(Per : HONOURABLE MR.JUSTICE AKIL KURESHI) 1. These two appeals arise out of common judgment dated 30th January, 2009 passed by the learned Principal Judge, Family Court, Surat disposing of two separate proceedings instituted by the appellant wife and respondent husband.
2. Brief facts may be noted at the outset:
The appellant and respondent married according to the Hindu rites on 21.1.2001. Only after about four months of married life, disputes surfaced between the parties. The wife left the house of husband and started residing with her father from May, 2001. Since there was no reconciliation between the two for a considerable period, the wife filed an application for judicial separation before the competent Civil Court which was numbered as Hindu Marriage Petition No. 50 of 2002. Shortly thereafter, the husband also filed application for similar prayer. Husband's petition was numbered as Hindu Marriage Petition No.14 of 2003.Both these proceedings came to be transferred to the Family Court, Surat upon establishment of such Family Court. Wife's application was re-numbered as Family Suit NO. 764 of 2008. Husband's application was re- numbered as Hindu Marriage Petition No. No. 215 of 2008. The husband, in the mean time, had amended his petition and prayed for a decree of divorce on the ground of desertion by the wife. Such proceedings came to be consolidated by the Family Court, Surat. Common evidence was recorded. By common judgment dated 30th January, 2009, the Family Court dismissed the wife's petition for judicial separation and allowed the husband's petition for divorce and granted decree accordingly. During the pendency of such proceedings, interim maintenance of Rs.2,000.00 was being paid to the wife. The Family Court while disposing of such proceedings finally, directed the husband to pay monthly maintenance of Rs.3,000.00 from the date of the decree till the wife's remarriage.
3. In First Appeal NO. 568 of 2010, the wife has challenged the judgment and decree passed by the Family Court in Family Suit NO. 215 of 2008 by virtue of which the husband has been granted decree of divorce. In First Appeal NO. 736 of 2009, the wife has challenged very same judgment of Family Court in so far as her petition for judicial separation was dismissed. The wife has also sought enhancement of the monthly maintenance of Rs.3000.00 fixed by the Family Court on the ground that the husband is earning handsome income. He is employed as a Clerk in a Cooperative Bank. He has additional source of income from musical orchestra in which he participates professionally.
4. Before the Family Court, the wife's grounds for judicial separation were that she was ill treated by the husband and other family members. She was being taunted for inadequate dowry which she had brought. She was made to over work by the family of the husband. She was even when not keeping well, not taken to the doctor for medical treatment. On one occasion, the mother in law had falsely blamed her for missing earrings.
5. The husband, initially, also had filed petition seeking decree of judicial separation. However, since for several years after husband and wife started residing separately there was no reconciliation, the husband sought and was granted permission to amend his petition converting the same into one for divorce under section 13(1)(ib) of the Hindu Marriage Act, 1955 (“the Act” for short).
Case of the husband before the Family Court was that he had treated the wife properly. The wife had never shown willingness to perform her duties and responsibilities of married life. Time and again, she would make false excuses and she was not interested in cohabitation with the husband. She had deserted the husband on 15.5.2001, never to return to the matrimonial home.
6. The Family Court in the impugned judgment, framed following issues:
(1) Whether the petitioner-wife Sapnaben proves that opponent has done mental and physical cruelty with her?
separation?
(3) Whether any of the petition is premature?
(4) Whether the opponent husband Darshanbhai proves that petitioner-wife has deserted him without reasonable and sufficient cause?
(5) Whether the opponent husband is entitled to get the decree of divorce on the ground of desertion?
(6) What order and decree ?
7. Answers by the Family Court on such issues were as follows :
(1) In the negative.
(2) In the negative.
(3) None of the petition is premature.
