Smt. Jyotsna Verma vs Ashok Kumar
2021 Latest Caselaw 3265 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 21
 

 
A.F.R.
 

 
Case :- FIRST APPEAL No. - 432 of 2009
 
Appellant :- Smt. Jyotsna Verma
 
Respondent :- Ashok Kumar
 
Counsel for Appellant :- In Person, Ms. Jyotsna Verma (In Person)
 
Counsel for Respondent :- B.D.Mishra, Syed Fahim Ahmed
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Ajit Singh,J.

This application was for modification. The appeal was filed in the year 2009 challenging the decree of divorce passed in favour of the respondent-husband. For a period of nine years, the appeal remained pending, wherein she had challenged the grant of divorce to the husband by the court below. Thereafter this appeal came up before the Court on 12.4.2018, this Court inquired from the appellant (in person) and learned counsel for the respondent-husband as to whether there was any chance of settlement between the parties and after taking into consideration the submissions made by the appellant as well as the learned counsel appearing on behalf of the respondent-husband, the following order was passed :

"This is an appeal by the wife against the decree of divorce dated 25.4.2009 passed by the Family Court, Meerut.

One of the submissions of the wife who is appearing in person is that the petition for dissolution of marriage was instituted by the husband on the ground of cruelty and desertion but none of those grounds were proved and the Family Court without formulating any point with regard to irretrievable brake down of marriage has routed the divorce.

The appellant is present in person. She does not want divorce and is ready and willing to live with her husband even today.

Sri Faheem Ahmad, learned counsel appearing for the respondent husband is also ready and willing to keep her with him as her wife.

It may be noted that the only son of parties is grown up and is about 25 years.

In such situation, as both sides has expressed willingness to live together as husband and wife, we are of the opinion that the decree of divorce would not survive.

Accordingly, we direct both the parties to appear in person before the Court on 3rd May 2018 so that their wishes may be verified and recorded before passing the final order in the appeal.

Let the matter be listed on 3rd May 2018. "

In pursuance to the above order dated 12.4.2018, the appeal was again taken up on 03.05.2018 and the following order came to be passed :

"In pursuance to the order of the court dated 12.04.2018 the appellant Smt. Jyotsna Verma and the respondent Ashok Kumar are present before the court. They are both willing to live together as husband and wife forgetting all that has happened in the past.

There are certain reservations on part of each of them whether the husband will provide her a decent atmosphere or whether the wife will adjust in the new set up.

These are normal and routine apprehensions which possibly could be taken care of by both of them once they start living together.

The husband is living in Tejpur in Assam and the wife is presently in New Delhi. She is ready to go and live with the husband at Tejpur and the husband has proper residential accommodation available with him where they can live together.

In view of the aforesaid facts and circumstances, we direct both of them to live together for a period of 2-3 months and to try in the best possible manner to adjust with each other forgetting about the past and to revert back to us in July, 2018.

Their only son who is now major and is living in New Delhi is also free to join them or may visit them if he so desires from time to time.

In case the son is unable to join them for some reason and if on account of his some physical disability, the wife has to visit him, the husband will not take any objection to it.

Let the matter be listed on 30th July, 2018 on which date parties will appear again before the court and share their experiences so that further action in the matter if necessary on merits may be taken."

On 30.07.2018, this appeal again came up for consideration and the following order was passed by this Court:-

"Smt. Jyotsana Verma, appellant is present in the Court.

In compliance of the order of this Court dated 03.05.2018, it is stated that both the husband and wife have been living together for a month and now they have reached at amicable settlement between them and they are living happily together.

The appellant has made a statement that there is no dispute between her and her husband. In view of the subsequent development, she wants to withdraw the appeal.

In view of the above, the appeal stands disposed of."

It has also been brought to our notice that in the year 2018 pursuant to this conciliation effort the appellant moved to Assam and started staying with the husband. Pursuant to this the appellant started co-habiting and within two months she came before this Court and deposed that both them are cohabiting and on her this statement appeal was permitted to be withdrawn.

It is this order permitting withdrawal of the appeal without quashing the decree of divorce which has caused problem to the appellant as it is now evident that the husband with whom she had co-habited lastly, passed away recently.

The order dated 23.02.2021 is reproduced herein below :

"(Order on Civil Misc. (Modification) Application no. 7 of 2021)

We have been conveyed that pursuant to the order of this Court the parties have cohabited for which the following order dated 03.05.2018 came to be passed by this Court, which reads as under:

"In pursuance to the order of the court dated 12.04.2018 the appellant Smt. Jyotsna Verma and the respondent Ashok Kumar are present before the court. They are both willing to live together as husband and wife forgetting all that has happened in the past.

