IN THE HIGH COURT OF JUDICATURE AT PATNA
Miscellaneous Appeal No.528 of 2012
Rajiv Roshan, S/O Sri Nand Kishore Lal,
R/O Lal Kothi, Tripolia Gate,
P.S.- Alamganj, Distt-Patna …. …. Appellant/s
Sarika, D/O Shri Ishwar Chandra Prasad,
W/O Sri Rajiv Roshan, R/O Talabpar, Near Bus Stand,
Nasriganj, Distt-Rohtas …. …. Respondent/s
Miscellaneous Appeal No. 204 of 2013
Sarika, D/O Shri Ishwar Chand Prasad, W/O Sri Rajiv Roshan, R/O Talabper,
Near Bus Stand, Nasariganj, Distt-Sasaram …. …. Appellant/s
Rajiv Roshan, S/O Sri Nand Kishore Lal, R/O Lal Kothi, Tirpolia Ghat,
P.S.- Alamganj, Distt-Patna …. …. Respondent/s
(In MA No.528 of 2012) For the Appellant : Mr. D.K. Sinha, Sr. Advocate Mr. Abhinay Raj, Advocate For the Respondent : Mr. Md. Khurshid Alam, Advocate (In MA No.204 of 2013) For the Appellant : Mr. Md. Khurshid Alam, Advocate For the Respondent : Mr. D.K. Sinha, Sr. Advocate Mr. Abhinay Raj, Advocate
CORAM: HONOURABLE MR JUSTICE NAVANITI PRASAD SINGH and HONOURABLE JUSTICE SMT. NILU AGRAWAL C.A.V.
JUDGMENT (Per: HONOURABLE JUSTICE SMT. NILU AGRAWAL) Date: 06-10-2016 The two miscellaneous appeal being M.A. No. 528 of 2012 (Rajiv Roshan Vs. Sarika) and M.A. No. 204 of 2013 (Sarika Vs. Rajiv Roshan) arise out of judgment and decree dated 28.04.2012, passed by Addl. Principal Judge, Family Court, Patna Patna High Court MA No.528 of 2012 dt.03-10-2016 in Matrimonial Case No. 242 of 2004 by which divorce petition filed by the husband against his wife has been decreed, marriage was dissolved and the divorce granted with direction to the husband to pay Rs. 6,000/- per month as permanent alimony to the wife till her remarriage.
2. Heard the counsel appearing on behalf of the husband Rajiv Roshan and wife Sarika in both cases and with their consent both the appeals are heard together and being disposed of.
3. Husband, Rajiv Roshan had filed Matrimonial Case No. 242 of 2004 seeking decree of divorce against his wife Sarika, stating that the marriage between them was solemnized on 04.05.1997 as per Hindu customs and rites. Out of the wedlock one son Arnav was born on 25.01.1998 and another son Pranav was born on 09.12.2000 and from the very beginning the behaviour of the wife was not cordial, hence, divorce was sought on the ground of cruelty. The husband found it very difficult to live with the wife, and the wife on 08.06.2004 (which the wife alleges to be 09.07.2004) left the matrimonial house and the two sons and went alone to her Naihar. The wife appeared before the court below and stated that she led a good conjugal life and it was the husband who was cruel and thrashed her and kept the two children and also demanded dowry for which Complaint Patna High Court MA No.528 of 2012 dt.03-10-2016 Case No. 3235(C)/2008 under Section 498-A of the Indian Penal Code has been filed by the wife.
4. Wife Sarika has also preferred M.A. No.204 of 2013 arises out of the order passed in Matrimonial Case No. 242 of 2004 for enhancement of alimony from Rs. 6000/- to Rs. 15,000/- per month till her remarriage so that she may maintain herself properly but has not disputed the decree of divorce. She has also demanded jewellery including 25 bhari gold and Rs. 2 lakhs given in her marriage which the husband has withheld.
5. The learned court below came to a finding that the act of the wife leaving the matrimonial house in the night and did not take any legal step for custody of her two sons since 2004 shows her lack of love and affection towards her children, who were very small at that time, and also her behaviour was cruel towards her husband, hence, factum of cruelty was established against the wife and hence decree of divorce granted.
