Madhya Pradesh High Court
Kanti Tiwari vs Raj Kishore Tiwari on 18 March, 2021
Author: Prakash Shrivastava
1
THE HIGH COURT OF MADHYA PRADESH
FA-340-2019
(KANTI TIWARI Vs. RAJ KISHORE TIWARI)
JABALPUR
DATED : 18.03.2021
Shri Parag S. Chaturvedi, learned counsel for the appellant.
Shri Shiv Kumar Dubey, learned counsel for the
respondent.
Heard finally with consent.
By this appeal under Section 19 of the Family Court Act
read with Section 28 of the Hindu Marriage Act, 1955, the
appellant-wife has challenged the judgment and decree of the
Trial Court dated 30.01.2019 whereby the Trial Court has decreed
the suit for divorce filed by the respondent-husband and directed
payment of permanent alimony of Rs.2 Lakhs to the appellant.
2. The respondent had filed the petition under Section 13 of
the Hindu Marriage Act for divorce with the plea that the
marriage between the parties was solemnized on 11.06.1992.
After five years, in June 1997 the appellant had come to the
house of the respondent for the first time after duragman and
thereafter she had lived with the respondent for 10 days but she
was reluctant to establish relationship as wife and thereafter she
had gone back to her parental house. After 5-6 months the
appellant had again come to the respondent but the attitude of the
appellant did not change and the stand of the appellant was that
since the respondent is not acceptable to her as a husband,
therefore, she will not permit consummation of marriage. The
behaviour of the appellant was quarrelsome and she used to go to
her parental house without informing anyone and in September,
2009 she had gone to her parental house by leaving the
respondent. She had also filed C.S. No.164-A/2012 as next friend
alleging the respondent to be mentally deformed and attempted
to get the land in her name, which was dismissed. It was alleged
that the behaviour of the appellant towards the respondent was
cruel.
3. The appellant had filed the reply to the divorce petition and
had raised the plea that the respondent was mentally ill and the
appellant was performing the duties as wife and was taking care
of the family members of the respondent. It was further alleged
that the mental illness of the respondent was gradually increasing,
therefore, his father and brother were trying to grab his land and
they used to prompt the respondent to mistreat the appellant and,
therefore, the appellant was not feeling safe and she had gone to
her parental house. It was further alleged that to get rid of the
appellant, the present divorce petition was filed.
4. The Trial Court by permitting the parties to lead evidence
and after examining the same has found that the behaviour of the
appellant towards the respondent was cruel and the appellant had
left the respondent two years prior to filing of the suit without
any justifiable reason. The Trial Court has further found that the
respondent was having earning from 3 acres of land, therefore,
considering the entire circumstances, the Trial Court has directed
the respondent to pay a sum of Rs.2 Lakhs to the appellant as
permanent alimony.
5. Learned counsel for the appellant has not advanced any
argument as regards the other findings arrived at by the Trial
Court but has confined his argument to the issue of permanent
alimony. The submission of learned counsel for the appellant is
that since the respondent has about 5 acres of land, which is a
valuable land and has substantial earning from that land,
therefore, the appellant should be awarded at least Rs.20 Lakhs as
permanent alimony.
6. Learned counsel for the respondent has opposed the prayer
and has submitted that the respondent hardly has 3 acres of land
and the earning from the said land is not enough, therefore, the
permanent alimony which is awarded by the Trial Court is
adequate.
7. We have heard the learned counsel for the parties and
perused the record.
8. Since the arguments in this appeal are confined only to the
question of permanent alimony, therefore, this Court need not
examine the finding which has been recorded by the Trial Court
in respect of the cruel behaviour of the appellant and desertion of
the appellant on the basis of which the decree of divorce has
been passed.
9. So far as the issue of permanent alimony is concerned, the
record reflects that in his cross-examination dated 23.07.2018 the
respondent had disclosed that his father had 25 acres of land,
which has been partitioned and 5 acres of land is in the name of
the respondent. In the subsequent affidavit dated 25.10.2018 he
had stated that he had only 2-3 acres of unirrigated land. The
admission made in the cross-examination dated 19.01.2019
reveals that the said land is a valuable land. The statement of the
appellant in the affidavit in chief dated 22.01.2019 is that the
respondent has more than 5 acres of land in the city of Rewa but
in para 20 of the cross-examination she had deposed about the
lesser area of land.
10. Having regard to the extent of land, which is available with
the respondent and also the fact that the land is situated within
the city of Rewa and the substantial value of the land, which is
admitted by the respondent in para 6 of his cross-examination
dated 19.01.2019 and also considering the facts of the case, we
are of the opinion that the permanent alimony of Rs.2 Lakhs
which has been awarded by the Trial Court is on the lower side.
Considering the relevant material noted above, we are of the
opinion that it would be just and proper to award the permanent
alimony of Rs.8,00,000/- (Rupees Eight Lakhs only). Hence,
the decree of the Trial Court is partly modified and it is directed
that the appellant is entitled to receive a sum of Rs.8,00,000/-
(Rupees Eight Lakhs only) as permanent alimony with effect
from the date of judgment of the Trial Court. Let this amount be
paid within a period of two months from today.
11. The first appeal is accordingly partly allowed.
C.c. as per rules.
(PRAKASH SHRIVASTAVA) (SMT ANJULI PALO)
JUDGE JUDGE
DV
Digitally signed by
DINESH VERMA
Date: 2021.03.24
16:39:56 +05'30'