8. Primarily, the Family Court came to the conclusion that the wife had deserted the husband without any just cause or excuse. The learned Judge refused to believe the wife's allegations of being treated with cruelty which compelled her to leave her matrimonial home. The learned Judge noted that the cohabitation lasted only for about 100 days. In short, the view of the learned Judge was that the wife had no cause or excuse for not residing with the husband. In terms of section 13(1)(ib) of the Act, he, therefore, granted decree of divorce to the husband.
9. On similar grounds, the learned Judge also dismissed the petition of the wife for judicial separation.
10. With respect to the wife's entitlement to maintenance, the learned Judge held that the respondent was employed as a clerk in a Cooperative Bank. The husband had not disclosed his income before the Family Court. The learned Judge was, therefore, of the opinion that the adverse inference can be drawn against him. He was,however, influenced by the fact that the wife was a young lady. He observed that she had done the course of fashion design and therefore she has full opportunity of earning income. She was also an able lady. On all these grounds, the Family Court revised the maintenance payable to the wife from Rs.2,000.00 per month, granted pendent lite to that of Rs.3,000.00 from the date of decree till her remarriage.
11. Before the Family Court, wife and husband both their depositions. Both of them gave produced several documents in support of their cases. No other witnesses were examined by either side.
12. In her examination-in-chief in the form of affidavit, at Exh. 100, wife narrated the alleged ill treatment meted out to her by the husband and other family members. She stated that regular demand of dowry was being made. She had to do all the household work without any respite. She was once falsely accused for missing earrings of her mother in law. Even when she was not well, nobody used to take her for treatment. She had to contact her father for such purpose. She stated that she and her father had gone to the husband's house to collect her cup-board and other belongings. At that time also, the husband did not ask her to stay back.
She stated that her husband was working in Sarvodaya Cooperative Bank. In addition to sizable salary, he earned over time payment, bonus and computer allowance. She stated that he also participated in musical orchestra and earned sizable additional income.
In her cross examination, she was asked whether she had come with tempo rickshaw and collected all her belongings. To such question, she stated that since the husband was not interested in keeping her, she had collected all her belongings. She was also asked why, when she was taken to the family doctor, she had thrown away the medicines given to her. She admitted the incident but stated that she was allergic to such medicines.
13. The husband Darshan Janakbhai Joshi deposed before the Family Court which was recorded at Exh.
102. He stated that the wife resided with him only for about four months during which the wife used to visit her father's house frequently. To avoid cooking, she often would go to her father's house. From the beginning, her conduct was not good. She used to complain that she had been forcibly married off. He stated that once, he had called his friends from the bank home for lunch, the wife was not happy about her having to cook for so many people and she had therefore sulked.
With respect to his orchestra, he stated he had given such program on 2 to 3 occasions. After marriage, however, he had stopped giving such programs. This was because whenever he went for such program, wife used to suspect him.
In cross examination, he was asked about his income. He, however, bluntly refused to produce his salary slips. He denied that his current salary was Rs.25000.00. He, however,flatly refused to answer the question as to what was his income.
He was shown certain photographs of the couple together which were taken after marriage which photographs he admitted. He denied that the wife was not being treated properly. He admitted that after the wife left his house, she had come back for a short period of about three days.
He denied that he had purchased Maruti Car. He however admitted that such car was purchased in his name and he paid regular installments for loan taken for such purchase.
14. In addition to such oral evidence, the parties produced several documents on record. In particular, we have series of photographs of the husband and wife which were apparently taken when they had visited the hill stationa Simla and Manali during their honeymoon shortly after marriage. The parties have also relied on other documents reference to which shall be made at an appropriate stage.
15. On the basis of such oral as well as documentary evidence, the counsel for the appellant wife vehemently contended that the trial Court erred in discarding the allegation of the wife regarding ill treatment meted out to her by the husband and other family members. He submitted that the wife The counsel further submitted that in view of such evidence, the learned Judge gravely erred in granting decree for divorce in favour of the husband. The counsel submitted that the trial Court committed error in awarding maintenance of Rs.3,000.00 per month when the husband was found to be employed in cooperative bank, earning regular income. He submitted that even such meager amount the husband has not been paying regularly which could be seen from the additional affidavit dated 1st July, 2009 filed by the wife. He also relied on further affidavit of the wife dated 14th March, 2012.
