# Smt. Vijai Lakshmi v. Lalji

- **Citation:** (2021) 11 ILRA 627
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-10-27
- **Case number:** First Appeal No. 241 of 2006
- **Bench:** Mrs. Sunita Agarwal, Krishan Pahal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-vijai-lakshmi-v-lalji-46670
- **Pages:** 9

## Headnote

A. Hindu Marriage Act, 1955 - Section 13(1) -
Family dispute - Divorce - Cruelty - Proof -
Criminal complaint by the wife against husband
- Relevancy - Held, mere fact that the wife had
lodged
the
criminal
complaint
on
the
allegations of atrocities committed by the
husband after a compromise had been arrived
between the parties would not be a reason to
hold that the complaint was false and the wife
had committed cruelty by lodging the said
report - The ground for seeking the decree of
divorce, i.e cruelty, taken by the husband in the
plaint could not be proved by bringing any
cogent material on record - The bald assertion
of the husband in his statement recorded
before the Family Court is not sufficient to
prove cruelty on the part of the wife - High
Court found the findings returned by the trial
court for granting the divorce on the ground of
cruelty not sustainable. (Para 13 and 15)
B. Hindu Marriage Act, 1955 - Section 13(1) -
Divorce - Irretrievable Breakdown of Marriage
-
Relevancy
-
Held,
the
'irretrievable
breakdown of marriage' not being a ground of
divorce under Section 13(1) of the Hindu
Marriage Act, the decree of divorce cannot be
granted on the said ground while deciding the
appeal arising out of the proceeding under
Section 13(1) of the Hindu Marriage Act. (Para
20)
C. Constitution of India - Article 15(3) and 39 -
Right of maintenance - Social justice - While
wife had no source of earning, the husband
was a permanent driver - Liability of husband
to honour matrimonial obligations - Held,
maintenance laws have been enacted as a
measure of social justice to provide recourse to
dependent wife and children for their financial
support; so as to prevent them from falling into
destitution and vagrancy - Article 15(3) of the
Constitution of India reinforced by Article 39 of
the Constitution of India envisages a positive
role of the St. in fostering change towards the
empowerment of women. (Para 29 and 31)
D. Hindu Adoptions and Maintenance Act, 1956
- Section 18 - Right of Maintenance - The right
to claim maintenance u/s 18 of the Act, 1956 is
a substantive right - Section 18 recognises the
right of a Hindu wife to seek maintenance from
her husband during her life-time while living
separately from her husband - Sub-Section (2)
of Section 18 provides that a Hindu wife shall
be entitled to live separately from her husband
without forfeiting her claim to maintenance; if
he is guilty of desertion, i.e. abandoning her
without reasonable cause and without her
consent or against her wish, or of willfully
neglecting her - While the wife is forced to live
separately as the respondent-husband has
deserted her without any reasonable excuse,
she is entitled for monthly maintenance during
her life-time which is being fixed to the tune of
Rs. 30,000/- per month. (Para 35, 37 and 41)
E. Family Courts Act, 1984 - Section 19 -
Appellate power of the High Court - Nature and
Scope - Held, the appeal u/s 19 of the Family
628 INDIAN LAW REPORTS ALLAHABAD SERIES
Courts Act is extension of the proceedings of
the Family Court. Meaning thereby, this Court
can exercise the same jurisdiction as has been
conferred upon the Family Court under the
Family Courts Act, 1984. (Para 39)
F. Jurisprudence - Law of equity - A person
seeking a relief in the Court of law cannot take
benefit of his own wrong. (Para 31)
Appeal allowed. (E-1)
Cases relied on :-

## Text

11 All. Smt. Vijai Lakshmi Vs. Lalji
627
26.10.2021 are set aside with a direction to the
learned trial court to consider both the
applications afresh in the light of the judgements
rendered by the Hon'ble Supreme Court in the
case of Sanjeev Kapoor(Supra) and pass
appropriate orders thereafter within a period of
six weeks. from the date of the copy of this order
be produced before it.
----------
(2021)12ILR A627
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.10.2021

BEFORE
THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE KRISHAN PAHAL, J.

