IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.684 of 2009 16 21.7.2010 Smt. Ranjana wife of Bijay Kumar Prasad, resident of Chandi Prasad Lane, Mohalla – Jogsar, Police Station – Kotwali, Post Office and District Bhagalpur, at present residing at 203, Puspa Shri Apartment, A.D.M. Road, North Patel Nagar, Police Station Patliputra, District Patna- 800 024 ..... Respondent / Appellant VERSUS Vijay Kumar Prasad Son of Shuv Narain Mahto (Now deceased) resident of Chandi Prasad Lane, Police Station – Kotwali, Mohalla Jogsar, District - Bhagalpur ..... Petitioner / Respondent -------- For the Appellant : M/s Sidheshwari Pd. Singh, Senior Advocate, Krishna Kishore Sinha and Abhay Kumar, Advocates For the Respondent : Mr Ganpati Trivedi, Advocate -------- Heard leaned counsel for the appellant and learned counsel for the respondent. 2. This appeal has been preferred by the appellant against the judgment and decree dated 17th July, 2007 passed in Matrimonial Case No.25/139 of 1990/1993 by the Principal Judge, Family Court, Patna. Originally the said matrimonial case was in appropriate court at Bhagalpur but on the prayer made by the appellant it was ultimately transferred to the concerned court at Patna. 3. The respondent, who is husband of the 2 appellant, preferred Matrimonial Case No.25/1990 for desertion of the marriage solemnized on 5th May, 1986, by a decree of divorce on the grounds of cruelty and dissolution under Section 13 of the Hindu Marriage Act, 1955. It was alleged by the respondent that since the very first day of her arrival in the matrimonial house, the behaviour of the appellant was not appropriate and she was not only discourteous but behaved abnormally and on that account the parents of the husband had to leave the house for the sake of saving the marriage. A daughter was born on 4th July, 1987 but that did not bring about change in the behaviour of the appellant and she did not care for the infant child. Allegedly, she left the matrimonial home and went to her parent’s house on 10.8.1989 along with her ornaments and clothes. She again came back with her brother on 4.7.1990. According to the case of the husband, the appellant had levelled false allegations of adultery which had lowered his prestige and such acts amounted to cruelty. The husband claims to have lodged a Sanha in the court of Chief Judicial Magistrate, on 29.7.1989 and further claimed that although the appellant 3 came back but there was no relationship of husband and wife since 10.8.1989 because the wife had allegedly deserted him. The husband claimed that he was suffering mental agony because the wife did not like to live with him and she had come back due to social pressure and not out of her sweet will and she had withdrawn herself from matrimonial tie. 4. The claim of the respondent husband was contested by the appellant by filing her written statement. She prayed for dismissal of the matrimonial suit with costs and according to her there was no cause of action for the suit and the husband was not entitled for any relief. According to her written statement, from the date of filing of the suit on 15.9.1990 she was living with her husband at Bhagalpur and she lived there till 7.10.1991. She denied any abnormal behaviour or cruelty or desertion. She claimed that because of her husband’s behaviour she had to take shelter at her parent’s house in district Nawada and that she was ready to live with her husband. 5. On the basis of pleadings of the parties, the learned Principal Judge, Family Court, Patna framed 4 relevant issues. The issues related to cruelty, abnormal mental condition of the appellant and desertion. On considering the prescriptions of several doctors, marked as Ext. 10 series, the court noticed that in some prescriptions the doctor had mentioned that the patient is not willing to give history and is giving evasive history. Dr. K.K.Sinha of Ranchi, a renowned expert of mental illness, had also examined the appellant and in his prescription he had diagnosed depression of serious nature and prescribed medicines for mental illness. In paragraph 30 of the judgment, the learned Family Court has further noted that admittedly the appointment from Dr K.K.Sinha was taken by the respondent’s side (respondent in the matrimonial suit) and at the time of her examination her father and others were present. According to the evidence led by the respondent husband during the period when appellant was found suffering from Paranoid disease (Ext. 10/4) and serious mental depression, she was referred to Central Institute of Psychiatry, Ranchi vide Ext. 10/9 and during this period she attempted to commit suicide, destroy the certificates of the husband and committed several acts of 5 mental cruelty for which he had to lodge Sanha no.1235/89, (Ext. 11) in the court of Chief Judicial Magistrate, Bhagalpur. 6. On the aforesaid issue the learned Principal Judge, Family Court reconsidered the evidence on behalf of the appellant wife and thereafter in paragraph 35 he came to the opinion that the evidence adduced on behalf of the respondent did not falsify the contention of the petitioner husband and the court found that no purpose will be served by making further attempts to bring the parties together because by that time they had been living separately for the last 17 years. The relevant findings given by the learned Principal Judge, Family Court in paragraph 37 are found to be based upon proper consideration of the evidence and they are sufficient to maintain the decree of divorce on account of cruelty and desertion. 