- (1.)THIS appeal has been preferred under Section 28 of the Hindu Marriage Act, 1955, for short, the 'act', against the judgment and decree dated 12. 1. 1994, passed by Shri K. S. Chauhan, the than First Additional Judge to the Court of the District Judge, Gwalior, whereby he allowed a petition under Section 13 (ia) of the respondent for divorce and awarded decree of Rs. 70,000/besides permanent maintenance @ Rs. 500/- per month. Briefly narrated, the facts are that a petition was presented by the respondent purporting to be under Section 13a of the Act for divorce and for recovery of maintenance @ Rs. 2,000/- per month as well as Rs. 2,500/- for litigation expenses and Rs. 70,000/- being the amount mentioned in para 8 of the petition. Admittedly, she was wedded to the respondent on 20. 4. 1988 according to Hindu rites at Gwalior. She alleged that she had taken away her ornaments and other articles which were gifted to her at the time of marriage to husband's place. The ornaments have been detailed in Schedule to the petition. She lived for six months with her husband at Mangaleshwar Road, Gwalior and during this period, the treatment of her husband was very formal inspite of the fact that she tried to take care of all the amenities of her husband. By and by, the treatment of the husband became cruel and intolerable. He used to come drunk at about 11. 00 p. m. She used to forbid him from drinking and smoking, but he did not hear and used to beat her and abuse her parents. He was influenced by his Bhabhi and had an attraction towards her. He and his Bhabhi pressurised her against her wishes to get aborted which caused mental and physical agony to her. After being harassed, she went to parents' house in March, 1989 and started living there. During this period, he developed illegitimate connections with other ladies. Several respectable persons of the city intervened between the two families and the respondent assured that he will not misbehave any further and will keep the petitioner satisfied. She, therefore, went in December, 1989 to her husband's house, but there was no change in his behavior. When she used to make complaint, he said that if she could not live with him, she should go out of the house and marry a second time. Consequently, on 7. 6. 1990, she was beaten and turned out of the house by the respondent and since then, she has been living with her parents. Several respectable persons again intervened and as a result of their intervention, the ornaments given in gift were returned, but cash amount and a motor-cycle which was give were not returned and it was settled that a total sum of Rs. 70,000/- was to be given by the respondent to the petitioner. The respondent gave a cheque No. BW-012043, dated 17. 9. 1990 of the State Bank of India for Rs. 70,000/-, but it was not cashed as the payment was stopped. He, therefore, committed fraud upon her which was an offence under the Negotiable Instruments Act as well as the Indian Penal Code. An agreement was entered into between the parties on 17. 8. 1990 which was signed by them and the parties had agreed for divorce. She was not doing any business and was dependant upon husband and at the time of filing of petition, upon her parents. The respondent was Accounts Officer in the State Bank, Gwalior Branch at Bada and was earning a sum of Rs. 4, 200/- per month. She was, therefore, entitled for maintenance @ Rs. 2,000/- per month and another sum of Rs. 2,500/- towards expenses for litigation.
(2.)THE petition was contested by the respondent and except the marriage, the other allegations were denied. The respondent specifically denied the allegation regarding mal-treatment of the petitioner. He alleged that at the time the petitioner left her husband's house, she had taken all her ornaments, cash and other articles which were given in the gift. The petitioner, her family members and other unsocial elements surrounded him and on the thereat of killing him and implicating him in another case, got his signatures over a cheque and a blank promote for Rs. 70,000/ -. A Report was lodged by him before the Superintendent of Police as well as In-charge, Thana, Fort Road. He got the payment stopped. The alleged agreement was not enforceable and was not binding upon him. The petitioner was M. A. and wasa teacher and was earning about Rs. 2,000/-per month and was self-dependant. She was not entitled to any relief. The learned Court below accepted the petitioner's case and decreed it as aforesaid. Feeling aggrieved, this appeal has been preferred.
(3.)THE learned Counsel for the appellant, during the course of argument, argued only one point before me. He did not challenge the decree so far as it related to grant of divorce as well as the sum of Rs. 70,000/ -. He contended that the learned Court below inspite of the fact that it held that there was an agreement under which a sum of Rs. 35,000/- was agreed towards maintenance, wrongly awarded further amount in lieu of maintenance @rs. 500/- per month. He also contended that alimony was taken by the petitioner during pendency of the case amounting to Rs. 17,200/- for the period from December, 1991 to January, 1995 @ Rs. 400 / - per month and this was not taken note of by the Court below. The learned Counsel also urged that the appellant had deposited a sum of Rs. 70,000/- in Court under the orders of this Court. On the other hand, it has been contended that maintenance awarded during pendency of the case has not been paid. I have considered the contentions raised before me. It is important to mention here that the decree, so far as it related to grant of divorce and a sum of Rs. 70,000/- has not been challenged during the course of arguments. The main contention is that inspite of the fact that under the agreement, a sum of Rs. 75,000/- was agreed towards maintenance, the Court has wrongly granted maintenance @ Rs. 500/- per month. The appellant has deposited the amount of Rs. 35,000/- as well as another amount of Rs. 35,000/- agreed under the agreement, Ex. P. 3, i. e. , the total sum of Rs. 70,000/- in Court. Thus, the grant of decreed for maintenance in excess of Rs. 35,000/- has been challenged. A perusal of the agreement Ex. P. 3 shows that para 7 of this agreement is important. Under this para, it was agreed between the parties that the party No. 2 had no source of livelihood and as such, she had accepted a sum of Rs. 35,000/-towards maintenance on that count and another sum of Rs. 35,000/- towards the cost of motor-cycle, as mentioned in para 6, was also agreed to be paid. Thus, total sum of Rs. 70,000/- was to be paid and the parties had agreed that the amount was to be paid within 30 days from that date, i. e. from. 17. 8. 1990. In this way, it ought to have been paid by 17. 9. 1990. It is apparent from the record that this amount was not paid at all and was deposited in Court under the orders of this Court as stated by the learned Counsel for the appellant, on 3. 8. 1995. In this way, during this period, the respondent had to suffer. According to the averments made in para 7, the respondent had no source of livelihood. During all this period, she must have been made to manage somehow. Had the amount been paid within the time agreed between the parties, she must have earned some interest or must have utilised it in some other manner which might have been a source of her livelihood. But, it could not be done for the simple reason that the amount was not paid. In this view of the matter; I am of the view that the petitioner was entitled to grant of maintenance till the amount was not paid or deposited in Court. Of course, she is not entitled to any amount of maintenance after the date when the amount was deposited in Court. In this way, I conclude that she is entitled to maintenance as awarded by the Court below till the amount was deposited and any amount withdrawn by the petitioner towards maintenance has to be deducted from this amount. The petitioner is, however, not entitled to any maintenance subsequent to the date of deposit and the decree, to that extent, is to be modified.