High Court
Case Details
Mat.App. 2/2009 BEFORE HON’BLE MR JUSTICE I A ANSARI HON’BLE DR. (MRS.) JUSTICE INDIRA SHAH JUDGMENT & ORDER (I. Ansari,J)
Facts
By this common judgement and order, we propose to dispose of both the ap peals, which have been preferred by the appellant against the judgement and decr ee, dated 06.06.2008, passed, in FC (Civil) 117/1998, by the learned Principal J udge, Family Court, Kamrup, whereby the learned trial Court, while granting reli ef to the plaintiff (i.e., the respondent herein) under Sub-Section (2) of Secti on 18, read with Sub-Section (3) of Section 18 of the Hindu Adoption and Mainten ance Act, 1956, has disallowed the counter-claim, made by the appellant, praying for declaration of his marriage with the plaintiff (i.e., respondent herein) a
Legal Reasoning
What is, however, of immense importance to note, now, is that Sub-Clause (i) of Clause (a) of Sub-Section (2) of Section 12 provides that a petition, se eking decree of nullity on the ground of fraud, shall not be entertained if the application is made more than one year after the discovery of the fraud. To mak e the position of law clear, the relevant provisions of Sub-Section (2) of Secti on 12 of the Hindu Marriage Act, 1955, are reproduced below: (a) (b) (c) (d) *** *** (cid:28)12. *** *** Voidable marriages. - *** *** *** *** *** *** *** *** *** *** *** *** *** *** (2) Notwithstanding anything contained in sub-section (1), no petition for annu lling a marriage- (a) on the ground specified in clause (c) of sub-section (1), shall be entertain ed if- (i) the petition presented more than one year after the force had ceased to oper ate or, as the case may be, the fraud had been discovered; or (ii) *** *** *** *** (b) *** *** *** *** (cid:29) 14. In the case at hand, it is the admitted case of the appellant that he ca me to know about the fraud, on 19.11.1990, when his wife (i.e., respondent herei n) confessed before him that she had illicit relation with the said Atul Chandra Paul. The application, therefore, seeking decree of nullity, by virtue of the provisions of Section 12 of the Hindu Marriage Act, 1955, ought to have been fil ed within one year, i.e., on or before 18.11.1991. There was, indisputably, a s uit instituted by the appellant, on 14.07.1991, alleging infidelity of his wife (i.e., respondent herein) as indicated above. This suit, which had, initially, given rise to Title Suit No. DTS 88/1991, was transferred to the Family Court, K amrup, at Guwahati, and registered as FC (Civil) 96/1992. The said suit was, ho wever, withdrawn by the petitioner (i.e., the appellant herein) without reservin g any right or liberty to institute a fresh suit on the same cause of action. Situated thus, it becomes clear that the counter-claim, which had been f 15. iled by the appellant herein, in the suit, which the respondent herein had insti tuted, was beyond the period of limitation prescribed by Sub-Section (2) of Sect ion 12 of the Hindu Marriage Act, 1955, and learned trial Court committed no il legality in holding that the counter-claim of the defendant No. 1 (i.e., the pre sent appellant) was plainly beyond the prescribed period of limitation and not m aintainable in law. The conclusion, so reached by the learned trial Court, cann ot be faulted at. Coupled with the above, Sub-Rule (4) of Rule 6A of Order VIII provides t 16. hat a counter-claim shall be treated as a ’plaint’ and be governed by the rules applicable to plaints. From the provisions embodied in Sub-Rule (4) of Rule 6A of Order VIII, it becomes abundantly clear that the provisions of limitation wou ld apply as much to a counter-claim as the same are applicable to a ’plaint’. W hen, therefore, a ’plaint’ is barred by the prescribed period of limitation, a c ounter-claim cannot be instituted on such a cause of action, which is, otherwise , barred by the period of limitation. 