Pooja Kumari Alias Jaiswal Vs Amit Kumar

IN THE HIGH COURT OF JHARKHAND AT RANCHI

First Appeal No. 12 of 2020 ... Pooja Kumari @ Jaiswal Appellant Versus Amit Kumar … Respondent With First Appeal No. 21 of 2021 Amit Kumar ... Appellant Versus … Pooja Kumari @ Jaiswal Respondent ---

¶3

CORAM: HON’BLE MR. JUSTICE RONGON MUKHOPADHYAY HON'BLE MR. JUSTICE DEEPAK ROSHAN

¶4

For the Appellant : Mr. Mahesh Tewari, Advocate (FA 12/2020) Mr. Ankur Anand, Advocate (FA 12/2020) Mr. Sidhartha Roy, Advocate (FA 21/2021) Mr. Shashi Bhushan Sah, Adv (FA 21/2021)

¶5

For the Respondent : Mr. Mahesh Tewari, Advocate (FA 21/2020) Mr. Ankur Anand, Advocate (FA 21/2021) Mr. Sidhartha Roy, Advocate (FA 12/2021) Mr. Shashi Bhushan Sah, Adv (FA 12/2020) ---

¶6

Dated 03.04.2024

¶7

Per R. Mukhopadhyay, J.

¶8

JUDGMENT

¶9

Heard Mr. Mahesh Tewari, learned counsel appearing for the appellant in First Appeal No. 12 of 2020 and respondent in First Appeal No. 21 of 2021 and Mr. Sidhartha Roy, learned counsel appearing for the appellant in First Appeal No. 21 of 2021 and respondent in First Appeal No. 12 of 2020.

¶10

Both these appeals are arise out of a common judgment and hence both are being disposed of by this common judgment.

¶11

The appellant in First Appeal No. 12 of 2020 is aggrieved with the judgment and decree dated 08.11.2019 (decree signed on 20.11.2019) passed by Sri Nalin Kumar, learned Principal Judge, Family Court, Ranchi in Original Suit No. 387 of 2014, whereby and whereunder, the suit preferred by the respondent-husband u/s 13(1)(ia)(ib) of the Hindu

¶12

1

¶13

Marriage Act, 1955 has been allowed and the marriage between the appellant and the respondent has been dissolved by a decree of divorce. 4. The appellant in First Appeal No. 21 of 2021 is aggrieved with that part of the same judgment by which he has been directed to pay Rs. 20 Lakhs as permanent alimony to the respondent-wife within a month or a sum of Rs. 25,000/- per month as maintenance.

¶14

For the sake of convenience both the parties are referred to in this judgment as per their status before the learned court below.

¶15

As suit was preferred by the petitioner-husband (appellant in First Appeal No. 21 of 2021) for dissolution of his marriage with the respondent (respondent in First Appeal No. 21 of 2021) u/s 13(1)(ia)(ib) of the Hindu Marriage Act, 1955 in which, inter alia, it has been stated that the marriage of the petitioner was solemnised with the respondent on 19.04.1998 at Parijat Banquet Hall, Circular Road, Ranchi as per Hindu rites and customs. The marriage was negotiated and decided by the parents and relatives of both the sides and hence the petitioner did not get sufficient opportunity to know the respondent personally. During negotiations, the parents and relatives of the respondent informed the petitioner that the respondent is a sweet natured, wellbehaved, cultured and adjustable lady. At the time of negotiations, the economic condition and the family atmosphere of the petitioner were informed to the respondent as well as her parents. After marriage, the respondent was brought to Chandwa at her matrimonial house and on 21.04.1998 a reception party was organised. The marriage was consummated, but afterwards the petitioner found the respondent extremely emotional, stubborn and sentimental. She started to show disregard towards the parents and relatives of the petitioner and remained indifferent to their love and affection. It has been stated that the respondent expressed her reservations in living in a village and she asked the petitioner to send her back to her parental home. The petitioner had informed the matter to the parents of the respondent requesting them to take back the respondent, but they started avoiding such requests and as such within 20 days of the marriage, the respondent made an attempt to commit suicide by cutting her veins in

