Gujarat High Court
Pratiksha D/O Anantbhai Ratilal ... vs Kalpeshbhai Bhagwanbhai Jesalpura on 12 December, 2023
Author: Ashutosh Shastri
Bench: Ashutosh Shastri
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2945 of 2019
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2019
In R/FIRST APPEAL NO. 2945 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI Sd/-
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK Sd/-
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1 Whether Reporters of Local Papers may be allowed to No
see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of India
or any order made thereunder ?
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PRATIKSHA D/O ANANTBHAI RATILAL PRAJAPATI
Versus
KALPESHBHAI BHAGWANBHAI JESALPURA
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Appearance:
MR BJ TRIVEDI(921) for the Appellant(s) No. 1
MR JT TRIVEDI(931) for the Appellant(s) No. 1
MS JIGNASA B TRIVEDI(3090) for the Appellant(s) No. 1
MR PREMAL R JOSHI(1327) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
Page 1 of 30
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Date : 12/12/2023
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI)
[1] By way of present First Appeal under Section 19 of the
Family Courts Act, a challenge is made to the judgment and
decree passed by learned Judge, Family Court No.2, Vadodara
dated 16.04.2019 in Family Suit No.753 of 2015.
[2] The brief background of the facts which has given rise to
the present appeal is that marriage between the appellant and
respondent was solemnized on 06.05.2011. The problems later
on started in the marital life and according to appellant, the
respondent started to treat the appellant with cruelty and it
transpires that the appellant went to place of her in-laws i.e.
Village - Vadgas near Viramgam after wedding took place at
Ahmedabad. After the said marriage, the appellant and
respondent went to Kullu Manali and after spending few days
came back at the said village and the dispute arose between the
parties on account of social set up in different of appellant and
respondent, the problems occurred during the marriage span.
The details of narration with regard to allege cruelty has been
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incorporated in the pleadings, but then with a view to sustain
the relationship tolerance was maintained by the appellant but
then could not resist much which has resulted into taking
phenyl in the morning on 10.09.2011 and the respondent took
her to the dispensary of Dr. Dixit, the family doctor. Since the
health of the appellant deteriorated, she was shifted to Dev
Multi Specialty Hospital, where she was administered treatment
by one Dr. Parag Rana. The respondent requested not to file
complaint with regard to this incident else the respondent
would lose his job and as such the same was not lodged. But
later on, the appellant got a job in I.T.I. at Savli on 25.11.2011.
The parents of the respondent and his sister and her husband
visited Vadodara on the occasion of first marriage anniversary
and stayed for approximately ten days, but respondent did not
talk with the appellant. So much so that on account of this,
according to appellant, there was a demand made of 5 tolas of
gold, car etc. and again the incident of beating the appellant
took place on 05.09.2013 and the appellant was driven away
from matrimonial home. The salary received by the appellant
was spent after purchasing of second hand car and the same
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was allowed to be purchased in the name of the respondent, but
the respondent did not like a second hand car and wanted a
brand new car. Again the conflict arose on account of these
issues which has resulted into leaving the house by respondent
on 23.11.2013 by indicating that he is going for his job.
However, he went to the house of his sister Hansaben at
Ahmedabad, where he stayed for 17 days. The idea of the
respondent appeared that the appellant would leave the
matrimonial house again. After narrating all these sequences of
events, finally it was alleged that appellant was driven out in
January, 2014 and with a view to save the marriage, one
Medhaben Trivedi, a friend of the appellant, did make an
attempt to persuade the respondent on telephone to rejoin but
ultimately the said efforts were failed, even the meeting which
was also held on 14.04.2014 yielded no positive response. As a
result of it, the present respondent initiated the proceeding in
the form of Divorce Petition under Section 13 of the Hindu
Marriage Act, 1956 before the learned Family Court, Vadodara,
which was registered as Family Suit No.753 of 2015 for seeking
decree of divorce.
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[3] The learned Family Court upon pleadings adjudicated the
family suit and after hearing and considering the material, the
suit came to be allowed and the marriage which was solemnized
on 06.05.2011 was ordered to be dissolved by judgment and
order dated 16.04.2019 and it is this judgment and order which
has been passed by the learned Judge, Family Court No.2,
Vadodara, the appellant has preferred present substantive
appeal before us. The present First Appeal was admitted and
upon the request of both the learned advocates appearing for
the respective parties, the matter is taken up for final disposal
in which Mr. B. J. Trivedi, learned advocate appearing for the
appellant and Mr. Premal R. Joshi, learned advocate appearing
for the respondent.