First Appeal No. 241 of 2006

Smt. Vijai Lakshmi ...Appellant
Versus
Lalji ...Respondent

Counsel for the Appellant:
Sri A.K. Gupta, Sri A.K.Mishra, Sri Ashish Agrawal, Sri
Dinesh Gupta, Sri Dinesh Mishra

Counsel for the Respondents:
Sri Satish Kumar Mishra, Sri A.C. Tiwari, Sri Arvind
Kumar Srivastava, Sri H.P. Dubey, Sri Rajesh Kishore
Srivastava, Sri Satish Kumar Mishra

A. Hindu Marriage Act, 1955 - Section 13(1) -
Family dispute - Divorce - Cruelty - Proof -
Criminal complaint by the wife against husband
- Relevancy - Held, mere fact that the wife had
lodged
the
criminal
complaint
on
the
allegations of atrocities committed by the
husband after a compromise had been arrived
between the parties would not be a reason to
hold that the complaint was false and the wife
had committed cruelty by lodging the said
report - The ground for seeking the decree of
divorce, i.e cruelty, taken by the husband in the
plaint could not be proved by bringing any
cogent material on record - The bald assertion
of the husband in his statement recorded
before the Family Court is not sufficient to
prove cruelty on the part of the wife - High
Court found the findings returned by the trial
court for granting the divorce on the ground of
cruelty not sustainable. (Para 13 and 15)
B. Hindu Marriage Act, 1955 - Section 13(1) -
Divorce - Irretrievable Breakdown of Marriage
-
Relevancy
-
Held,
the
'irretrievable
breakdown of marriage' not being a ground of
divorce under Section 13(1) of the Hindu
Marriage Act, the decree of divorce cannot be
granted on the said ground while deciding the
appeal arising out of the proceeding under
Section 13(1) of the Hindu Marriage Act. (Para
20)
C. Constitution of India - Article 15(3) and 39 -
Right of maintenance - Social justice - While
wife had no source of earning, the husband
was a permanent driver - Liability of husband
to honour matrimonial obligations - Held,
maintenance laws have been enacted as a
measure of social justice to provide recourse to
dependent wife and children for their financial
support; so as to prevent them from falling into
destitution and vagrancy - Article 15(3) of the
Constitution of India reinforced by Article 39 of
the Constitution of India envisages a positive
role of the St. in fostering change towards the
empowerment of women. (Para 29 and 31)
D. Hindu Adoptions and Maintenance Act, 1956
- Section 18 - Right of Maintenance - The right
to claim maintenance u/s 18 of the Act, 1956 is
a substantive right - Section 18 recognises the
right of a Hindu wife to seek maintenance from
her husband during her life-time while living
separately from her husband - Sub-Section (2)
of Section 18 provides that a Hindu wife shall
be entitled to live separately from her husband
without forfeiting her claim to maintenance; if
he is guilty of desertion, i.e. abandoning her
without reasonable cause and without her
consent or against her wish, or of willfully
neglecting her - While the wife is forced to live
separately as the respondent-husband has
deserted her without any reasonable excuse,
she is entitled for monthly maintenance during
her life-time which is being fixed to the tune of
Rs. 30,000/- per month. (Para 35, 37 and 41)
E. Family Courts Act, 1984 - Section 19 -
Appellate power of the High Court - Nature and
Scope - Held, the appeal u/s 19 of the Family
628 INDIAN LAW REPORTS ALLAHABAD SERIES
Courts Act is extension of the proceedings of
the Family Court. Meaning thereby, this Court
can exercise the same jurisdiction as has been
conferred upon the Family Court under the
Family Courts Act, 1984. (Para 39)
F. Jurisprudence - Law of equity - A person
seeking a relief in the Court of law cannot take
benefit of his own wrong. (Para 31)
Appeal allowed. (E-1)
Cases relied on :-
1. Naveen Kohli Vs Neelu Kohli 2006 (4) SCC 558
2. Prakash Chandra Kapoor Vs Smt. Ritu Kapoor;
2005 (2) SCC 22
3. Shivsankaran Vs Santhimeenal; 2021 (5) ALD 286
4. Romesh Chander Kaushal Vs Veena Kaushal; 1978
(4) SCC 70
5. Rajnesh Vs Neha & anr.; 2021 (2) SCC 324

(Delivered by Hon'ble Mrs. Sunita Agarwal, J.
&
Hon'ble Krishan Pahal, J.)

