# Smt. Jyotsna Verma v. Ashok Kumar

- **Citation:** (2021) 5 ILRA 79
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-03-10
- **Case number:** First Appeal No. 432 of 2009
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajit Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-jyotsna-verma-v-ashok-kumar-46988
- **Pages:** 8

## Headnote

A. Family Law - Hindu Marriage Act, 1955
- Sections 24, 25; Hindu Adoption &
Maintenance Act, 1956 - Application for
modification in the decree .

This application is termed as an application for
modification to review the order passed by this
Court which, in fact, is an application for
correction of an error which had crept in which
can be said to be an error apparent on the face
of the record. (Para 10)

The appellant was sharing the house with the
husband, who passed away recently, as per
the orders passed by this Court. The Court
seems to have recorded her statement in order
dated 30.07.2018 and disposed off the appeal
(which was filed in the year 2009 challenging
the decree of divorce passed in favour of the
respondent-husband) as withdrawn without
modifying the decree of divorce. This order has
caused problem to the appellant. (Para 5, 11,
12)
The dispute was matrimonial dispute which had
given rise to the litigation between the parties,
which had started way back in the year 1997/1999
when the appellant had filed a complaint under
sections 498-A and 323, I.P.C. against her in-laws
including the plaintiff-respondent (husband) now
deceased. (Para 12)

Sri Ashok Kumar (deceased) had moved the
Family Court, Meerut and a decree was passed
against the appellant herein, which was challenged
before this Court on several grounds. The learned
Judge of the Family Court while considering the
said complaint case had given a finding that she
had deserted the husband, but the case set up by
way of the appeal before this Court as well as by
way of this modification application, is that the
appellant never wanted to lose the company of her
husband, who is now dead. The husband after
30.7.2018 (last order passed by the Court when
the appeal was disposed of as withdrawn) had
never came up before the Court to complain about
desertion or regarding any other matrimonial
dispute.
The
non-substantiation
of
the
allegations loses all its significance in the
present factual scenario of this case and a
case for setting aside the impugned decree
of divorce is made out. (Para 13)

The fact that the respondent-husband and
the appellant started cohabiting under the
order of this Court itself as there was a
consensus of ending the dispute between
them. (Para 12)

B. It cannot be said that the appellant is
the divorced wife. The appellant would be
entitled to the maintenance as per Hindu
Adoption and Maintenance Act, 1956 as
she was dependent on the deceased. It is
made clear that she has during a intervening
period of twenty years of litigation of has never
claimed what can be termed to be maintenance
under sections 24 and 25 of Hindu Marriage Act,
1955 or any maintenance under section 125, Cr.
P.C. (Para 15, 16, 17)

The only legal heir who are entitled to inherit
the estate of the deceased are the appellant and
her son, who is now major. (Para 14)
80 INDIAN LAW REPORTS ALLAHABAD SERIES
Modification
application
allowed.
Judgment sought to be modified is set
aside. Decree of divorce is set aside. (E-3)

Precedent followed:

## Text

5 All. Smt. Jyotsna Verma Vs. Ashok Kumar
79
----------
(2021)05ILR A79
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.03.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJIT SINGH, J.

First Appeal No. 432 of 2009

Smt. Jyotsna Verma ...Appellant
Versus
Ashok Kumar ...Respondent

Counsel for the Appellant:
In Person, Ms. Jyotsna Verma (In Person),
Sri Madhur Prakash, Smt. Archana Singh

Counsel for the Respondent:
Sri B.D. Mishra, Sri Syed Fahim Ahmed

A. Family Law - Hindu Marriage Act, 1955
- Sections 24, 25; Hindu Adoption &
Maintenance Act, 1956 - Application for
modification in the decree .

