Case: Neha Tyagi Vs. Lieutenant Colonel Deepak Tyagi

M.R. SHAH, J. 1. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court of Judicature for Rajasthan at Jaipur passed in D.B. Civil Miscellaneous Appeal No. 2845 of 2018, by which the Division Bench of the High Court has dismissed the said appeal preferred by the appellant herein and has confirmed the judgment and decree passed by the learned Family Court dissolving the marriage between the appellant and the respondent on the ground of cruelty and desertion by the appellant herein, the original appellant-wife has preferred the present appeal. 2. The facts leading to the present appeal in nutshell are as under: That the marriage between the appellant and the respondent was solemnised on 16.11.2005. That the respondent herein was serving as an Army Officer as Major. That out of the said wedlock, the appellant and the respondent had one son Pranav Tyagi who is aged 13 years presently being born on 23.2.2008. That the dispute arose between the husband and the wife. That the appellant-wife filed number of complaints against the respondent-husband before his employer – Army Authorities including the extra-marital affairs of the respondent-husband. An enquiry was initiated by the Army Authorities against the respondenthusband for extra-marital affairs on the basis of the complaints dated 29.09.2014 and 5.2.2015 made by the appellant-wife. In the enquiry, the respondent-husband was exonerated. 2.1 That the respondent-husband filed Case No. 1496/2016 against the appellant-wife before the learned Family Court, Jaipur on 25.11.2014 seeking a decree of divorce and dissolution of marriage on the ground of cruelty and desertion by the appellant-wife. That, in the meantime and since 2012, the Army Authorities were deducting 27.5% of the salary per month from the pay and allowances of the respondent-husband as per Section 90(1) of the Army Act, 1950. That by judgment and decree dated 19.05.2018, the learned Family Court passed a decree for dissolution of marriage between the appellant and the respondent on the ground of cruelty and desertion by the appellant-wife. 2.2 Feeling aggrieved and dissatisfied with the judgment and decree passed by the learned Family Court dissolving the marriage between the appellant and the respondent, the appellant herein preferred an appeal before the High Court being D.B. Civil Miscellaneous Appeal No. 2845/2018. By the impugned judgment and order, the High Court has dismissed the said appeal and has confirmed the judgment and decree passed by the learned family Court. Hence, the present appeal is at the instance of the appellant-wife. 3. We have heard Ms. Neela Gokhale, learned Advocate appearing on behalf of the appellant. It is very unfortunate that though served, the respondent-husband has not appeared in the present appeal and it is reported that despite the order of status quo passed by this Court vide interim order dated 22.11.2019, the respondent-husband has re-married. 3.1 Number of submissions have been made by the learned Advocate appearing on behalf of the appellant-wife on the findings recorded by the learned Family Court as well as the High Court on cruelty and desertion by the appellant-wife. It is also the case on behalf of the appellant-wife that subsequently and despite the order of status quo passed by this Court on 22.11.2019, the respondent-husband has re-married and that is why he is not appearing in the present proceedings. 3.2 It is urged on behalf of the appellant-wife that in the alternative, the findings against the appellant-wife on cruelty may be expunged and marriage may be continued to remain dissolved on account of irretrievable breakdown of marriage since both wife and husband are residing separately since May, 2011 and the respondent-husband has already re-married. However, it is submitted to direct the respondenthusband to pay maintenance to the appellant-wife and minor son – Pranav as they have no means of maintaining themselves and have no independent income to sustain themselves. 3.3 It is submitted that since December, 2019, the appellant-wife and her son are not being paid any maintenance which they were receiving from the Army Authorities as per order passed by the Army Authorities dated 15.11.2012. It is submitted that the appellant and her son were getting Rs. 40,000/- towards maintenance which they received from 2012 till November, 2019. It is therefore prayed to direct the respondenthusband to pay the maintenance to the appellant and her minor son. 4. Having heard learned counsel for the appellant-wife and having gone through the findings recorded by the learned Family Court as well as by the High Court, on cruelty and desertion by the appellant-wife, we are of the view that there are concurrent findings recorded by the learned Family Court as well as the High Court on cruelty and desertion by the appellant-wife, which as such are on appreciation of evidence on record. The appellant-wife made number of complaints against the respondent-husband to his employer – Army Authorities making serious allegations of extra-marital affairs. On the basis of the complaints made by the appellant-wife, an enquiry was initiated by the Army Authorities and the Army Authorities exonerated the respondenthusband of the allegation of extra-marital affairs. 