Patna High Court
Anupma Kumari vs Prabhash Kumar on 7 May, 2024
Author: P. B. Bajanthri
Bench: P. B. Bajanthri, Alok Kumar Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
Miscellaneous Appeal No.113 of 2022
======================================================
Anupma Kumari W/o Sri Prabhash Kumar, D/o Late Binod Kumar Karn
Resident of H/O NO. 12, Road No. - 10, East Patel Nagar P.S. - Shastrinagar,
District- Patna At present resident of Flat No. 102, Kalash Enclave, Professor
Colony, P.S. - Shastri Nagar, District- Patna.
... ... Appellant/s
Versus
Prabhash Kumar S/O Late Someshwar Lal Flat No. 613B Lotus Apartment
New Patliputra Colony P.S. Patliputra District- Patna.
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr.Ranjan Kumar Sinha
For the Respondent/s : Mr.Prabhash Kumar (In Person)
======================================================
CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI
and
HONOURABLE MR. JUSTICE ALOK KUMAR PANDEY
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE ALOK KUMAR PANDEY)
Date : 17-05-2024
The present appeal is directed against the
judgment dated 25.02.2022 and decree dated 26.02.2022
passed in Matrimonial Case No. 481 of 2011 by the Court of
learned Additional Principal Judge, Family Court, Patna
whereby marriage between the parties has been dissolved by
passing decree of divorce.
2. Being aggrieved by the judgment and decree
in favour of respondent against the appellant for dissolution of
marriage and it has been prayed to allow divorce in terms of
counter claim under Section 23(A) and 25 read with 27 of the
Hindu Marriage Act, 1955 as claimed by the appellant.
Patna High Court MA No.113 of 2022 dt.17-05-2024
2/15
3. Briefly stated facts of the present appeal is
that marriage of Anupma Kumari (appellant/wife) and
Prabhash Kumar (respondent/ husband) was solemnized on
09.07.2010
according to Hindu Rites and Customs in the town
of Patna. It is claimed that after marriage the appellant/wife
arrived at respondent's house but she did not find any comfort
and she insisted for separate accommodation. It is alleged that
behavior meted out to the respondent/husband was not
cordial. Respondent/husband joined his office at Mumbai
after nine days of marriage but appellant did not reciprocate
the same. It is asserted that appellant and her parents began to
pressurize the respondent for separate accommodation. It is
further alleged that father of the respondent suffered heart
attack on account of undue pressure exerted by the appellant
and her parents. On 20.07.2010 respondent's father was
hospitalized in PMCH, Patna and for better treatment he was
admitted in Max Hospital, Delhi on 27.07.2010 where
Angiography and Angioplasty was done where appellant has
not taken pain to ask the well being of the respondent's father.
On 24.10.2010, after several requests, appellant came to join
the respondent at Mumbai. It was asserted by respondent that
the appellant was misbehaving and having nagging approach
Patna High Court MA No.113 of 2022 dt.17-05-2024
over trivial matter, and she began to pressurize for separate
accommodation. On 14.11.2010, respondent's elder brother
started living separately on account of erratic behaviour and
attitude of the appellant and appellant did not co-ordinate in
handling the domestic work. On 02.04.2011 respondent's
mother was hospitalized in Kurjee Holy Family Hospital,
Patna and appellant, any how, became ready to go to Patna for
taking care of respondent's mother but she lived for two days
and went away to her father's house. On 23.05.2011 the
respondent/ husband came to his house with wife/appellant.
She did not behave well with respondent's family rather she
became discourteous and created tense atmosphere. On
04.06.2011, she came back to her matrimonial house and on
05.06.2011 the appellant threatened the respondent to
implicate in case. On 07.06.2011, she left the matrimonial
home after taking all belongings including jewellery.