There are certain reservations on part of each of them whether the husband will provide her a decent atmosphere or whether the wife will adjust in the new set up.

These are normal and routine apprehensions which possibly could be taken care of by both of them once they start living together.

The husband is living in Tejpur in Assam and the wife is presently in New Delhi.

She is ready to go and live with the husband at Tejpur and the husband has proper residential accommodation available with him where they can live together.

In view of the aforesaid facts and circumstances, we direct both of them to live together for a period of 2-3 months and to try in the best possible manner to adjust with eachother forgetting about the past and to revert back to us in July, 2018.

Their only son who is now major and is living in New Delhi is also free to join them or may visit them if he so desires from time to time.

In case the son is unable to join them for some reason and if on account of his some physical disability, the wife has to visit him, the husband will not take any objection to it.

Let the matter be listed on 30th July, 2018 on which date parties will appear again before the court and share their experiences so that further action in the matter if necessary on merits may be taken."

Thereafter, on 30.07.2018, the following order was passed by this Court:-

"Smt. Jyotsana Verma, appellant is present in the Court.

In compliance of the order of this Court dated 03.05.2018, it is stated that both the husband and wife have been living together for a month and now they have reached at amicable settlement between them and they are living happily together.

The appellant has made a statement that there is no dispute between her and her husband. In view of the subsequent development, she wants to withdraw the appeal.

In view of the above, the appeal stands disposed of."

From the above two orders, no doubt, it is proved that the lady had been in the matrimonial home with the husband. The husband and wife are peacefully staying together and their son is posted at Delhi as per the earlier order. Once, the parties decided to bury their differences the decree of divorce should have been modified. The decree itself would become non-existent. The proceedings were withdrawn by the party in person (wife) which were in continuation of the challenge to the divorce decree husband never objected to the said withdrawal of the appeal as they had started cohabiting. The purpose of withdrawal was with a vision to give an end to their matrimonial discord as they had started cohabiting together. The decree of divorce as it is now had become non-est and the grounds of divorce had extinguished.

The Apex Court recently in Mukesh Nayyar v. Madhu Nayyar, (2017) 11 SCC 165 dismissing the appeal has held that in case of any surviving grievance with regard to property or any other things, the parties can pursue the same in appropriate proceedings.

This appeal was withdrawn in view of the statement made by the applicant (appellant) wherein the statement was recorded way back on 3.7.2018. The appellant now wants us to review/modify the said order. The reasons are as mentioned herein below :-

(i) That she was a party in person in the proceeding before the Court below and after staying together with her husband, the appellate court while permitting her to amicably settle with her husband, did not modify the decree of divorce.

(ii) She continued to stay with her husband. The recent pass port of the present applicant shows that the settlement which had taken place was being worked out, meaning thereby that they had accepted that the decree of divorce should not be acted upon. Should the mistake, which is apparent on the face of the record, work to the prejudice of the lady who has compromised with her husband, even the appeal on the face of the record, while permitting her to withdraw the same, this Court should have no hesitation to modify the decree as also in view of the statement made by the learned counsel Sri V.J. Agarwal assisted by Sri Sanjay Agarwal appointed by her today.

(iii) She had also requested the Court to join the legal heir of her husband, namely, her son named Sri Ashok Kumar as no other legal heir falling in clause 1 heirship is alive.

The amendment be carried out within a period of one week from today.

We have interacted with the son of the parties through video conferencing. He has no objection to his joinder as party in the array as heir of the respondent. After a talk having being had by us with son through video conferencing, it is appropriate to direct that the learned counsel shall carry out the amendment in the memo of the appeal for joining the son as legal heir of the original respondent.

The personal presence of the appellant is dispensed with and she may be heard through the video conferencing. She would give her contact number to the Bench Secretary.

List the matter on 1.3.2021 at 2:00 p.m for further orders.

Meanwhile, we stay the decree of divorce.

List for further hearing on 1.3.2021."

The amendment has been carried out. We proceed to decide the appeal on merits.

Arnab, son of plaintiff-respondent, has been impleaded as respondent in place of Ashok Kumar.

The appellant Jyotsana Verma has appeared in person before us.

Though this application is termed as an application for modification to review the order passed by this Court which, in fact, is an application for correction of an error which had crept in which can be said to be an error apparent on the face of the record.

The appellant was sharing the house with the husband, who passed away recently as per the orders passed by this Court. Unfortunately, she is a party to this appeal but not represented by an Advocate. The Court seems to have recorded her statement and disposed off the appeal on her statement without modifying the decree of divorce. On 23.02.2021, we have directed for listing of this matter today, i.e. 10.03.2021.