17. In the case at hand, when no petition could have been filed, in the ligh t of the provisions of Section 12(2)(a)(i), beyond the prescribed period of one year from the date, when the fraud was discovered, the question of making a coun ter-claim by the defendant No. 1 (i.e., the appellant herein) and the same being sustainable in law does not arise, when the counter-claim was, it could not be disputed, far beyond the prescribed period of limitation. Further-more, the counter-claim, filed by the respondent herein, was als 18. o barred under Order XXIII. For the sake of clarity, Rule 1 of Order XXIII is r eproduced below: (cid:28)1. Withdrawal of suit or abandonment of part of claim: (1) At any time after the institution of a suit, the plaintiff may as against al l or any of the defendants abandon his suit or abandon a part of his claim: Provided that where the plaintiff is a minor or other person to whom the provisi ons contained in rules 1 to 14 of Order XXXII extend, neither the suit nor any p art of the claim shall be abandoned without the leave of the Court. (2) An application for leave under the proviso to sub-rule (1) shall be accompan ied by an affidavit of the next friend and also, if the minor or such other pers on is represented by a pleader, by a certificate of the pleader to the effect th at the abandonment proposed is, in his opinion, for the benefit of the minor or such other person. (3) Where the Court is satisfied,- (a) that a suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such sui t or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim. (4) Where the plaint iff- (a) abandons any suit or part of claim under sub-rule (1), or (b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the Court may award and sh all be preclude from instituting any fresh suit in respect of such subject-matte r or such part of the claim. (5) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw, under sub-rule (3), any suit or part of a claim, without the consen t of the other plaintiffs. (cid:29) 19. From a careful reading of the scheme of Rule 1 of Order XXIII, it become s clear that if a suit is withdrawn, or even a part of a claim is withdrawn, wit hout obtaining permission from the Court to institute a fresh suit, in future, o n the same ground, no fresh suit can be brought on the same ground/cause of acti on inasmuch as such a plaintiff shall be precluded, under Sub-Rule (4) of Rule 1 of Order XXIII, from instituting any suit in respect of the same subject-matter or part of the claim made thereunder. 20. In the case at hand, the appellant had instituted earlier a suit, as men tioned above, alleging fraud having been committed on him by his wife and seekin g, therefore, a decree of nullity of his marriage with his wife (i.e., responden t herein), but he withdrew the suit, on 31.07.1993, and that too without obtaini ng liberty from the Court to institute a fresh suit in future. Thus, the petiti oner (i.e., the appellant herein) was barred by the provisions made under Sub-Ru le (4) of Rule 1 of Order XXIII from instituting a fresh suit. 21. Since a counter-claim stands on no better footing than a suit, it is qui te obvious that no counter-claim could have been instituted on the same cause of action, which, according to the appellant, had given him the cause of action fo r instituting the earlier suit. Considered from this angle, it is clear that th e counter-claim of the appellant was not maintainable and has been rightly dismi ssed by the learned trial Court. 22. Turning to the appeal, which has been preferred against the granting of a decree directing the appellant herein to pay to the respondent a sum of Rs. 2, 000/- per month, as maintenance, from the date of institution of the suit and al so to provide her a suitable accommodation, or else, pay a sum of Rs. 1,500/- pe r month, as house rent, from the date of the decree, suffice it to point out tha t the apple of discord, according to the plaintiff-respondent, was the fact that the present appellant, while having remained wedded to the plaintiff-respondent , had married Smt. Tinku Das, brought her to his house and started living with t he said Tinku Das. Though the appellant denied that he had married Tinku Das, w hat cannot be ignored is that the appellant has admitted, in his cross-examinati on that Satwaleena Das and Rochoita Das are his children, who are born out of th e said Tinku Das and are studying in school. In the face of such an unequivocal admission, one cannot but hold that when the appellant resides with another wom an, maintains physical relation with her so much so that he has two daughters bo rn out of his relationship with the said Tinku Das, the respondent herein is who lly justified in living away from him and, at the same time, claim maintenance a nd also suitable residential accommodation in terms of the provisions of Sub-Sec tion (2) read with Sub-Section (3) of Section 18 of the Hindu Adoption and Maint enance Act, 1956. 