¶16

2

¶17

the roof of the house. The respondent was thereafter taken to her parental house from where she refused to come back by stating that the petitioner is too ugly, rural, conservative and orthodox and was not a match to her. Due to such cruel act on the part of the respondent, the petitioner was mentally devastated. It has been stated that the indifferent attitude of the respondent clearly indicated that she was not willing to solemnise marriage with the petitioner and she had admitted that she wanted to marry someone of her choice, but her parents prohibited her and she was forced to marry the petitioner. The respondent refused to perform her duties and marital obligations and though the petitioner was able to convince her and bring her back to her matrimonial house, but after a few days she resumed her cruel behaviour and antics. The petitioner somehow adjusted himself in such vicious atmosphere and the respondent in course of time had given birth to two daughters, namely, (a) Ridhi Jaiswal and (c) Harshita Jaiswal and at present both are studying in Class-IX and VI respectively and are under the custody of the petitioner as the respondent had left them on 03.06.2012 and has been living separately since then. The respondent after the birth of the first child refused to stay at Chandwa and started pressurising the petitioner to shift to Ranchi otherwise she would commit suicide and implicate the petitioner and his relations in a false criminal case. The respondent had started to allege that the petitioner has illicit relationship with every woman in the locality including female labours. It has been stated that the atmosphere became so vitiated that the petitioner was forced to shift residence to Ranchi in the year 2000. The petitioner had tried to provide the respondent with every comfort and was fulfilling all her demands. At the time of marriage, the respondent was a matriculate and due to the financial support of the petitioner, she could complete her higher studies. The respondent however did not mend her ways and she used to spend most of her time either at her parental house or outside the residence of the petitioner and any objection would make her violent and aggressive. After the birth of the second child, the respondent became more furious and started torturing the petitioner through various

¶18

3

¶19

means. The petitioner used to be subjected to abuses by the respondent in presence of his relatives and other persons. It has been stated that the respondent refused to take care of the children and it was the petitioner who was forced to do all the household works. The respondent spent most of the time in the washroom and gossiping on mobile. The respondent on the provocation of her parents had tried to humiliate the petitioner and his relatives. On 03.06.2012, the respondent had left her matrimonial house and started to reside at her parental house and since then the petitioner has no physical relationship with the respondent. Since the respondent had tried to humiliate the petitioner and his family members by lodging baseless allegations before the police, the respondent was given a separate accommodation in the house of the petitioner by way of a settlement and the petitioner provided sufficient financial assistance to the respondents, but she did not mend her ways. It has been stated that in the meantime it was discovered that the respondent had fallen in love with a neighbour, named, Pradip Dan alias Sanju and the affair went to such an extent that in March, 2014, she left the residence of the petitioner on the pretext that she wants to marry Sanju and live with him. It has been stated that since 03.06.2012, both the parties are living separately and they have no physical relationship between them.

¶20

On being noticed, the respondent had appeared and filed a written statement in which she had denied the allegations levelled against her. It has been stated that after the birth of the daughter, the petitioner started committing torture upon the respondent and was blaming her for giving birth to a girl child. In the year 2002, the respondent was brutally beaten by the petitioner which led to a permanent damage in her left ear. The situation aggravated after the respondent gave birth to a second girl child and the petitioner was compelling the respondent to commit suicide. The respondent in spite of having love and affection for the petitioner and wanted to iron out the differences, but the petitioner was adamant in getting a divorce from her. It has been stated that on 04.06.2014, the respondent was assaulted by the petitioner and was ousted from her matrimonial house after which she started residing

¶21

4

¶22

separately from the petitioner. It has been admitted by the respondent that both her daughters reside with the petitioner and are under his custody.