1. No one has put in appearance on behalf
of the appellant-wife.

2. A perusal of the order dated 04.10.2021
passed by this Court indicates that the parties
had appeared in the Court personally but they
have not been able to reconcile. The appeal,
thus, has been posted for final disposal.

3. Heard learned counsel for the
respondent and perused the record.

4. This is wife's appeal against the
judgment and order dated 17.05.2006 whereby
divorce decree had been passed in favour of the
husband.

5. A perusal of the impugned order of the
Family Court indicates that the decree of divorce
had been granted on the premise that the wife
had lodged a false complaint namely Case Crime
No.6 of 2003 against the husband which had
resulted in incarceration of the husband for 4
days and as such the wife had caused mental
cruelty upon the husband. On account of the
trauma, the mother of the respondent-husband
had died. It was further noted that initially on the
similar complaint sought to be filed by the wife,
a compromise had been arrived between the
parties in the police station and both the parties
had reconciled with the intervention of the
Station House Officer which made it evident that
there was no serious dispute. However, the wife
had turned around and contacted the Senior
Superintendent of Police again to lodge the
report on the allegations of demand of dowry.
The Family Court has, thus, opined that the wife
had exaggerated the whole matter and lodged a
false complaint against the husband for demand
of dowry. In such a situation, the marital
relationship between the parties had been
completely broken and the decree of divorce was
liable to be granted.

6. Learned counsel for the respondenthusband, has, defended the decree on the
premise that there was no reasonable excuse
with the wife to leave her matrimonial home
after the compromise had been arrived between
the parties with the intervention of wise persons
and lastly the police. The wife was guilty of not
honouring the terms of the compromise and
leaving her matrimonial home without any
reason.

7. It is further submitted that the appellantwife
was
harassing
the
respondent
and
pressurising him to leave his mother alone and
move to her paternal home. When the
respondent-husband did not accede to the said
request she had threatened him to lodge a false
complaint and with dire consequences. On
21.11.2002, when the respondent-husband was
at home, she had left the house with all
jewellery, clothes and Rs.5,000/- without any
11 All. Smt. Vijai Lakshmi Vs. Lalji
629
information. In the proceeding under Section 9
of the Hindu Marriage Act, however, a
compromise had been arrived between them on
09.02.2003 and thereafter, the wife had returned
to her matrimonial home. But, again on
17.03.2003, she had left with all the clothes and
jewellery in the absence of her husband and
despite best efforts of the husband, she did not
return and lodged a criminal case on the
allegations of demand of dowry. On account of
the said cruelty inflicted by his wife, the widow
mother of the appellant had died which had
resulted in severe mental cruelty to the
respondent-husband and as such he was
constrained to file the divorce suit.

8. Testing these submissions of the learned
counsel for the respondent, having gone through
the findings returned by the Family Court as also
the statements of the appellant-wife and the
respondent-husband, we may note that there are
allegations and counter allegations of the parties
against each other. On the one hand, the
respondent husband had pleaded that his wife
had left her matrimonial home without any
reasonable excuse and she had taken all clothes
and jewellery alongwith cash of Rs.5,000/- on
21.11.2002 when he was present in his house but
there is no statement of the husband that he had
tried to stop his wife from leaving her
matrimonial home. After compromise between
the parties, on 09.02.2003 the wife had returned
to her matrimonial home. As per the version of
the husband, the wife had left her matrimonial
home again on 17.03.2003 in his absence taking
all clothes and jewellery.

9. This version of the respondent that the
appellant-wife had again left her matrimonial
home on 17.03.2003 with clothes and jewellery
seems to be false at its face value. The reason
being that as per own version of the husband,
while leaving her matrimonial home on
21.11.2002 his wife had taken all her clothes and
jewellery then where was the occasion for her to
take the clothes and jewellery again on
17.03.2003, moreso, when the husband had not
stated that his wife had brought back her
jewellery on returning to her matrimonial home
on 09.02.2003.