This application is termed as an application for
modification to review the order passed by this
Court which, in fact, is an application for
correction of an error which had crept in which
can be said to be an error apparent on the face
of the record. (Para 10)

The appellant was sharing the house with the
husband, who passed away recently, as per
the orders passed by this Court. The Court
seems to have recorded her statement in order
dated 30.07.2018 and disposed off the appeal
(which was filed in the year 2009 challenging
the decree of divorce passed in favour of the
respondent-husband) as withdrawn without
modifying the decree of divorce. This order has
caused problem to the appellant. (Para 5, 11,
12)
The dispute was matrimonial dispute which had
given rise to the litigation between the parties,
which had started way back in the year 1997/1999
when the appellant had filed a complaint under
sections 498-A and 323, I.P.C. against her in-laws
including the plaintiff-respondent (husband) now
deceased. (Para 12)

Sri Ashok Kumar (deceased) had moved the
Family Court, Meerut and a decree was passed
against the appellant herein, which was challenged
before this Court on several grounds. The learned
Judge of the Family Court while considering the
said complaint case had given a finding that she
had deserted the husband, but the case set up by
way of the appeal before this Court as well as by
way of this modification application, is that the
appellant never wanted to lose the company of her
husband, who is now dead. The husband after
30.7.2018 (last order passed by the Court when
the appeal was disposed of as withdrawn) had
never came up before the Court to complain about
desertion or regarding any other matrimonial
dispute.
The
non-substantiation
of
the
allegations loses all its significance in the
present factual scenario of this case and a
case for setting aside the impugned decree
of divorce is made out. (Para 13)

The fact that the respondent-husband and
the appellant started cohabiting under the
order of this Court itself as there was a
consensus of ending the dispute between
them. (Para 12)

B. It cannot be said that the appellant is
the divorced wife. The appellant would be
entitled to the maintenance as per Hindu
Adoption and Maintenance Act, 1956 as
she was dependent on the deceased. It is
made clear that she has during a intervening
period of twenty years of litigation of has never
claimed what can be termed to be maintenance
under sections 24 and 25 of Hindu Marriage Act,
1955 or any maintenance under section 125, Cr.
P.C. (Para 15, 16, 17)

The only legal heir who are entitled to inherit
the estate of the deceased are the appellant and
her son, who is now major. (Para 14)
80 INDIAN LAW REPORTS ALLAHABAD SERIES
Modification
application
allowed.
Judgment sought to be modified is set
aside. Decree of divorce is set aside. (E-3)

Precedent followed:

1. Rohtas Singh Vs Sant Ramendri, AIR 2000 SC
952 (Para 16)

2. Swapan Kumar Banerjee Vs St. of W.B. &
ors., AIR 2019 SC 4748; 2019 (3) HLR 392 (Para
16)

Present appeal against the judgment and
decree dated 25.04.2009 passed by Family
Court, Meerut.

(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J. &
Hon'ble Ajit Singh, J.)

1.

This
application
was
for
modification. The appeal was filed in the
year 2009 challenging the decree of divorce
passed in favour of the respondenthusband. For a period of nine years, the
appeal remained pending, wherein she had
challenged the grant of divorce to the
husband by the court below. Thereafter this
appeal came up before the Court on
12.4.2018, this Court inquired from the
appellant (in person) and learned counsel
for the respondent-husband as to whether
there was any chance of settlement between
the
parties
and
after
taking
into
consideration the submissions made by the
appellant as well as the learned counsel
appearing on behalf of the respondenthusband, the following order was passed :

"This is an appeal by the wife
against the decree of divorce dated
25.4.2009 passed by the Family Court,
Meerut.

One of the submissions of the wife
who is appearing in person is that the
petition for dissolution of marriage was
instituted by the husband on the ground of
cruelty and desertion but none of those
grounds were proved and the Family Court
without formulating any point with regard
to irretrievable brake down of marriage
has routed the divorce.

The appellant is present in
person. She does not want divorce and is
ready and willing to live with her husband
even today.

Sri
Faheem
Ahmad,
learned
counsel appearing for the respondent
husband is also ready and willing to keep
her with him as her wife.

It may be noted that the only son
of parties is grown up and is about 25
years.