15. On the other hand, learned counsel for the husband submitted that the trial Court has correctly appreciated the evidence. The wife had deserted the husband without any just cause or excuse. There was no ill treatment by the husband or any of the family members. Appeals of the appellant wife should, therefore, be dismissed.
With respect to maintenance, the counsel submitted that the wife is capable of earning independent income, therefore, the amount fixed by the trial Court is not required to be enhanced.
16. Having heard the learned counsel for the parties and having perused the evidence on record, at the outset, we may recall that the cohabitation between the husband and wife after marriage lasted only for about 100 days. The marriage took place on 21.1.2001. Admittedly, on 15.5.2001, wife left her matrimonial home. Thereafter, she returned in June, 2001 for a period of three days. Since then, there has been no cohabitation between the wife and husband. From the series of photographs produced before the trial Court and perusal by us, which pictures of the couple were taken during their honeymoon to the hills of Himachal Pradesh, it can be seen that the couple was happily married. Series of pictures clearly show that the couple must have enjoyed their tour. They were in state of utter bliss totally unaware of the things to come in near future.
17. Thereafter, the wife left her matrimonial home on or around 15.5.2001. She complained of ill treatment by the husband and other family members, particularly the mother in law.
18. The wife in her deposition which is in the form of affidavit which is rather long, barring few stray examples, gave no specific instances of such ill treatment. Her averments were, by and large, general in nature. Her statements were to the effect that she was made to work very hard, she was not being taken to the doctor even when not well, on one occasion, she was falsely accused by her in laws for missing earrings.
19. The Family Court has come to the conclusion that there was no specific evidence about ill treatment to the wife by the husband or other family members, with which we agree. Admittedly, wife herself left the house of the husband on 15.5.2001. It is not even her case that she was driven out of the house by the husband or other family members. She returned for a short period of three days and left again, never to return to her husband's house. In the mean time, she also came with her father, collected her cup board and all her belongings.
20. This behaviour of a newly married woman is rather strange. If she had any hope of reconciliation, normal human conduct would have prevented her from withdrawing all her belongings from her matrimonial home. Not being able to live with the husband temporarily due to differences or disputes or to go away to father's house in a huff is entirely different from withdrawing all the belongings from the husband's house. The former suggests a temporary phase while the later indicates a clear intention of not rejoining the husband.
21. In deposition itself, she admitted that she had come with father and collected all her belongings. In cross examination also, she admitted the same. This was thus a unilateral and a voluntary act on her part.
22. Additionally, she did not produce any concrete evidence of ill treatment by the husband or other family members. The learned Judge recorded that the ill health for which she complained total neglect on the part of the family members which compelled her to approach her father for medical treatment was no more serious than a simple backache. For such ailment, she was also not required to be admitted in the hospital. She was treated as outdoor patient. Further, from her deposition, we notice that in the cross examination, she admitted that she had thrown away the medicines given to her by the senior family doctor of the husband to whom she was taken for treatment. This was explained by her suggesting that she was allergic to such medicines. Her version may not be incorrect but what emerges is that the husband did take her to the doctor when she complained of ill health.
23. Viewing the totality and facts and circumstances of the case, evidence on record, that of the husband and wife as well as her documentary evidence particularly series of photographs between the husband and wife during their honeymoon, it clearly emerges that there were no major differences which could not be resolved by passage of time and some effort. From the act of the wife leaving the matrimonial home after cohabitation of only about 100 days, one comes to the conclusion and that she was not prepared to face the day to day stress of married life. She was not prepared to bear the unavoidable wear and tear of marriage.
