accept the contention of the learned counsel for the appellant/husband/respondent that the divorce granted by Auckland Court estoppels the petitioner/wife from claiming maintenance.

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It is in this context, it is also relevant to note the observations of the High Court of Rajasthan in a case between Satyanarayan Vyas Vs. Smt.Sushila⁴ vide para 7 , where the right of a wife living separately from the husband although divorced, to claim maintenance is approved.

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Summary of reasons:-

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The facts relevant for answering the point No.1 framed are as follows:

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Full/detailed judgment of the Auckland Court (foreign judgment) is not filed.

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The ‘foreign judgment’ relied on by the respondent/husband, is not on the ground applicable before the Indian Courts.

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4 2006 SCC Online Raj 1076

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The petitioner/wife has shown justification for her separate living as she was deserted by her husband. Such assertion of justification of wife cannot turn out a ground to her husband to claim or get divorce. The husband cannot take advantage of his conduct of desertion as a ground to get divorce from his wife. For example, if there is a decree of restitution of rights and, at the instance of a wife and the restitution could not take place within the period allowed, and if the husband is a defaulting party, who suffered decree of restitution of conjugal rights, cannot claim that - since there is no restitution, divorce shall be granted. Allowing such a claim amounts to permitting a party to take advantage of his own wrong.

¶221

The respondent has admitted that he has second wife and she has instituted proceedings.

¶222

Admittedly no permanent alimony is settled even in the disputed divorce proceedings before the Auckland Court.

¶223

Respondent/husband did not chose to issue at least legal notice, prior to filing divorce proceedings alleging desertion, etc.; on the contrary, wife initiated legal proceedings for maintenance, contending desertion, her legal action is prior in point of time.

¶224

In view of the discussions and summary of reasons stated above, point No.1 framed is answered concluding that-

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(a) The divorce said to have been granted by the Auckland Court at New

¶227

Zealand, relied on by the husband, does not operate as a bar for the petitioner/wife to claim maintenance.

¶228

(b) Even a Hindu divorced wife entitled to claim maintenance against her husband, if her maintenance is not settled in terms of Section 25 of Hindu Marriage Act or otherwise under any law and if she is able to establish grounds contemplated under Section 18 of Hindu Adoptions and Marriage Act, subject to the limitations provided there under. Section 18(g) of the said Act, provides that if there is any other cause justifying her living separately, she is entitled to maintenance. The word ‘wife’ is not defined in the said Act, to exclude ‘divorced wife’. The definition of ‘wife’ under Section 125 of Cr.P.C./ Section 144 of the BNSS, 2023 would include the divorced wife. Even the Hindu Marriage Act is not defining the ‘wife’ excluding a divorced wife falling under such expression. In fact, Section 25 of the Hindu Marriage Act provides that at that time of passing any decree or at the time consequent thereto, maintenance order can be passed in favour of the wife.

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Point NO.2 : Quantum of Maintenance:-

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It is held by the Hon’ble Supreme Court in Rajnesh vs Neha⁵ , vide para

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78 that the quantum of maintenance shall be granted basing on the –

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a) status of the parties, social and financial.

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b) reasonable needs of the wife and dependent children. c) qualification and employment status of the parties.

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5 2021 (2) SCC 324

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d) independent income and assets owned by the parties.

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e) to maintain standard of living as in the matrimonial home.

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f) any employment sacrifices made for the family responsibilities.

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g) reasonable costs of litigation for a non-working wife.

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h) financial capacity of the husband, his income for his maintenance, obligations and liabilities.

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In Rinku Baheti v. Sandesh Sharda⁶ , while addressing the issue relating to granting of permanent alimony, in terms of Section 25 of Hindu Marriage Act, the Hon’ble Apex Court suggested for considering the duration of marriage etc.

¶242

It is also submitted for respondent/husband that New Zealand government is paying amount to the petitioner/wife as maintenance. It is not known how the New Zealand government granted maintenance. The observations of the learned Trial Judge, vide para 21, found fit to be extracted in this context, which reads as follows:-

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“21. Coming to the quantum of maintenance, the contention of the petitioner is that respondent is doing job in New Zealand and having properties in India and earning Rs.2,00,000/- per month and she is not having any source of income. On the other hand the contention of the respondent is that he is not having any independent source of income and depending on New Zealand Government support assistance amount only and at present he is not even getting said amount and depending on his friends. Though petitioner did not file any documentary proof to show that respondent is doing job in New Zealand and getting income of

¶244

6 (2025) 3 SCC 686

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¶246

Rs.2,00,000/- per month on job and properties but the fact remains that the respondent is having house at Lawson’sbay Colony and living in New Zealand and even as per his version he is getting 2000 New Zealand dollars per month, therefore, he cannot deny maintenance to petitioner, who is his dependent wife…”

¶247

To contradict these observations, there is no material placed by the appellant.

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Further, learned counsel for the appellant submitted that the quantum of maintenance is excessive and respondent is aged above 70 years as on the date of appeal and he has medical needs.

