Patna High Court
Shweta Kumari vs Rakesh Kumar on 18 April, 2025
Author: Sunil Dutta Mishra
Bench: P. B. Bajanthri, Sunil Dutta Mishra
IN THE HIGH COURT OF JUDICATURE AT PATNA
Miscellaneous Appeal No.653 of 2022
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Shweta Kumari Wife of Rakesh Kumar, D/o Sri Kamaldeo Prasad Singh,
resident of Mohalla Patel Nagar, Near Dr. R.C. Pal, Police Station Shashtri
Nagar, Post Office G.P.O., District Patna, Pin Code 800023.
... ... Appellant/s
Versus
Rakesh Kumar Son of Late Janardhan Prasad Sharma, Resident of Mohalla
Abhiyanta Nagar, New Bailey Road, Police Station Rupaspur, District Patna.
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Nazir Alam, Advocate.
For the Respondent/s : Mr. Vinod Singh, Advocate.
Ms. Vagisha Pragya Vacaknavi, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI
and
HONOURABLE MR. JUSTICE SUNIL DUTTA MISHRA
C.A.V. JUDGMENT
(Per: HONOURABLE MR. JUSTICE SUNIL DUTTA MISHRA)
Date :18-04-2025
Heard learned counsel for both the parties.
2. This Miscellaneous Appeal has been filed against
the judgment dated 05.11.2022 and decree dated 14.11.2022
passed by the learned Principal Judge, Family Court, Patna in
Matrimonial Case No. 694 of 2011 whereby and whereunder the
learned Family Court has allowed the divorce case filed by the
respondent-husband under Section 13 (1) (ia) and (ib) of the Hindu
Marriage Act, 1955.
3. The case of the respondent-husband in brief is
that the marriage between the appellant-wife and respondent-
husband was solemnized on 08.07.2003 according to Hindu rites
and rituals at the parental house of the appellant-wife situated at
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Mohalla Patel Nagar, Patna in presence of common well-
wishers and relatives, and both the parties lived together as
husband and wife. It is alleged that in the month of April, 2005
the appellant-wife left the society and company without consent
of the respondent-husband and against his will she went to her
naihar. Gradually, the behaviour and attitude of the appellant
changed and she used to be very adamant on trivial issues. Both
the parties, out of their wedlock, were blessed with a female
child 'Khushi' @ 'Wagisha Raj' on 15.12.2004, who is presently
in the custody and care of appellant-wife. The appellant-wife
was ignorant about the health of the female child Khushi. It has
been alleged that the appellant-wife refused to have physical
relationship with the respondent-husband. Further, the appellant-
wife filed a criminal case under Sections 498A, 379, and 34 of
Indian Penal Code, 1860 against the respondent, his parents and
unmarried nanad on 15.03.2007 vide Danapur P.S. Case No.
209 of 2007 in which the aforesaid accused were granted bail
and after compromise respondent-husband and his family
members were acquitted vide judgment dated 06.01.2008 from
the Court of SDJM, Danapur. Based on the said compromise,
the Matrimonial Case No. 100 of 2007 for restitution of
conjugal rights was also disposed of. Thereafter, the appellant-
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wife along with her daughter Khushi went to live in her
matrimonial house and started residing since 06.10.2007. It is
stated that the appellant-wife is employed as a panchayat
teacher in Bihar Government from 04.04.2007. She used to
oppress the respondent to work outside Patna, and when he
shifted to Hyderabad she was still unhappy. The appellant-wife
treated the parents of the respondent-husband with cruelty and
despite their old age and fragile health, she neglected their basic
needs, including depriving them of food. The respondent-
husband had to return back to Patna. The appellant-wife again
left the matrimonial house on 18.03.2009 along with her
daughter and again filed a criminal case against the respondent
and his parents vide Complaint Case No. 535 (C) of 2010. Also,
while leaving her matrimonial home she took along with her
belongings including gold ornaments and valuable clothes. The
relationship between the appellant and respondent has been
irretrievably broken down and there is no hope of any
restoration of their relationship. Hence, the respondent-husband
sought decree of divorce from the learned Family Court vide
Matrimonial Case No. 694 of 2011.
4. The appellant-wife appeared and filed her
written statement and denied the allegation alleged by the
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respondent-husband. It is stated that all the demands raised at
her marriage by the parents of the respondent-husband were
fulfilled by the father of appellant-wife with a view to make
family life and future of the appellant-wife happy and cheerful.