24. In other words, this is precisely what the learned Judge of the Family Court has held. Having reassessed the evidence on record, we fully endorse such conclusion of the trial Court. If that be our conclusion, the decision of the learned Judge granting decree of divorce in favour of the husband would call for no interference.
25. Section 13(1)(ib) of the Act enables the husband or wife to seek a decree of dissolution of marriage on the ground that the other party to the marriage has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition. Explanation to the said section clarifies that the desertion means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party and includes the willful neglect of the petitioner by the other party to the marriage.
26. In the present case, admittedly, the wife resided separately from the husband from 15.5.2001. Admittedly there had been no cohabitation between the parties after that except for a short period of three days shortly thereafter. When the husband therefore presented his petition initially for a decree of judicial separation and thereafter converted the same into one for dissolution of marriage, period of two years as envisaged in section 13(1)(ib) of the Act was already over. Only question therefore was whether this was a case of desertion by wife. In this respect, we have already come to the conclusion that the trial Court has correctly found that the wife had left the husband's house without any reasonable cause or excuse and refused to resume cohabitation. We cannot help expressing our feeling that with the little more patience and tolerance from both sides what should have, would have and could have been a happy marriage has turned out to be a failed affair. The marriage is dead for all practical purposes for more than eight years. All attempts for mediation even after filing appeals before the High Court have failed.
27. In that view of the matter, we see no reason to interfere with the decree of divorce passed by the Family Court. For the same reason, order dismissing wife's petition for judicial separation requires no interference.
28. This brings us to the question of maintenance of the wife. We have noted that the husband is admittedly employed as a clerk in Sarvodaya Cooperative Bank. There is no further evidence of his income from orchestra business. We would, therefore, not take into account any such source of income.
29. Before the Family Court, the husband refused to either produce his salary slip or even refused to disclose his current salary. The Family Court recorded that this would permit the Court to draw an adverse inference. We are surprised and perplexed why then the Family Court did not proceed to do so. In fact, in the matters like these, instead of drawing an adverse inference, better course available to the Family Court was to compel the production of evidence. Family Court had ample powers through which correct and current income of the husband could have been brought on record. Family Court was neither powerless nor expected to feel helpless in bringing the truth on record. The husband who refused to either produce his salary slip or even make simple disclosure of his current income ought not to have been allowed to go laughing all the way. Unfortunately, this is precisely what the Family Court did. After recording such conduct of the husband permitting the Family Court to draw adverse inference against the husband, the Family Court granted monthly maintenance of Rs.3,000.00 to the wife under the pretext that the wife was an able bodied lady, she knows fashion design and, therefore, she was expected to earn some income.
Quite apart from not agreeing to these observations of the Family Court, we feel fixation of maintenance without having any idea of husband's income would only be in the nature of guess work. In matters of assessment of income, such wild guess work can result into injustice to one side or other.
30. To avoid any such injustice, we directed the husband by order dated 15th March, 2012 to file affidavit disclosing monthly gross income of last six months and tax deductions from such income. We also directed him to produce the last salary slip issued by the bank along with such affidavit.
31. In compliance of such directions,the husband filed affidavit dated 20th March, 2012 along with which he produced last six salary slips issued by the Bank. We are of the opinion that such documents are required to be brought on record by way of additional evidence in terms of Order 41, Rule27 of the Code of Civil Procedure. We are of the opinion that this Court requires production of such documents to enable us to pronounce the judgment. In the interest of substantial justice, we, therefore, take on record the copies of six salary slips produced by the husband along with affidavit dated 20th March, 2012, by way of additional evidence. Such documents shall form part of the record.