¶23

Based on the pleadings of the parties, the following issues were framed for adjudication:-

¶24

I. Whether the suit is maintainable in its present form?

¶25

II. Whether the petitioner has valid cause of action? III. Whether the respondent has treated petitioner with cruelty? IV. Whether the petitioner is taking advantage of his own wrong?

¶26

V. Whether the petitioner is entitled to a decree of divorce?

¶27

VI. What other order(s) can be passed?

¶28

The petitioner has examined as many as five witnesses on his behalf including himself.

¶29

PW- 1 Nikesh Pandey is acquainted with both the sides. He has stated about solemnisation of marriage of the petitioner and the respondent in the year 1998 as per Hindu rites and customs. The behaviour of the respondent towards the petitioner from the very beginning was not good and she used to pressurise the petitioner for fulfilling her unreasonable demands. The respondent had once attempted suicide due to which the petitioner had to suffer ignominy. The respondent used to humiliate the petitioner in the presence of his friends and family members. The entire atmosphere of the house was vitiated due to which the petitioner was compelled to arrange a separate room for stay of the respondent. The respondent did not take care of the children and it was the petitioner who had to look after the needs of the children. The respondent used to speak for hours with some unknown person which mentally agonised the petitioner. The petitioner had come to know that the respondent was having an affair with a neighbour, namely, Pradip Dan alias Sanju and both wanted to solemnise marriage. When the petitioner tried to convince the respondent, she threatened him of implicating him in a false case. The differences between the petitioner and the respondent on account of the presence of Sanju reached such an extent that in 2014, the respondent permanently left her matrimonial

¶30

5

¶31

house and instituted a false criminal case against the petitioner and his family members.

¶32

In cross examination he has deposed that he knows the petitioner and the respondent for five years. It was the petitioner who had disclosed to him that the behaviour of the respondent towards him was not good. The respondent also used to threaten to commit suicide which he came to know from the petitioner. He had seen the petitioner looking after his children. He stays in the floor above the house of the petitioner. The respondent used to quarrel with the maids who came to wash utensils and she chased them away. He has deposed that he had seen the respondent talking for hours. He had seen the respondent calling Pradip Dan to her house when the petitioner was not present. He does not have a permanent work schedule; sometimes he used to go in the morning and sometimes at night.

¶33

P.W. 2 Rajendra Vishwakarma is acquainted with both the sides. He has stated that after the marriage, the respondent came to Chandwa, where she was given love and affection by the petitioner and his family members, but the respondent did not reciprocate, rather she expressed her dissatisfaction with the marriage. She has disclosed about her abhorrence with the atmosphere and manner of living in her matrimonial house. At the time of marriage, the respondent was not much educationally qualified, but the petitioner encouraged her to further her studies and the respondent ultimately completed her Post Graduation. The respondent used to be adamant in going to her parental house and any contrary advice given to her would fall on deaf ears. In order to ensure that there is no opposition to her stubbornness, she used to threaten of committing suicide and in fact after twenty days of her marriage she had cut her veins and such conduct on the part of the respondent would force the petitioner to pay heed to all her demands. He has stated that the respondent did not like the petitioner and thought him to be a rustic and she used to humiliate him in presence of his family members. The petitioner used to tolerate such behaviour to save his marriage. In the meantime, the respondent gave birth to a girl child and after her birth, the respondent refused to stay at her matrimonial house

¶34

6

¶35

and she was brought to Ranchi, but there was no perceptible change in her behaviour. The respondent used to allege about the petitioner having illicit affairs with several women. The respondent used to go out from his house without informing anybody and she used to return late at night. After the birth of the second child, the behaviour of the respondent became violent and the petitioner was tortured in various ways. She neither looked after the children, nor did she involve herself in any domestic chores. At the instigation of her parents, the respondents had lodged the false case before this case and in the said case it was decided that the respondent will stay in the same house, but in a separate room. The respondent while staying in a separate room had developed a love affair with another person and wanted to marry him. In the absence of the petitioner, she used to call the said person to her room and lock the door from inside. The respondent in order to keep afloat her illicit relationship had left the house of the petitioner on 03.06.2012.