4. Learned counsel for the appellant submitted
that learned Additional Principal Judge, Family Court, Patna
has passed the judgment dated 25.02.2022 and decree dated
26.02.2022 without going through the material available on
record which is not justified and legal in the eye of law. He
further submitted that appellant has already filed counter
Patna High Court MA No.113 of 2022 dt.17-05-2024
claim under Section 23 (A) and 25 read with 27 of the Hindu
Marriage Act, 1955 but the learned Family Court has not
adopted proper procedure for hearing the said counter claim
where the appellant herself seeking divorce, permanent
alimony and return of articles against the respondent and the
said counter claim has not been considered and it has been
dismissed without admitting the said counter claim on
technical ground. He further submitted that substantial cause
of justice has not been done to the appellant as she has herself
claimed that torture and misbehavior was committed against
her (appellant) from the respondent's side and
respondent/husband himself sought divorce on the same
ground in which he himself is a wrongdoer. He further
submitted that Family Court has not considered said aspect
and the said counter claim has been decided in a casual
manner without adopting proper procedure. He further
submitted that when Family Court is deciding the fate of the
marriage of both parties, it is the bounden duty of the Family
Court to decide each and every issue but the Family Court has
not gone into the depth of the matter and dismissed the
counter claim abruptly without assessing the material
available on record. He further submitted that during the
Patna High Court MA No.113 of 2022 dt.17-05-2024
course of the trial, the said counter claim has been filed and
neither ample opportunity was given to the appellant for
proving the said counter claim in the present case nor was any
issue framed in the light of counter claim with the divorce
petition which was not justified and legal for deciding the said
matter, and no substantial justice can be meted out to the
appellant. He has submitted that the concerned court has
flouted the settled proposition of law as per guideline of the
Hon'ble Supreme Court in the case of Rajnesh vs Neha and
Another that if party failed to deposit interim maintenance
amount, his evidence/defence is fit to be struck of. In said
divorce case, respondent/husband was directed to pay
Rs.1500/- per month and Rs.30,000/- lumsum amount as
litigation cost under Section 24 of the Hindu Marriage Act
filed by the appellant vide order dated 24.02.2014 and
respondent/husband never complied the said order except
Rs.2,50,000/- (two lakhs fifty thousand only) as per direction
of the Hon'ble Supreme Court. He further submitted that the
appellant has filed written statement on 21.03.2013 in which
she has admitted the factum of marriage with the respondent
on 09.07.2010 according to Hindu Customs and Rites.
Further, she has denied the allegation of any misbehavior and
Patna High Court MA No.113 of 2022 dt.17-05-2024
discourteous attitude against the respondent/ husband and his
family members rather appellant regularly visited hospital and
took proper care of her father-in-law and she has discharged
her obligation. The appellant faced derogatory remarks from
the respondent and his family members. She stated that she
stayed at his husband's house up to 23.10.2010. Thereafter on
24.10.2010 she visited to Mumbai which is the place of
working of appellant's husband. During the said period, she
was tortured mentally and physically by the respondent and
on 19.02.2011 respondent forcibly tried to oust the appellant
from the house of the respondent in Mumbai. Further, she has
also denied the allegation that she did not take care of her
mother-in-law rather on 03.04.2011, appellant returned at her
matrimonial house for nursing and caring of the ill mother-in-
law. On 22.05.2011 on the occasion of marriage of brother-
in-law (dewar) of appellant, Vikash Kumar, the respondent's
family started humiliating her by comparing the ornament and
articles which was received by her in-laws on the occasion of
marriage of brother-in-law. On 25.05.2011, the respondent
went to Mumbai at the place of posting and threatened the
appellant to give divorce by saying "Na tumko jine dunga aur
na marne dunga, tumhari jindagi narak bana dunga" and she
Patna High Court MA No.113 of 2022 dt.17-05-2024
was not allowed to contact with the her parental family and
finally on 07.06.2011, the father-in-law abused the appellant
and appellant has been finally ousted from matrimonial house.
5. Respondent himself appeared in person. He
submitted that learned Additional Principal Judge, Family
Court, Patna has taken into account all the evidence and
pleadings for deciding the matrimonial divorce petition. He
further submitted that the learned trial court has also
appreciated the evidence of both parties and decided all the
issues which were framed by the learned Additional Principal
Judge, Family Court, Patna in the given facts and
circumstances of the case and the respondent has successfully
proved its case that cruelty has been committed by the
appellant and judgment dated 25.02.2022 and decree dated
26.02.2022 passed by learned Additional Principal Judge,
Family Court, Patna is justified and legal and hence, no
interference is needed. He further submitted that matrimonial
discord has been arisen on account of the appellant/wife
insisting the respondent/husband to live separately as
appellant was not feeling well to reside with respondent's
family. It is asserted by the respondent that appellant has not
joined matrimonial home when respondent's father suffered
Patna High Court MA No.113 of 2022 dt.17-05-2024
heart attack and she has not even served the respondent's
mother on 02.04.2011 when she was hospitalized in Kurjee
Holy Family Hospital, Patna. Further, appellant has ill treated
all the respondent's family members viz., father, mother, elder
brother. The respondent has faced intolerable and
cumbersome situation created by the appellant which
compelled him to file the divorce petition.