33. Perusal of such documents reveal that the husband received gross income for the month of September, 2011 to February, 2012 as under:
33. The above documents also show that the husband paid Provident Fund ranging between Rs.2600.00 to Rs.2830.00 per month during such period. He paid professional tax of Rs.200.00 per month and suffered deduction at source of the income tax Rs.300.00 per month. We may,however, notice that in the month of September, 2011, he received sum of Rs.8,938.00 by way of closing allowance. This was not recurring payment and this explains higher gross salary for the said month compared to other months. Similarly,we also notice that in the month of February,2012, he received Rs.11,790.00 towards other allowances which his counsel explained was leave encashment benefit. Such benefit also would obviously not be available to an employee every month. From the monthly gross salary of husband and giving spread over effect to special allowances received by him in the months of September, 2011 and February, 2012, we can safely assess his gross income at Rs.27500.00 per month. From such income, giving deduction of Rs.30,000.00(approxi.) for his contribution towards the Provident Fund, his yearly taxable income would come to Rs.3,00,000.00. His tax burden would be approximately Rs.12,000.00 considering the basic tax exemption at Rs.1,80,000.00 and remaining income falling in 10% tax slab as per the tax structure for the period in question. Even after granting benefit of Professional Tax that he has to pay, his tax liability cannot go beyond Rs.1500.00 per month. Other deductions from his gross income are mostly in the nature of his own savings. Therefore, net monthly average income of the husband at the current rate would come to approximately Rs.26,000.00. On such income, maintenance of the wife should be assessed.
We may also notice that the husband admittedly owns a car in his name. Though he stated that the car does not belong to him, he admitted that the car was purchased in his name and he himself was paying the regular installments on the loan taken for purchasing such car.
The husband has been contending that the wife has done the course of fashion design but nothing is produced on record to this effect. There was no evidence worth the name to show that the wife was earning any independent income from such activity or from any other source. We must therefore hold that the wife has no independent source of income. Therefore, looking to the current income of the husband, even after giving some benefit for the support of his aged parents, we are of the opinion that the wife must receive monthly maintenance of Rs.8000.00. Such amount obviously cannot be paid from the date of decree since the income of the husband at that time would not be at the same level as present and would be considerably lower.
34. In the facts of the case, therefore, we direct that the husband shall pay monthly maintenance of Rs.4500.00 to the wife from the date of the decree till 31.12.2010 and from 1.1.2011 onward, husband shall pay maintenance of Rs.8000.00 every month.
35. In her additional affidavit dated 1st July,2009, the wife had demonstrated irregular nature of payments of maintenance by the husband giving following data regarding amounts deposited by the husband:
36. The husband has not raised any serious dispute about such details provided by the wife. It can thus be seen that the husband has remained irregular in paying monthly maintenance. For example, for entire period between 19.12.2005 till 2.12.2006, there was no payment made whatsoever. Once again between 2.12.2006 to 5.8.2008, nothing was paid by him. Thereafter, there was gap of another four months. Under the circumstances, it is directed with effect from April, 2012 that is maintenance payable for the month of March,2012, Sarvodaya Cooperative Bank Ltd., Pandesara Branch Surat where the husband is presently posted shall deduct a sum of Rs.8000.00 (Rupees eight thousand only) every month from his salary and deposit it directly in the bank account in the name of Sapna Darshan Joshi, Account No. 1355638044 in the Central Bank of India, Kalani Vakhar, Kanpith, Surat. This arrangement will be continued by the bank even if the husband is posted in any other branch through such branch where he may be so posted. Direct Service to the Bank is permitted.
Time for payment of arrears of maintenance payable to the wife by the husband under this order is granted up to 30th September, 2012.
With above directions, both appeals are disposed of. Appeal of the wife being First Appeal No.568 of 2010 is dismissed. Her First Appeal No. 736 of 2009 is partly allowed. No order as to costs.
At this stage, learned counsel for the appellant prayed for stay of this judgment to enable her to prefer further appeal. Request is granted. This judgment shall stand stayed upto 30th April, 2012 in so far as it pertains to confirmation of the decree of divorce.
Civil Application for stay does not survive. Same shall therefore stand disposed of as not surviving. R&P to be transmitted to the trial Court forthwith. No order as to costs.
(Akil Kureshi,J.) (C.L.Soni,J.) an vyas