¶36

In cross examination he has deposed that he knows the petitioner from the time of his birth as he used to stay adjacent to the house of the petitioner at Chandwa. The petitioner has gone outside Chandwa and shifted at Ranchi in P.N. Bose Compound. When the respondent had cut her veins, the petitioner had got her treated at the hospital. He used to frequently go to the house of the petitioner at Chandwa. The respondent used to abuse the petitioner in his presence; and also tortured the petitioner through various means. He had seen the respondent involved in an affair with another person. He had seen them together for about 1 ½ -2 years.

¶37

P.W.-3 Suman Kumar is acquainted with both the sides. His version is more or less similar to that of P.W. 2.

¶38

In cross examination he has deposed that whenever he visited the house of the petitioner, he found the petitioner and the respondent quarrelling. The respondent used to abuse the petitioner calling him a rustic and ugly person. The respondent was stubborn in her wish to go to her parental place and when the petitioner objected, she would issue threats of committing suicide by hanging herself. The respondent would

¶39

7

¶40

sometimes pour kerosene oil over her body and threaten to selfimmolate. She also used to threaten of cutting her veins with a knife. In 2009, a case was instituted by the respondent, which was compromised in the Police Station itself. The respondent had a love affair with one Pradip Dan and she used to meet him frequently. In absence of the petitioner, the respondent used to call Pradip Dan to her room and when the petitioner and his family members objected, she had expressed her desire to solemnise marriage with Pradip Dan and in order to stay with Pradip Dan, she left the petitioner and her two children on 03.06.2012. P.W. 4 Amit Kumar is the petitioner who has stated about solemnisation of his marriage with the respondent on 19.04.1998. The marriage was a negotiated one and he was told about the respondent being a wellbehaved lady with social values. After the marriage, the respondent was taken to his ancestral house at Chandwa, but the behaviour of the respondent indicated that she was not very happy with the surroundings. The respondent did not want to stay in the village and she would go to her parents’ place. After 20 days of marriage, the respondent had cut her veins and he was forced to send her to her parents’ place. He had made attempts to bring her back, but she refused and it became apparent that the respondent had solemnised marriage with the petitioner on account of the pressure from her family. After much persuasion, the respondent could be brought back to her matrimonial house, but she had once again started her ill-behaviour. He in spite of all odds was trying to make the marriage a success and in the meantime, the respondent gave birth to two children, Ridhi Kumari and Harshika Kumari who both study in Sapphire International School. After the birth of the first child, the respondent used to stay at Chandwa and pressurise him to take her to Ranchi. She was also threatening of committing suicide and he was forced to take her to Ranchi in the year 2000. The respondent was a matriculate at the time of the marriage and he was responsible for her continuing with her studies and the respondent ultimately became a Post Graduate. The respondent however was not satisfied and used to abuse him in presence of his friends. She refused to stay with him in his house. He stated that the

¶41

8

¶42

respondent used to go out from the house without informing anybody and returned late at night. She did not do any household works and she did not also look after the child. The entire chores had to be done by him. The respondent at the instigation of her family members had on several occasions instituted cases against him in the Police Station and the matter was compromised to the effect that the respondent shall stay in the same house in another room. In the meantime, it came to light that the respondent was having an illicit affair with one Pradip Dan and in his absence, she used to call Pradip Dan to his house. When he confronted the respondent, she became furious and expressed her desire to stay with Pradip Dan. On 03.06.2012, the respondent had left him and her two children and from thereon, he does not have any relation with the respondent. As a retaliation to the present suit, the respondent had lodged an F.I.R. and upon investigation, the allegations were found to be false and final form was submitted.