In such situation, as both sides
has expressed willingness to live together
as husband and wife, we are of the opinion
that the decree of divorce would not
survive.

Accordingly, we direct both the
parties to appear in person before the
Court on 3rd May 2018 so that their wishes
may be verified and recorded before
passing the final order in the appeal.

Let the matter be listed on 3rd
May 2018. "

2. In pursuance to the above order
dated 12.4.2018, the appeal was again
taken up on 03.05.2018 and the following
order came to be passed :

"In pursuance to the order of the
court dated 12.04.2018 the appellant Smt.
Jyotsna Verma and the respondent Ashok
5 All. Smt. Jyotsna Verma Vs. Ashok Kumar
81
Kumar are present before the court. They
are both willing to live together as husband
and wife forgetting all that has happened in
the past.

There are certain reservations on
part of each of them whether the husband
will provide her a decent atmosphere or
whether the wife will adjust in the new set
up.

These are normal and routine
apprehensions which possibly could be
taken care of by both of them once they
start living together.

The husband is living in Tejpur in
Assam and the wife is presently in New
Delhi. She is ready to go and live with the
husband at Tejpur and the husband has
proper
residential
accommodation
available with him where they can live
together.

In view of the aforesaid facts
and circumstances, we direct both of
them to live together for a period of 2-3
months and to try in the best possible
manner to adjust with each other
forgetting about the past and to revert
back to us in July, 2018.

Their only son who is now
major and is living in New Delhi is also
free to join them or may visit them if he
so desires from time to time.

In case the son is unable to join
them for some reason and if on account
of his some physical disability, the wife
has to visit him, the husband will not take
any objection to it.

Let the matter be listed on
30th July, 2018 on which date parties will
appear again before the court and share
their experiences so that further action in
the matter if necessary on merits may be
taken."

3. On 30.07.2018, this appeal again
came up for consideration and the
following order was passed by this
Court:-

"Smt.
Jyotsana
Verma,
appellant is present in the Court.

In compliance of the order of
this Court dated 03.05.2018, it is stated
that both the husband and wife have been
living together for a month and now they
have reached at amicable settlement
between them and they are living happily
together.

The appellant has made a
statement that there is no dispute between
her and her husband. In view of the
subsequent development, she wants to
withdraw the appeal.

In view of the above, the appeal
stands disposed of."

4. It has also been brought to our
notice that in the year 2018 pursuant to this
conciliation effort the appellant moved to
Assam and started staying with the
husband. Pursuant to this the appellant
started co-habiting and within two months
she came before this Court and deposed
that both them are cohabiting and on her
this statement appeal was permitted to be
withdrawn.
82 INDIAN LAW REPORTS ALLAHABAD SERIES

5. It is this order permitting
withdrawal of the appeal without quashing
the decree of divorce which has caused
problem to the appellant as it is now
evident that the husband with whom she
had co-habited lastly, passed away recently.

6. The order dated 23.02.2021 is
reproduced herein below :

"(Order
on
Civil
Misc.
(Modification) Application no. 7 of 2021)

We have been conveyed that
pursuant to the order of this Court the
parties have cohabited for which the
following order dated 03.05.2018 came to
be passed by this Court, which reads as
under:

"In pursuance to the order of the
court dated 12.04.2018 the appellant Smt.
Jyotsna Verma and the respondent Ashok
Kumar are present before the court. They
are both willing to live together as husband
and wife forgetting all that has happened in
the past.

There are certain reservations on
part of each of them whether the husband
will provide her a decent atmosphere or
whether the wife will adjust in the new set
up.

These are normal and routine
apprehensions which possibly could be
taken care of by both of them once they
start living together.

The husband is living in Tejpur in
Assam and the wife is presently in New
Delhi.

She is ready to go and live with
the husband at Tejpur and the husband has
proper
residential
accommodation
available with him where they can live
together.

