Jitendar Saksena vs Mallika Saxena
2013 Latest Caselaw 6596 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


 
RESERVED
 

 
FIRST APPEAL NO. 63 OF 2006
 

 
Jitendra Saksena 				...	Appellant/plaintiff
 
Versus
 
Mallika Saxena 				...	Respondent/defendant
 
*****
 
Hon'ble Rajiv Sharma, J.

Hon'ble Dr. Satish Chandra, J.

Heard Sri Sudeep Seth, learned counsel for the appellant/plaintiff and Sri Anil Kumar Tewari, Senior Advocate, assisted by Sri Amit Jaiswal, Counsel for the respondent.

Appellant-Jitendra Saksena, who is said to be husband of respondent-Mallika Saxena, has preferred the instant First Appeal under Section 19 of the Family Court Act read with Section 28 of Hindu Marriage Act, 1955, against the judgment and order dated 27.2.2006 passed by the Principal Judge, Family Court, Lucknow in Suit No. 265 of 2002 :Jitendra Saksena Vs. Mallika Saxena preferred under Section 12 of the Hindu Marriage Act alongwith Suit No. 1188 of 2004 :Mallika Saxena Vs. Jitendra Saksena preferred under Section 27 of the Hindu Marriage Act, whereby the Family Court has dismissed both the above cases i.e. Suit Nos. 265 of 2002 and 1188 of 2004.

Shorn off unnecessary details the facts of the case are as under :

The marriage of appellant-Sri Jitendra Saksena was solemnized with respondent-Smt. Mallika Saxena in accordance with Hindu rituals, customs and tradition on 29.11.2001.

According to the appellant, in the first week of December, 2001, respondent-Smt. Mallika Saxena complained about pain in stomach and also she informed the appellant that her period had elapsed. Similar complain was made on 15.1.2002 also and as such, appellant took her wife (respondent) to the Gynecologist, whereupon Doctor informed them that respondent was pregnant and she was advised for ultrasound and other tests. Respondent had disclosed to the Gynecologist that Last Menstrual Period (LMP) was on 7.12.2001 and disclosed her age to be 29 years, which was noted by the Doctor in its prescription dated 15.1.2002. Pursuant to the advise of the Doctor, ultrasound of respondent was done on 21.1.2002, in which, live foetus of 7±1 week of gestation was reported. All of a sudden, without any intimation, on 22.1.2002, respondent went to her parents' house and took away all her jewellery and belongings. On 29.1.2002, parents of respondent came to the appellant's house and took all original prescriptions and pathological reports etc. of the respondent for further treatment, however, appellant had retained photocopies of the same. On 1.2.2002, respondent underwent abortion and terminated pregnancy, without even informing the appellant. Thereafter, respondent sent a legal notice to the appellant for mutual divorce on 14.2.2002, alleging therein that due to torture of appellant and his members of family, pregnancy was terminated but the respondent had neither filed any FIR of torture nor any report of Doctor showing torture upon the body of the respondent.

Later on, when the appellant received the said legal notice, the appellant inquired from the records of the University, whereby he came to know that date of birth of the respondent is 21.9.1968 as reflected from her High School Certificate and not 21.1.1972 as was disclosed in the bio- data. Thus, the respondent is four years elder to the appellant and the consent of the appellant for marriage was obtained by playing fraud and as such, the appellant replied to the said legal notice to the effect that he would take appropriate proceedings for annulment of marriage instead of divorce with mutual consent. Thereafter, the appellant filed the petition for annulment of marriage by a decree of nullity under Section 12 (1) (c)(d) of the Hindu Marriage Act for concealment of age and pregnancy, registered as Regular Suit No. 265 of 2002 in the Court of Principal Judge, Family Court, Lucknow, whereas respondent filed an application for maintenance under Section 24 of the Hindu Marriage Act. The said application for maintenance under Section 24 of the Hindu Marriage Act, however was dismissed by the Family Court.

According to the appellant, during pendency of Regular Suit No. 265 of 2002, respondent preferred a petition under Section 27 of the Hindu Marriage Act, which was registered as Case No. 1188 of 2004. The Principal Judge, vide impugned judgment and order dated 27.2.2006, dismissed both the above cases, hence the instant appeal.

Sri Sudeep Seth, Counsel for the appellant has submitted that six criminal cases have been filed by the respondent against the appellant, which are still pending and one case under Section 7 of the Hindu Marriage Act is pending before the Family Court. He further submits that respondent while leaving the matimonial house took away Maruti 800 car alongwith the entire jewellery including the jewellery given by the parents of the appellant. He further submits that appellant is a practicing Advocate in this Court and his income tax return for the last three years indicates his financial status, which reflects that the financial status of the appellant is much lower than the financial status of the respondent as she is highly paid Lecturer in the University of Lucknow.

Per contra, Sri Anil Kumar Tewari, Senior Advocate, appearing on behalf of the respondent has submitted that on perusal of the Sonography Report as well as averments of the appellant, it reflects that on the date of Sonography, the respondent was pregnant with foetus of 7±1 week, which clearly establishes that opposite party's pregnancy could be between 6-8 weeks. The Sonography was done on the 53rd day of the first night (date of consumation of marriage), which is within the period of marriage. Therefore, the question of pregnancy of respondent prior to marriage is beyond imagination of a mind of reasonable prudence.

So far as the submission of the appellant that respondent had concealed her age at the time of marriage, Sri Tewari submits that the Family Court, after analyzing the evidence on record, came to the conclusion that no concealment regarding the age of respondent has been found. Further, it was observed that the appellant himself agreed to marry girl elder to him and the allegation regarding pregnancy prior to marriage could not be proved.