The appellant-wife used to take proper care of the parents of the
respondent and did her best to please them as a simple Indian
wife. It was further stated that, from 5 th month of her pregnancy
till the delivery of the female child her father took all care and
borne all expenses so related wherein the respondent-husband
never performed his responsibility and duty of a husband. It is
further stated that the behaviour of the respondent and his
parents became more indifferent after birth of the female child
Khushi as they were expecting a male child. Oppressed by their
torture the appellant-wife was left with no alternative than to
lodge case against the respondent-husband and his family
members. Moreover, it is stated that she is working as a
contractual panchayat teacher and is not having a permanent
job. Also, all her belongings including her gold ornaments and
other articles are in custody of the respondent-husband and she
was forcefully driven out of her matrimonial house. Hence, the
divorce petition is liable to be dismissed.
5. The conciliation between the parties failed.
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6. In view of facts and circumstances and materials
available on record learned Family Court, Patna held that the
appellant has treated her husband with mental and physical
cruelty. It has further been held that appellant-wife has deserted
respondent-husband for not less than two years continuously
preceding the immediate date of presentation of the suit and
accordingly the suit has been decreed on contest under Sections
13 (1) (ia) and (ib) of the Act and accordingly the marriage
solemnized on 08.07.2003 between the parties was dissolved on
the ground of cruelty and desertion. The appellant-wife,
aggrieved by the said judgment of the learned Family Court
filed the instant appeal before this Court.
7. It is evident that the relationship between the
parties appears to be strained from the very beginning and
further, with time, it soured over the years. Also, reconciliation
proceedings between both the parties failed. Further, it is
relevant to note that the parties stayed together only for few
years of the marriage, and even though they have a daughter out
of wedlock, they have been staying separately for about 16
years. They have made serious allegations against each other
and have been involved in litigation since then. Both the parties
have no intention to reconcile, and have not cohabited since
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2009. The admitted long standing separation, nature of
differences, prolonged litigation, pending adjudication and
unwillingness of the parties to reconcile, are enough evidence to
show that the marriage between the parties has broken
irretrievably.
8. Learned counsel for the appellant-wife submitted
that although the appellant-wife is a teacher, the female child
namely Khushi @ Wagisha Raj, who is residing with the
appellant, requires necessary funds to meet out her expenses of
education, marriage and other expenses and accordingly, the
appellant-wife proposed Rs.50 Lakhs as one-time settlement
with regard to her permanent alimony. On the other hand,
learned counsel for the respondent-husband submitted that
husband is ready to pay Rs.8 lakhs as permanent alimony.
9. Learned counsel for the parties conceded that in
view of the facts and circumstances of the case, the relationship
between the appellant-wife and the respondent-husband has
irretrievably broken down. Since 2009, both the parties are
residing separately and there is no hope of any restoration of
their conjugal relationship. Due to lapse of time and changed
circumstances, it is not in the interest of justice to interfere in
the impugned judgment/decree granting divorce between the
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parties. However, it is submitted that permanent alimony to the
appellant-wife by the respondent-husband is required to be
determined in the facts and circumstances of this case. Due to
huge difference, learned counsel for the parties submitted to
decide the quantum of permanent alimony by this Court to be
paid by respondent-husband to appellant-wife on the basis of
material available on record.
10. Therefore, it is to be decided by this Court:
"what is a reasonable amount to be paid by the respondent-
husband to the appellant-wife for her claim towards permanent
alimony in the facts and circumstances of this case?"
11. It appears form the record that in Cr. Misc. No.
14206 of 2011 arising out of Complaint Case No. 535 (C ) of
2010 with respect to anticipatory bail of respondent-husband the
learned single judge of this Court noted in the order dated
04.08.2011
that petitioner-husband was ready to pay permanent
alimony and effort was made to sort out the difference but
unfortunately matter was not sorted out. In the rejoinder filed on
behalf of husband to the petition under Section 24 of Hindu
Marriage Act by appellant, the respondent had offered Rs. 3
Lakh whereas the appellant demanded Rs.15 Lakh as permanent
alimony.
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12. The facts on record demonstrate that vide order
dated 27.04.2015 the learned Family Court allowed petition
dated 22.05.2013 under Section 24 of Hindu Marriage Act, 1955
on behalf of appellant-wife, and the respondent-husband was
directed to pay Rs.5,000/- per month for wife and Rs.2,000/- per
month for the daughter towards maintenance pendente lite from
the date of filing of the petition i.e. 22.05.2013 and also directed
to pay Rs.20,000/- as lump sum to wife towards litigation cost.