In view of the aforesaid facts and
circumstances, we direct both of them to
live together for a period of 2-3 months and
to try in the best possible manner to adjust
with eachother forgetting about the past
and to revert back to us in July, 2018.

Their only son who is now major
and is living in New Delhi is also free to
join them or may visit them if he so desires
from time to time.

In case the son is unable to join
them for some reason and if on account of
his some physical disability, the wife has to
visit him, the husband will not take any
objection to it.

Let the matter be listed on 30th
July, 2018 on which date parties will
appear again before the court and share
their experiences so that further action in
the matter if necessary on merits may be
taken."

Thereafter, on 30.07.2018, the
following order was passed by this Court:-

"Smt. Jyotsana Verma, appellant
is present in the Court.

In compliance of the order of this
Court dated 03.05.2018, it is stated that
both the husband and wife have been living
together for a month and now they have
reached at amicable settlement between
them and they are living happily together.

The
appellant
has
made
a
statement that there is no dispute between
her and her husband. In view of the
5 All. Smt. Jyotsna Verma Vs. Ashok Kumar
83
subsequent development, she wants to
withdraw the appeal.

In view of the above, the appeal
stands disposed of."

From the above two orders, no
doubt, it is proved that the lady had been in
the matrimonial home with the husband.
The husband and wife are peacefully
staying together and their son is posted at
Delhi as per the earlier order. Once, the
parties decided to bury their differences the
decree of divorce should have been
modified. The decree itself would become
non-existent.
The
proceedings
were
withdrawn by the party in person (wife)
which were in continuation of the challenge
to the divorce decree husband never
objected to the said withdrawal of the
appeal as they had started cohabiting. The
purpose of withdrawal was with a vision to
give an end to their matrimonial discord as
they had started cohabiting together. The
decree of divorce as it is now had become
non-est and the grounds of divorce had
extinguished.

The Apex Court recently in
Mukesh Nayyar v. Madhu Nayyar, (2017)
11 SCC 165 dismissing the appeal has held
that in case of any surviving grievance with
regard to property or any other things, the
parties can pursue the same in appropriate
proceedings.

This appeal was withdrawn in
view of the statement made by the applicant
(appellant) wherein the statement was
recorded way back on 3.7.2018. The
appellant now wants us to review/modify
the said order. The reasons are as
mentioned herein below :-

(i) That she was a party in
person in the proceeding before the Court
below and after staying together with her
husband,
the
appellate
court
while
permitting her to amicably settle with her
husband, did not modify the decree of
divorce.

(ii) She continued to stay with her
husband. The recent pass port of the
present applicant shows that the settlement
which had taken place was being worked
out, meaning thereby that they had
accepted that the decree of divorce should
not be acted upon. Should the mistake,
which is apparent on the face of the record,
work to the prejudice of the lady who has
compromised with her husband, even the
appeal on the face of the record, while
permitting her to withdraw the same, this
Court should have no hesitation to modify
the decree as also in view of the statement
made by the learned counsel Sri V.J.
Agarwal assisted by Sri Sanjay Agarwal
appointed by her today.

(iii) She had also requested the
Court to join the legal heir of her husband,
namely, her son named Sri Ashok Kumar as
no other legal heir falling in clause 1
heirship is alive.

The amendment be carried out
within a period of one week from today.

We have interacted with the son
of the parties through video conferencing.
He has no objection to his joinder as party
in the array as heir of the respondent. After
a talk having being had by us with son
through
video
conferencing,
it
is
appropriate to direct that the learned
counsel shall carry out the amendment in
84 INDIAN LAW REPORTS ALLAHABAD SERIES
the memo of the appeal for joining the son
as legal heir of the original respondent.

The personal presence of the
appellant is dispensed with and she may be
heard through the video conferencing. She
would give her contact number to the
Bench Secretary.

List the matter on 1.3.2021 at
2:00 p.m for further orders.

Meanwhile, we stay the decree of
divorce.

List for further hearing on
1.3.2021."