[4] Mr. B. J. Trivedi, learned advocate appearing for the
appellant has submitted that the impugned judgment and
decree which has been passed is not only reflects non
application of mind but it is completely misreading of the
evidence on record. Hence, the finding be perverse to the
record, the same is not sustainable in the eye of law. It has
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been further contended that the story which has been put up by
the respondent is reflecting a separation of material fact and is
thoroughly unambiguous and as such the finding arrived at by
the Court below are merely on the basis of conjunctures and
surmises. Mr. Trivedi, learned advocate has further submitted
that evidence on record is also reflecting that there is a constant
harassment on the appellant by respondent herein some time
immediately after the wedding and the details whereof are
clearly reflecting in written statement at Exh.16 as well as
clearly reflecting from the deposition at Exh.56 and as such the
learned Family Court ought to have appreciated the said
assertion in the right spirit having not been done the entire
exercise gets vitiated. Hence, the order impugned requires to
be quashed and set aside.
[4.1] Mr. Trivedi, learned advocate has further submitted that
the conclusion arrived at by the court below is not legally
sustainable and as such keeping in view the proposition of law
laid down by Hon'ble Apex Court in the case of Alka Gupta
versus Narender Kumar Gupta reported in AIR 2011 SC 9
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the suit could not have been decided on the basis of
conjunctures and surmises and without any complete base. Mr.
Trivedi, learned advocate has further submitted that the
appellant inflicted cruelty upon the respondent is surprisingly
finding though the record is not supporting such view, the
learned trial Judge has on the contrary shifted the allegation
upon respondent. On the contrary, the endeavor should have
been made by the court below to see that parties may reconcile
or leave together but here surprisingly this entire duty is
bypassed and no such attempt was made. There are serious
allegation tried to be leveled inter se but in the absence of any
concrete material, the same ought to have been considered
particularly when there was no evidence at all. Hence, the
entire exercise undertaken by the court below is suffering from
the vice of non application of mind.
[4.2] Mr. Trivedi, learned advocate has then taken us to the
written statement assertion and in juxtaposition has also taken
us at length to the evidence on record by reading the deposition
just to indicate that the conclusion arrived at by the court below
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is not well supported by cogent material. It has been submitted
that as observed in paragraph 15.1 of the impugned judgment,
the appellant has admitted during her cross examination that
she is getting salary of Rs.34,000/- per month. While respondent
is getting salary of Rs.46,000/- per month. It has been stated in
affidavit of the appellant that her gross salary is of Rs.34,000/-
and after deduction the salary would come to only Rs.27,000/-.
Thus, despite the fact that salary slip was very much part of the
record the conclusion about the income aspect has not been
properly considered and this reflects clearly a perversity in the
finding arrived at by the court below. As against this, the
respondent's income has also not been properly assumed.
Hence, the finding arrived at by the court below is perverse to
the record, and according to Mr. Trivedi, learned advocate, the
present appeal deserves to be allowed by quashing and setting
aside the impugned order and on the contrary alimony has to be
awarded despite the fact that wife is earning. There is no
embargo that simply because the wife is earning she is not
entitled for permanent alimony. Of course on the issue of
interim maintenance or the maintenance amount, the said
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aspect is a relevant consideration, but when the learned Judge
is dissolving the marriage without awarding any amount of
permanent alimony, the entire exercise is thoroughly uncalled
for. Accordingly, a request is made to fix the permanent
alimony in case the dissolution is affirmed in the alternative.
Hence, has requested that case is made out by the appellant to
call for an interference.
[4.3] Mr. Trivedi, learned advocate has further drawn our
attention to one xerox copy of list consisting of some 48 to more
number of items which are stated to be in custody of the
respondent which were belong to the appellant and as such
while considering the overall valuation of these items, the court
may appropriately considered and then awarded a permanent
alimony in case the order is to be affirmed. Be that as it may,
Mr. Trivedi, learned advocate has submitted that since the
findings are supportless, an appropriate order be passed in the
interest of justice.