¶43

In cross examination he has deposed that after 20 days of marriage, the respondent had attempted to cut her veins and she was treated at home and thereafter she was sent to her parents’ place. The school fees of both children are Rs. 60,000/- out of which the fees of one daughter is given by his father while the fees of the other daughter is borne by him and his sister. The house of Pradip Dan is adjacent to his house. He had on several occasions attempted for a compromise. A settlement deed was prepared in the presence of the respondent in the case u/s 498A I.P.C. P.W.-5 Kanchan Mala Bhagat has reiterated the sworn statement of P.W.-4.

¶44

In cross examination she has deposed that the incident with respect to the respondent attempting to commit suicide was not reported to the police. After marriage the respondent had commented upon the petitioner that he is ugly while she is beautiful and the petitioner was no match for her. The respondent on innumerable occasions had left the house without informing anyone and she used to return late at night. The petitioner has a JCB machine which was given to him by them. She does not know how many times, the respondent had instituted cases against him, but she regularly used to visit the Police Station for lodging

¶45

9

¶46

cases. A settlement was arrived at in the Police Station and it was decided that the petitioner and the respondent would live in a separate room. Whenever, Pradip Dan used to call the respondent on phone, she used to quarrel and go out from the house. She had seen the respondent conversing with Pradip Dan several times. When the father of Pradip Dan came with a proposal of marriage between Pradip Dan and the respondent, the petitioner was mentally agonised. She has stated that the respondent is a Lecturer in Women’s College. The petitioner earns an amount of Rs. 40,000/- 45,000/- per month. The respondent has not solemnised marriage with Pradip Dan.

¶47

The respondent has examined as many as four witnesses in support of her case including herself.

¶48

R.W.- 1 Jai Prakash Prasad is the father of the respondent who has stated about solemnisation of the marriage of his daughter with the petitioner on 19.04.1998 as per Hindu rites and customs. After marriage, the respondent had gone to Chandwa and thereafter she started to stay with the petitioner as husband and wife at the house of the petitioner situated at P.N. Bose Compound at Ranchi. Out of the said wedlock, two children were born who study at Sapphire International School. The petitioner always used to regret that he does not have a son to continue with his lineage. After the marriage, the petitioner and his mother used to state that sufficient dowry was not given to them and they always used to complain about insufficiency of dowry and not giving birth to a male child. In the meantime, under a conspiracy, the petitioner had made false allegations against the respondent and used to mentally and physically torture her. The respondent tolerated the torture only in order to save her marriage. On 04.06.2014, the petitioner had assaulted the respondent and ousted her from the house.

¶49

In cross examination he has deposed that after 10 days of the marriage, he was called for a meeting, but he does not know the reasons for such meeting. After 10 days of marriage, the petitioner had asked him to take back the respondent. The petitioner used to advise to make the respondent understand to keep a cool head. He had disclosed that his daughter used to quarrel on trivial issues. A criminal case was instituted

¶50

10

¶51

by the respondent after receiving notice in the divorce suit. It is a fact that the police had found the allegations levelled by the respondent as false.

¶52

R.W.-2 Meera Sahu is the mother of the respondent who has supported the version of R.W.-1.

¶53

In cross examination she has deposed that right from the inception of the marriage both the parties were on indifferent terms and there used to be regular quarrel between them. She has denied the suggestion that after 20 days of marriage, the respondent had cut her veins. The respondent had done her double M.A. while studying at her matrimonial house. On 07.04.2015, a meeting was held at Arsh Hotel in Ratu Road to make attempts to arrive at a settlement. She was not present in the meeting held at Arsh Hotel. A settlement was though arrived regarding divorce, but the said settlement failed. The respondent at present stays with her in her house. She is not ready to solemnise marriage of the respondent with Pradip Dan. The respondent is at present working as temporary Lecturer in Women’s College. She has never advised the respondent to cut-off all relations with Pradip Dan.

