Ganga Bai vs Ramchandra
2022 Latest Caselaw 12221 MP

                           -1-


IN THE HIGH COURT OF MADHYA PRADESH AT INDORE
                         BEFORE
            HON'BLE SHRI JUSTICE VIVEK RUSIA
                               &
      HON'BLE SHRI JUSTICE AMAR NATH (KESHARWANI)


             FIRST APPEAL No. 298 of 2003

      BETWEEN:-
      GANGA BAI W/O RAMCHANDRAJI, AGE - 33
      YEARS, OCCUPATION - HOUSEWIFE, RESIDENT OF
      VILLAGE - MUNDLA, TEHSIL - SITAMOU,
      DISTRICT - MANDSAUR (MADHYA PRADESH)
                                         .....APPELLANT
      (BY SHRI SANJAY SHARMA, ADVOCATE)

      AND
      RAMCHANDRA S/O SHANKARLALJI, OCCUPATION
      - AGRICULTURE, TAILORING & BUSINESS, R/O
      VILLAGE - TITORD, TEHSIL - SITAMOU, DISTRCIT
      - MANDSAUR (MADHYA PRADESH)
                                     .....RESPONDENTS
      (BY MS. VAISHALI JAIN, ADVOCATE)
____________________________________________________
      Reserved on          :       8th of September, 2022
      Delivered on         :       14th of September, 2022
____________________________________________________
      This appeal coming on for final hearing this day,
JUSTICE VIVEK RUSIA passed the following:
                     JUDGMENT

The appellant has filed this appeal under Section 28 of the Hindu Marriage Act against the judgment and decree dated 16.05.2003 passed by the III Additional District Judge, Mandsaur, in HMA Case No.36/1994, whereby the appellant has not been held entitled for payment of maintenance and permanent alimony and the suit filed under Section 10 of the Hindu Marriage Act has been dismissed.

The facts of the case in short are as under:-

02. The marriage of appellant and respondent was solemnized on 21.05.1974. Out of the said wedlock, the appellant gave birth to a child namely Radhabai. Since 1997, they are living separately. According to the appellant, at the time of marriage, sufficient amount of gold, silver and cash was given to the respondent / husband, but after two years, he kept all the gold and silver ornaments and deserted her. Since then, she is living with her brother.

03. The history of litigations between parties is as under:- 3.1. The appellant filed a suit i.e. Civil Suit No.69A/1979 on 21.04.1979 under Section 9 of the Hindu Marriage Act seeking restitution of conjugal rights. A compromise deed was filed in the said suit by the parties, in which they said to have decided to live separately and the appellant agreed to receive Rs.3,000/- as permanent alimony for herself and her daughter. Accordingly, the civil suit was dismissed on 19.06.1979 as the parties are not interested to pursue further.

3.2. Simultaneously, the appellant also filed an application under Section 125 of the Code of Criminal Procedure, 1973 before the Civil Judge, Class - II, Sitamou, District - Mandsaur claiming interim maintenance of Rs.100/- per month for her and Rs.50/- for her daughter. The said case was registered as MJC No.26/1979. On 01.08.1990, both the parties stated that they do not want to continue with the case and the same was accordingly dismissed. 3.3. The respondent filed a suit under Section 13 of the Hindu Marriage Act in the month of November 1985 seeking divorce on the basis of the above compromise. The said suit was registered as Civil Suit No.22/1986. The present appellant appeared and filed the written statement specifically denying the compromise and receipt of maintenance of Rs.3,000/- as permanent alimony. According to her, she is an illiterate lady and without her knowledge, the counsel filed an application and got the suit dismissed on the basis of compromise The said suit was dismissed in default on 14.07.1987 due to the non-appearance of the respondent.

3.4. The appellant also filed an application under Section 9 of the Hindu Marriage Act on 21.04.1989 which was registered as HMA Case No.26/1989. On 10.04.2019, conciliation took place but failed.

