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Mumbai High Court:- WIFE OR HER PARENTS Cannot claim Marriage expense. Also the right to claim permanent alimony is dependent on the conduct and the circumstances involved.

December 14, 2012 Leave a comment

Mumbai High Court

Sudha Suhas Nandanvankar vs Suhas Ramrao Nandanvankar

on 15/9/2004

JUDGMENT                                               S.B. Mhase, J.

1. This appeal is directed against the Judgment and Order passed in    Misc. Application No. 60 of 2000 on 5-8-2000 by the Family Court,    Bandra in an application preferred under Sections 27 and 25 of the    Hindu Marriage Act, inter alia, making prayer that the stridhan of the    applicant be returned and also permanent alimony be granted. The said    application was partly allowed by the Family Court. However, in respect    of part rejection of the application, this appeal has been preferred.

2. The applicant was married with the opponent on 21-5-1995 according    to Hindu Laws. The said marriage has been annulled by a-decree of    nullity dated 16-3-1996 on a ground that the applicant-wife was    suffering from epilepsy at the time of marriage. Even though the said    decree was ex-parte, the said decree was not challenged by the    applicant-wife. However, after passing of the said decree, the notice    was issued by the applicant for return of the articles which were    presented to her at the time of marriage by her parents as per the    list. It is further claimed that the expenses incurred for the said    marriage of Rs. 31,876/- be returned. During the pendency of this    application the applicant-wife further submitted the application    (Exh.16) for return of the articles and jewellery which was presented    to her by her in-laws at the time of marriage. She has further claimed    permanent alimony. The Family Court has rejected the claim of Rs.    31,876/- which was incurred by the parents of the’ applicant-wife for    the purposes of marriage expenses on the ground that there is no    provision to return such amount. At the time of argument of this    matter, the learned Counsel for the appellant-wife fairly conceded that    there is no provision for return of such marriage expenses and    therefore, unless there is a provision to that effect, the trial Court    was justified in rejecting the claim for the marriage expenses to the    extent of Rs. 31,876/-. The trial Court has also rejected the claim in    respect of the golden articles and jewellery as listed in (Exh.16).    This appeal is mainly directed against the said finding of the trial    Court. We need not go to list of those articles but what we find that    all these articles, as per the claim made by the applicant-wife, have    been presented to her by the in-laws viz. mother-in-law, sister-in-law    i.e. (sister of the husband), another sister-in-law i.e. the wife of    the brother of the husband and so on. Naturally, as these Articles have    been presented by the in-laws, the applicant has not produced any    evidence to demonstrate that these articles were purchased by her    in-laws at any point of time. However, she had entered into witness box    and stated that these articles were presented to her. In order to    support her testimony, she has produced the photographs which were    taken at the time of marriage wherein these articles were reflected as    having been put on her and thereby claiming that these articles were    with her and they have not been returned by the husband. Since they    found to be stridhan, she is entitled to return of the same. The    husband has denied that such articles were ever presented to the    applicant-wife. According to him these articles were not presented at    any point of time and he further made a suggestion in the    cross-examination that these articles were of the parents of the    appellant-wife which were put on by her parents in order to have a show    of the presentation of such articles and he calls it as a “mandap    show”. Such suggestion has been denied by the applicant-wife. However,    it is pertinent to note that if these articles were presented to her,    she should have examined some witnesses who were present at the time of    marriage in the presence of whom these articles were presented by her    in-laws. However, she has not examined her father and mother. She has    not examined any friend who may be accompanied her at the time of said    marriage ceremony to demonstrate that such articles were presented    during the marriage ceremony to her. As against this, what we have    noticed that the respondent-husband has entered into witness box to    depose that such articles were not presented. Apart from that    respondent-husband has examined his parents. The parents have also    stated that such articles were not presented to the appellant-wife and    therefore, the respondent has brought on record the primary evidence to    demonstrate that such articles were never presented. Learned Counsel    for the applicant tried to submit that since these articles will have    to be returned to the appellant-wife, the respondent and his parents    are making statements that such articles were not presented. However,    what we find that in that eventuality, these witnesses have been    cross-examined and nothing have been brought in the cross-examination    to demonstrate that these witnesses were supressing the truth. We have    gone through the evidence of the parents and noticed that the evidence    is convincing one and the trial Court has rightly appreciated the    evidence. Therefore, we find that appellant has failed to establish    that such articles were presented by her in-laws in the marriage    ceremony.