7. The amendment has been carried
out. We proceed to decide the appeal on
merits.

8. Arnab, son of plaintiff-respondent,
has been impleaded as respondent in place
of Ashok Kumar.

9. The appellant Jyotsana Verma has
appeared in person before us.

10. Though this application is termed
as an application for modification to review
the order passed by this Court which, in
fact, is an application for correction of an
error which had crept in which can be said
to be an error apparent on the face of the
record.

11. The appellant was sharing the
house with the husband, who passed away
recently as per the orders passed by this
Court. Unfortunately, she is a party to this
appeal but not represented by an Advocate.
The Court seems to have recorded her
statement and disposed off the appeal on
her statement without modifying the decree
of divorce. On 23.02.2021, we have
directed for listing of this matter today, i.e.
10.03.2021.

12. The fact that the respondenthusband and the appellant started cohabiting under the order of this Court itself
as there was a consensus of ending the
dispute between them. They had given a
go-bye to their dispute. The situation would
have been otherwise had it been a case
different than the present one that the
appellant had abandoned herself from the
company of the plaintiff-respondent. Here,
we find that the case set up by the appellant
is that she had always been wishing to have
the company of the plaintiff-respondent.
The co-habiting of the husband and wife
and thereby giving go-bye to their dispute
ought to have been reflected in the orders
of the learned Division Bench, while
disposing of the appeal. The dispute was
regarding matrimonial dispute which had
given rise to the litigation between the
parties, which had started way back in the
year 1997/1999 and the Complaint Case
No. 536 of 2001 was instituted before the
Judicial Magistrate, Family Court, Meerut
where the appellant had filed a complaint
under Sections 498-A and 323 I.P.C.
against her in-laws including the plaintiffrespondent (husband) now deceased.

13. The said dispute is mentioned
only to show that the parties were litigating
with each other since long. Sri Ashok
Kumar, who was aged about 35 years, had
moved the Family Court, Meerut and a
decree was passed against the appellant
herein, which came to be challenged before
this Court on several grounds. Two aspects
are required to be gone into. Firstly, what
would be the fate if the appeal was allowed
on its merit. Secondly, the decree of
annulment or divorce would have been set
5 All. Smt. Jyotsna Verma Vs. Ashok Kumar
85
aside by this Court. The main dispute was
that certain allegations were made by the
appellant against her husband and the
learned judge of the Family Court while
considering the said complaint case had
given a finding that she had deserted the
husband, but the case set up by way of the
appeal before this Court as well as by way
of this modification application, is that the
appellant never wanted to lose the company
of her husband, who is now dead. Once, the
parties were co-habitting, may be because
of the order of the Court, can it be said that
the desertion was continuing between the
parties, therefore, the answer is obviously
'no'. The allegation once have been not
proved, could a decree of divorce have
been passed on the unproved allegations,
the answer is 'no' and whether we can set
aside the decree of divorce even on merit or
can we set aside the decree of the divorce
on the modification application moved by
the appellant after the disposal of the
appeal on merit. The reason being a Hindu
wife the appellant has condoned all the
mis-deeds of the plaintiff-respondent and if
her husband did not co-habit with her and
has thereafter, started co-habiting with her,
in that view of the matter, the decree of
divorce both on merits and on cohabiting
and condonation of mis-deeds, if any, both
by the husband and the wife, the decree is
liable to be set aside. The husband after
30.07.2018 had never came up before the
Court to complain that she had again
deserted him or what is the status of the
matrimonial relations between them, which
means he had also condoned mis-deed of
the appellant (wife), if any, including all
those that were levelled upon the plaintiffrespondent by his wife by the petition filed
before
the
court
below.
The
non
substantiation of the allegations loses all its
significance in the present factual scenario
of this case and a case for setting aside
the impugned decree of divorce is made
out.

14. Now it is apparent that except the
son and the appellant there is none-else to
claim as the heir of the plaintiff-respondent
(since deceased), and hence, the only legal
heir who are entitled to inherit the estate of
the deceased are the appellant and her son,
who is now major.