10. In the said circumstance, the
allegations of husband that the wife had left her
matrimonial home in his absence with all clothes
and jewellery per se appears to be false. We may
further note that no report had been lodged by
the husband that the wife had taken jewellery on
17.03.2003 other than her stree-dhan in his
absence. Further, apart from the bald assertions
of the husband, there is no other evidence on
record which would substantiate the allegations
of the husband that his wife had refused to
discharge her matrimonial obligations without
any reasonable excuse.

11. On the other hand, the appellant wife in
her statement recorded on 15.05.2006 had
categorically stated that she was thrown out of
her matrimonial home by the husband after she
was assaulted physically. Her husband used to
demand dowry and assault her on account of
which a report was sought to be lodged by her
when a compromise had been arrived on
23.01.2003 with the intervention of the police.
The copy of the compromise is on record.
However, her husband had again thrown her out
and hence she had lodged the report. She has
categorically stated that she did want divorce.

12. We may further note that in terms of the
compromise dated 23.01.2003 the wife had
returned to her matrimonial home on 09.02.2003,
but, thereafter, in barely one month, she had to
approach the Senior Superintendent of Police on
17.3.2003 to lodge the first information report
regarding the demand of dowry after she was
thrown out as per her version.

13. No one knows as to what had happened
inside the four walls of the house. But the record
630 INDIAN LAW REPORTS ALLAHABAD SERIES
indicates that the marriage was solemnised on
06.03.2002 and the dispute arose within 4-5
months of the marriage. The allegations and
counter allegations are made by the couple to
assert that the fault lies on the other side. In this
circumstance, it is not possible for the Court to
find out as to who was at fault. But that by itself
cannot be a reason to grant divorce. The
respondent-husband, who is the plaintiff in the
divorce suit, was required to substantiate his
allegations of commission of cruelty by the wife
by bringing cogent evidence. Mere fact that the
wife had lodged the criminal complaint on the
allegations of atrocities committed by the
husband after a compromise had been arrived
between the parties would not be a reason to
hold that the complaint was false and the wife
had committed cruelty by lodging the said
report. The ground for seeking the decree of
divorce, i.e cruelty, taken by the husband in the
plaint could not be proved by bringing any
cogent material on record. The bald assertion of
the husband in his statement recorded before the
Family Court is not sufficient to prove cruelty
on the part of the wife.

14. Considering the discussion in the
judgment and order dated 17.05.2006, we find
that the Family Court had been swayed away by
the fact of lodging of the first information report
under Section 498-A I.P.C after the wife had left
her matrimonial home on 09.02.2003. In any
case, the earlier compromise between the parties
with the intervention of the police or the act of
the wife in lodging the first information report
cannot be a reason to presume that only she was
at fault and there was no fault on the part of the
husband, moreso, when the wife had come
forward with the categorical assertion that she
was thrown out of her matrimonial home by the
husband after beating her.

15. The findings returned by the trial court
for granting the divorce on the ground of cruelty,
therefore, are not sustainable.

16. Further contention of the learned
counsel for the respondent-husband is that the
couple are separated for the last 18 years and
there are no chances of revival of matrimonial
relationship and hence the husband is entitled for
the decree of divorce on the ground of
'irretrievable breakdown of marriage', in view of
the decision of the Apex Court in the cases of
Naveen Kohli vs. Neelu Kohli 2006 (4) SCC
558 and Prakash Chandra Kapoor vs. Smt. Ritu
Kapoor 2005 (2) SCC 22.

17. Considering this contention of the
learned counsel for the appellant we may note
that no such ground for divorce exists in the
Hindu Marriage Act. In an appropriate cases, the
Apex Court has granted decree of divorce
exercising its unique jurisdiction under Article
142 of the Constitution of India, to do complete
justice between the parties. Such a course had
been adopted in various kinds of cases where
there were inter se allegations between the
parties and in order to put a quietus to the
matter, where the parties withdrew those
allegations and by mutual consent.