13. Section 25 of Hindu Marriage Act, 1955
provides for grant of permanent alimony at the time of passing
any decree or at anytime subsequent thereto. The primary
objective of granting permanent alimony is to ensure that the
dependent spouse is not left without any support and means
after the dissolution of the marriage. It aims at protecting the
interests of the dependent spouse and does not provide for
penalizing the other spouse in the process.
14. The Hon’ble Supreme Court in the case of
Rajnesh v. Neha reported in (2021) 2 SCC 324, provided a
comprehensive criterion and list of factors to be looked into
while deciding the question of permanent alimony. This
judgment lays down an elaborate and comprehensive framework
necessary for deciding the amount of maintenance in all
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matrimonial proceedings, with specific emphasis on permanent
alimony and the same has been reiterated by Hon’ble Supreme
Court in Kiran Jyot Maini v. Anish Pramod Patel reported in
2024 SCC OnLine SC 1724.
15. The Hon’ble Supreme Court in the case of
Pravin Kumar Jain v. Anju Jain reported in 2024 SCC OnLine
SC 3678 has taken note of the various judgments to clarify the
position of law with regard to determination of permanent
alimony and the factors that need to be considered in order to
arrive at a just, fair, and reasonable amount of permanent
alimony. In para 31 it is held as under:
“31. There cannot be strict guidelines or a
fixed formula for fixing the amount of
permanent maintenance. The quantum of
maintenance is subjective to each case and is
dependent on various circumstances and
factors. The Court needs to look into factors
such as income of both the parties; conduct
during the subsistence of marriage; their
individual social and financial status; personal
expenses of each of the parties; their
individual capacities and duties to maintain
their dependents; the quality of life enjoyed by
the wife during the subsistence of the
marriage; and such other similar factors. This
position was laid down by this Court in Vinny
Paramvir Parmar v. Paramvir Parmar, and
Vishwanath Agrawal v. Sarla Vishwanath
Agrawal.”
16. The Hon’ble Apex Court, taking note of
Rajnesh v. Neha (supra) and Kiran Jyot Maini (supra), in
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para 32 of Pravin Kumar Jain (supra) laid down the
following eight factors to be looked into in deciding the
quantum:
“i. Status of the parties, social and
financial.
ii. Reasonable needs of the wife and the
dependent children.
iii. Parties’ individual qualifications and
employment statuses.
iv. Independent income or assets owned by
the applicant.
v. Standard of life enjoyed by the wife in
the matrimonial home.
vi. Any employment sacrifices made for the
family responsibilities.
vii. Reasonable litigation costs for a non-
working wife.
viii. Financial capacity of the husband, his
income, maintenance obligations, and
liabilities.
These are only guidelines and not a
straitjacket rubric. These among such other
similar factors become relevant.”
17. It is pertinent to mention here that duration of
the marriage i.e., how long the marriage existed is also a
relevant factor in determining the quantum of permanent
alimony. Generally, marriages that lasts more than 10 years are
entitled to be granted a lifetime alimony. The Hon’ble Supreme
Court in Rajnesh v. Neha (supra) in para 74 observed that:-
“74. In contemporary society, where several
marriages do not last for a reasonable
length of time, it may be inequitable to
direct the contesting spouse to pay
permanent alimony to the applicant for
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marriage would be a relevant factor to
be taken into consideration for
determining the permanent alimony to
be paid.”
(emphasis supplied)
18. The conduct of the party seeking the relief is
also relevant. The three-judges Bench of Hon’ble Supreme
Court in the case of Sukhdev Singh v. Sukhbir Kaur reported
in 2025 SCC OnLine SC 299, observed in para 26 as under:
“26. …..We must note that sub-section 1 of
Section 25 uses the word “may”. A grant of a
decree under Section 25 of the 1955 Act is
discretionary. If the conduct of the spouse who
applies for maintenance is such that the said
spouse is not entitled to discretionary relief, the
Court can always turn down the prayer for the
grant of permanent alimony under Section 25 of
the 1955 Act. Equitable considerations do apply
when the Court considers the prayer for
maintenance under Section 25. The reason is that
Section 25 lays down that while considering the
prayer for granting relief under Section 25, the
conduct of the parties must be considered.”