15. It can not be said that the
appellant is the divorced wife. The Apex
Court has recently held that the divorced
wife is also entitled to maintenance from
her husband under Section 125 Code of
Criminal Procedure, 1973.

16. It is made clear that she has
during a intervening period of twenty years
of litigation of has never claimed what can
be termed to be maintenance under
Sections 24 and 25 of Hindu Marriage Act,
1955 or any maintenance under Section
125 Cr.P.C. "Now, she has claimed the
maintenance under Hindu Adoption or
Maintenance Act, 1956". The status of
divorced wife has been discussed by the
Apex Court in the case of Rohtas Singh
Vs. Sant Ramendri, AIR 2000 SC, 952
and in the case of Swapan Kumar
Banerjee Vs. State of West Bengal and
others,
(19.9.2019
SC),
Manu/SC/1343/2009.

17. In view of the ratio of that very
decision of the Apex Court also, the
appellant
would
be
entitled
to
the
maintenance as per Hindu Adoption and
Maintenance Act, 1956 as she was
dependent on the deceased. It is further
observed that we have relied on the
submission made by the son of the
86 INDIAN LAW REPORTS ALLAHABAD SERIES
appellant and the appellant herself who
claims themselves to be nominee/heir of
the deceased.

18. We have made it clear earlier also
that she may pursue her remedies which
she wants for which this review is filed.
Even she may file a recall application, if so
advised, before the Family Court to modify
the decree.

19. The decree of divorce is set aside.
The judgment and decree be modified to
the aforesaid extent as we have already
allowed this appeal. Consequences to
follow. Hence, the judgment sought to be
modified is set aside.

20. The record is not before this
Court.

21. A copy of this order be be sent to
the court below.
----------
(2021)05ILR A86
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.03.2021

BEFORE

THE HON'BLE BACHCHOO LAL, J.
THE HON'BLE SANJAY KUMAR PACHORI, J.

Govt. Appeal No. 90 of 2021

State Of U.P. ...Appellant
Versus
Rahul Chaubey & Ors. ...Respondents

Counsel for the Appellant:
A.G.A.

Counsel for the Respondents:

(A) Practice & Procedure - It is a settled
legal position that in an appeal against acquittal
the appellate court should not interfere unless
there are compelling reasons to differ with the
finding of the trial court and not merely because
the other view is also possible. (Para 33)

The Court has placed reliance on the principle
of law that the scope of interference in an
appeal against acquittal is narrower, than an
appeal
against
conviction
because
presumption
of
innocence
gets
further
fortified by an order of acquittal and the
appellate court need not substitute its finding
unless there i substantial and compelling
reasons to differ with the findings of the trial
court, or where the finding if the trial court is
perverse or against the settled position of
law. (Para 28)

Government Appeal Rejected. (E-8)

List of Cases cited:-

1. C. Antony Vs K.G. Raghavan Nair (2003) 1
SCC 1

2. Sirajuddin @ Siraj Vs St. of Karn. (1990) 4
SCC 375

3. St. of M.P. Vs Ramesh & anr. (2011) 4 SCC
786

4. Mrinal Das & ors. Vs St. of Tripura (2011) 9
SCC 488

5. Mahadeo Laxman Sarane & anr. Vs St.of
Mah. (2007) 12 SCC 71

6. Ramesh Babulal Doshi Vs The St. of Guj. AR
1996 SC 2035

7. Rohtash Vs St. of Har. (2012) 6 SCC 589

8. Sampat Babso Kale & anr. Vs St. of Mah.
(2019) 4 SCC 739

9. Mookklah & anr. Vs State, rep. by the
Inspector of Police, Tamil Nadu AIR 2013 SC
321

10. Ramesh & ors. Vs St. of Har. AIR 2016 SC
5554

11. Ram Kishan Singh Vs Harmit Kaur & anr.
AIR 1972 SC 468