FAO No. M-13 of 1998 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No. M-13 of 1998 (O&M) Date of decision: 24.8.2009 Alka Kochhar ....Appellant versus Davinder Kumar Kochhar ....Respondent CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. Sanjiv Gupta, Advocate, for the appellant. Mr. Sapan Dhir, Advocate, for the respondent. *** VINOD K. SHARMA, J. (ORAL) CM No. M-25 of 2009 A draft for a sum of Rs.37,000/- (Rupees thirty seven thousand only) and Rs.500/- (Rupees five hundred only) in cash, has been handed over to the learned counsel for the applicant-appellant. The details of the maintenance calculated by the non- applicant-respondent are as under: - July 2003 to Feb. 2009 (Rs.1,200/- P.M.) = Rs.80,400.00 Feb. 09 to Aug. 09 (Rs.3,500/- P.M.) = Rs.24,500.00 Total = Rs.1,04,900.00 Less paid vide receipts = Rs.47,000.00 = Rs.57,900.00 Less amount deducted from = Rs.20,400.00 FAO No. M-13 of 1998 (O&M) -2- salary @ Rs.1,200/- P.M. since April 2008 including the month of August 2009 Balance to be paid = Rs.37,500.00 This represents the payment till August, 2009. No further order is called for in the C.M. FAO No. M-13 of 1998 The appellant-wife, being dissatisfied with the judgment and decree dated 6.1.1998, passed by the learned Additional District Judge, Jagadhri, on a petition under Section 13 of the Hindu Marriage Act, has preferred this appeal. The parties were married according to Hindu rites on 10.2.1989 at Yamuna Nagar. After the marriage, the parties resided together, and a male child was born out of the wedlock on 10.12.1989, who is living with the respondent-husband. The petition for divorce was filed by the respondent-husband on the following allegations: - 1. That initially the appellant behaved normally, but after about nine or ten months of marriage, she started behaving abnormally by refusing to cook food and to do other domestic work. 2. That the appellant started picking up quarrel with the respondent on very petty matters, and the requests made by the respondent for behaving normally were not accepted. 3. That the appellant treated the respondent-husband with cruelty, by laying the hands on him and beaten him. She also threw utensils on his face. 4. That on 20.6.1992, the appellant eloped with one Lalit Kumar, an X-ray Technician at Civil Hospital, FAO No. M-13 of 1998 (O&M) -3- Kapurthala, and missing report was lodged by the respondent at police station, Kapurthala on 30.6.1992. 5. That on telegram by Lalit Kumar, the appellant was taken to her parental home, and the efforts of the respondent to bring back the appellant to matrimonial house failed. It was claimed, that the appellant deserted the respondent w.e.f. 26.2.1992. 6. That the respondent was falsely impleaded in criminal case under Section 498-A IPC, beside that, she had filed a petition under Section 125 Cr.P.C. also. The petition was contested by the appellant on the following submissions: - 1. While admitting the marriage and birth of the male child, the appellant-wife denied the allegations levelled in the petition. 2. Allegations of not cooking food and doing other household work as also the allegations of quarrel with the respondent-husband on petty matters, were denied. 3. The allegation of laying her hand and beating the husband was also denied, as also the allegation of throwing utensils on his face. 4. Allegation of her having eloped with Lalit Kumar was denied. 5. The case set up by the appellant was, that the respondent and his family members were greedy persons, and were not satisfied with the dowry given at the time of marriage. 6. She claimed that she was maltreated by the members of the family, which compelled her to proceed against the respondent and his family members under Section 498-A IPC. 7. She further claimed that she was turned out of the house by the respondent and showed her desire to reside with FAO No. M-13 of 1998 (O&M) -4- the respondent-husband. 8. Other preliminary objections were taken. The learned Matrimonial Court, on the pleadings of the parties, framed the following issues: - 1. Whether the petitioner is entitled to a decree of divorce on the grounds mentioned in the petition? OPP. 2. Relief.” The learned Matrimonial Court, on appreciation of evidence, held that the stand taken by the appellant-wife was, that in pursuance to the telephone call made by her to her father on 26.2.1992, her father had come to Kapurthala, to take her to her parental home. The stand taken, therefore, was that it was the respondent, who was at fault and that she had not left the matrimonial home in the company of X-ray Technician. The learned Matrimonial Court accepted the version given by the appellant in view of the statement of RW2 Satpal Singh, who was none other than the father of the appellant. He admitted, that it was Lalit Kumar, who had brought the appellant to the house. Though an attempt was made to show that Lalit Kumar was Station Master, but no such evidence was brought on record to establish the identity of Lalit Kumar. The learned Matrimonial Court, therefore, held that leaving the matrimonial home by the appellant against the wishes of