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As per the observations in the judgment cited above, Rajnesh’s case [cited 5 supra] , the factors like length of marital period, social obligations and dependency etc., required to be considered. If the appellant states that he is aged, his wife is also aged, may be 10 years lesser in age to him. What is the pension that the appellant is getting, must be within his knowledge only. He has not denied about his ownership over the house at Lawson’sbay Colony, Visakhapatnam. It is the obligation of the husband to provide maintenance. Reasonable excuses for separate living of the wife are made out. Therefore, the entitlement of wife for maintenance is clear.

¶250

With regard to quantifying the maintenance amount, the best evidence relating to respondent/husband bank account indicating pension etc., being drawn monthly, is not produced. The oral vehement submissions of the learned

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counsel for the appellant, inviting indulgence with sympathetic consideration, found not sufficient to accept the contention of the appellant. Burden to produce evidence in exclusive possession of a person lie with him, in view of Section 106 of Indian Evidence Act, 1872/ Bharatiya Sakshya Adhiniyam 2023. When such evidence is not produced, adverse inference can be drawn by virtue of Section

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114(g) of Evidence Act/Section 119 (g) of Bharatiya Sakshya Adhiniyam 2023.

¶254

The respondent/husband as RW.1, during his cross-examination admitted that –

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(1) he is a retired employee and getting pension.

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(2) he has a house at Lawson’sbay Colony, worth about 1 Core, but not 2 Crores as suggested.

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(3) he has another property at Vepagunta in an extent of 400Sq.yards bearing plot No.95. He has stated that its worth as Rs.40,00,000/- but not 4 Crores, as suggested.

¶258

Upon considering the admissions of the respondent/husband about his financial status and that he is pensioner, owning properties as mentioned above and other evidence as to his age etc., this Courts is of the opinion that the maintenance, ordered at Rs.15,000/- per month from the date of petition, is fit to

¶259

be reduced to Rs.12,000/- p.m. while reducing the past maintenance to Rs.8000/-p.m., from Rs.10,000/- per month, from 2008 to 2011 directing

¶260

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clearance of all arrears within a period of three (03) months from the date of this judgment.

¶262

In view of the discussions made above, point No.2 framed, is answered concluding that the maintenance awarded at Rs.15,000/- per month from the date of petition i.e., 7.4.2011 shall stand reduced to Rs.12,000/- per month and past maintenance awarded at Rs.10,000/- shall stand reduced to Rs.8000/- per month.

¶263

Further, it is necessary to examine the entitlement of the wife for the interest on the maintenance amount for the past decretal period, in view of Section 34 of the CPC. Section 34 of the CPC deals with the power, procedure and mode of granting interest in respect of money decrees.

¶264

47. Section 34 of CPC reads as follows:

¶265

“34. Interest :--

¶266

(1) Where and in so far as a decree is for the payment of money, the Court may, in the decree, order interest at such rate as the Court deems reasonable to be paid on the principal sum adjudged, from the date of the suit to the date of the decree, in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit, [with further interest at such rate not exceeding six per cent. per annum, as the Court deems reasonable on such principal sum], from the date of the decree to the date of payment, or to such earlier date as the Court thinks fit:[Provided that where the liability in relation to the sum so adjudged had arisen out of a commercial transaction, the rate of such further interest may exceed six per cent. per annum, but shall not

¶267

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¶268

exceed the contractual rate of interest or where there is no contractual rate, the rate at which moneys are lent or advanced by nationalised banks in relation to commercial transactions. Explanation.-In this sub-section, "nationalised bank" means a corresponding new bank as defined in the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 (5 of 1970).

¶269

Explanation II.-For the purposes of this section, a transaction is a commercial transaction, if it is connected with the industry, trade or business of the party incurring the liability.] [Inserted by the Code of Civil Procedure (Amendment) Act, 1976, Section 13 (w.e.f. 1.2.1977)]

¶270

(2) Where such a decree is silent with respect to the payment of further interest from the date of the decree to the date of payment or other earlier date, the Court shall be deemed to have refused such interest, and a separate suit therefore shall not lie. ”

¶271

48. Section 10 of the Family Courts Act reads as follows:-

¶272

“10. Procedure generally.-

¶273

(1) Subject to the other provisions of this Act and the rules, the provisions of the Code of Civil Procedure, 1908 (5 of 1908) and of any other law for the time being in force shall apply to the suits and proceedings other than the proceedings under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) before a Family Court and for the purposes of the said provisions of the Code, a Family Court shall be deemed to be a civil court and shall have all the powers of such court.

¶274

(2) Subject to the other provisions of this Act and the rules, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) or th e rules made thereunder, shall apply to the proceedings under Chapter IX of that Code before a Family Court.

¶275

(3) Nothing in sub-section (1) or sub-section (2) shall prevent a Family Court from laying down its own procedure with a view to arrive at a settlement in respect of the subject-matter of the suit or

¶276

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¶277

proceedings or at the truth of the facts alleged by the one party and denied by the other.”