6. It may be noted that by an interim order the learned court below had granted maintenance of Rs. 7,000/- per month. This was challenged by the husband before this Court in C.W.J.C. No. 3863 of 2010 and the interim maintenance of Rs. 7,000/- was reduced to Rs. 3,000/- per month by order dated 30.03.2010 passed by this Court while issuing notice to the wife. Patna High Court MA No.528 of 2012 dt.03-10-2016 However, the said writ petition was disposed of on 05.01.2012. The interim maintenance of Rs. 3,000/- was directed to be continued till final order passed in Matrimonial Case No. 242 of 2004 by the court below. In the final order permanent alimony has been fixed at Rs. 6,000/- to be paid to the wife by the husband till remarriage of the wife, while granting decree of divorce.
7. The wife although has not challenged the decree of divorce but seeks enhancement of permanent alimony to Rs. 15,000/- per month till her remarriage as well as the ornaments and cash given at the time of marriage. It has been submitted by learned counsel for the wife, Md. Khurshid Alam, that the family of the husband has a palatial house over 5.5 kathas of land and all the four brothers of the husband including the husband are living jointly. The husband also has 5 kathas of agricultural land and one shop from which he gets monthly rent of Rs. 4,000/- and also stated that the husband has a wholesale business of medicine in the name and style of Rap India and Roshan Surgico, hence, seeks maintenance as per status of her husband under Section 25 of the Hindu Marriage Act, 1955.
8. However, learned Senior Counsel Sri D.K. Sinha for the husband Rajiv Roshan, in his reply submitted that the two sons born in the year 1998 and 2000 are living with him and Patna High Court MA No.528 of 2012 dt.03-10-2016 they are pursuing their studies in the best schools of Patna, namely, St. Michael High School, Digha, Patna and St. Xavier High School, West Gandhi Maidan, Patna in Class XII and VIII respectively. He submits that he has no medicine business and is just a salesman in medicine shop and gets Rs. 3,000/- per month and monthly rent of Rs. 2,000/- and has to look after the two sons and pay a huge amount of money more than two lakhs per year, for their education. It has also been submitted that the wife is the owner of a beauty parlour in the name and style of “Care and Glow” and is earning a very high income and some of her employees are getting Rs. 15,000/- per month from the said beauty parlour. In fact, the father of the wife has a palatial house at Nasriganj, Rohtas as well as an old mill at Delha Par, Gaya having two acres of land apart from 50 acres of agricultural land near Nasriganj, Rohtas. He also submits that the wife has filed a complaint case under Section 498-A of the I.P.C., Maintenance Case No. 102/2015, which is pending in the Family Court at Ranchi and Guardianship Case No. 31/2012, which is pending before the learned Principal Judge, Family Court, Patna. He, thus, submits that he has very little income and with that he has to provide maintenance and studies of the two sons who are growing up.
9. From the facts aforesaid, it emerges that the father of the wife has a palatial house and substantial agricultural lands and if not as the owner she has admitted that she is working in the beauty parlour receiving income. The husband, on the other hand, is looking after the children maintaining them, who are pursuing their studies and has only a house where the joint family lives and some salary as well as rent.
10. The finding of the trial Court on the aspect of divorce is not challenged by the wife. She abandoned the matrimonial house and her small children in 2004 never to return. She never claimed custody of her children nor she ever tried to meet them although guardianship case has been filed much after in 2012. Cruelty is not challenged. She is a working lady herself.
11. The wife has not been living with her husband since 2004 and not having challenged the divorce, the decree of divorce is upheld. The two sons are living with their father who is providing the best of education to them in a reputed school at Patna. The wife even if not owner of beauty parlour but admits that she is a working lady. She has abandoned her two sons long back and had taken no steps for their custody since 2004 although a guardianship case has been filed recently in 2012.
12. Considering the aforesaid facts, since the Patna High Court MA No.528 of 2012 dt.03-10-2016 husband has means to provide the best of education to the sons incurring huge amount of money as stated by the husband himself and that the wife is a working lady, the order dated 28.04.2012 passed by Additional Principal Judge, Family Court, Patna in Matrimonial Case No. 242 of 2004 requires no interference.
13. It is also made clear that all criminal cases as between the parties arising out of matrimonial alliance would stand terminated/ quashed, so that the parties are free from any further relationship or harassment.
14. In the result, both the appeals are dismissed and the order passed by the Additional Principal Judge, Family Court, Patna in Matrimonial Case No. 242 of 2004 dated 28.04.2012 is upheld.
(Nilu Agrawal, J.) Navaniti Prasad Singh, J.
I agree (Navaniti Prasad Singh, J.) Rajesh/-
CAV DATE 05.09.2016
Uploading Date 06.10.2016