the respondent, with third person did amount to mental cruelty, specially when she left behind child with her neighbour for being looked after by the respondent. The learned Matrimonial Court also held, that the appellant had failed to prove the allegation of harassment by the respondent, which was basis for filing a petition under Section 498-A FAO No. M-13 of 1998 (O&M) -5- IPC against the respondent. On account of FIR lodged by the appellant, respondent was arrested along with other family members. The learned Matrimonial Court also held, that the registration of false case amounts to cruelty, but the Court did not give any opinion as criminal case against the respondent was still pending. The learned Matrimonial Court, however, did not believe the evidence led by the appellant in proof of the allegations, because of material contradictions between the statement of the appellant and her father. The finding on issue No. 1 was given in favour of the respondent-husband. The plea of the appellant, that acts of cruelty stood condoned, as in the proceedings under Section 125 Cr.P.C., differences between the parties were sorted out and the respondent had agreed to take her back, was rejected by the learned Matrimonial Court, as no such proceedings were placed on record. The learned Matrimonial Court also found material contradictions in the statements in support of this contention. Thus, the learned Matrimonial Court held, that the Acts of cruelty were not condoned. The learned Matrimonial Court further held, that even desertion stood proved, as the appellant was residing separately since 26.2.1992, and no attempts were made by the appellant or her family members, to come to the matrimonial home. Mr. Sanjiv Gupta, learned counsel, appearing on behalf of the appellant, challenged the impugned judgment and decree on the plea, that the evidence led by the respondent-husband was not sufficient to hold, that the respondent was treated with cruelty. The contention of the learned counsel for the appellant was, that the allegation levelled was FAO No. M-13 of 1998 (O&M) -6- patently false, and was levelled with a view to fulfill the illegal demands of dowry, which could not be fulfilled by the poor parents of the appellant. The plea taken by the appellant before the learned Matrimonial Court, that she was tortured by the respondent and his family members, was again put into service to challenge the judgment and decree. The learned counsel for the appellant also contended, that once, the appellant was willing and throughout remained willing to join the Matrimonial home, the desertion was not proved, as the respondent failed to prove that the appellant had left the matrimonial home with an intention to bring the matrimonial relations to an end. It was also contended, that the learned Matrimonial Court erred in decreeing the petition even though Lalit Kumar was not impleaded as respondent, who was otherwise necessary party, in view of the allegations levelled. On consideration, I find no force in the contentions raised by the learned counsel for the appellant. Positive stand taken by the respondent-husband, that the appellant had left the matrimonial home with Lalit Kumar stood proved from the fact that there was admission by the father of the appellant that she was brought to her parental home on receipt of telephone from one Lalit Kumar, though it was claimed that he was working as Station Master. In case, this plea was true, then there was no reason for the appellant to have taken a false plea that she was taken to her parental home by her father. It is also not in dispute, that the respondent has been acquitted in the criminal case filed under Section 498-A IPC, by the learned Judicial Magistrate, First Class, Jagadhri. Thus, allegations that the respondent-husband was treated FAO No. M-13 of 1998 (O&M) -7- with cruelty, stands proved. The respondent also made specific averment about the assault by the appellant on him. The act of elopement as proved on record coupled with the fact that the appellant had lodged false criminal prosecution against the respondent, the finding on cruelty by the learned Matrimonial Court, is hereby affirmed. The question of desertion need not be gone into, as the respondent is entitled to decree of divorce, on ground of cruelty. In view of the upholding of judgment of the learned Matrimonial Court on question of cruelty, this appeal being devoid of merit, is dismissed, but with no order as to costs. Keeping in view, that the appellant had no independent source of income, she is, therefore, entitled to permanent alimony, under Section 25 of the Hindu Marriage Act, in view of the law laid down by the Hon'ble Supreme Court in Ramesh Chandra Rampratapji Daga Vs. Rameshwari Ramesh Chandra Daga, 2005(1) Apex Court Judgments 396. The permanent alimony payable to the appellant with consent is fixed at Rs.3,00,000/- (Rupees three lac only). The respondent-husband is directed to pay the permanent alimony within a period of one month from the date of receipt of certified copy of this order. Appeal dismissed. (Vinod K. Sharma) Judge August 24, 2009 R.S.