Pooja Devi vs Chandrakant Mehta

Per: Manoj Prasad, J.

Heard Mr Ashish Gautam, learned counsel appearing on behalf of the appellant-wife and Mr Sanjay Kumar Tiwary, learned counsel appearing on behalf of the respondent-husband.

The present First Appeal has been filed by the appellant-wife under Section 19(1) of the Family Courts Act, 1984 impleading Chandrakant Mehta the plaintiff as respondent, challenging the order passed by the learned Principal Judge, Family Court, Garhwa in Original Matrimonial Suit No. 33 of 2018, which was instituted under Section 13(1-A)(ii) of the Hindu Marriage Act, 1955 (hereinafter referred to as “the Act, 1955”), whereby the learned Principal Judge, Family Court, Garhwa vide judgment dated 23.05.2022 decreed the suit of the plaintiff-respondent granting a decree of divorce as envisaged under Section 13(1-A)(ii) of the Act, 1955 on the ground of non-restitution of conjugal rights between the parties to the marriage for a period of one year or upwards after passing of decree for restitution of conjugal rights in a proceeding to which they were parties.

The brief facts of the case are that Chandrakant Mehta, the respondent herein instituted a suit for dissolution of marriage impleading the appellant herein as opposite party, respondent therein alleging inter alia that the marriage between the parties was solemnized on 06.02.2013, which actually was a love affair but with the consent of their family members, it was converted into an arranged marriage. In course of time, relationship between the parties got strained and the wife deserted the husband since 18.09.2015 taking her entire belongings along with their son Vaibhav Raj. Finally, an application was filed under Section 9 of the Act, 1955, which was registered as Matrimonial Case No. 29 of 2016 wherein the respondent-wife had appeared and and made several allegations against the husband with respect to maltreatment and atrocities.

After trial, the said suit was decreed vide judgment dated 20.02.2017 and decree sealed and signed on 09.03.2017, but despite passing of the judgment and decree, there was no restitution of the conjugal rights between the parties and the decree was not complied with. To the contrary, a maintenance application was filed, which was registered as Miscellaneous Case No. 45 of 2017 under Section 125 of the Code of Criminal Procedure, where she again declined to live in the company of her husband. It is stated that the said Miscellaneous Case No. 45 of 2017 was dismissed as withdrawn vide order dated 19.01.2018. Finally, Original Matrimonial Suit No. 33 of 2018 was instituted for dissolution of marriage on 12.03.2018.

The appellant filed a complaint case being Complaint Case No. 580 of 2016, which was filed after institution of Matrimonial Suit No. 29 of 2016. At para-14 of the petition filed by the respondent-husband, in Original Maintenance Case No. 33 of 2018, it is stated that the cause of action arose on 20.02.2017 and 09.03.2017 when the suit under Section 9 of the Act, 1955 was decreed and finally it arose on 09.03.2018, where despite lapse of one year, there was no resumption of conjugal life between them and hence prayer was made for dissolution of marriage by decree of divorce.

The opposite party i.e. the appellant herein appeared and contested the claim of the respondent-husband alleging inter alia that she was subjected to cruelty while she was residing with her husband and her husband declined to restore conjugal life and has stated about pendency of various cases between them.

Issues were framed on 30.01.2019 by the learned Family Court, Garhwa, which was re-casted on 05.05.2022. On re-cast, two issues were added i.e. whether the respondent wife meted out cruelty on the husband and whether the husband has subjected the respondent-wife with cruelty culminating to ouster her from the matrimonial home for non-fulfillment of demand of dowry.

Witnesses were examined in this case and the learned Trial Court by the impugned judgment and decree, while deciding the various issues, has discussed the evidence and has taken up issue Nos.III, IV and V, which related to the question of cruelty by the wife on the husband, cruelty by the husband on the wife and non-restitution of conjugal rights despite a decree for restitution of conjugal rights under Section 9 of the Act, 1955 in Original Suit No. 29 of 2016. All these three issues were decided in favour of the respondent-husband and against the appellant-wife. Consequently, a decree for dissolution of marriage was passed and the marriage between the parties was dissolved vide judgment dated 23.05.2022 followed by decree sealed and signed on 03.06.2022.