3. Apart from this, we have taken into consideration that when the    first notice was given the articles mentioned in the list Exh.16 were    not demanded. Not only that when the application was filed, in the said    application there was no demand for the articles. It is during the    pendency of the application, the Exh.16 was submitted to the Family    Court making claim towards specific articles. Those articles were    golden and jewellery articles and such important stridhan will not be    forgotten by the appellant-wife till the pendency of the application.    In that context it is reflected that it is a after thought decision to    claim the articles and we find that the observation and finding    recorded by the Family Court are proper and justified one and we find    that there is no merit in the submission of the learned Counsel that    the Family Court should have allowed the list (Exh.i6).

4. So far as the articles which are directed to be returned to the    appellant-wife, we find that the findings have been rightly recorded    and no interference is called for. Apart from that there was a counter    appeal filed by the first party challenging the said order. The said    appeal is withdrawn by the respondent-husband as not pressed and    therefore, we confirm that part of the Family Court’s order.

5. The last question which requires consideration is in respect of the    alimony. It is an admitted fact that the decree for nullity has been    passed under Section 5(ii)(c) since the appellant was suffering from    epilepsy. Since the learned Advocate for the appellant submits that    under Section 25 the alimony has to be paid at the time of passing of    the final decree. He relied on the decision in the case of Shantaram    Tukaram Patil and anr. vs. Dagubai Tukaram Patil and ors. reported in    1987 Mh.LJ. 179. He further pointed out that the said Judgment is    relied upon by the single Judge in a subsequent Judgment in the case of    Krishnakant vs. Reena reported in 1999 (1) Mh.LJ. 388 and submitted    that even though the decree of nullity was passed the petitioner is    entitled to claim alimony under Section 25.

The learned Counsel for the respondent submitted that both these Judgments have considered the    aspect that the entitlement of the party for permanent alimony and more specifically right of the wife. However, he submitted that the said    right is available on condition that taking into consideration the conduct and the circumstances of case the Court is satisfied that    alimony shall be granted. According to him after marriage, immediately    there was a “Satyanarayan Pooja” and for the first time husband and    wife came together. The respondent-husband found that the appellant-wife is a patient of epilepsy and on the next day, he has    called on to the parents of appellant-wife and the father of the appellant came along with the Doctor to discuss. Learned Counsel    further stated that the father requested respondent to allow the appellant to stay with respondent and the medical expenses will be    borne by the father of the appellant. He submitted that thus the fact    that the appellant was suffering from epilepsy was not disclosed at the    time of settlement of marriage and till the marriage is performed. He    further submitted that even though on 1 or 2 occasions, prior to the    marriage there was a meeting of respondent husband and appellant-wife,    still the appellant wife has not disclosed that she is a patient of    epilepsy. Thus he submitted that the conduct of the appellant and her    parents in not disclosing that the appellant wife is suffering from    epilepsy is itself a fraudulent and therefore, the party which takes    the benefit of it, shall not be allowed to take such benefit and this    circumstance may be taken into consideration. Relevant portion of    Section 25 of the Hindu Marriage Act, 1955 is as follows :-       Section 25.- Permanent alimony and maintenance – (1) Any Court      exercising jurisdiction under this Act may, at the time of passing      any decree or at any time subsequent thereto, on application made to      it for the purpose by either the wife or the husband as the case may      be, order that the respondent shall pay to the applicant for her or      his maintenance and support such gross sum or such monthly or      periodical sum for a term not exceeding the life of the applicant      as, having reward to the respondent’s own income and other property,      if any, the income and other property of the applicant, (the conduct      of the parties and other circumstances of the case), it may seem to      the Court to be just, and any such payment may be secured, if      necessary, by a charge on the immovable property of the respondent.     In the facts and circumstances of the present case what we find that    since the decree for nullity of marriage is passed under Section    5(ii)(c) we have to consider as to whether order for amount of alimony    is to be passed. In view of the above referred 2 Judgments which have    been relied by the Counsel for the appellant, we do not find any    difficulty to conclude that in such a decree the wife is entitled to    have a permanent alimony. However, whether the conduct of the parties    and other circumstances involved in this case will allow us to pass    such order is the main question. It is an admitted fact that the    marriage was celebrated on 21-5-1995 and within 4 days from the date of    marriage, ‘Satyanarayan Pooja’ was performed in the matrimonial home    and thereafter husband and wife were allowed to stay with each other.    However, when it was found that the appellant-wife is suffering from    epilepsy the marriage was not consumated and on 27-5-1995 the    respondent-husband has contacted the appellant’s father. The    applicant’s father and mother accompanied by the Doctor attached to the    Poddar hospital came to the house of the respondent-husband and    thereafter they discussed about the fact of suffering of the epilepsy.    The appellant’s father showed willingness to incur the medical expenses    for the treatment of the appellant. However, he requested the    Respondent to allow the appellant to stay in the house of the    respondent-husband. This was not accepted by the respondent and    therefore, the father of the appellant has taken the appellant and    thereafter, a petition for nullity of marriage was filed in which    ex-parte decree was passed. The said decree is not challenged.    Thereafter, the applicant has filed this application for the permanent    alimony. It is pertinent to note that the parents and/or father of the    appellant have not entered into a witness box either to depose that the    fact of the epilepsy was disclosed to the respondent husband at the    time of settlement of carriage nor the appellant has stated in her    evidence that at any point of time prior to the marriage when they have    seen each other said fact was disclosed to the respondent-husband.    Therefore, the only inference is that till the marriage is performed    the respondent was not aware of the fact that the appellant is a    patient of epilepsy. The moment he got knowledge, he has not    consummated the marriage and called the parents of the appellant and    thereafter appellant was taken by the parents. This shows that had the    fact been disclosed prior to the performance of the marriage, the    respondent-husband would not have conducted such marriage with the    appellant-wife. The non disclosure by the parents of the appellant and    the appellant accepting the decree as it is without making any grudge    that in respect of the ground that the appellant was suffering from the    epilepsy prior to the marriage reflects upon the conduct of the    appellant and if we take into consideration this aspect what we find is    that the appellant is trying to take advantage of her wrong or fraud    and is trying to harass the respondent by claiming the amount of    alimony. But what we find is that after a decree of annulment the    respondent has married and he is having a child. Now this appears to be    an attempt on the part of the appellant and her parents to disturb the    marital life of the respondent which he has tried to settle after    annulment of the marriage. This is an attempt to shift the liability of    maintenance by the appellant-wife on a husband who was not at fault and    who has not consummated the marriage. Even though the law permits the    right of the alimony in favour of the appellant, however, the conduct    and the circumstances involved in the present case does not permit us    to pass an order of permanent alimony in favour of the appellant. We    find that the findings recorded by the Family Court are just and proper    and no interference is called for.