¶54

R.W.-3 Puja Kumari @ Puja Jaiswal is the respondent who has stated about solemnisation of her marriage with the petitioner on 19.04.1998. The engagement which was held in mid-July, 1997 and post engagement there was a regular conversation between her and the petitioner and after being mentally satisfied, they had agreed for the marriage. After the marriage, she went to her matrimonial house at Chandwa, Latehar, where she respected her in-laws and expressed love and affection for all. On 02.02.1999 she gave birth to a daughter who was named Ridhi alias Muskan, but her birth was like a curse to her as the petitioner and his family members wanted a son and she was subjected to mental torture. In spite of the indifferent attitude of the petitioner and her inlaws, she continued to make attempts to keep them happy. On the one hand, the petitioner used to mentally torture her and on the other hand, she used to regularly establish physical relationship with her in his desire to have a son. On 05.05.2004, she gave birth to another daughter

¶55

11

¶56

who was named Harshika alisas Tuktuk. After the birth of the second daughter her life became hell and she was told by the petitioner that she does not have any place with the petitioner and that his life is itself a failure. Due to the continuous torture, she became mentally ill. There was a constant demand from the side of the petitioner to her father and the father had given Rs. 20 Lakhs approximately. On 04.06.2014, she was assaulted by the petitioner and his family members and was ousted from the house.

¶57

In cross examination she has deposed that after the birth of the first child, the dispute and differences had started between them. She is a double M.A. and has also completed her M.Phil. At the present moment, she takes classes in Ranchi University as a Guest Faculty. The behaviour of the petitioner and his family members immediately after the marriage was cordial towards her. She does not remember the reason for the dispute between her and her husband. She has denied to have cut her veins. After 15-20 days of marriage, the petitioner was not called for a meeting. She has denied that she has distanced herself from the petitioner as she had developed friendship with Pradip Dan alias Sanju. There is no space or boundary between the terrace of the petitioner and that of Pradip Dan: She does not know since when Pradip Dan is staying in the said house. Her daughters are being maintained by the petitioner. 13. R.W.-4 Rashmi Toppo has reiterated the evidence of R.W.-1 and R.W.-2 as given in their sworn statement.

¶58

In cross examination she has deposed that the respondent had admitted before her of an affair though she has not disclosed to her the name of the person with whom she was having such affair.

¶59

It has been submitted by Mr. Mahesh Tewari, learned counsel appearing for the respondent (appellant) - (wife) that the learned court below had overly relied upon the evidence of the petitioner while dissolving the marriage between the petitioner and the respondent. It has been submitted that the respondent was subjected to torture for nonfulfilment of the demand of dowry and was ousted from her matrimonial house. Mr. Tewari has submitted that the petitioner had

¶60

12

¶61

not taken any efforts to bring back the respondent to her matrimonial house. It was the respondent / wife who was subjected to cruelty by the petitioner and the petitioner has failed to prove that there has been a wilful abandonment of the society of the petitioner by the respondent. 15. Mr. Sidhartha Roy, learned counsel appearing for the petitioner/ husband has submitted that the issue of cruelty and desertion has been proved beyond any reasonable doubt by the petitioner. It is the petitioner who had unilaterally tried to save the marriage, but the respondent once was taken to her matrimonial house at Chandwa, where she refused to stay in a rural set-up and had compelled the petitioner through the attempts to commit suicide to send her to her parental place. It has been submitted that both the daughters have been looked after by the petitioner and the allegation of committing torture upon the respondent on account of giving birth to daughters is contradicted by the fact that the petitioner has given them the best of education in a school of repute. Reference has also been made to the illicit affair of the respondent with a neighbour Pradip Dan alias Sanju which in an indirect way has been admitted by the respondent.

¶62

So far as quantum of permanent alimony is concerned, it has been submitted that without there being an application u/s 25 of the Hindu Marriage Act, 1955, the learned trial court was precluded from directing the petitioner to make payment of permanent alimony of Rs. 20 Lakhs or Rs. 25,000/- per month and even otherwise there is no finding as to the income of the petitioner as also the respondent who claims herself to be working as a Guest Faculty in Women’s College. In absence of any assessment with respect to the income of the petitioner such finding with respect to grant of permanent alimony could not have been arrived at.