[4.4] To substantiate his submission, Mr. Trivedi, learned
advocate has placed on record the compilation of Criminal
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Revision Application No.1058 of 2018 for perusal of the Court
and out of that, Mr. Trivedi, learned advocate has drawn the
observations contained in paragraph 12 of the judgment passed
in Criminal Case No.32395 of 2014 and the deposition which
has been taken in the said proceeding of Pratikshaben precisely
of cross examination and after referring to this, Mr. Trivedi,
learned advocate has requested to pass suitable order in the
interest of justice.
[5] As against this, Mr. Premal R. Joshi, learned advocate
appearing for the respondent has vehemently submitted that the
order passed by the court below is a detailed order after due
analysis of evidence on record and the finding which has been
arrived at is in consonance with the relevant record. Hence, no
perversity can be assumed out of the finding, even it cannot be
agitated by the appellant that there is any non application of
mind on the part of the learned trial Judge.
[5.1] Mr. Joshi, learned advocate has further submitted that a
systematic designed is made by the respondent herein to put the
entire family of respondent in to difficult face, the marriage has
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been solemnized on 06.05.2011 and within a short time, the
complaint has been submitted in which after fulfledged trial an
order of acquittal came to be passed on 15.07.2017, even
against the said order of acquittal, the Criminal Revision
Application was filed which also came to be dismissed on
16.04.2018 and then surprisingly another round of complaint is
initiated in which one another Criminal Misc. Application
No.1058 of 2018 is pending and the same is not filed by the
State. Yet another complaint on 07.11.2019 is filed substantially
on the very same allegation, so intent is to harass the
respondent in any manner and as such when this ill-motive is in
mind of appellant no discretion be exercised in favour of the
appellant.
[5.2] Apart from that, it has been submitted that wife is working
as an instructed in I.T.I., a Government Undertaking and is
substantially earning and on account of this separate earning,
the appellant has shown its attitude towards the respondent.
The appellant as well as respondent are residing separately
since a very long time and there is an irritable breakdown in the
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marriage the respondent is serving as Junior Telecom Officer in
BSNL and is leaving a life but the attempt of the appellant is to
see that the respondent may not be comfortable. This attitude
is also clearly visualized by the court below and as such after
true analysis of evidence on record, the learned trial Judge has
passed an order which reflects no illegality or irregularity of any
manner. Hence, no interference is made in appellate
jurisdiction.
[5.3] Mr. Joshi, learned advocate has then submitted that on the
contrary this is a case in which the appellant has executed
cruelty upon the respondent and the deposition on record
clearly reveals such and as such the appeal may be dismissed.
With a view to substantiate his conclusion, Mr. Joshi, learned
advocate has drawn our attention to paragraph 12 of Exh.43
from the record and proceeding and then has pointed out from
pages 64 - 66 that there is a difference in deposition as well as
police statement and that is the reason why the order of
acquittal in specific terms has been passed. Mr. Joshi, learned
advocate has submitted that there are decision to the effect that
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the dissolution of marriage is possible when there reflects a
cruelty and to straighten his submission, Mr. Joshi, learned
advocate has relied upon following decisions:-
(i) In the case of G.V.N.Kameswara Rao versus G.Jabilli
reported in (2002) 2 SCC 296.
(ii) In the case of K.Srinivas Rao versus D.A.Deepa
reported in (2013) 5 SCC 226.
(iii) In the case of K.Srinivas versus K. Sunita reported in
(2014) 16 SCC 34.
[5.4] After referring to these decisions, Mr. Joshi, learned
advocate has submitted that in the absence of any irregularity
or perversity of any nature, the impugned order may not be
disturbed in the interest of justice.
[6) As against this, Mr. B. J. Trivedi, learned advocate
appearing for the appellant has then submitted that if the salary
of both the appellant and respondent are to be considered, there
is a stiff difference and the very fact that respondent has
administered cruelty is reflecting a mind set which itself
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tantamounts to a clear example of cruelty. So ultimately, a
request is made to modify the decree which has been passed in
so far as allegations are concerned and put an end for give
quietus to the litigation between the appellant and respondent
by fixing lump sum amount of permanent alimony and for that
has also submitted that though an attempt was made by the
Court to determine an amount, but to some extent the gap was
not possible to be breach but the Hon'ble Court can certainly
exercise the jurisdiction in this regard and has left it to the
discretion of the Court to pass suitable order in the interest of
justice.