6. In the result, we find that there is no substance in the appeal and    hence, appeal is hereby dismissed with no order as to costs.

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Multiple Maintenance Cases, 24 of HMA and 125 Cr.P.C/DV?

Another judgement : where wife already instituted maintenance proceedings and was awarded – no maintenance under PWDVA : http://www.indiankanoon.org/doc/894915/

Concealing income and job leads to contempt – see/click link below: http://www.indiankanoon.org/doc/876426/
* * *
Rachna Kathuria vs Ramesh Kathuria on 30 August, 2010
Author: Shiv Narayan Dhingra
http://www.indiankanoon.org/doc/1111546/
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: August 25, 2010
Date of Order: 30th August, 2010
+ Crl.M.C.No. 130/2010 & Crl.M.A.No. 504/2010
% 30.8.2010 Rachna Kathuria … Petitioner Through: Mr. P.Narula, Advocate
Versus
Ramesh Kathuria … Respondent Through:Mr. S.S.Saluja, Advocate
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment? Yes.
2. To be referred to the reporter or not? Yes.
3. Whether judgment should be reported in Digest? Yes. JUDGMENT
By this petition under Section 482 Cr.P.C. the petitioner has assailed an order dated 22nd October 2009 of learned Additional Sessions Judge passed in appeal whereby the appeal of the petitioner was dismissed.