In course of argument, Mr. Ashish Gautam, learned counsel appearing on behalf of the appellant has submitted that the very framing of additional issues particularly the issue with regard to the alleged cruelty meted by the wife on the husband was beyond pleading and the law is settled that neither evidence can be taken beyond pleading nor findings can be given on issues, which are beyond pleading. It has further been submitted that the wife was subjected to cruelty and was ousted from her matrimonial home. Apprehending threat to herself and also her child, she was unable to resume conjugal life and, therefore, the same cannot be considered to be a ground for dissolution of marriage.

It is also stated that against the judgment dated 20.02.2017 and decree dated 09.03.2017 passed in Matrimonial Suit No.29 of 2016, First Appeal No. 62 of 2018 was instituted but the same was dismissed by a peremptory order dated 04.10.2018, where defects could not be removed within the stipulated time. It is also stated that the respondent has no respect for the rule of law and in utter defiance to the mandate of law has performed a second marriage and has also a child out of the said wedlock, which all speak about the cruelty meted out by the husband on the wife and the reason for non-restitution of conjugal rights. With these contentions, it is stated that the impugned judgment is fit to be set aside and the appeal is fit to be allowed.

However, in course of argument, learned counsel for the appellant, on instructions, has submitted that since her respondent-husband has contracted a second marriage, under such circumstances, restitution of conjugal life is not possible. Hence, the only point for consideration before this Court would be the question of permanent alimony in terms of Section 25 of the Act, 1955 and a Co-ordinate Bench of this Court vide order dated 13.08.2026 had directed the respondent-husband to file affidavit as per the law laid down by the Hon’ble Supreme Court in Rajnesh Vs. Neha & Anr. reported in (2021) 2 SCC 324. This direction was given for passing appropriate order under Section 25 of the Act, 1955. In compliance thereof, the appellant has filed an affidavit but the respondent-husband in complete defiance of the order passed by Co-ordinate Bench of this Court has not filed the affidavit. Therefore, learned counsel for the appellant submits that the only point for consideration in this appeal remains the question of alimony in terms of Section 25 of the Act, 1955.

Per contra, Mr. Sanjay Kumar Tiwary, learned counsel for the respondent-husband has submitted that the decree for restitution of conjugal rights was passed in presence of the appellant-wife but the decree has not been set aside and though it was challenged, the same was dismissed for improper prosecution. The decree was also not complied with.

It is also stated that filing of criminal cases for false and fabricated reasons, amounts to cruelty and the additional issues, which were re-casted by the learned Trial Court in presence of the parties, where the parties did not object to it and the evidence was also recorded on such additionally framed issues and, therefore, this plea cannot be taken that the issue of cruelty by the appellant-wife on the respondent-husband, which was formulated by the learned Trial Court was beyond pleading. Therefore, the learned counsel for the respondent submits that the impugned judgment does not suffer from any illegality and hence prayer is made to dismiss the appeal.

Learned counsel for the respondent-husband, on the point of alimony, stated that it is true that further affidavit was not filed as per the order dated 13.08.2026 passed by a Co-ordinate Bench of this Court, but the counter affidavit filed by the respondent-husband, wherein at para-9 there is categorical statement that the respondent-husband is dependent upon the income derived from agricultural produce as he does agricultural work upon the land of others as bataidar as the grandfather of the respondent was having only 20 katthas of land, which is presently occupied by his father. However, in course of hearing an affidavit has been filed and similar statement has been made stating that about 57 decimals of land were allotted to the respondent, out of which, approximately 14.5 decimals of land were transferred through agreement and 4.5 katthas of land were transferred through registered sale deed. In addition to the above, 9 decimals of land were also allotted to the respondent, which was also transferred through an agreement.

It is not disputed by the respondent that there are arrears of maintenance of more than Rs.2.5 lakhs, which he had undertaken to pay in six installments within a period of six months. It is also stated that the criminal case filed by the appellant being Complaint Case No.1840 of 2016 has culminated into acquittal of all the accused persons including the respondent-husband vide judgment dated 26.06.2025, which also reinforces the allegations of cruelty meted out by the wife on the husband and his family members. Therefore, prayer is made to dismiss the appeal.

Having heard the rival contentions of the learned counsel for the parties, which fall for determination before us and in view of the submissions made by the learned counsel for the appellant that on account of contracting a second marriage by the respondent herein, possibilities of restitution of conjugal life does not exist and the only question of alimony remains for determination. We, therefore, formulate the point for determination i.e. whether the appellant is entitled to an order of permanent alimony in terms of Section 25 of the Act, 1955 on account of a decree for dissolution of marriage having been passed by the learned Trial Court.

