Court: Allahabad High Court
Bench: JUSTICE Arun Tandon & Abhai Kumar
Sunil Kumar Chaurasia Vs. Neelima On 22 April 2016
Law Point:
Hindu Marriage Act, 1955 — Sections 13(1)(ia), 13A, 9 — Family Courts Act, 1984 — Section 19 — Cruelty — Judicial Separation — Restitution of conjugal rights — Parties living separately for past 10 years independently — Marriage between parties irretrievably broken down — Husband is Government employee and wife is Asstt. Teacher — It would be appropriate to pass order of judicial separation under Section 13(A) of Act — Directions.
JUDGEMENT
1. Heard Mr. Manish Goyal assisted by Mr. Siddharth Singh, learned Counsel for the appellant-husband and Mr. M.C. Chaturvedi, learned Senior Counsel assisted by Mr. S.C. Dwivedi, learned Counsel for the respondent-wife.
2. This appeal under Section 19 of the Family Courts Act, 1984 has been filed against the judgment and order of Additional District Judge, Court No. 3 In-charge, Family Court, Maharajganj passed in Matrimonial Case No. 181 of/2009, Smt. Neelima v. Sunil Kumar Chaurasia.
3. Facts in short leading to this appeal are as follows:
The plaintiff Smt. Neelima was married to Sunil Kumar Chaurasia (the husband), the respondent before us, according to the rites and rituals of Hindus on 16.2.2005. For the facts and reasons disclosed in the application filed under Section 13 of the Hindu Marriage Act the wife brought a decree of divorce. This application was registered as Matrimonial Case No. 181 of 2009, Smt. Neelima v. Sunil Kumar Chaurasia. The In-charge Judge, Family Court after exchange of pleadings between the parties framed two issues for determination:
(i)
Whether Smt. Neelima was entitled to a decree of divorce from her husband Sunil Kumar Chaurasia or not?
(ii)
As to what other relief the plaintiff was entitled, if any.
4. Family Court after considering the material evidence brought on record has answered issue No. 1 in favour of the wife and it has been held that a case for decree of divorce was made out in view of physical and mental cruelty which was established from the evidence on record. Issue No. 2 has answered in negative.
5. Having regard to the finding returned in respect of issue No. 1, the husband has challenged the order so made by the Family Court.
6. Since, the dispute was matrimonial, this Court passed an order dated 6.4.2016 for an attempt being made to re-conciliate the inter se dispute between the husband and the wife. Accordingly, they were directed to appear before the Court on 20.4.2016. The wife and the husband appeared before this Court on 20.4.2016. This Court tried to settle the dispute amicably but could not succeed.
7. The wife Smt. Neelima at the very outset stated in open Court that she shall not participate in any re-conciliation proceedings as she has contested the matter for ten years and would not agree to any compromise now. It is in this background that we proceed with the hearing of the present appeal on merits.
8. Learned Counsel for the appellant submits that the husband is still eager to keep the wife with him.
9. Having examined the findings returned by the Family Court on the issue of cruelty as alleged by the wife, we find that there is some substance in the challenge to the findings by the husband-appellant before us. The Family Court does not appear to be very correct in returning the findings about cruelty against the husband on the basis of evidence placed on record. From the order of the Family Court we find that an F.I.R. was lodged by the wife against the husband-appellant and his family members being case crime No. 431 of 2006, under Sections 498A, 323, 504, 506, I.P.C. and 3/4, D.P. Act, at P.S.-Kotwali, District Maharajganj. A charge-sheet is said to have been submitted by the Investigating Officer on 14.5.2006 in the aforesaid case. We further find that the husband had made an application under Section 9 of the Hindu Marriage Act for restitution of conjugal rights being Case No. 1061 of 2006, Sunil Kumar Chaurasia v. Smt. Neelima, which is pending before the Family Court, Kanpur Nagar. The wife instituted proceedings under the Domestic Violence Act as well as under Section 125 of Cr.P.C. against the appellant which had been decided in her favour. Against the order of C.J.M., Maharajganj, a revision has been filed by the husband wherein interim stay order has been granted. The pendency of the aforesaid proceedings specifically those initiated by the wife have been made the basis by the Family Court for returning the finding of mental and physical cruelty against her husband-appellant.
10. From the records, none of the proceedings instituted by the wife-respondent have attained finality inasmuch as in the criminal proceeding only charge-sheet has been submitted and the husband is contesting the same while in the case instituted under the Domestic Violence Act as well as for maintenance under Section 125 of Cr.P.C., a revision has been filed wherein interim stay order has been granted in favour of the appellant-husband.
11. But having regard to the attitude of the wife as reflected in the open Court proceedings before us on 20.4.2016 as also to the fact that the parties have been living separately for the last 10 years independently, and since wife is employed getting adequate salary, we are of the opinion that in the facts of the case, the marriage between the husband and the wife has broken down to an extent of being irretrievable. The husband is stated to be an Government employee while the wife is working an Assistant Teacher in a institution under the control of the State Govt.
12. In the totality of the circumstances of the case, we are of the considered opinion that instead of examining the issue of correctness or otherwise of the allegations in the matter of grant of decree of divorce, it would be appropriate for us to pass an order of judicial separation having regard to the provisions of Section 13(A) of the Hindu Marriage Act, 1955.
13. We accordingly dispose of this appeal by granting alternative relief of judicial separation. A decree of judicial separation is made between Smt. Neelima (the wife) and Sunil Kumar Chaurasia (the husband).
14. It is needless to record that the proceedings which have been instituted by the husband for restitution of conjugal rights said to be pending, with the passing of decree of judicial separation by this Court, will loss their efficacy.
15. The appeal is disposed of with the aforesaid observations and directions.
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