23. With regard to the above, it is imperative to note that the respondent h erein was a housewife and there is no worthwhile evidence on record showing that she has any independent source of income. She is bound to be maintained by the appellant, who is her husband. The appellant has admitted, in his cross-examin ation, that after he had taken voluntary retirement from service, as Superintend ent, from the office of the Assam Public Service Commission, he joined the Bar, in the year 1992, as an advocate in this Court. He has also admitted that he ha s signed the affidavit of his witness as an advocate. There can be, therefore, no escape from the conclusion that the appellant is capable of making payment of the paltry sum of Rs. 2,000/- per month, which has been directed to be paid by him to the plaintiff-respondent, under the impugned decree, as maintenance. Thi s apart, the plaintiff-respondent being entitled to be provided with residential accommodation by the appellant herein, the appellant herein was, in our conside red view, rightly directed, under the impugned decree, to either arrange a suita ble accommodation for the plaintiff-respondent or pay her a sum of Rs. 1,500/-, per month, as house rent. We do not find that the findings, which hav e been reached by the learned trial Court, and the reliefs, which have been gran ted in favour of the respondent herein, suffer from any infirmity, factual or le gal. The impugned decree, therefore, does not, in our firm view, call for any i nterference. 24. Because of what have been discussed and held above, we dismiss these app eals with cost and direct that the appellant shall comply with the decree, in le tter and spirit, and all the arrears, which are due and payable to the plaintiff -respondent, shall be made available to her by the appellant within a period of 3 (three) months from today. 25. 26. of. Let a decree be prepared accordingly. With the above observations and directions, this appeal stands disposed
Arguments
nullity under Section 12(1)(c) of the Hindu Marriage Act, 1955. We have heard Mr. S. Ali, learned counsel for the appellant in both the 2. appeals. We have also heard Mr. S. Dasgupta, learned counsel for the plaintiff- respondent, in the two appeals. 3. Before we enter into the merit of the present two appeals, it needs to b e noted that the plaintiff-respondent herein instituted a suit, namely, FC (Civi l) 117/98, seeking, in terms of the provisions of Sub-Section (2) and (3) of Sec tion 18 of the Hindu Adoption and Maintenance Act, 1956, maintenance @ Rs. 3,50 0/- per month and a separate residence, the case of the plaintiff-respondent her ein being, in brief, thus: The plaintiff-respondent herein is legally married wife of the defendan (i) t No. 1 (i.e., the present appellant), her marriage having been solemnized with the defendant No. 1, on 19.1.84, as per the Hindu rites and customs. Since her marriage, the plaintiff-respondent herein started living with her husband, at Bh askarnagar, Guwahati, along with the family members of the defendant No. 1 and, apart from doing all the household chores, she had to take care of her ailing fa ther-in-law. The defendant No. 1, who was in government service, took voluntary retirement from service, joined the Bar at the Gauhati High Court and started p racticing as a lawyer and built up a very good practice. The plaintiff-responde nt herein, however, could not give birth to any child and although, in the year 1985, she had experienced the initial stage of pregnancy, miscarriage occurred t o her, because she had to do all the household chores from cooking to washing of clothes without any rest. After the said miscarriage, the plaintiff-respondent was taken by the defendant No. 1 (i.e., appellant herein), to Vellore, and she was subjected to a major operation without her consent, though no such operation was necessary as per the doctors at Guwahati, whom she had consulted before and during her said pregnancy, and, as a result of the said operation, performed at Vellore, she lost her child bearing capacity for good. Soon thereafter, defend ant No. 1 started torturing her, both physically and mentally, with the intentio n to elicit her consent for divorce and when she protested thereto, she was subj ected to cruelty. (ii) Thereafter, in the year 1991, defendant No. 1 instituted a su it, under Section 12(1)(c) of the Hindu Marriage Act, 1955, in the court of the District Judge, Kamrup, seeking annulment of their marriage by a decree of divor ce. The said suit was subsequently transferred to the Family Court, Guwahati; b ut the suit was withdrawn by defendant No. 1, on 14.07.1993, without reser ving any right to institute a suit on the same cause of action. The defendant N o. 1 cut off all his conjugal relation with the plaintiff-respondent herein and compelled her to stay confined to a room in his house. Thereafter, defendant No . 