[7] Having heard the learned advocates appearing for the
respective parties and having gone through the material on
record before arriving at a conclusion, few aspects are not
possible to be ignored by this Court.
[8] The respondent herein who submitted the proceedings
under Section 13 of the Hindu Marriage Act before the learned
Family Court, Vadodara which proceedings have been opposed
by the present appellant by making certain averments in the
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written statement at Exh.60 which is reflecting on page 66 of
petition compilation. It was emphatically denied that the
allegation about present appellant keeping suspicion over the
opponent - original applicant with other lady friends were
specifically denied. In fact it has been asserted that on account
of ill-treatment and torture to the appellant, she was being ill-
treated not only by the respondent herein but by the parents as
well. Paragraphs 12, 13 & 14 are such specific assertion. It has
further been the case that on 05.09.2011 when the phone call
came by some lady upon the respondent when inquired into or
ask for the respondent - husband has ill-treated the appellant
and mentally tortured to that extent that she was constrained to
put an end to the life which is resulted into taking phenyl in the
morning on 10.09.2011. On account of such incident in
question, she was taken to the dispensary of Dr. Dixit, the family
doctor where when the health deteriorated further she was
admitted in Dev Multi Specialty Hospital, wherein Dr. Parag
Rana has treated the appellant for a period of three days. At
that juncture, the respondent herein has requested not to file
complaint with regard to this incident else he would lose his job.
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It is only on account of such persistent nothing further was
precipitated. Again, it has specifically asserted in paragraph 17
of the reply that there was a demand of gold from the appellant
and on account of such grievance, the appellant was drifted by
physically torturing on 17.04.2012 at about 10.30 p.m. and she
was compelled to sit at a gate of the society up to 11.45 p.m.
Again she was persuaded not to do anything and again another
incident took place on 05.09.2013 wherein the respondent has
given fist below as well as below on stomach and has
administered a friend which has again constrained the appellant
to drink phenyl but at this juncture, she was not taken to the
hospital by the husband and throughout at night the appellant
had to vomit and by such incident also, no circumstance
improved against the appellant by respondent. This is the
manner in which ill-treatment has been specifically asserted on
oath by present appellant.
[9] Again a further reading of written statement would
indicate that there was a demand of car in addition to gold as
stated above and when a second hand Ford IKON Car bearing
registration No. GJ1KS7813 was purchased in the name of
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respondent by giving him, he wanted a patty pack brand new
car and on that issue also, she was ill-treated and then left the
matrimonial home on 23.11.2013. It was noticed later on by the
appellant that he has gone to the house of his sister Hansaben
at Ahmedabad for a period of 17 days and this was with an
intent that ultimately she would leave the matrimonial house.
So much so that again he went away from the home and resided
as a paying guest in one Mrudang Society and this is the
manner in which specifically it has been attributed that ill-
treatment was persistent from the side of present respondent
towards the appellant. This version appears to have been
substantiated from a deposition on record of the appellant. If
these assertions are to be tested on the touch stone of evidence
on record except their denial by the respondent, there appears
to be nothing much concrete and still surprisingly the learned
trial Judge has concluded that there was cruelty on the part of
the appellant towards the respondent which has constrained the
Court to pass an order of dissolution of marriage. This finding
appears to be perverse to the record as it reflects a clear non
analysis of evidence on record.
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[10] Further a perusal of cross examination, reflecting on type
page No.118(A), would also include certain aspects which rather
supports the case of the appellant and as such if overall material
to be looked into, it appears that the conclusion arrived at on
the issue of cruelty appears to be reflecting a non application of
mind on the part of the learned trial Judge. Even the evidence
of father, namely, Anantbhai Ratilal Makwana at Exh.57 is also
to some extent supports the version. Hence, the conclusion
arrived at by the learned trial Judge on the issue No.1 is found
to be not germane.