¶63

We have heard the learned counsel for the respective parties and have also perused the lower court records.

¶64

Issue No. III is with respect to cruelty. The word ‘Cruelty’ has not been defined in the Hindu Marriage Act, 1955. However, there has been a plethora of judicial pronouncements which have conceptualised cruelty and its ever expanding domain and in such context we may refer to the

¶65

13

¶66

case of Vishwanath Agrawal v. Sarla Vishwanath Agrawal, (2012) 7 SCC 288 , wherein it has held as follows:-

¶67

22. The expression “cruelty” has an inseparable nexus with human conduct or human behaviour. It is always dependent upon the social strata or the milieu to which the parties belong, their ways of life, relationship, temperaments and emotions that have been conditioned by their social status.

¶68

25. After so stating, this Court observed in Shobha Rani case about the marked change in life in modern times and the sea change in matrimonial duties and responsibilities. It has been observed that: (SCC p. 108, para 5)

¶69

“5. … when a spouse makes a complaint about the treatment of cruelty by the partner in life or relations, the court should not search for standard in life. A set of facts stigmatised as cruelty in one case may not be so in another case. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions. It may also depend upon their culture and human values to which they attach importance.”

¶70

:

¶71

26. Their Lordships in Shobha Rani case referred to the observations made in Sheldon v. Sheldonwherein Lord Denning stated, “the categories of cruelty are not closed”. Thereafter, the Bench proceeded to state thus: (Shobha Rani case, SCC p. 109, paras 5-6)

¶72

“5. … Each case may be different. We deal with the conduct of human beings who are not generally similar. Among the human beings there is no limit to the kind of conduct which may constitute cruelty. New type of cruelty may crop up in any case depending upon the human behaviour, capacity or incapability to tolerate the conduct complained of. Such is the wonderful (sic) realm of cruelty.

¶73

6. These preliminary observations are intended to emphasise that the court in matrimonial cases is not concerned with ideals in family life. The court has only to understand the spouses concerned as nature made them, and consider their particular grievance. As Lord Reid observed in Gollins v. Gollins: (All ER p. 972 G-H)

¶74

‘… In matrimonial affairs we are not dealing with objective standards, it is not a matrimonial offence to fall below the standard of the reasonable man (or the reasonable woman). We are dealing with this man or this woman.’”

¶75

In Samar Ghosh v. Jaya Ghosh reported in (2007) 4 SCC 511 it has been held as follows:-

¶76

99. Human mind is extremely complex and human behaviour is equally complicated. Similarly human ingenuity has no bound, therefore, to assimilate the entire human behaviour in one definition

¶77

14

¶78

is almost impossible. What is cruelty in one case may not amount to cruelty in other case. The concept of cruelty differs from person to person depending upon his upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and their value system.

¶79

100. Apart from this, the concept of mental cruelty cannot remain static; it is bound to change with the passage of time, impact of modern culture through print and electronic media and value system, etc. etc. What may be mental cruelty now may not remain a mental cruelty after a passage of time or vice versa. There can never be any straitjacket formula or fixed parameters for determining mental cruelty in matrimonial matters. The prudent and appropriate way to adjudicate the case would be to evaluate it on its peculiar facts and circumstances while taking aforementioned factors in consideration.

¶80

We shall now consider the case of the petitioner as to whether his allegation of cruelty against the respondent comes within the parameters of the generalised concept of cruelty as noted above.

¶81

It is the case of the petitioner that from the very beginning of the marriage, the respondent had expressed her dissatisfaction in the standard of living of the petitioner and the family members in a rural set-up and was pressurising the petitioner to send her to her parents’ place. This also resulted in an attempt made by the respondent to commit suicide by cutting her veins and the petitioner was compelled to send her back to her parents’ house. The evidence of P.W.-2 and P.W.4 (petitioner) reveals about the respondent being sent back to her parental house after a few days of marriage on account of her attempt to commit suicide. Though the father of the respondent who has been examined as R.W.-1 did not admit such fact in so many words, but has stated that after 10 days of marriage, he was called for a meeting though he has feigned ignorance about the reasons for the said meeting.