3.5. After the aforesaid litigation between the parties, the appellant approached the District Court by way of an application under Section 10 of the Hindu Marriage Act seeking judicial separation with the respondent and for permanent alimony @

Rs.3,000/-. This case was filed on 28.02.1994 and registered as HMA Case No.36/1994. In the said case, the appellant has alleged that no divorce has taken place with the respondent till date and despite that, the respondent has married with Ms. Kari Bai which gave the cause of action to her for filing the present suit. In the suit, the appellant has specifically denied that any compromise took place on 19.06.1979. According to her, she is an illiterate lady and without her knowledge, the counsel filed an application and got the suit dismissed on the basis of compromise. Along with the aforesaid suit, the application under Sections 24 & 26 of the Hindu Marriage Act was also filed seeking maintenance of Rs.800/- per month with litigation expenses.

3.6. The respondent appeared and filed a written statement denying the averments made in the plaint and the second suit is not maintainable for the purpose of maintenance when the earlier proceedings have come to an end based on a compromise arrived at between the parties. The appellant and respondent examined and got exhibited the documents based on pleadings and vide impugned judgment dated 31.03.1997, the Additional District Judge has granted decree under Section 10 of the Hindu Marriage Act but dismissed the claim for maintenance based on compromise held in the year 1979.

04. Being aggrieved by the aforesaid judgment and decree, the appellant approached this Court by filing F.A. No.206 of 1997. Vide order dated 22.10.2002, this Court found that questions

regarding compromise in the earlier suit or proceeding between the parties have been adjudicated and considered by the trial Court, therefore, these questions need to be considered afresh after examining the record and documents, hence, remanded the matter back to the trial Court for fresh decision and grant of maintenance and permanent alimony.

05. After remand, the appellant and respondent were again cross-examined at length and after evaluating the evidence that came on record, again vide judgment dated 06.05.2003, the learned Court has rejected the claim for permanent alimony and maintenance on the basis of earlier compromise. Hence, the present appeal is before this Court.

Submissions of the counsel for the appellant/wife

06. Shri Sanjay Sharma, learned counsel for the appellant submits that on both occasions, the learned trial Court has failed to appreciate that there cannot be a compromise for Rs.3,000/- as permanent alimony for the young mother and minor daughter for the entire life. The appellant is an illiterate lady and the aforesaid compromise was obtained by playing fraud, therefore, the same is not binding upon the appellant. Learned counsel further submits that no decree was passed and on the basis of the said compromise only, the suit was dismissed as not pressed, therefore, res judicata will not apply between the parties. The appellant and the respondent are still in a marital relationship. Learned counsel further submits that in case of maintenance, there cannot be a plea

of estoppel or res judicata because Section 27 of the Hindu Marriage Act grants liberty to either party to apply for maintenance even after divorce or enhancement of maintenance or alimony granted earlier. The appellant has performed the marriage of her daughter with the help of her brother and borrowed Rs.60,000/- for the marriage, which she has to return to her brother. She has also denied the acceptance of Rs.3,000/-. The respondent did not contribute to the marriage. Now she reached the age of more than 50 years with no source of income. She cannot be dependent on her brother for her remaining life. Hence, the judgment is liable to be set aside and the appellant be granted the benefit of permanent alimony or monthly maintenance.

Submissions of the counsel for the respondent/husband

07. Ms Vaishali Jain, learned counsel for the respondent has argued in support of the impugned judgment by submitting that based on compromise, not only the suit filed under Section 9 of the Hindu Marriage Act has been dismissed, but proceeding under Section 125 of the Cr.P.C. were also closed, therefore, it cannot be said the fraud was played upon the appellant. In all the proceedings, she was present and with her consent, the proceedings of both the cases were closed and at that time not only Rs.3,000/- was given, but all the gold and silver ornaments were returned to her in the year 1979. The present suit is nothing but an afterthought when the respondent has performed the second marriage. Now he has family and he is the sole earning member and not in a position

to pay alimony to the appellant. Hence, the present appeal is liable to be dismissed as the appellant is stopped from claiming permanent alimony or maintenance from the respondent. Heard the submissions and appreciation