6. In support of present matrimonial (divorce)
petition, the respondent has adduced three witnesses in his
support and they are A.W. 1:- Vikash Kumar, A.W. 2:-
Someshwar Lal and A.W. 3:- Prabhash Kumar (respondent
himself). Besides this the respondent relied on some
documentary evidence. On the other hand, the appellant has
also adduced two witnesses in support of the said petition,
they are O.P.W 1:- Vinod Kumar Karn and O.P.W. 2:-
Anupama Kumari (appellant herself) besides this, the
appellant has also relied upon some documentary evidence.
7. On the basis of pleadings of both parties,
following issues have been framed:-
(I) Whether the present suit maintainable in
present form?
(II) Whether the appellant/husband has valid
Patna High Court MA No.113 of 2022 dt.17-05-2024
cause of action for filling the present petition?
(III) Whether the conduct of opposite
party/wife cruel against the appellant/husband?
(IV) Whether the appellant/husband entitled for
relief sought under the said petition?
(V) Whether the appellant/husband entitled for
any other relief or reliefs ?
8. In the light of the given facts and
circumstances of the present appeal, it is crystal clear that
judgment dated 25.02.2022 and decree dated 26.02.2022
passed by learned Additional Principal Judge, Family Court,
Patna against the appellant on the ground of cruelty. The
contention of learned counsel for the appellant is that
respondent has already filed Matrimonial Case No. 481 of
2011 and appellant has filed counter claim and the said
counter claim has not been taken into account and the same
has been dismissed on the basis of technical ground. It has
been stated that appellant has not committed cruelty against
the respondent rather respondent was himself liable for
committed cruelty against the appellant.
9. It has become settled rule that no one is
allowed to take advantage on his own "wrong" in terms of
Patna High Court MA No.113 of 2022 dt.17-05-2024
section 23 A for the purpose of gaining relief of divorce but
court is bound to refuse such relief if person who is seeking
relief is guilty of wrong doing and in the case of Hirachand
Srinivas Managaonkar Vs. Sunanda reported in (2001) 4
SCC 125, the Hon'ble Supreme Court has observed that
"Divorce under Section 13(1-A), held, can be granted only if
conditions stipulated in Section 23(1)(a) are satisfied -
Therefore, if court finds that a person is attempting to take
advantage of his own "wrong", in terms of Section 23(1)(a),
for the purpose of gaining the relief of divorce, the Court is
bound to refuse such relief."
10. In the present case, the husband has filed
the petition of divorce under Section 13(1)(i-a) of Hindu
Marriage Act and simultaneously during the course of
pendency of said petition, appellant/ wife has filed petition of
counter claim under Section 23(A) and 25 read with 27 of the
Hindu Marriage Act, 1955 and she has specifically and
categorically stated that husband/respondent had committed
the act of cruelty and dessertion against her and she is entitled
to get relief in aforesaid counter claim and husband has
lucrative job in Mumbai and she has no independent source of
income and the counter claim of the appellant/ wife has been
Patna High Court MA No.113 of 2022 dt.17-05-2024
dismissed mechanically without admission. The
appellant/wife was being deprived to prove the counter claim
by providing material information which is required in given
facts and circumstances of the case and the contention of
learned counsel for the appellant is quite obvious that the
direction of the concerned court regarding the interim
maintenance has already been flouted and has not been
complied but the concerned court has not taken into account
the non-complying attitude of the respondent/husband so as to
strike of his defence or evidence of the respondent.
11. From the perusal of order sheet dated
25.09.2019, it is crystal clear that counter claim dated
09.03.2016 has been rejected broadly on two issues. Firstly,
the counter claim filed on behalf of the appellant/wife has not
been pressed as on 30.05.2016 after hearing the both parties,
issues have been framed by the Additional Principal Judge,
Family Court, Patna and record has been put up on evidence
and appellant has never pressed her counter claim for
admission and another reason which is cited by the
Additional Principal Judge, Family Court, Patna is that when
the said counter claim would be taken into account, it would
be hurdle for expeditious disposal of the present divorce
Patna High Court MA No.113 of 2022 dt.17-05-2024
petition. Both reasons cited by the Additional Principal Judge,
Family Court, Patna is neither tenable nor sustainable to
mitigate the substantial cause of justice for which the law is
made. In this way, order passed by the Additional Principal
Judge, Family Court, Patna is sketchy order which lacks
sound reasoning and the substantial cause of justice cannot be
evaporated by merely technical ground. In this way, order
dated 25.09.2019 passed by the Additional Principal Judge,
Family Court, Patna is hereby set aside.