¶278

As per Section 34 of CPC, granting of interest for the pre-suit period, is governed by the Contract between the parties. Granting of pendente-lite interest is left to the discretion of the Court, which shall always be judicious, having regard to the facts and circumstances of each case, like the conduct of the parties during the pendency of the proceedings, length of time taken to the proceedings by each party and other relevant factors like impact of the order on both sides, with all empathetic and equitable considerations towards both the parties, treating them equally. But as far as post decretal interest is concerned, unless the transaction is commercial in nature, there is a cap for granting interest up to 6%, which suggests that generally granting of interest can be up to @6% only on the money awarded under the decree. If the party is prompt in payment of the decretal amount, there will be no occasion for payment of interest. The intention of granting post decretal interest is to ensure prompt payment by the party. Therefore, the arrears of maintenance shall carry interest @ 6% p.a. from the date of the judgment and till the date of realisation.

¶279

Point No.3 :-

¶280

In the result , the appeal is partly allowed, the decree and judgment under challenge are modified , are as follows:-

¶281

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¶282

[i] The maintenance awarded at Rs.15,000/- per month from the date of petition i.e., 7.4.2011 shall stand reduced to Rs.12,000/- per month and past

¶283

maintenance awarded at Rs.10,000/- shall stand reduced to Rs.8000/- per month .

¶284

[ii] Entire arrears shall be paid within a period of three (03) months from today, failing which the same shall carry the interest @6% p.a., as contemplated under Section 34 of CPC, from the date of this judgment, till the date of deposit or realisation.

¶285

[iii] There shall be no order as to costs.

¶286

As a sequel, miscellaneous petitions pending, if any, shall stand closed.

¶287

__________________________ JUSTICE BATTU DEVANAND

¶288

__________________________________ JUSTICE A.HARI HARANADHA SARMA

¶289

Dated: 15.10.2025 Note : L.R. Copy be marked B/o. Pnr

¶290

38

¶291

THE HON’BLE SRI JUSTICE BATTU DEVANAND

¶292

and

¶293

THE HONOURABLE SRI JUSTICE A. HARI HARANADHA SARMA

¶294

FAMILY COURT APPEAL (FCA) NO: 133 of 2023

Dt.15.10.2025

Pnr

39

40

THE HONOURABLE SRI JUSTICE BATTU DEVANAND AND

¶300

THE HONOURABLE SRI JUSTICE A. HARI HARANADHA SARMA FAMILY COURT APPEAL (FCA) NO: 133/2023

¶301

% 15.10.2025

¶302

Chittibomma Veera Venkata Raju, S/O.Late Sri CH. Koteswara Rao, Aged 69 Years, OCC. Pensioner, Habitual Permanent Resident Of New Zealand Address For Communication. 245 A, Hill Road, Manurewa ( PIN-2102) South Auckland, New Zealand.

¶303

…. Petitioner

¶304

Versus

¶305

$ Smt Chittibomma Sakuntala, Ex-W/o. Chittbornm.a Veera Venkata Raju, Aged 59 years, Occ. Housewife, R/o. Plot No.LIG-38, D.No.4-56-1/9, Lawsons Bay Colony, Visakhapatnam. Email. [email protected]

¶306

…. Respondent

¶307

! Counsel for the Petitioner : Sri Metta Chandra Sekhar Rao

¶308

! Counsel for the Respondents : Sri Srinivasa Rao Bodduluri

¶309

< Gist:

¶310

Head Note:

¶311

? Cases referred:

¶312

2023(14) SCC 231= 2023 SCC Online 544 2023 SCC OnLine Del 5829 1991(3) SCC 451 2006 SCC OnIine Raj 1076 2021 (2) SCC 324 (2025) 3 SCC 686

¶313

41

¶314

THE HONOURABLE SRI JUSTICE BATTU DEVANAND

¶315

AND

¶316

THE HONOURABLE SRI JUSTICE A. HARI HARANADHA SARMA

¶317

FAMILY COURT APPEAL (FCA) NO: 133/2023

¶318

Chittibomma Veera Venkata Raju, S/O.Late Sri CH. Koteswara Rao, Aged 69 Years, OCC. Pensioner, Habitual Permanent Resident Of New Zealand Address For Communication. 245 A, Hill Road, Manurewa ( PIN-2102) South Auckland, New Zealand.

¶319

…. Petitioner

¶320

Versus

¶321

$ Smt Chittibomma Sakuntala, Ex-W/o. Chittbornm.a Veera Venkata Raju, Aged 59 years, Occ. Housewife, R/o. Plot No.LIG-38, D.No.4-56-1/9, Lawson’s Bay Colony, Visakhapatnam. Email. [email protected]

¶322

…. Respondents

¶323

DATE OF ORDER PRONOUNCED: 15.10.2025

¶324

SUBMITTED FOR APPROVAL:

¶325

THE HONOURABLE SRI JUSTICE BATTU DEVANAND

¶326

AND

¶327

THE HONOURABLE SRI JUSTICE A. HARI HARANADHA SARMA