08. The appellant filed Civil Suit No.69A/1979 seeking an injunction against the respondent as he was going to perform the second marriage. She also filed an application under Section 125 of the Cr.P.C. seeking maintenance. According to the respondent, a compromise deed was filed before the Civil Judge, Class - II in Civil Suit No.69A/1979. The appellant in her evidence has admitted the filing of compromise but denied its content. According to her, it was not read over to her before giving its effect. It was prepared by the advocate as she is an illiterate lady. In our opinion, if the learned Civil Court was willing to accept the compromise, then ought to have recorded the evidence in support of the said compromise. The compromise was executed on 16.06.1979 and 19.06.1979 and the parties stated that on the basis of the compromise, they are not willing to prosecute the case. The compromise was not made part of the final order, therefore, no judgment of dissolution of marriage was passed and the decree was drawn on the said compromise. Only the suit was not pressed. After some time, vide order dated 01.08.1991, a similar statement was made before the Magistrate and the proceedings of Section 125 of the Cr.P.C. were closed. The marital relationship between the parties did not come to an end.

09. According to the respondent, after the said compromise, they were separated and permitted to go for second marriage. If this was a compromise for a divorce between them, then a decree of divorce ought to have been passed with permanent alimony. As held above based on this compromise, only the suit was not pressed, in which only an injunction was sought against the respondent, therefore, despite the execution of that compromise, no decree of divorce or grant of permanent alimony was passed between the parties. Therefore, the respondent approached the District Court by way of an application under Section 13 of the Hindu Marriage Act seeking a divorce from the appellant and the case was registered as HMA Case No.22/1986 in the year November 1985. In the said suit, the appellant filed a written statement specifically denying the fact of execution of the compromise deed and acceptance of Rs.3,000/-. The said suit was dismissed in default on 14.07.1987, therefore, it is obvious that the compromise was never taken as the decree of divorce and grant of permanent alimony or maintenance between the parties. Therefore, the respondent had to file a suit for divorce and the appellant had to file a suit for judicial separation under Section 10 of the Hindu Marriage Act and maintenance, as the marriage was not dissolvedm hence, the learned Court has wrongly held that the said compromise binds the appellant from not claiming the alimony or maintenance from the respondent as the same has a status of the decree.

10. We have gone through the examination-in-chief and cross- examination of the respondent recorded before and after the remand of the matter by this Court. He denied filing a petition under Section 13 of the Hindu Marriage Act for divorce and when he was confronted with the signature (Ex-P/4), then he admitted that he filed a petition for divorce on 24.10.1985. He has also admitted that when he performed the second marriage, an F.I.R. under Sections 494, 109/34 of the Indian Penal Code was lodged. He has denied that Radhabai is not his daughter and she is the daughter of the appellant from another person, hence, he would not pay any maintenance. Upon asking, he admitted for the first time, he made this statement before this Court. He has also stated to the extent that after compromise, the appellant - Ganga Bai could have married ten times. We condemn the aforesaid conduct of the respondent. His intentions are not bonafide. He deserted the appellant without there being any reason and performed second marriage without divorce, therefore, the appellant had to file an application under Section 10 of the Hindu Marriage Act seeking judicial separation. He never opposed the judicial separation on the ground that divorce has taken place by way of compromise. He has happily accepted the order of judicial separation. The compromise is a composite deed when the respondent did not accept it as divorce, then he cannot take a plea that the maintenance was part of the compromise and binding upon the appellant, therefore, the judgment and decree dated 16.05.2003 is hereby set aside.

Relief to the appellant

11. By way of interim maintenance, the appellant is getting Rs.1,500/- per month. The aforesaid order was passed on 19.01.2004 which deserves to be enhanced. Hence, the amount of maintenance is enhanced from Rs.1,500/- per month to Rs.3,000/- per month from today. Since the appellant has performed the marriage of her daughter by borrowing money from her brother and the said fact has not been controverted in the evidence, therefore, by way of permanent alimony she is entitled to get Rs.1,00,000/- (Rupees One Lakh Only) from the appellant.

The present First Appeal stands allowed to the extent indicated above and a decree be drawn.

Record of the trial Court be sent back.

      (VIVEK RUSIA)                              (AMAR NATH (KESHARWANI))
        JUDGE                                            JUDGE
Ravi
Digitally signed by RAVI PRAKASH
Date: 2022.09.15 11:53:30 +05'30'