Dismissed

Sukanta Shil v. the Union of India and Ors.

Tripura HC2 Aug 2017WP(C)/188/2014

Case brief

AI extract

What is this about?

The High Court dismissed the petitioner's writ petition challenging an order directing him to pay maintenance to his wife. The court advised the petitioner to file a petition under the Hindu Marriage Act to seek a variation of the order due to changed circumstances, including the wife's refusal to cohabit.

What did the court decide?

Deferred relief; Petitioner directed to file application under Section 25(2) of Hindu Marriage Act for variation of maintenance order.

Sukanta Shil Vs the Union of India and Ors. — Matrimonial and Divorce | Tripura HC (2017)

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THE HIGH COURT OF TRIPURA AGARTALA

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WP(C)188 of 2014

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Shri Sukanta Shil, son of Sri Jogesh Chandra Shil of Block Chowmohuni, P.S. Jirania, District :West Tripura

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…………Petitioner – Vs –

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The Union of India, represented by the Secretary, Ministry of Communication, New Delhi-110001

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The Director of Postal Services, Agartala Division, P.O. Agartala, District : West Tripura

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The Post Master, Agartala Head Post Office, P.O. Agartala, District : West Tripura, PIN : 799001

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Smt. Jhuma Dey (Shil), wife of Shri Sukanta Shil, residing in care of Shri Nantu Chandra Dey at Kalabagan, Joynagar, P.O. Bankimnagar, P.S. Jirania, District : West Tripura

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………… Respondents

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B E F O R E

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THE HON’BLE MR. JUSTICE S. TALAPATRA

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For the petitioner : Mr. R. Dutta, Advocate For the respondents : Mr. H. Deb, ASG Date of delivery of : 02.08.2017 Judgment and order Whether fit for reporting : NO

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Judgment and Order (Oral)

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Heard Mr. R. Dutta, learned counsel appearing for the

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petitioner as well as Mr. H. Deb, learned ASG appearing for the

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Page 1 of 7

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WP(C)188 of 2014

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respondents No.1, 2 & 3. None appears for the respondent No.4 despite due notice from this court.

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By means of this writ petition filed under Article 226 of the Constitution of India, the petitioner has challenged the order No. B-2/Sukanta Shil dated 24.03.2014 issued by the respondent No.2 [Annexure-11 to this writ petition] whereby the Post Master Agartala, HPO has been directed to comply the judgment and order dated 17.03.2006 delivered in TS (RCR) 49 of 2005 by the Judge, Family Court, Agartala and also the order dated 12.03.2012 delivered in FA No.06 of 2006 passed by the Gauhati High Court, Agartala Bench which had the territorial jurisdiction at the relevant time.

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Mr. R. Dutta, learned counsel appearing for the petitioner has submitted that by the judgment and order dated 17.03.2006 delivered in TS(RCR) 49 of 2005, the Judge, Family Court, Agartala has observed and directed as under :

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“In view of the findings and decisions arrived at issue wise in the preceding paragraphs of the judgment I do hereby allow the prayer of the petitioner. The petitioner is entitled to have the decree of restitution of her conjugal rights with the respondent.

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So, I do hereby direct the respondent to take his wife petitioner back to his residence within one month from today and to lead their conjugal life.

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If the respondent fails to comply with the direction of the Court, he has to pay at the rate of Rs.4,000/- per month to the petitioner and their daughter as maintenance allowance. This order is passed in addition to the order which was passed in the maintenance petition which was disposed of in favour of the petitioner earlier.

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As the respondent is a government employee and he was a driver by profession and he is posted under the Director of Postal Service, Agartala Division, the Director of Postal Service is hereby requested to direct the Drawing and Disbursing Officer of the respondent to

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Page 2 of 7

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WP(C)188 of 2014

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deduct at the rate of Rs.4,000/- per month from the pay and allowances of the respondent and to send the same to the petitioner in her below noted address by money order within the first week of every English Calendar month. The Money Order commission for sending the same to the petitioner shall have to be borne by the opposite party.”

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Thereafter, the petitioner being aggrieved by that judgment and order filed an appeal under Section 19(1) of the Family Courts Act, 1984 in the Gauhati High Court being FA No. 06 of 2006. The said appeal was dismissed with the following observation :

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“As the appellant is ready to comply with the decree passed by the learned court below, there remains nothing to be decided by this court in this appeal. Accordingly, the appeal is dismissed. The interim order, if any, passed by this Court, shall stand vacated.”