7. Having heard the parties and considering the materials on record, we find that since 1991 the daughter born of the marriage has been living with her father and as per submissions she has acquired Bachelor Degree in 6 Engineering and proposes to pursue Post Graduate course for which the expenses have to be borne by the respondent and he has also to take care of marriage expenses of the daughter within a reasonable time. 8. Although on paper it has been claimed by the appellant that she is still willing to live with the respondent, on hearing the parties and considering all aspects of dispute between them and the past conduct we have already recorded earlier in our order dated 29.3.2010 that prima facie, the marriage has broken down irrevocably. Now, on considering the entire facts and circumstances after hearing the parties we come to the same conclusion that the marriage has broken down irrevocably. As indicated in that order the parties were asked to come ready on the issue of sufficiency of alimony which has been permitted by the court below at the rate of Rs.3,000/- per month. On that date we were under the impression that after the death of her father the appellant has no proper place to live and therefore, we wanted the respondent to suggest any suitable place in his residence or in his ancenstral property where the appellant could reside 7 if she wanted to. However, we find that for practical reasons such a solution in respect of residence of the appellant for her lifetime was not feasible for various reasons including apprehensions and psychological reasons. On this aspect, it has been brought to our notice that after the death of appellant’s father, through a deed of absolute sale registered on 22.4.2010 a flat bearing no.203 in Puspa Shri Enclave, ADM Road, Mahesh Nagar, PS Shastri Nagar, District Patna, has been purchased by the mother of the appellant and thus, besides her father’s ancestral house in the district of Nawada, now, she has a place to live with her mother in the town of Patna. Hence, we did not think it proper to make any further efforts to persuade the respondent to provide residence to the appellant at Bhagalpur. 9. The respondent has brought on record the latest salary statement by way of Pay slip of June 2010 to show that as a Special Assistant in the State Bank of India at Bhagalpur, he is entitled to a gross total monthly amount of Rs.38754.03 paise. Out of that, he is paying income tax of slightly more than Rs.1000 and some other 8 contributions such as provident fund contribution. But the major deductions required to be made from his salary are on account of housing loan, additional housing loan and education loan for which deductions are being made of altogether Rs.23,721/- and take home pay is only Rs.15033.00 paise. According to the appellant, the respondent is likely to get some arrears of salary due to revision in the pay scale. It has been alleged by the appellant that respondent is getting huge income from three house properties. But on behalf of the respondent this has been seriously disputed. According to the respondent, one of the house properties is an old ancestral house in which his father has limited share and that house is not in proper condition, the other house is of respondent’s father in which her mother is residing after the death of his father and the third house property belongs to the respondent which he has constructed by taking loan for which deductions are being made from his salary and he is living in this house. The respondent has disclosed that on 17th July, 2010 the arrears of salary amounting to Rs.1,15,000/- have already been deposited in his account. 9 10. Having considered the relevant facts, we are of the view that the respondent has to look after the educational needs of the daughter and to arrange for her marriage also and hence, it will not be proper to accept the demand of the appellant that she should get an alimony of Rs.20,000/- per month. In our considered view, the present alimony of Rs.3,000/- per month deserves to be enhanced suitably so that the appellant receives not less than Rs.6,000/- per month. However, fortunately the respondent indicated that he will not have any objection in paying a consolidated one time alimony of Rs.10,00,000/- (Ten lakhs) to the appellant which will fetch her more than Rs.6,000/- per month if invested by her. Since the parties are living in different towns and it will be better that they do not have to indulge in any further minor litigations for timely payment of monthly alimony, we are of the considered view that a lump sum permanent alimony as offered by the respondent would be in larger interest of both the parties. Accordingly, while maintaining the judgment and decree for divorce we 10 modify the determination in respect of permanent alimony by holding that appellant shall be entitled to a permanent alimony of Rs. Ten lakhs which must be paid to her without any delay within six months. While it is being made clear that the aforesaid Rs. Ten lakhs can be paid in installment, the respondent must keep on paying her a monthly alimony at the rate of Rs.3,000/- per month till the entire amount of Rs.Ten lakhs is paid to the appellant. 11. The appeal is allowed to the aforesaid extent. There shall be no order as to costs. (Shiva Kirti Singh, J.) (Birendra Prasad Verma, J.) sk