1 went to Karimganj and, when he came back on 07.10.93, a woman, namely, Smti. Tinku Das, accompanied him and defendant No. 1 declared the woman to be his sec ond wife. When the plaintiff-respondent herein tried to resist the woman from e ntering into the house, defendant No. 1 assaulted the plaintiff-respondent and t ried to strangulate her to death. The plaintiff-respondent herein, somehow, suc ceeded in saving herself and left her matrimonial house to save her life and too k shelter at the residence of one of her relative in the neighbouring locality. Although the plaintiff-respondent herein lodged an FIR, in this regard, at the All Women Police Station, Guwahati, under Section 498A IPC, read with Section 49 4 IPC, and charge-sheet was submitted against defendant No. 1, the said defendan t was acquitted by the Court, because since the charge, framed against the defen dant No. 1, could not be proved. (iii) The further case of the plaintiff-respondent herein was that her marriage with the defendant No. 1 had not been legally dissolved and, hence, during the subsistence of her marriage, the defendant No. 1 could not have ente red into another marriage with the said Tinku Das (i.e., defendant No. 2 in the suit) and, since the defendant No. 1 and defendant No. 2 had been staying togeth er in her matrimonial house, it was not possible, on her part, to live in the sa id house with defendant No. 1. The plaintiff-respondent herein, therefore, inst ituted the suit, under Section 18(2) and 18(3) of the Hindu Adoption and Mainten ance Act, 1956, against, primarily, the defendant Nos. 1 seeking from him mainte nance @ Rs. 3,500/- per month and a separate residential accommodation. The defendant No. 1 (i.e., the appellant herein) contested the suit by f 4. iled filing his written statement‚ wherein, while admitting that the plaintiff-r espondent herein was his legally married wife, their marriage having been solemn ized, on 09.11.84, as per Hindu rites and customs and that after their marriage, the plaintiff lived with him at her matrimonial house, he denied that the plain tiff was entitled to the relief of maintenance and residential accommodation, as had been sought for by her, the case of the defendant No. 1 being, briefly stat ed, thus: (i) The marriage of the defendant No. 1 with the plaintiff-respondent herein was an arranged one and that from the very beginning of heir marital life, he n oticed the plaintiff-respondent herein having some gynecological disorders with menstruation problems and he even noticed milk secretion from the breasts of his wife, though she never became pregnant. The defendant No. 1 denied that the pl aintiff-respondent herein was forced to look after his ailing father and that sh e had to do all the household chores without rest, for, defendant No. 1 had, acc ording to the defendant No.1 (i.e., the appellant herein) had engaged one maid f or doing the cooking and washing for the entire family. The defendant No. 1 sta ted, in his written statement, that the plaintiff had been taken to Vellore for treatment on the advice of a renowned gynecologist, at Guwahati, who had been tr eating her for a long time and that the operation, at Vellore, had been performe d as per the advice of the doctor, at Vellore, and with her full consent as both of them were very much keen to have a child. The defendant No. 1 denied that h e compelled the plaintiff to live in a separate room without keeping any conjuga l relation with her. The defendant No. 1 also denied that he had introduced def endant No. 2 to the plaintiff as his second wife and that he had assaulted the p laintiff-respondent herein for not allowing defendant No. 2 to enter into the ho use. The defendant No. 1’s further case was that he went to Karimganj to look a fter his ancestral property and, on 07.10.1993, while he came back, he was infor med by his brother that the plaintiff-respondent herein had left the house with all her belongings and stridhan properties, although he never married defendant No. 2. In her written statement, the defendant No. 1 accused the plaintiff-res (ii) pondent herein of living in adultery with one Atul Chandra Paul and it was for t his reason that he had