¶82

It is not in dispute that the respondent educationally was not qualified but after her marriage, she was allowed to continue her studies and as per the own admission of the respondent (RW-3), she is a double M.A. as well as M.Phil. The petitioner has claimed that the respondent was having an illicit affair with one Pradip Dan @ Sanju which though has been denied by the respondent, but the evidence of the mother of the respondent (RW-2) does indicate an acquaintance between the

¶83

15

¶84

respondent and Pradip Dan alias Sanju. It also appears that the house of Pradip Dan is adjacent to the house of the respondent. Another aspect of the case seems to be the two daughters who are being brought up by the petitioner and after the respondent left/ousted from her matrimonial house, it was the petitioner who had taken care of them and has endeavoured to give the best of educations while admitting them in Sapphire International School, an educational institute of repute. The respondent also seems to have lodged a criminal case against the petitioner and his family members, but on investigation final report was submitted which attained finality thereby further eroding the claim of the respondent that it was she who was subjected to cruelty. Moreover as rightly pointed out by the learned counsel for the petitioner, the love and affection given to his two daughters by the petitioner who had raised them nullifies the allegation that the torture upon the respondent started as she had given birth to two daughters. The facet of cruelty committed by the respondent upon the petitioner is writ large and therefore the learned court below has rightly come to a conclusion in deciding Issue No. III in favour of the petitioner. We therefore affirm the judgment dated 08.11.2019 passed in Original Suit No. 387 of 2014 by the learned Principal Judge, Family Court, Ranchi and consequently First Appeal No.12 of 2020 is dismissed.

¶85

The other aspect of the judgment dated 08.11.2019 is the permanent alimony granted to the respondent to the tune of Rs. 20 Lakhs or Rs. 25,000/- per month. Section 25 of the Hindu Marriage Act reads as follows:

¶86

25. Permanent alimony and maintenance .—(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.

¶87

16

¶88

(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.

¶89

(3) If the court is satisfied that the party in whose favour an order has been made under this section has remarried 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.

¶90

Section 25 of the Hindu Marriage Act, 1955 therefore envisages grant of permanent alimony only on an application made to the trial court. In the present case there does not appear to be any such application filed and in fact, the respondent appears to have primarily focused on opposing the application for divorce. In this context, we may refer to a judgment of the Madhya Pradesh High Court in the case of Kuldeep Rai v. Smt. Rita in First Appeal No. 145 of 2023, wherein it has been held as follows:

¶91

16. Thus, from the judgement of this Court, it is clear that at least an application demanding permanent alimony is required, that may be either in a written statement or by a separate application.

¶92

17. Thus, without demanding permanent alimony in the written statement or by a separate application, learned Trial Court would not have granted permanent alimony to the respondent/wife.

¶93

It is necessary that for deciding the issue of permanent alimony various aspects have to be taken into consideration and it has been held in the case of Rajnish v. Neha reported in (2021) 2 SCC 324 as follows:

¶94

73. Parties may lead oral and documentary evidence with respect to income, expenditure, standard of living, etc. before the court concerned, for fixing the permanent alimony payable to the spouse.

¶95

Apart from the above, admittedly, there was no separate application u/s 25 of the Hindu Marriage Act, 1955 and on consideration of the entire aspect of the case, the direction for permanent alimony of Rs. 20 Lakhs or Rs. 25,000/- per month cannot be sustained and therefore that part of the judgment dated 08.11.2019 regarding grant of permanent alimony is hereby set aside. However, the respondent will be at liberty

¶96

17

¶97

MK

¶98

to file necessary application u/s 25 of the Hindu Marriage Act, if she so desires.

¶99