MISC. APPEAL No.733 OF 2009 -------- Against the judgement dated 10.11.2009, passed by Sri Vinod Kumar Sinha, Principal Judge, Family Court, Patna in Matrimonial Case No. 354 of 2007. -------- 1-NIRAJ KUMAR SINHA S/O LATE NAND KISHORE PRASAD R/O MOHALLA- SANKAT MOCHAN PATH, MITRA MANDAL COLONY, ANISABAD, P.S.- PHULWARI SHARIF, TOWN & DISTT.- PATNA AT PRESENT RESIDING AT C/O MAA SHEETLA SWEETS, P.S.- AGAM KUAN, TOWN AND DISTT.- PATNA ………………………Appellant Versus 1-ANITA SINHA W/O SRI NIRAJ KUMAR SINHA, D/O SRI A.K.P. PRASAD RESIDING AT SANKAT MOCHAN PATH, MITRA MANDAL COLONY, ANISABAD, P.S.- PHULWARI SHARIF, TOWN & DISTT.- PATNA -----Respondent ----------- For the Appellant : Mr. Amresh Kumar Sinha, Advocate Pankaj Maijorwar,Advocate For the Respondent : Mr. Madan Prasad Singh No.2, Advocate Arun Kumar Singh, Advocate. P R E S E N T THE HON'BLE MR. JUSTICE SHIVA KIRTI SINGH THE HON'BLE MR. JUSTICE BIRENDRA PRASAD VERMA Shiva Kirti Singh & B.P.Verma, JJ. Heard learned counsel for the appellant and learned counsel for the respondent. 2. This appeal is by the husband of the respondent who is aggrieved by the judgment and order of the Principal Judge, Family Court, Patna, whereby his prayer for dissolution of marriage by a decree of divorce has been rejected and matrimonial case no. 354 of 2007 has been dismissed on the ground that appellant has failed to prove the case of cruelty or - 2 - desertion. 3. Learned counsel for the appellant has referred to the relevant issues and their discussions made by the learned court below with a view to convince us that the issue of cruelty has not been properly considered or decided. According to the learned counsel for the appellant the three instances given by the appellant, that he was administered sleeping pills which led to hospitalization, Emergency light was thrown on him causing some injury and an attempt was made to cause burn injury to him should have been accepted by the court below for holding that a case of physical and mental torture was made out for grant of divorce. 4. On the other hand learned counsel for the respondent pointed out the reasons of the learned court below in paragraph 22, 23, 27 and 28 of the judgment under appeal to submit that there were good reasons on account of which the allegations were not accepted by the court below. On coming to the relevant materials and the discussions made in the impugned judgment, we find that the learned court below has considered the relevant materials properly and its finding on the issue of cruelty on the basis of three aforesaid allegations does not warrant any interference. - 3 - 5. It may be noted here that the issue of desertion as decided by the court below was not under serious challenge. 6. For raising an additional ground, learned counsel for the appellant took us to the allegations made by the respondent in her written statement to show that the allegations of extra marital relationship and some other heinous allegations were leveled without any justification and therefore such allegations by themselves amount to cruelty to the husband as held by various courts such as Delhi High Court and Calcutta High Court in the following cases; (1)A.I.R. 1987 Delhi 52 (Smt.Savitri Balchandani V Mulchand Ballchandani) (2) A.I.R. 1985 Delhi 221 (Smt. Kamini Gupta V Mukesh Kumar Gupta) (3) A.I.R. 1987 Delhi 63 (Shri Ashok Sharma v Smt. Santosh Sharma) (4) A.I.R., 1990 Calcutta 367 (Smt. Santana Banerjee v Sachindra Nath Banerjee 7. The gist of aforesaid allegations in the written statement are noted in paragraph 3 of the impugned judgment - 4 - wherein it is also mentioned that the respondent had lodged a police case bearing Phulwari P.S. Case No. 532 of 2007 against her husband under section 498 A of the Indian Penal Code, a copy of that first information report and the judgment of acquittal dated 31.3.2009 have been brought on record through an affidavit. On the basis of alleged scandalous allegations and the criminal case which has ended in acquittal, it has been submitted that this Court should hold that such acts by the respondent amounted to cruelty and the appellant is, therefore, entitled for divorce. Reliance was also placed on a judgment of the Supreme Court in the case of Naveen Kohli v Neelam Kohli (2006) 4 SCC 558 in support of the proposition that if the circumstances show that there has been irretrievable break-down of marriage,it should also be a ground for divorce. So far as the aforesaid judgment in the case of Naveen Kohli (Supra) is concerned, the proposition highlighted above is mentioned in paragraph 74 of the judgment, but only with a view to commend to the Parliament to consider amendment in the law. 8. In reply to the submissions noted above based upon alleged scandalous allegations in the written statement and filing of an alleged baseless criminal case, a reply has been - 5 - made on behalf of the respondent that only with a view to keep alive chances to compromise, no serious effort was made to substantiate those allegations and the criminal case was also lodged only after the husband had left the respondent to live alone in the appellant’s house. It is submitted that this step was taken by the respondent only to pressurize the husband to mend his ways and allow the marriage to survive. 9. The last submission advanced on behalf of the appellant in respect of scandalous allegations in the written statement appears to have some substance but the reply advanced on behalf of the respondent is equally plausible. Hence we were not persuaded to hold that in the facts of the case the allegations are sufficient to establish cruelty and to justify grant of a decree for divorce. However, the allegations pointed out are serious in nature and clearly they have not been established before the trial court. Such a situation indicates that there is clear distrust between the appellant and the respondent and as a result they are living separately since some time in the year 2007. Although the efforts made for amicable settlement and for mediation have failed but considering that the respondent wife is still keen to maintain the matrimonial ties, in the facts of the case, we are - 6 - persuaded to hold in favour of the appellant only to the extent that a case has been made out for our interference in exercise of powers under section 13 A of the Hindu Marriage Act for grant of alternative relief in the form of a decree for judicial separation . We order accordingly. Learned counsel for the appellant has no objection in our entertaining such alternative relief in the present divorce proceeding. Hence the appeal is allowed in part by setting aside the judgment and decree under appeal and substituting the same with a decree for judicial separation. 10. It is not in dispute that maintenance of Rs. 6000/- per month was being paid by the appellant to the respondent while the matrimonial suit was pending before the court below. Payment of maintenance was made till the month of October 2009 but it got discontinued because of disposal of suit on 10th of November, 2009. In the interest of justice the prayer of the respondent made through I.A. No. 4746 of 2010 for award of the maintenance during the pendency of this appeal is allowed. As a result the respondent will be entitled to receive arrears of maintenance at the aforesaid rate of Rs. 6000/- per month for the entire intervening period. Such arrear must be paid within a period of six month from today but from the current month, until - 7 - further orders by a competent court, the respondent shall be entitled for each month maintenance @ Rs. 6000/- per month. The current maintenance for the month of August 2010 must be paid to her by the 7th of September 2010 and so on. 11. In view of order of maintenance passed above, the respondent shall be obliged to withdraw the proceeding initiated by her for grant of maintenance after disposal of the suit. There shall be no order as to costs. (Shiva Kirti Singh, J) ( Birendra Prasad Verma, J. ) Patna High Court The 6th Aug. 2010. Rahman/(NAFR)