filed the petition before the Court seeking annulment of their marriage by a decree of divorce. (iii) The defendant No. 1 also expressed his inability to pay the amou nt of Rs. 3,500/-, which the plaintiff had claimed as maintenance, stating that his total income was less than Rs. 4,000/- per month. The defendant No. 1 praye d for dismissal of the suit on the ground that the plaintiff had been staying in a rented house at Mathgharia, Guwahati, which had been rented by the said Atul Chandra Paul, who used to frequently visit the plaintiff at the said rented hous e. 5. The present appellant, as defendant No. 1 in the said suit, made counter -claim, seeking, under Section 12(1)(c) of the Hindu Marriage Act, 1955, a decre e of nullity of his marriage with the plaintiff-respondent herein, his case bein g, in short, thus: (i) The marriage between defendant No. 1 and the opposite party (i.e., the p laintiff-respondent herein) was solemnized, on 19.11.84, as per Hindu rites and customs and they started conjugal life in his house, at Bhaskarnagar, Guwahati, but from the very beginning of their conjugal life, he found the opposite party having gynecological disorders, such as, menstruation problem, pain and discomfo rt during cohabitation, etc., that as per advice of the doctor, he took her to V ellore for treatment and, after various medical tests having been performed, the doctor advised her to undergo operation and, accordingly, the opposite party (i .e., the plaintiff-respondent herein) was operated upon, that he spent huge amou nt for her treatment, but, ultimately, the doctor gave up hope as there was no f urther treatment for her gynecological problem. (ii) The defendant No. 1 claimed that one day, the opposite party (i.e., pla intiff-respondent herein) became sentimental and disclosed to the defendant No.1 that she could not give birth to a child due to the sins and misdeeds committed by her in the past, that she also disclosed before him that she had illicit rel ation with one Sri Atul Chandra Paul, that she had become pregnant thrice and te rminated her pregnancy twice by medical practitioner and once by an unqualified midwife, which resulted in profused bleeding for several days leading to various gynecological problems and that she came to know that she would not be able to bear child due to the injuries caused to her internal organs. The defendant No. 1 became shocked at the voluntarily made disclosure by the opposite party (i.e. , the plaintiff-respondent herein) and, as he could not pardon the opposite part y for the fraud committed on him, he severed his conjugal relationship with her and, therefore, prayed for, with the help of his counter-claim, annulment of his marriage with the opposite party (i.e., the plaintiff) by a decree of nullity. 6. The plaintiff, as opposite party in the counter-claim of the defendant N o. 1, filed a written statement, wherein she challenged, inter alia, the maintai nability of the counter-claim by pointing out that the counter-claim is barred b y the provisions of limitation as embodied in the Hindu Marriage Act, 1955, and that the suit was also barred in terms of Order 23 Rule 2 of the Code of Civil P rocedure inasmuch as the defendant No. 1-appellant herein had approached the Cou rt with the same cause of action, by way of a suit, which had given rise to Titl e Suit (Divorce) 88/91, in the Court of the District Judge, Kamrup, and that the said suit, having been transferred to the Family Court, Kamrup, came to be regi stered as FC (Civil) No. 96/92, which was withdrawn by the defendant No. 1 himse lf, on 31.07.1993, without obtaining any liberty to institute any fresh suit or application or without reserving any liberty or right in this regard. This apar t, the plaintiff-respondent herein also contended that the counter-claim was bar The learned Family Court, having considered the pleadings of the parties red in terms of the provisions of Section 12(2)(a)(i) inasmuch as according to t he plaintiff-respondent herein, no petition for annulling a marriage shall be en tertained, in the light of the provisions of Section 12(2)(a)(i), if the petitio n is presented more than one year after the fraud had been discovered and, since , according to the defendant, the fraud had been committed on him, on 19.11.1984 , when his marriage had been solemnized with the plaintiff-respondent by suppres sing the fact of her earlier pregnancy, abortion and about her illicit relations hip with the said Atul Chandra Paul, the counter-claim was not maintainable. 