[11] Additionally, a perusal of the reasons which are assigned
by the Court below would clearly further indicate that the
petition which has been brought by the respondent is mainly on
two issues; (i) the desertion; and (ii) cruelty. However, the
learned trial Judge has specifically found from the material on
record that the issue of desertion is quite premature since two
years period is not getting completed and therefore, it was
specifically held that the respondent herein is not entitled to get
the divorce on the ground of desertion. Thereafter, in a laconic
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manner the issue of cruelty is dealt with by the Court and
without much discussion on it in paragraph 15, it has been
submitted that respondent herein has proved that the present
appellant has subjected cruelty with him and as such though he
has not proved the issue of desertion, he is entitled to get the
dissolution of marriage on the issue of cruelty. Now, as
discussed above, the issue of cruelty is not properly appreciated
nor concluded and the reasons which are assigned are not in
consonance with the material on record. Hence, we are of the
opinion that the order passed by the learned trial Judge is not
sustainable in the eye of law.
[12] In respect of the issue relating to permanent alimony, as
discussed in paragraph 15 onward, the learned Judge has
considered the income criteria of both appellant as well as
respondent and on the basis of available material on record in a
laconic manner again denied the permanent alimony mainly on
the ground that the appellant suppressed material fact as she
was a regular appointee. In the absence of proper material on
one hand, the learned trial Judge has submitted that the
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appellant has suppressed the material fact whereas on the other
count, a mere admission of Rs.34,000/- is believed and thereby
permanent alimony is refused to the present appellant. When a
dissolution marriage is taking place at the instance of the Court
one of the most relevant circumstance is the permanent alimony
since law is settled that the wife is also equally entitled to leave
according to the status in which the husband is residing. Now
here though it was specifically concluded that salary of the
respondent husband is more than the wife as is evident, but
then, refusal oughtrightly the permanent alimony on a ground
which is not supported by material is erroneous in our
considered opinion and therefore, qua that issue we deem it
proper to examine the matter further.
[13] During the course of hearing, when the matter was heard
and issue with regard to income was projected by the learned
advocates and the learned advocates have thereafter placed on
record the respective salary slips for the current years
undisputedly the present appellant is working in Industrial
Trading Institute, Gandhinagar and her salary bill of November,
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2023 is reflecting that she is actually receiving an amount of
Rs.42,922/- "in the column actually pay" whereas the husband
i.e. respondent herein is serving as a Junior Telecom Officer
(Regular - Telecom Services) and according to his pay slip for
the month of November, 2023 indicates that he is drawing
salary is of Rs.1,29,813/-. On account of deduction, the take
home pay is reflecting as Rs.76,481/-, but nonetheless these
slips which are produced voluntarily by the learned advocates
appearing for the respective sides indicate that practically
husband is having approximately almost double the salary then
the wife is earning. So in view of the principle, the wife is also
equally entitled to the same comforts in the life, the same
security and leaving standard should be as per the status of the
husband, it appears that non granting of permanent alimony to
the appellant wife would be a clear injustice and as such we are
of the considered opinion that the appellant deserves the
permanent alimony if ultimately the dissolution of marriage
decree is to be sustained.
[14] As we have brought to the notice by learned advocates of
both sides that on account of serious rift between the appellant
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and the respondent and irretrievable breakdown of the marriage
has resulted and both the appellant and respondent are residing
since number of years at one point of time during the course of
hearing, we tried to persuade both the appellant and respondent
to re-join the matrimonial life, but having due deliberation by
both the parties in presence of their advocates it has been found
that the same is impossible and both practically have decided
and determined not to re-join the matrimonial life and as such
we found that irrespective of the conclusion on the order which
has been impugned the marriage ultimately has been broken
down irritably.
[15] Now in view of these circumstances, a broad submissions
were made by the learned advocates that since the appellant
and respondent are not in a position to reside together and it is
practically impossible to sustain the marriage life have
requested that instead of setting aside the impugned order the
same be modified by fixing some lump sum amount and
irrespective of allegations inter se the order impugned may be
modified.
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[16] Since this is the situation emerged before us we took into
consideration the proposition and the approach found from the
decision delivered by Hon'ble Apex Court and come to the
conclusion to modify the impugned order instead of setting
aside the entire order. Since we have adopted such course of
action on the basis of proposition, we deem it proper to quote
hereunder the relevant observations contained in the decision
delivered by the Hon'ble Apex Court in the case of Rajnesh
versus Neha reported in AIR 2021 SC 569 wherein Hon'ble
Apex Court has made certain observations on the issue of
permanent alimony as well as on the issue as to fix an amount of
maintenance when the wife is earning to some income. We
deem it proper to quote hereunder since we have considered
the same:-
"(k) A professional Marriage Counsellor must be made
available in every Family Court.