2. The petitioner filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (in short the Act) and along with it she filed an application under Section 29 of the Act seeking maintenance. The learned Court of MM observed that petitioner was living separate from her husband since 3rd January, 1996. She had filed a Civil Suit under Hindu Adoption and Maintenance Act and an application under Section 125 Cr.P.C. and Crl.M.C.No. 130/2010 Page 1 of 3 she was getting a total maintenance of ` 4000/- per month from the respondent. In case the petitioner felt that maintenance awarded to her was not sufficient, the proper course for her was to approach the concerned Court for modification of the order as already observed by the High Court in a petition filed by her earlier and the application was dismissed. Against this petitioner preferred an appeal. The learned Additional District Judge dismissed the appeal and the petitioner has preferred this petition.
3. It must be understood that the Protection of Women from Domestic Violence Act, 2005 does not create any additional right to claim maintenance on the part of the aggrieved person. It only puts the enforcement of existing right of maintenance available to an aggrieved person on fast track. If a woman living separate from her husband had already filed a suit claiming maintenance and after adjudication maintenance has been determined by a competent court either in Civil Suit or by Court of MM in an application under Section 125 Cr.P.C. she does not have a right to claim additional maintenance under the Act. The Court of MM under the Act has power to grant maintenance and monetary reliefs on an interim basis in a fast track manner only in those cases where woman has not exercised her right of claiming maintenance either under Civil Court or under Section 125 Cr.P.C. If the woman has already moved Court and her right of maintenance has been adjudicated by a competent Civil Court or by a competent Court of MM under Section 125 Cr.P.C., for any enhancement of maintenance Crl.M.C.No. 130/2010 Page 2 of 3 already granted, she will have to move the same Court and she cannot approach MM under the Protection of Women from Domestic Violence Act by way of an application of interim or final nature to grant additional maintenance. This petition is not maintainable and is hereby dismissed.
August 30, 2010 SHIV NARAYAN DHINGRA, J. vn
Crl.M.C.No. 130/2010 Page 3 of 3

*************************************************************
If you know your wife is working and she is denying that she is earning then you just need to issue Witness Summons against payment of Bhatta.
____________________________________________________

IN THE DISTRICT COURT, SONEPAT
REVIEW APPLICATION NO. OF 2009
OF INTERIM APPLICATION NO. —- OF —-
IN
M.J. PETITION NO. —– OF —–.

CCCCC … Petitioner
V/s
BBBB … Respondent

APPLICATION BY THE PETITIONER FOR
THE ISSUE OF WITNESS SUMMONS
TO MR. XYZ
DIRECTOR
ABC, SONEPAT.

MOST RESPECTFULLY SHEWETH AS UNDER :-

I, CCCC, the above named Petitioner, most respectfully hereby submit my application as under :-

As I want to examine the following witness towards his evidence to ascertain the fact of the gainful employment of the Respondent with ABC, summons as mentioned herein after may please be issued through the Hon’ble Court to this witness in the interest of the justice and equity because the Respondent has intentionally and knowingly concealed from this Hon’ble Court the material fact of her gainful employment.

I am ready to pay process against the same and Bhatta will be paid directly to the witness.

Name of witness with details is as under :

MR. XYZ
Director
ABC, Full Address.
Telephone :

He be directed to attend the Hon’ble Court himself personally or through authorized staff member with following details in writing.

Details and certified / authenticated copies of all the following documents in respect of BBBBB who joined your organization :

a) Date of joining and Date of resignation / termination, if any, or continued in service at present.
b) Copy of application for service, bio-data with all enclosures.
c) Copy of appointment letter of service with terms & conditions.
d) Copy of resignation / termination letter, if any.
e) Copy of last salary slip, salary received by her with salary structure, mode of payment by cash / cheque / direct debit etc.
f) Details of Salary Bank Account with copy of all statements for the entire period of employment.
g) Copy of complete attendance record for entire service period.
h) Details of Job profile, designation and working hours.
i) Details of her all employment, may be intermittent, with the bank i.e. Date of joining & Date of resignation/termination with all salary details for the period commencing from 26.12.2008.
It is therefore prayed that summons with aforesaid details be sent to the witness.

Hence this application.

***************************************************

1) In Ravinder Haribhau Karamkar V/s Shaila Ravinder Karamkar, 1992, Cr. L.J. 1845 (Bombay) – in this reference case, it was held that during the pendency of a filed regular civil court petition under Section 24 of HMA, wife also simultaneously filed a parallel petition under 125 Cr.P.C. of the Code. It was held that the petitioner wife could not be allowed to ride two different horses at the time (two simultaneous proceedings in two different courts) and could not be permitted to continue the maintenance proceedings under section 125 Cr. P.C. when she has already chosen the alternative remedy by filing first a regular civil court suit for maintenance. It is well established that the judgment of the civil court shall prevail over the judgment of the criminal court. The natural justice demands that parallel proceedings cannot be allowed to continue in different courts.
http://indiankanoon.org/doc/468335/

Prayer me made as follows:
For the purpose of sparing the victim the ordeal of multiple trials and judicial economy – prayer be made to consolidate both trials in order to minimize prejudice with respect to potential antagonistic statements. For 2 trials would be cruel and relief sought under 2 trials would be inhuman and could turn into a logistical nightmare to comply with.
Here is an opportunity for the system and the court administrators to make a humane gesture and rule for one trial only.

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