Apart from the above point for determination, we also consider it proper to decide the one additional point for determination as to

“Whether the decree for dissolution of marriage passed by the learned Trial Court is in accordance with law or not.”

Taking up the first point for determination as already stated that a Co-ordinate Bench of this Court had directed the respondent-husband vide order dated 13.08.2026 to file the requisite affidavit in terms of the judgment passed by the Hon’ble Supreme Court in Rajnesh Vs. Neha & Anr. (supra) and in compliance thereof, the appellant has filed the affidavit mentioning therein that the appellant is working as a Sahiya under the National Rural Health Mission and receives an honorarium of Rs.2000/- per month only. The appellant has an account with Canara Bank, Sahijana, Garhwa and she has got no immovable property. The minor son of the appellant is also dependent upon her and she has to spend about Rs.7000/- per month for upbringing him. She has also stated that the arrears of maintenance as against the respondent has come up to Rs.3 Lakhs. On the other hand, the affidavit filed on behalf of the respondent disclosing existence of landed property and movable property are also taken for consideration.

Considering the admitted position that the respondent has solemnized second marriage and also has a child out of the said wedlock and the present appellant is working as a Sahiya and also has a son born out of the wedlock, who is also dependent on her and has no movable or immovable property in her name. The mandate of Section 25 of the Act, 1955 contains the provision for permanent alimony and maintenance. Sub Section (1) of Section 25 of the Act, 1955 reads as hereunder:

The law is settled that the order of permanent alimony/ maintenance could be passed while passing a decree for dissolution of marriage and such order can be passed even on the basis of oral application made by the parties. In the instant case, it is apparent from the order passed by this Court itself that prayer for alimony was made and a Co-ordinate Bench of this Court, thereafter, vide order dated 13.08.2026, had directed the respondent-husband to file requisite affidavit so as to give fair opportunity to contest the application and also to consider the application for passing appropriate order. However, in complete defiance of the said order, initially the affidavit was not filed, however, in course of argument, an affidavit was filed, which contained an evasive statement of the financial capacity, details of movable or immovable assets of the respondent.

Constrained by the materials available before us and the circumstances appearing in this case, we are of the considered view that it would be just, fair and reasonable to award monthly maintenance of Rs.10,000/- each for the wife and the minor son, which shall be paid to the appellant-wife. The maintenance amount for the minor son shall be payable till he attains majority.

Coming out to the second point for determination, we are of the considered view that framing of issue on the point of cruelty by the appellant on the respondent appears to be beyond pleading, which ought not to have been framed without an amendment in the pleading. Since the Trial Court record is also available and on perusal of the same, it appears that the issues were re-casted even without any formal application or without formal hearing on the same. Thus, framing issue with regard to cruelty by the wife on the husband which is also a ground for divorce itself was not in accordance with law. However, the other issue as to whether the husband meted out cruelty on the wife was rightly re-casted in view of the pleadings of the appellant herein, which was in defiance to the case of the respondent and a justification for non-restitution of conjugal rights. Thus, framing of issue No.IV do not suffer from any illegality.

However, the dominant issue as to whether the respondent was entitled to a decree for divorce for non-compliance of a decree for restitution of conjugal rights does not warrant any interference in view of the fact that the decree for restitution of conjugal rights has not been interfered with by any Court of law and the same was not complied with by the appellant. On the said ground, the judgment and decree passed by the learned trial Court granting a decree of divorce is, hereby, affirmed.

It is reiterated that the appellant, in course of argument, has also not pressed on such challenge to the said determination made by the learned Trial Court.

We are, therefore, of the considered view that the impugned judgment and decree to the extent discussed above does not require any interference and the appeal is fit to be dismissed, accordingly, the same is, hereby, dismissed, except to the extent of an addition with regard to payment of monthly maintenance by way of permanent alimony in terms of Section 25 of the Act, 1955.

The aforesaid order of payment of permanent alimony shall be effective from the date of passing of this judgment.

This order, under no circumstances, shall prejudice the recovery of arrears of maintenance, if any, passed by the Court of competent jurisdiction prior to passing of this judgment.

This appeal is disposed of in the above terms and without any order for costs.