NAMRATA SURI Vs. RAHUL KUMAR GUPTA
LAWS(UTN)-2012-7-15
HIGH COURT OF UTTARAKHAND (AT: NAINITAL)
Decided on July 09,2012

Namrata Suri Appellant
VERSUS
Rahul Kumar Gupta Respondents

JUDGEMENT

- (1.) Smt. Namrata Suri (wife) filed a suit for divorce under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act) against Rahul Kumar Gupta (husband) principally on the ground of cruelty. In his written statement, husband denied all facts pleaded by the wife in the plaint suggesting meting out of cruelty by the husband to the wife. In addition to that, husband stated that he is entitled to divorce also under Section 13 of the Act, inasmuch as, wife meted out cruelty to him. He pleaded factors pertaining to such cruelty. There was, thus, a cross suit. Accordingly, issues were settled. However, the issues pertaining to cruelty, being the ground of divorce claimed both by the wife and the husband, were not gone-in in as much as rebuttal evidence by the husband to the evidence of the wife to that effect was not tendered, instead both of them represented to the court on 19th May, 2009 that they accept the mutual claim for divorce. From 20th May, 2009, evidence was led in respect of the other issues, namely, what should be the quantum of permanent alimony and what Stridhan, if any, wife is entitled to return. On the premise as above, suit for divorce has been decreed and, at the same time, wife has been awarded permanent alimony of Rs. 25 lacs, but she has been denied return of any Stridhan. Aggrieved by grant of permanent alimony and, in particular, the quantum thereof while the husband has preferred an appeal, wife has also filed an appeal contending that the quantum of permanent alimony is too meagre, and that, there was no just reason not to decree the suit directing return of her Stridhan after duly quantifying the same. With the assistance of the learned counsel for the parties, we have gone through the evidence tendered before the court below. According to us, while exercising jurisdiction under Section 25 of the Act, it became obligatory on the part of the court below to ascertain, whether the applicant wife was entitled to maintenance and whether the husband was capable of supporting such maintenance. It was also a requirement on the part of the court below to ascertain whether the husband was able to support lump sum or monthly or periodical maintenance. We are also of the view that in order to ascertain the quantum of maintenance to be awarded to the wife, because in the instant case she had claimed such maintenance, it was of prime importance on the part of the court below to ascertain how much the husband could afford. We also personally feel that in order to ascertain the quantum of maintenance, in addition to what has been stated above, it was also obligatory on the part of the court below to ascertain the conduct of the parties and other circumstances surrounding the marriage and divorce. The law has indicated that the ability of the husband, as in the instant case, is required to be ascertained on his income and other property. A look at the evidence on record would show that enough evidence was not brought on record by the parties to enable the court below to adjudge the quantum of permanent alimony and maintenance as was to be adjudged. In view of lack of evidence in that regard, we are also unable to adjudge the same. We feel that, in the circumstances, the matter must be remitted back to the court below for de novo consideration after giving opportunity to the parties to bring on record further evidence.
(2.) While dealing with the claim for return of Stridhan, the court below, as it appears from the judgment and order under challenge, proceeded on the basis that the claim stood restricted only to those items which were allegedly given as and by way of dowry. This mistake, as it appears to us, was made principally on the ground that the wife did not properly bring on record appropriate evidence in respect of the properties that she had carried with her to her matrimonial home and those she received by way of presentation at or about the time of marriage either individually or jointly. We feel that in order to do complete justice, inasmuch as the matter is to be remitted back, we also permit the wife to bring on record all necessary evidence in support of her claim for return of her Stridhan and other properties.
(3.) In the circumstances, the decree and order to the extent the same directed payment of permanent alimony of Rs. 25 lacs and refusal to grant any relief to the wife for return of her Stridhan are set aside and the matter is remitted back to the court below to reconsider the same with directions as above. Since by reason of the order as above, it must be deemed that the suit is pending, wife shall be entitled to maintenance pendente lite to the extent she is entitled to receive the same by virtue of various orders passed by this Court until the same is altered otherwise.;


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