12. For ensuring timely disposal of application
seeking maintenance under all the applicable statutes viz
Section 125 of Cr.P.C. permanent alimony under Hindu
Marriage Act and so on and in this case the Hon'ble Supreme
Court has given clear cut guideline how to determine the
quantum of maintenance and objective of granting
interim/permanent alimony is to ensure that the dependent
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.
13. Hon'ble Supreme Court in the case of
Rajnesh Vs. Neha and Another reported in (2021) 2 SCC
Patna High Court MA No.113 of 2022 dt.17-05-2024
324 has given Format how the assets and liabilities of the
parties are to be submitted and the same has been provided in
the format of enclosure in the last portion of judgment. In
Para 134 of the judgment, it has been clearly mentioned that
the copy of judgment be communicated by the Secretary
General of this Court, to the Registrars of all High Courts,
who would in turn circulate it to all the District Courts in the
States. It shall be displayed on the website of all District
Courts / Family Courts/ Courts of Judicial Magistrates for
awareness and implementation. It has been clearly mentioned
that Criminal Appeal No. 730 of 2022 (Rajnesh Vs. Neha
and Anr.) has been decided on November 4, 2020 and the
present Miscellaneous Appeal No. 113 of 2022 has been
decided by learned Additional Principal Judge, Family Court,
Patna on 25.02.2022 but learned Additional Principal Judge,
Family Court, Patna has not taken into account assets and
liabilities of both the parties as communicated in the
observation made by the Hon'ble Supreme Court's decision
Rajnesh vs Neha and Another (supra).
14. Keeping in view of the aforesaid facts and
circumstances of the present case, we are not going to make
any comment on the merit of the case but we are only
Patna High Court MA No.113 of 2022 dt.17-05-2024
expressing our views that learned Additional Principal Judge,
Family Court, Patna has not decided the counter claim in the
similar way by providing ample opportunity to both the
parties as learned Additional Principal Judge, Family Court,
Patna while deciding the petition under Section 13(1)(i-a)
filed by the respondent/husband, giving ample opportunities
to both the parties for reaching out to the particular
conclusion. In another words, said approach has not been
followed by the family court while deciding the counter claim
of appellant. So, moot point to decide all issues decided in the
present divorce petition alongwith the counter claim which
has not been decided by giving ample opportunities to both
the parties before passing final order keeping in view of the
guideline by Hon'ble Supreme Court in the case of Rajnesh
vs Neha and Another (supra).
15. There is no need to pass any order on the
merit of the case as counter claim has not been decided
alongwith issues as arisen from present divorce case by the
learned Additional Principal Judge, Family Court, Patna.
Keeping in view, the facts and reasons discussed in forgoing
paragraphs, the judgment dated 25.02.2022 and decree dated
26.02.2022 passed in Matrimonial Case No. 481 of 2011
Patna High Court MA No.113 of 2022 dt.17-05-2024
passed by the learned Additional Principal Judge, Family
Court, Patna is hereby set aside and remitted back to decide
counter claim alongwith issues framed by the learned
Additional Principal Judge, Family Court in divorce petition.
The matter is remitted back to the learned Family Court to
decide the counter claim alongwith issues arising in present
divorce petition, on its own merit in accordance with law
within a period of six months from the date of
receipt/production of a copy of this judgment, after giving
ample opportunity of adducing evidence and hearing to the
respective parties. Parties are directed to co-operate in
disposal of Matrimonial Case No. 481 of 2011.
16. The trial court records be sent back to the
learned trail court forthwith.
17. Pending I.A.'s, if any stands disposed of.
(P. B. Bajanthri, J)
(Alok Kumar Pandey, J)
amitkumar/
alok/-
AFR/NAFR A.F.R.
CAV DATE 02.05.2024.
Uploading Date 17.05.2024
Transmission Date 17.05.2024