7. , framed the following issues for determination: (i) ure ? Whether the suit was barred by law of limitation ? (ii) (iii) Whether the counter-claimraised by the defendant No. 1 was maintainable under the provision of law in force and the counter-claimwas barred under the pr ovision of Order 23 Rule 2 of the Code of Civil Procedure ? Whether the plaintiff was entitled to be maintained by the defendant as (iv) her husband under Section 18(e) of the Hindu Adoption and Maintenance Act, 1956, and, if so, what would be the amount of maintenance per month and from which da Whether the suit was barred under Section 11 of the Code of Civil Proced Whether the defendant was entitled to a decree of nullity of marriage un Whether the plaintiff is entitled to any other relief or reliefs te the plaintiff would be entitled to maintenance ? (v) ? (vi) der the provisions of Hindu Marriage Act, 1956, in the present suit ? Whether the plaintiff was married to the defendant No. 1 and, if so, whe (vii) ther fraud had been committed upon the defendant No. 1 by suppressing the materi al facts of inchastity of the plaintiff at the time of settlement of marriage ? (viii) was entitled to any maintenance from the defendant No. 1 ? (ix) Whether the plaintiff had sufficient independent source of income to mai ntain herself so as to disentitle her from claiming maintenance from her husband Whether plaintiff had committed fraud and, if so, whether the plaintiff ? 8. In support of their respective cases, both the parties adduced evidence. The learned trial Court decided the issues, as reproduced above, in favour of the plaintiff and, while holding her entitled to claim maintenance and suitable accommodation, directed the defendant No. 1 (i.e., appellant herein) to pay a su m of Rs. 2,000/-, per month, as maintenance from the date of institution of the proceeding and also to arrange a suitable accommodation for her or pay a sum of Rs. 1,500/-, per month, as house rent, from the date of the disposal of the suit . Consequent thereto, the learned trial Court rejected the counter-claim of the defendant No. 1 (i.e., the appellant herein) by holding that his counter-claim was barred by the period of limitation, as contained under Section 12(2)(a)(i) o f the Hindu Marriage Act, 1955, and that his counter-claim was also barred by th e provisions of Order 23 Rule 2 of the Code of Civil Procedure. A decree accord ingly followed. By preferring these two appeals, the appellant, who was defendant No. 1 9. in the suit, in the learned trial Court, has challenged the decree, whereby he h as been directed to pay maintenance and also either to provide a suitable accomm odation for the plaintiff or to pay house rent as indicated hereinbefore. The a ppellant herein has also sought for a decree declaring his marriage with the pla intiff-respondent as nullity in terms of the provisions of Section 12(1)(c) of t he Hindu Marriage Act, 1955, on the ground that fraud had been committed on him, when his marriage had been solemnized with the plaintiff-respondent by suppress ing the facts as mentioned above. 10. Let us, first, consider if the counter-claim, which the appellant had fi led, was maintainable at all, for, the question of entering into the merit of th e counter-claim does not arise if the counter-claimis, otherwise, found barred i n law. 11. While considering the above aspect of the matter, it may be pointed out that, as per Clause (c) of Sub-Section (1) of Section 12 of the Hindu Marriage A ct, 1955, a marriage shall be void and may be annulled by a decree of nullity if the consent of the petitioner was obtained by fraud as to the nature of the cer emony or as to any material fact or circumstances concerning the respondent. There can be no doubt that if what the appellant has alleged, in his cou 12. nter-claim ? as regard the facts that the plaintiff-respondent had illicit relat ion with the said Atul Chandra Paul and she repeatedly became pregnant and her p regnancy was terminated in the manner as he has alleged and that all these facts were suppressed and the plaintiff respondent had been hurriedly married to him (appellant herein) ? were true, then, a case of fraud, having been committed on the appellant herein, would have been accepted inasmuch the alleged fraud relat ed to the circumstances concerning the respondent and fell within the ambit of C lause (c) of Sub-Section (i) of Section 12 of the Hindu Marriage Act, 1955. 13.