5. However, considering the fact that both, the appellant-wife and the respondent-husband are not staying together since May, 2011 and therefore it can be said that there is irretrievable breakdown of marriage between them. It is also reported that the respondent-husband has already re-married. Therefore, no useful purpose shall be served to further enter into the merits of the findings recorded by the courts below on cruelty and desertion by the appellant-wife. Therefore, in the facts and circumstances of the case and in exercise of powers under Article 142 of the Constitution of India, the decree passed by the learned Family Court, confirmed by the High Court, dissolving the marriage between the appellant-wife and the respondent-husband is not required to be interfered with on account of irretrievable breakdown of marriage. However, at the same time, the respondent-husband cannot be absolved from his liability and responsibility to maintain his son Pranav till he attains the age of majority. Whatever be the dispute between the husband and the wife, a child should not be made to suffer. The liability and responsibility of the father to maintain the child continues till the child/son attains the age of majority. It also cannot be disputed that the son Pranav has a right to be maintained as per the status of his father. It is reported that the mother is not earning anything. She is residing at her parental house at Jaipur. Therefore, a reasonable/sufficient amount is required for the maintenance of her son including his education etc. which shall have to be paid by the respondent-husband, irrespective of the decree of dissolution of marriage between the appellant-wife and the respondent-husband. The amount which was being paid pursuant to the order passed by the Army Authorities on 15.11.2012 has also been stopped by the respondent-husband since December, 2019.

Decision:
1[ds]It is very unfortunate that though served, the respondent-husband has not appeared in the present appeal and it is reported that despite the order of status quo passed by this Court vide interim order dated 22.11.2019, the respondent-husband has re-married.4. Having heard learned counsel for the appellant-wife and having gone through the findings recorded by the learned Family Court as well as by the High Court, on cruelty and desertion by the appellant-wife, we are of the view that there are concurrent findings recorded by the learned Family Court as well as the High Court on cruelty and desertion by the appellant-wife, which as such are on appreciation of evidence on record. The appellant-wife made number of complaints against the respondent-husband to his employer – Army Authorities making serious allegations of extra-marital affairs. On the basis of the complaints made by the appellant-wife, an enquiry was initiated by the Army Authorities and the Army Authorities exonerated the respondenthusband of the allegation of extra-marital affairs.5. However, considering the fact that both, the appellant-wife and the respondent-husband are not staying together since May, 2011 and therefore it can be said that there is irretrievable breakdown of marriage between them. It is also reported that the respondent-husband has already re-married. Therefore, no useful purpose shall be served to further enter into the merits of the findings recorded by the courts below on cruelty and desertion by the appellant-wife. Therefore, in the facts and circumstances of the case and in exercise of powers under Article 142 of the Constitution of India, the decree passed by the learned Family Court, confirmed by the High Court, dissolving the marriage between the appellant-wife and the respondent-husband is not required to be interfered with on account of irretrievable breakdown of marriage.However, at the same time, the respondent-husband cannot be absolved from his liability and responsibility to maintain his son Pranav till he attains the age of majority. Whatever be the dispute between the husband and the wife, a child should not be made to suffer. The liability and responsibility of the father to maintain the child continues till the child/son attains the age of majority. It also cannot be disputed that the son Pranav has a right to be maintained as per the status of his father. It is reported that the mother is not earning anything. She is residing at her parental house at Jaipur. Therefore, a reasonable/sufficient amount is required for the maintenance of her son including his education etc. which shall have to be paid by the respondent-husband, irrespective of the decree of dissolution of marriage between the appellant-wife and the respondent-husband. The amount which was being paid pursuant to the order passed by the Army Authorities on 15.11.2012 has also been stopped by the respondent-husband since December, 2019.