Permanent alimony
(i) Parties may lead oral and documentary evidence with
respect to income, expenditure, standard of living, etc. before
the concerned Court, for fixing the permanent alimony
payable to the spouse.
(ii) In contemporary society, where several marriages do not
last for a reasonable length of time, it may be inequitable to
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direct the contesting spouse to pay permanent alimony to the
applicant for the rest of her life. The duration of the marriage
would be a relevant factor to be taken into consideration for
determining the permanent alimony to be paid.
(iii) Provision for grant of reasonable expenses for the
marriage of children must be made at the time of
determining permanent alimony, where the custody is with
the wife. The expenses would be determined by taking into
account the financial position of the husband and the customs
of the family.
(iv) If there are any trust funds / investments created by any
spouse / grandparents in favour of the children, this would
also be taken into consideration while deciding the final child
support.
7-III Criteria for determining quantum of maintenance
(i) The objective of granting interim / permanent alimony is to
ensure that the dependant spouse is not reduced to
destitution or vagrancy on account of the failure of the
marriage, and not as a punishment to the other spouse. There
is no straitjacket formula for fixing the quantum of
maintenance to be awarded.
The factors which would weigh with the Court inter alia are
the status of the parties; reasonable needs of the wife and
dependant children; whether the applicant is educated and
professionally qualified; whether the applicant has any
independent source of income; whether the income is
sufficient to enable her to maintain the same standard of
living as she was accustomed to in her matrimonial home;
whether the applicant was employed prior to her marriage;
whether she was working during the subsistence of the
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marriage; whether the wife was required to sacrifice her
employment opportunities for nurturing the family, child
rearing, and looking after adult members of the family;
reasonable costs of litigation for a non-working wife.
(c) Where wife is earning some income
The Courts have held that if the wife is earning, it cannot
operate as a bar from being awarded maintenance by the
husband. The Courts have provided guidance on this issue in
the following judgments.
In Shailja & Anr. v Khobbanna,39 this Court held that merely
because the wife is capable of earning, it would not be a
sufficient ground to reduce the maintenance awarded by the
Family Court. The Court has to determine whether the
income of the wife is sufficient to enable her to maintain
herself, in accordance with the lifestyle of her husband in the
matrimonial home.
40 Sustenance does not mean, and cannot be allowed to
mean mere survival.
In Sunita Kachwaha & Ors. v Anil Kachwaha 42 the wife had
a postgraduate degree, and was employed as a teacher in
Jabalpur. The husband raised a contention that since the wife
had sufficient income, she would not require financial
assistance from the husband. The Supreme Court repelled
this contention, and held that merely because the wife was
earning some income, it could not be a ground to reject her
claim for maintenance.
The Bombay High Court in Sanjay Damodar Kale v Kalyani
Sanjay Kale43 while relying upon the judgment in Sunita
Kachwaha (supra), held that neither the mere potential to
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earn, nor the actual earning of the wife, howsoever meagre,
is sufficient to deny the claim of maintenance.
An able-bodied husband must be presumed to be capable of
earning sufficient money to maintain his wife and children,
and cannot contend that he is not in a position to earn
sufficiently to maintain his family, as held by the Delhi High
Court in Chander Prakash Bodhraj v Shila Rani
Chander (2018) 12 SCC 199. See also Decision of the
Karnataka High Court in P. Suresh v S. Deepa & Ors., 2016
Cri LJ 4794. Chaturbhuj v Sita Bai, (2008) 2 SCC 316. Vipul
Lakhanpal v Smt. Pooja Sharma, 2015 SCC OnLine HP 1252.
(2014) 16 SCC 715. 2020 SCC OnLine Bom 694. Prakash. 44
The onus is on the husband to establish with necessary
material that there are sufficient grounds to show that he is
unable to maintain the family, and discharge his legal
obligations for reasons beyond his control. If the husband
does not disclose the exact amount of his income, an adverse
inference may be drawn by the Court.
This Court in Shamima Farooqui v Shahid Khan45 cited the
judgment in Chander Prakash (supra) with approval, and held
that the obligation of the husband to provide maintenance
stands on a higher pedestal than the wife."
[17] In view of aforesaid observation which has been made, we
are of the opinion that appellant wife is entitled to have an
amount of permanent alimony when the marriage is getting
dissolved.