18. It has been noted by the Apex Court in
Shivsankaran vs. Santhimeenal reported in
2021 (5) ALD 286 that the Law Commission in
its 71st report made recommendation while
departing from the fault theory of divorce to
recognise situations where a marriage has
completely broken and there is no possibility of
reconciliation.
It
had
recommended
for
incorporation of the situation where neither
party need individually be at fault for a
breakdown of the marriage which may be the
result
of prolonged
separation,
clash
of
personalities, or incompatibility of the couple.
As noted in the Law Commission report, such
marriages are merely a shell out of which the
substance is gone. For such situations, the Law
Commission recommended that the law be
amended to provide for 'irretrievable breakdown
of marriage' as an additional ground of divorce.
11 All. Smt. Vijai Lakshmi Vs. Lalji
631
This recommendation was reiterated in its 217th
report in the year, 2010 by the Commission. But,
these
recommendations,
have
not
been
implemented. The bill introduced by the
Government in the year 2010 namely the
Marriage Laws (Amendment) Bill, 2010,
reintroduced
as
the
Marriage
Laws
(Amendment) Bill, 2013, was never passed.

19. It is observed therein that under the
Hindu Law, the institution of marriage is
sacramental in character and is supposed to be
an eternal union of two people. The society at
large does not accept divorce, given the
heightened importance of marriage as a social
institution in India. It is more difficult for
women to retain social acceptance after a decree
of divorce. This, coupled with the law's failure
to guarantee economic and financial security to
women in the event of a breakdown of marriage;
is stated to be the reason for the legislature's
reluctance to introduce irretrievable breakdown
as a ground for divorce-even though, there may
have been a change in social norms over a
period of time. Not all persons come from the
same social background, and having a uniform
legislative enactment is thus, stated to be
difficult. It is in these circumstances that the
Apex Court has been exercising its jurisdiction,
despite such reservations, under Article 142 of
the Constitution of India.

20. As regards the proceedings before us,
the present appeal under Section 19 of the
Family Courts Act is nothing but an extension of
the proceedings of the trial court. While
exercising the power of appellate Court, we can
grant the decree of divorce in a petition under
Section 13(1) of the Hindu Marriage Act, only,
in case, any of the grounds for seeking divorce
as provided under the said Section is found to be
in existence. The 'irretrievable breakdown of
marriage' not being a ground of divorce under
Section 13(1) of the Hindu Marriage Act, the
decree of divorce cannot be granted on the said
ground while deciding the appeal arising out of
the proceeding under Section 13(1) of the Hindu
Marriage Act.

21. The contention of the learned counsel
for the respondent seeking dismissal of the
appeal on the ground that there are no chances of
revival of matrimonial relationship and the
husband is entitled for the decree of divorce on
account
of
"irretrievable
breakdown
of
marriage", therefore, is found devoid of merits.

22. As noted above, the respondenthusband has not been to establish the plea of
cruelty by the wife i.e. the ground taken by him
to seek the decree of divorce in the petition
under Section 13(1) of the Hindu Marriage Act
filed in the year 2003. The wife has made a
categorical claim that she had been thrown out
of her matrimonial home as the husband was
demanding dowry. The criminal case had been
lodged by the wife upon intervention of the
Superintendent of Police. Nevertheless, during
pendency of the present appeal, on the
application filed by the appellant-wife, vide
order dated 01.04.2013, monthly maintenance of
Rs.10,000/- w.e.f. 01.04.2013 onwards had been
awarded. The order-sheet indicates that the order
of interim maintenance was not complied with.
As a result of which, on 26.05.2014, direction
was issued to the respondent to clear all arrears
of interim maintenance till June, 2014. The
arrears of maintenance had been paid only upon
the intervention of the Court. Again, the order
dated 06.10.2016 in the order sheet indicates that
the respondent-husband did not pay the interim
maintenance. It was, therefore, observed in the
order dated 17.10.2016 that the appellant-wife
was at liberty to recover the amount of
maintenance as arrears of land revenue as was
due till that date and for future.

23. Again on 21.01.2016, this Court had to
issue a non-bailable warrant to ensure presence
of the respondent in custody to provide interim
632 INDIAN LAW REPORTS ALLAHABAD SERIES
maintenance to the appellant-wife. And only
after the respondent-husband had appeared in
custody before this Court on 05.12.2016, he had
deposited the arrears of maintenance by way of
cheque in the account of appellant-wife. Again,
by the order dated 08.11.2017, with a view to
end the ordeal of the wife, it was directed by this
Court
that
the
monthly
maintenance
of
Rs.10,000/- shall be transferred directly in her
bank account through RTGS by 7th of each
succeeding month.