(emphasis supplied)
19. The admitted facts are that the marriage
between the parties solemnized on 08.07.2003 as per Hindu rites
and ceremonies and they have been blessed with a female child
on 15.12.2004. The appellant-wife filed dowry torture case vide
Danapur P.S. Case No.209 of 2007 on 15.03.2007 against the
respondent-husband and his parents and sister which was
compromised. The appellant-wife is residing in her parental
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home with her daughter since 12.03.2009 and again filed dowry
torture complaint case bearing No.535(C) of 2010 against the
appellant and his family members. It is not in dispute that
respondent-husband filed Matrimonial Case No.100 of 2007 on
27.02.2007 for restitution of conjugal rights which was disposed
of on 26.11.2007.
20. In the light of decision of the Hon’ble Supreme
Court in the case of Rajnesh v. Neha (supra) and Aditi @
Mithi v. Jitesh Sharma reported in 2023 SCC OnLine SC
1451, the parties have filed their affidavit of assets and
liabilities.
21. As per the affidavit of respondent-husband, he
is 48 years old, a qualified Automobile Engineer residing at his
parental house at Abhiyanta Nagar, Danapur, Patna owned by
his mother Late Krishna Sharma and is not employed since
2010, having car loan and T.V. loan. He is having ¼ th joint share
in 1 Acre & 72.5 decimal of ancestral land with his sister and is
subject matter of pending title suit bearing T.S. No.01 of 2017
pending before Civil Court, Seikhpura. He is paying Rs.7,000/-
per month in compliance of order dated 27.04.2015 passed in
Matrimonial Case No.694 of 2011 in petition under Section 24
of the Hindu Marriage Act, 1955 to the appellant-wife and also
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paying Rs.2,000/- in compliance of order dated 04.08.2011
passed in Cr. Misc. No.14206 of 2011. The allegation by
appellant-wife is that respondent-husband has 8.83½ Acre of
ancestral land in Seikhpura having huge income from the same.
It is further alleged that he is enjoying the house situated at
Abhiyanta Nagar, Gola Road, Patna valued at Rs.5 Crores which
was in the name of his deceased mother. His father was a civil
surgeon.
22. It appears form the affidavit of assets and
liabilities filed on behalf of the appellant-wife, it is apparent that
she is aged about 43 years old and she holds a degree of M.A.,
Diploma in Primary Education (DPE) and she is employed as
panchayat teacher with monthly income of Rs.42,799/-. She has
share in ancestral property valued @ Rs.30 lacs and purchased
one flat of 418 sq. feet in third floor of Shivlok Apartment for
consideration of Rs.8,63,000/- whereas respondent has 2722 sq.
feet built up area in Patna.
23. It is admitted fact that the appellant-wife is
employed as panchayat teacher having monthly salary of
Rs.42,799/- and capable of maintaining herself. However, as
discussed above, the appellant-wife has claimed one-time
settlement amount for maintenance including
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educational/marriage expenses of their daughter, who is residing
with the appellant-wife, and being father, the respondent-
husband is required to provide fund in this regard.
24. It is not in dispute that it is duty and obligation
of a Hindu father to maintain his unmarried daughter if she is
unable to maintain herself. The father also has obligation to
meet the reasonable expenses of marriage of his daughter as per
social as well as economic status. The right of an unmarried
daughter to get marriage expenses from her is now a legal right.
The definition of ‘maintenance’ is inclusive of marriage
expenditure. The obligation to maintain the daughter and get her
married is said to be personal in character and arises from the
very existence of the relationship between the parties. The law
does not give any provision which states that an unmarried
daughter even if employed and earning be assumed to have
resource to meet her matrimonial expenses. A father who lives
separately from his wife and daughter cannot escape the liability
to maintain his daughter.
25. In view whereof, considering the facts and
circumstances of the case in totality, this court directs the
respondent-husband to deposit Rs. 20 Lakhs in the name of
daughter for expenses towards her education and marriage
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within four months from the date of this judgment.
26. It is hereby clarified that the aforesaid amount
shall not preclude or otherwise affect the right of the daughter of
the parties to inherit property, if any, to which she may be
legally entitled.
27. This Miscellaneous Appeal stands disposed of
with aforesaid direction. No order as to costs.
28. Pending I.A(s), if any, stand disposed of.
(Sunil Dutta Mishra, J)
I am on the same page
(P. B. Bajanthri, J)
(P. B. Bajanthri, J)
harish/-
AFR/NAFR NAFR CAV DATE 11.02.2025 Uploading Date 19.04.2025 Transmission Date NA
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