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Mr. R. Dutta, learned counsel appearing for the petitioner has submitted that even though the appeal was dismissed by the order dated 12.03.2012, but it has been recorded that the petitioner had expressed his willingness to take back his wife. True it is that the petitioner despite several attempts could not bring back the respondent No.4. The petitioner cannot be blamed for non-compliance of the decree of the restitution of the conjugal life. The petitioner had reported such refusal of the respondent No.4, the decree holder to the Director of Postal Service, Tripura, Agartala. The Director, Postal Service, Agartala, as it appears from the communication dated 10.05.2013 [Annexure-5 to the writ petition], had taken the legal opinion and asked to stop payment of maintenance allowance to the respondent No.4 as per the order dated 12.03.2012. But on the face of the demand notice issued at the instance of the respondent No.4 stating that the petitioner did not comply the court’s order

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Page 3 of 7

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WP(C)188 of 2014

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and hence, payment of the maintenance allowance should be resumed forthwith. In the said notice, serious allegations have been leveled against the petitioner. It has been alleged that the respondent No.4 was severely assaulted by the petitioner. On the complaint of the respondent No.4, Amtali P/S Case No.19 of 2014 under Section 498(A)/307/34 of the IPC was registered. The said case is pending for completion of trial. It is stated by Mr. Dutta, learned counsel very fairly that after the investigation, the chargesheet had been filed. The trial is now almost on the verge of completion.

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Mr. Dutta, learned counsel has further submitted that the respondent No.4 filed two execution cases. One case was withdrawn and the other was dismissed by the court holding that it is the respondent No.4 who was not inclined to restitute of conjugal life and therefore, he does not have any right to get any maintenance [see the order dated 17.03.2006].

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Be that as it may, there is a slew of disputed facts which may be scrutinized through a structured enquiry in order to determine the right of the respondent No.4 or the petitioner’s right as might accrue from the refusal to restitute the conjugal right.

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Mr. Dutta, learned counsel has further submitted that the respondent No.4 has tendency to harass the petitioner and that is the reason why the matrimonial life is so troubled. Mr. Dutta, learned counsel has further submitted that the petitioner is under serious stress for such prolong persecution in facing the litigations at the instance of the respondent No.4.

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Page 4 of 7

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WP(C)188 of 2014

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Mr. H. Deb, learned ASG appearing for the respondents No.1, 2 & 3 has submitted that the postal authority cannot adjudicate in respect of compliance of conditions as laid in the judgment and therefore, they were deducting the amount and remitting the same to the respondent No.4. The action is entirely bonafide and in compliance of the court’s judgment.

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Having appreciated the relevant fact as unfolded in the records, this court does not find any infirmity in the action taken by the respondent No.2 by issuing the order dated 24.03.2014 [Annexure-11 to the writ petition] and hence, the writ petition stands dismissed. Before parting with the records, this court would like to observe that the circumstances as narrated in the petition may not be just brushed aside. In the opinion of this court, there is a marked change in the circumstances and on the basis of that, the petitioner may approach the Family Court, Agartala for alteration of the order of maintenance under Section 25(2) of the Hindu Marriage Act, 1955 which provides as under :

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“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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The order of maintenance dated 17.03.2006 as passed

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under Section 25(1) of the Hindu Marriage Act, 1955 by the Judge, Family Court was conditional one. The petitioner was directed to take back the wife. The respondent-wife (the respondent No.4) instituted the suit for restitution of the conjugal life but subsequently she had denied to join the petitioner No.2. Even in the several conciliations held by this High Court, she had clearly

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Page 5 of 7

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denied to join the petitioner. The petitioner has also reported to the Directorate of Postal Authority that despite his taking the sincere efforts to take back the respondent No.4 she has not joined the petitioner in the matrimonial home for restitution of conjugal life and for that reason, the maintenance amount should not be deducted from his salary. Initially, that was acceded to, but later on, on the basis of one notice served by the respondent No.4, and for the dismissal of FA No.06 of 2006 as preferred by the petitioner, the impugned order dated 24.03.2014 was passed.

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This court is of the opinion that if such application is filed by the petitioner under Section 25(2) of the Hindu Marriage Act, the change that has been indicated by the petitioner shall be considered as the change in the circumstance for all purpose. After hearing the parties, meaning on hearing the respondent No.4 as well the maintenance order shall be revisited by the Family court. If it is found that refusal was wholly unreasonable, the appropriate order be passed.

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At the time of hearing, it should be remembered that it was the wife, the respondent No.4, who wanted to restitute the conjugal life. What this court has observed that the petitioner was all along approaching the respondent No.4 for restitution. The respondent No.4 has declined to restitute the conjugal life. All these aspects should considered while passing any order, if any proceeding is set in motion by the petitioner under Section 25(2) of the Hindu Marriage Act. Interim order stands vacated.

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There shall be no order as to costs.

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Page 6 of 7

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A copy of this order be supplied to Mr. H. Deb, learned

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ASG for onward transmission.

JUDGE

Sabyasachi.B

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Sukanta Shil v. the Union of India and Ors.

Case brief

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Sukanta Shil v. the Union of India and Ors.

Case brief

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