24. Further, an application No.83384 of
2017 supported by an affidavit was filed by the
wife seeking for enhancement of compensation
as determined vide order dated 01.04.2013 as
well as to grant litigation expenses in lump sum.

25. While disposing of the said application,
it has been noted in the order dated 12.12.2017
that there had been repeated defaults in payment
of monthly maintenance as fixed by this Court
though the respondent was earning a handsome
amount on monthly basis being employed as
permanent
driver
in
Railways
and
after
enforcement of 7th Pay Commission, there had
been substantial increase in his salary. An
additional income of Rs.20,000/- per month was
stated to be earned by the husband in view of the
lease rent of the property owned by him. The
husband, however, did not respond to the
application of wife and hence, having noted that
the assertions of wife remained uncontroverted,
monthly maintenance of Rs.30,000/- per month
was fixed from December, 2017 payable by 7th
of each succeeding month. In addition to the
same, the appellant-wife has been held entitled to
litigation expenses in lump sum for Rs.30,000/-,
payable within a period of one month.

26. The recall application seeking recall of
the order dated 12.12.2017 filed by the
respondent-husband had been dismissed vide
order dated 10.12.2018 with the observations as
under:-

"2. This is an application seeking
recall of this Court's order dated 12.12.2017
whereby amount of maintenance was enhanced
to Rs. 30,000/- per month considering the fact
that monthly salary of respondent-husband w.e.f.
01.01.2016 is more than Rs. 1 lac.

3. This factum of salary, we find is not
in dispute and, therefore, looking to entire facts
and circumstances, we do not find any reason to
recall the order dated 12.12.2017. Application is
accordingly rejected."

27. The order dated 28.09.2020 further
indicates that the learned counsel for the
respondent-husband was directed to prepare a
draft of the entire defaulted amount outstanding
against the appellant-wife and produce the same
on the next date fixed. There is nothing on
record to indicate whether the draft had been
presented by the respondent-husband.

28. The above facts make it evident that
the respondent-husband, in utter disregard of the
directions of this Court, has refused to maintain
his legally wedded wife since 2013. Prior to that,
the wife was not getting maintenance as neither
interim maintenance was awarded by the Family
Court nor permanent alimony was granted while
decreeing the divorce suit. Resultantly, the
appellant-wife has been neglected by the
respondent-husband since the year 2003 when,
according to him, she had left her matrimonial
home on her own. The vague assertions in the
divorce petition of the wife of leaving her
matrimonial home without any reasonable
excuse could not be established by bringing any
cogent material on record. It, thus, appears that
the respondent-husband has utterly failed to
discharge his matrimonial obligation. For the
fact that the dependent wife has failed in
matrimonial alliance, she cannot be left as a
destitute. The moral and legal duty of the
husband to maintain his wife is not discharged
by the institution of the divorce suit.
11 All. Smt. Vijai Lakshmi Vs. Lalji
633

29. It is settled that the maintenance laws
have been enacted as a measure of social justice
to provide recourse to dependent wife and
children for their financial support; so as to
prevent them from falling into destitution and
vagrancy. Article 15(3) of the Constitution of
India
reinforced
by
Article
39
of
the
Constitution of India envisages a positive role of
the State in fostering change towards the
empowerment of women and has led to the
enactment of various legislations from time to
time. In Romesh Chander Kaushal vs. Veena
Kaushal reported in 1978 (4) SCC 70, Krishna
Ayyar J., while considering the object of
maintenance laws observed as under:-

"9. This provision is a measure of
social justice and specially enacted to protect
women and children and falls within the
constitutional sweep of Article 15(3) reinforced
by Article 39. We have no doubt that sections of
statutes calling for construction by courts are
not petrified print but vibrant words with social
functions to fulfill. The brooding presence of the
constitutional empathy for the weaker sections
like
women
and
children
must
inform
interpretation if it has to have social relevance.
So viewed, it is possible to be selective in
picking out that interpretation out of two
alternatives which advances the cause- the
cause of the derelicts."