The fact that the respondent-husband and the appellant started co-habiting under the order of this Court itself as there was a consensus of ending the dispute between them. They had given a go-bye to their dispute. The situation would have been otherwise had it been a case different than the present one that the appellant had abandoned herself from the company of the plaintiff-respondent. Here, we find that the case set up by the appellant is that she had always been wishing to have the company of the plaintiff-respondent. The co-habiting of the husband and wife and thereby giving go-bye to their dispute ought to have been reflected in the orders of the learned Division Bench, while disposing of the appeal. The dispute was regarding matrimonial dispute which had given rise to the litigation between the parties, which had started way back in the year 1997/1999 and the Complaint Case No. 536 of 2001 was instituted before the Judicial Magistrate, Family Court, Meerut where the appellant had filed a complaint under Sections 498-A and 323 I.P.C. against her in-laws including the plaintiff-respondent (husband) now deceased.

The said dispute is mentioned only to show that the parties were litigating with each other since long. Sri Ashok Kumar, who was aged about 35 years, had moved the Family Court, Meerut and a decree was passed against the appellant herein, which came to be challenged before this Court on several grounds. Two aspects are required to be gone into. Firstly, what would be the fate if the appeal was allowed on its merit. Secondly, the decree of annulment or divorce would have been set aside by this Court. The main dispute was that certain allegations were made by the appellant against her husband and the learned judge of the Family Court while considering the said complaint case had given a finding that she had deserted the husband, but the case set up by way of the appeal before this Court as well as by way of this modification application, is that the appellant never wanted to lose the company of her husband, who is now dead. Once, the parties were co-habitting, may be because of the order of the Court, can it be said that the desertion was continuing between the parties, therefore, the answer is obviously 'no'. The allegation once have been not proved, could a decree of divorce have been passed on the unproved allegations, the answer is 'no' and whether we can set aside the decree of divorce even on merit or can we set aside the decree of the divorce on the modification application moved by the appellant after the disposal of the appeal on merit. The reason being a Hindu wife the appellant has condoned all the mis-deeds of the plaintiff-respondent and if her husband did not co-habit with her and has thereafter, started co-habiting with her, in that view of the matter, the decree of divorce both on merits and on cohabiting and condonation of mis-deeds, if any, both by the husband and the wife, the decree is liable to be set aside. The husband after 30.07.2018 had never came up before the Court to complain that she had again deserted him or what is the status of the matrimonial relations between them, which means he had also condoned mis-deed of the appellant (wife), if any, including all those that were levelled upon the plaintiff-respondent by his wife by the petition filed before the court below. The non substantiation of the allegations loses all its significance in the present factual scenario of this case and a case for setting aside the impugned decree of divorce is made out.

Now it is apparent that except the son and the appellant there is none-else to claim as the heir of the plaintiff-respondent (since deceased), and hence, the only legal heir who are entitled to inherit the estate of the deceased are the appellant and her son, who is now major.

It can not be said that the appellant is the divorced wife. The Apex Court has recently held that the divorced wife is also entitled to maintenance from her husband under Section 125 Code of Criminal Procedure, 1973.

It is made clear that she has during a intervening period of twenty years of litigation of has never claimed what can be termed to be maintenance under Sections 24 and 25 of Hindu Marriage Act, 1955 or any maintenance under Section 125 Cr.P.C. "Now, she has claimed the maintenance under Hindu Adoption or Maintenance Act, 1956". The status of divorced wife has been discussed by the Apex Court in the case of Rohtas Singh Vs. Sant Ramendri, AIR 2000 SC, 952 and in the case of Swapan Kumar Banerjee Vs. State of West Bengal and others, (19.9.2019 SC), Manu/SC/1343/2009.

In view of the ratio of that very decision of the Apex Court also, the appellant would be entitled to the maintenance as per Hindu Adoption and Maintenance Act, 1956 as she was dependent on the deceased. It is further observed that we have relied on the submission made by the son of the appellant and the appellant herself who claims themselves to be nominee/heir of the deceased.

We have made it clear earlier also that she may pursue her remedies which she wants for which this review is filed. Even she may file a recall application, if so advised, before the Family Court to modify the decree.

The decree of divorce is set aside. The judgment and decree be modified to the aforesaid extent as we have already allowed this appeal. Consequences to follow. Hence, the judgment sought to be modified is set aside.

The record is not before this Court.

A copy of this order be be sent to the court below.

Order Date :- 10.03.2021

R./Faridul