On perusal of the order-sheet, it reflects that on many occasions, this appeal came up for hearing before different Benches, wherein both the respondent-wife and appellant-husband have appeared in person.

Looking to the fact that matrimonial disputes have to be decided by Courts in a pragmatic manner keeping in view the ground realities. For this purpose a host of facts have to be taken into consideration and the most important being whether the marriage can be saved and the husband and wife can live together happily and maintain a proper atmosphere at home for the upbringing of their offspring. In these circumstances, we took a chance to mediate the dispute between them through mediation and conciliation. With this hope, we also summoned both appellant-husband and respondent-wife. In compliance of the order of this Court, both of them appeared before this Court on 22.8.2013. On that date, after some deliberation, parties requested for grant of some time so as to arrive at a amicable settlement of the dispute outside the Court, which was allowed and the matter was directed to be listed on 11.9.2013 and the parties were directed to appear in person. On 11.9.2013, parties appeared before this Court and the respondent-wife sought for dissolution of marriage provided she is granted permanent alimony to which appellant after some resistance has also agreed that he is ready to give permanent alimony to the respondent, subject to the condition that all pending cases be withdrawn by the respondent and the amount of alimony is fixed looking to his financial status and mental strain, with which he has gone through. As regard the quantum of alimony, Counsel for the respondent has invited our attention towards the decision of the Apex Court rendered in U.Sree vs. U. Srinivas; (2013) 2 SCC 114.

Since the question of payment of permanent alimony has been raised,it is imperative for us to have a glance as to what is alimony and when it is payable. The concept of alimony came in vogue due to the indissolubility nature of marriage. According to marriage conventions marriage is a sacred union. Once the knot is tied, the duties and obligations of marriage are to be carried out for the rest of the life even if there is mental disparity or physical separation between the husband and the wife. The husband is bound to take up the responsibilities for the maintenance of his wife in spite of sharing an estranged relationship. As time changed, the laws and education empowered woman, divorce came as a spontaneous solution for an unsuccessful marriage. When the 'matrimonial home' turns into "sweet home broken," the husband is required to give alimony to his wife. The term 'alimony' in English Law means the allowance, required by law, to be made to a wife out of husband's property for her support either during the 'matrimonial suit' or after the matrimonial suit is over.

It is substantive right of wife arising under the Personal Law. It is essentially a civil remedy available to the wife under her Personal Law. So far as the Common Law is concerned, it treats the alimony as an inevitable consequence flowing from the Doctrine of 'unity of legal personality' inasmuch as, in Law, husband and wife is one. The Common Law, as such, imposes an obligation upon the husband to provide his wife with at least the 'necessities' of life.

As 'Alimony' germinates from divorce, we will discuss briefly the laws governing divorce in India. In India divorce is governed by different laws for different communities. As in case of Hindus, Sikhs, Buddhists and Jains it is governed by the Hindu Marriage Act, 1955. The Dissolution of Muslim Marriage Act, 1939 governs divorce for Muslims, for Christians is it made possible by way of the Indian Divorce Act, 1869 and Parsi can seek for divorce under the Parsi Marriage and Divorce Act, 1936.In most cases in India, the fulcrum of divorce litigation is alimony, while in other countries its division of property. Therefore the amount of alimony to be paid cannot be fixed by law as it varies from case to case; the most important aspect is to maintain a balance while deciding the same. Should cater the dependent spouse with reasonable comfort as was given during the existence for their marriage and should not be repressive for the other spouse to provide the same.

Taking into consideration the facts in its entirety and the failure of settlement between them either before the lower court and also by us, we are of the view that the marriage has seized to exist in substance and in reality, living apart is a symbol indicating the negation of such sharing. It is indicative of the disruption of the essence of marriage. From the circumstances, we are fully convinced that the marriage between the parties is irretrievably broken down because of incompatibility of temperament. In fact, there has been total disappearance of emotional substratum in the marriage. The matrimonial bond between the parties has been wrecked beyond the hope of salvage and cannot be repaired. The Apex Court in umpteen cases, namely, Harpit Singh Anand Versus State of West Bengal [2004 (10) SCC 505], Kanchan Devi Vs. Promod Kkumar Mittal [(1996) 8 SCC 90] and Ashok Hurra Vs. Rupa Bipin Zaveri [(1997) 4 SCC 226], in order to do complete justice, granted decree of divorce and directed for closer of all sorts of proceedings between the parties.

In view of the above, we are not expressing any view about the legality, veracity or adequacy or otherwise of the judgment and order passed by the lower Court nor we express any view on the quantification made by either side. The only controversy that remains, after above positive response of the parties, is the extent of permanent alimony and quantification of the same. In other words, the next question to be decided is as to what would be the permanent alimony that would be just and reasonable.

Having regard to the present peculiar facts and circumstances of the case and also keeping in view the long drawn litigation between the parties, in order to give a quietus to the manifold litigation, as of now, we deem it appropriate to fix a sum of Rupees Twenty Five Lacs towards permanent alimony payable by the husband to the wife, which, in our considered view, is just and reasonable.

Accordingly, we direct the husband to pay a sum of Rupees Twenty Five Lacs, inclusive of all, towards permanent alimony to the wife. The appellant shall pay half of the amount within three months and the remaining half shall be paid within next three months. Both the parties shall move appropriate applications in all the pending cases, including criminal case for its closure, in view of the above order, within a month from the date of receipt of this order.

The First Appeal stands disposed of finally in above terms.

Dt.25.10.2013

Ajit