30. The Apex Court in the case of Rajnesh
vs. Neha & another reported in 2021 (2) SCC
324 considering the scope of the law of interim
maintenance has held that the pre-requisite for
grant of maintenance under Section 24 of the
Hindu Marriage Act is that the applicant does
not have independent income, which is sufficient
for her or his support, during pendency of the lis.
Section 24 of the Hindu Marriage Act provides
for maintenance pendente lite, where the Court
may direct to pay the expenses of the
proceedings and pay such monthly amount,
which is considered to be reasonable, having
regard to the income of both the parties. While
considering the criteria for determination of the
quantum of maintenance, it is observed that
there can not be any straitjacket formula and the
quantum would depend upon the factual
situations and the Court should mould the claim
for maintenance based on various factors before
it. The objective of granting interim/permanent
alimony is to ensure that the dependent spouses
is not reduced to destitution or vagrancy on
account of the failure of the marriage.

31. In the instant case, it is admitted on
record that the appellant-wife has no source of
income whereas the respondent-husband is a
permanent driver in Railways and is earning a
handsome salary. For a long time, during the
pendency of the present appeal, the respondenthusband has succeeded in flouting the orders of
this Court granting interim maintenance to
sustain the appellant-wife. Payments of some
arrears had been made only upon intervention of
the Court and at one point of time, the Court had
to require the presence of the respondenthusband in custody. This situation, further leads
to the belief that the fault lies on the part of the
husband in not honouring his matrimonial
obligations. It is settled law that a person
seeking a relief in the Court of law cannot take
benefit of his own wrong.

32. The appellant-wife has already suffered
a lot on account of negligence of her husband.
The respondent husband being a wrongdoer
cannot be allowed to walk away out of the
matrimonial alliances on the ground that the
marriage has broken down. For this reason also,
the plea for grant of decree of divorce on the
ground of "irretrievable breakdown of marriage"
is not acceptable.

33. Lastly, we may note that the
respondent-husband has sought decree of
divorce on irrelevant grounds based on reckless
allegations and the wife is living separately since
634 INDIAN LAW REPORTS ALLAHABAD SERIES
2003 without any financial support. In order to
prevent the appellant-wife from reaching the
stage of destitution, in the peculiar facts and
circumstances of the present case, we find it just
and proper that monthly maintenance be
awarded to the appellant-wife as has been fixed
by this Court to the tune of Rs.30,000/-, which
shall be payable to her regularly even after the
decision of the present appeal.

34. We are conscious of the situation that
we are denying the decree of divorce to the
respondent-husband while allowing the present
appeal and the result is that the matrimonial
relationship
between
the
parties
subsist.
Consequently, the husband and wife are obliged
by law to live together and in such case the
respondent-husband would obviously maintain
his wife. However, in this case, the possibility of
the parties living together seems remote. The
respondent has been neglected his wife who is
living separately for a long time for no reason.

35. Section 18 of the Hindu Adoptions and
Maintenance Act, 1956 recognises the right of a
Hindu wife to seek maintenance from her
husband during her life-time while living
separately from her husband. Sub-Section (2) of
Section 18 provides that a Hindu wife shall be
entitled to live separately from her husband
without forfeiting her claim to maintenance; if
he is guilty of desertion, i.e. abandoning her
without reasonable cause and without her
consent or against her wish, or of willfully
neglecting her.

36. In the instant case, it is evident from the
record that the respondent-husband has abandoned
his wife without any reasonable cause and filed the
suit for divorce on irrelevant grounds to get rid of
her. He has been willfully neglecting her during
the continuation of the divorce proceedings and
denied payment of interim maintenance (bare
means of sustenance) fixed by this Court during
the pendency of the present appeal.

37. The right to claim maintenance under
Section 18 of the Act, 1956 is a substantive right.
The Family Courts constituted under the Family
Courts Act, 1984 have jurisdiction exercisable by
a Civil Court in respect of the suits and
proceedings, of the nature referred to in the
explanation to Section 7(1) of the Family Courts
Act, which includes a suit or proceeding for
maintenance.