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[18] On another judgment, which we deem it proper is quote
hereunder is the decision delivered by Hon'ble Apex Court in
the case of Amit Kumar versus Suman Beniwal reported in
(2021) SCC OnLine 1270 which judgment is considered by us
in one of the decision delivered by us on 02.11.2023 in case of
Krishnaben W/O Dhairya Dinesh Panchal versus Dharrya
Dinesh Panchal passed First Appeal No.2699 of 2023,
paragraph 11 we deem it proper to quote hereunder:-
"11. The Hon'ble Aopex Court in the case of Amit Kumar Vs.
Suman Beniwal reported in 2021 SCC online 1270 though
observed that the institution of marriage is to be saved by
preventing hasty dissolution of marriage, but at the same
time once the parties have separated and separation has
continued on account of irretrievable break down since last
seven years, in such a situation the Apex Court taking the aid
of judgment reported in the case of Naveen Kohli (supra) has
also find otherwise that once the marital bond between the
husband and wife is come to irretrievably break down, then
in that circumstance, without litigating further if the parties
have come to an amicable settlement and mutually agreed to
give up their marital rights and to divorce from the marital
relationship, the same is not against the law."
[19] Additionally the decisions delivered by the Hon'ble Apex
Court in the cases of Naveen Kohli vs. Neelu Kohli reported
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in 2006 (4) SCC 558, Shilpa Sailesh vs. Varun Sreenivasan
reported in 2023 SCC online SC 544, Smt. Roopa Soni vs.
Kamal Narayan Swami reported in 2023 6 SCALE 402, and
Dr. Nirmal Singh Panesar Vs. Paramjit Kaur Panesar
allias Ajinder Kaur Panesal reported in 2023 SCC online SC
1297 have also been considered by us while taking the view in
present proceedings and with a view to avoid unnecessary
burden of present order, we without quoting the observations
deem it proper to refer these aforesaid judgments while
disposing of present proceedings.
[20] In view of aforesaid proposition of law and in view of the
circumstances prevailing on record, when it is noticed by us
that marriage is completely broken down and there is no
possibility of restoration of marriage life between the appellant
and the respondent, we are of the opinion that present
proceedings are required to be disposed of in a larger interest
of justice and to give quietus to the litigation inter se between
the parties, we are of the opinion that permanent alimony in the
lump sum is required to be fixed while confirming the decree of
dissolution of marriage. We hereby also not approved the
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allegation and counter allegation made by both the parties to
the proceedings since the proceedings are to be terminated by
passing a modified order.
[21] During the course of deliberation, we found that the
appellant and respondent have stuck up to a particular figure
and the appellant wife wanted approximately an amount of
Rs.15,00,000/- since there was an issue with regard to stridhan,
whereas, the respondent husband had conveyed that beyond an
amount of Rs.7,50,000/-, the respondent is either unable or not
inclined to proceed ahead. So in this situation, comparing with
the latest salary slips which have been voluntarily produced
before us and in the context of overall discussion, keeping in
view the best interest of both, the appellant and respondent and
to put the quietus to the litigation, we are of the opinion that
Rs.12,50,000/- is an amount which deserves to be paid to the
appellant by way of permanent alimony, while confirming the
decree of desolation of marriage. Hence, to this extent the
order impugned is required to the modified while disposing of
present appeal. Hence, following order would meet the ends of
justice:-
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(i) The impugned order dated 16.04.2019 is hereby modified
by observing that marriage solemnized on 06.05.2011 between
appellant - Pratikshaben, daughter of Anantbhai Ratilal
Prajapati and respondent - Kalpeshbhai Bhagwanbhai Jesalpura
stands dissolved from the date of passing of present order and
as a consequence thereof the respondent is required to pay a
permanent alimony to the appellant to the extent of
Rs.12,50,000/- and the same shall be paid within a period of
THREE WEEKS from now.
(ii) Present First Appeal is partly allowed.
(iii) Since the main First Appeal is partly allowed, connected
Civil Application stands disposed of accordingly.
(iv) Parties to bear their own cost. Decree to the aforesaid
extent to be drawn accordingly.
Sd/-
(ASHUTOSH SHASTRI, J.)
Sd/-
(HEMANT M. PRACHCHHAK, J.)
DHARMENDRA KUMAR