38. Under the scheme of the Act' 1984, the
Family Courts have been given liberty to lay down
their own procedure with a view to arrive at the
truth of the facts alleged by one party denied by
the other, i.e. for effective determination of the
dispute before it under Section 10(3) of the Family
Courts Act' 1984. Strict rule of evidence is not
applicable in the proceedings before the Family
Courts and the evidences are generally accepted on
affidavits.

39. The present appeal under Section 19 of
the Family Courts Act is extension of the
proceedings of the Family Court. Meaning
thereby, this Court can exercise the same
jurisdiction as has been conferred upon the Family
Court under the Family Courts Act, 1984.

40. For the claim of maintenance under
Section 18 of the HAM Act, the appellant wife
has to approach the Family Court. The appellant
has suffered for long having been neglected by
her husband who took vow to maintain her. We
cannot be oblivious of the fact that in case the
appellant-wife is directed to approach the
Family Court, she may be dragged in a long
drawn litigation to get the bare means of
sustenance, i.e. maintenance from her husband.
The respondent who did not obey this Court's
order will not easily agree to pay the
maintenance. In the said scenario, we see no
reason to leave the wife abandoned and relegate
her to seek maintenance by instituting fresh
proceedings before the Family Court which may
take years.
11 All. Naval Singh Vs. Smt. Radha Dixit
635

41. For the above reason, exercising the
jurisdiction of the appellate court under Section
19 of the Family Court Act' 1984 invoking the
provisions of Section 18 of the Hindu Adoption
and Maintenance Act, 1956, we are of the
considered opinion that while the wife is forced
to live separately as the respondent-husband has
deserted her without any reasonable excuse, she
is entitled for monthly maintenance during her
life-time which is being fixed to the tune of
Rs.30,000/- per month as has been determined
by this Court, after consideration of the
affidavits of the parties.

42. However, the appellant-wife is at
liberty to seek enhancement of the maintenance
amount by moving a proper application (by
bringing fresh action) before the competent
court in accordance with law.

43. Further, in case the husband is ready to
discharge
his
matrimonial
obligations
by
keeping his wife alongwith him and the
appellant-wife agrees to his request, i.e. if the
parties agree to live together in future, the above
direction to pay interim maintenance shall stand
automatically
modified
in
terms
of
the
agreement and the liability of the respondenthusband to maintain his wife by paying the fixed
monthly maintenance, would stand exhausted.

44. However, the appellant wife is held
entitled to the arrears of monthly maintenance
from the date it has been fixed by this Court vide
order dated 01.04.2003, and enhanced by the
order dated 12.12.2017, till the date of this
order. In addition to the same, the cost of the
proceedings to the tune of Rs.30,000/- in lump
sum, as determined by the order dated
12.12.2017, is also liable to be paid, if remained
unpaid.

45. We further provide that the arrears of
monthly
maintenance
and
the
litigation
expenses, if not paid in full, shall be paid within
a period of two months from today.

46. In case of any default on the part of the
respondent-husband
to
pay
the
monthly
maintenance or the arrears thereof and the
litigation expenses as directed above, it would
be open for the appellant-wife to seek execution
by approaching the competent Court and in that
case the entire outstanding amount would be
liable to be recovered as arrears of land revenue.
In the alternative, the appellant wife would be at
liberty to approach the employer of the
respondent-husband to seek deduction directly
from his salary and to transmit the monthly
maintenance and the outstanding arrears in her
saving bank account.

47. For the above discussion, the judgment
and order dated 17.05.2006 passed by the
Additional Family Judge, Allahabad in Marriage
Petition No. 26 of 2003 granting the decree of
divorce is found suffering from serious infirmity
and is hereby set aside. The Matrimonial
Petition no.26 of 2003 (Lalji vs Vijay Laxmi)
stands dismissed.

48. With the observations and directions
made above, the appeal is allowed.
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(2021)12ILR A635
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.10.2021

BEFORE

THE HON'BLE VIKAS BUDHWAR, J.

Second Appeal No. 445 of 2019

Naval Singh ...Appellant
Versus
Smt. Radha Dixit ...Respondent

Counsel for the Appellant:
Capt Seema Singh, Sri Vinay Kumar Singh