Supreme Court of India
NEHA TYAGI versus LIEUTENANT COLONEL DEEPAK TYAGI on 1 December 2021
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SUPREME COURT REPORTS
[2021] 9 S.C.R.
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NEHA TYAGI
v.
LIEUTENANT COLONEL DEEPAK TYAGI(Civil Appeal No. 6374 of 2021)
BDECEMBER 01, 2021
[M. R. SHAH AND A. S. BOPANNA, JJ.]
Matrimonial disputes: Divorce and maintenance – Appellant-wife filed complaints against respondent-husband before hisemployer Army Authorities including allegations of extra-maritalCaffairs – Respondent was exonerated after enquiry by ArmyAuthorities – Thereafter, he filed divorce petition on the ground ofcruelty and desertion by appellant wife – Meanwhile, ArmyAuthorities started deducting 27.5% of the salary per month fromthe pay and allowances of the respondent in terms of s. 90(1) of theDArmy Act, 1950 – Family Court passed decree of divorce – HighCourt confirmed decree of divorce – Hence appeal by wife –Respondent did not appear – Despite the order of status quo,respondent has remarried – Prayer of appellant that the findingsagainst her on ‘cruelty’ may be expunged on account of irretrievablebreakdown of marriage since the parties were residing separatelyEsince 2011 and respondent-husband has remarried – Appellantfurther prayed for direction to respondent to pay maintenance towife and minor son – It was submitted that since December 2019,the appellant-wife and her son were not paid any maintenance whichthey were receiving from Army Authorities – Held: There wereFconcurrent findings recorded by the Family Court as well as theHigh Court on “cruelty” and “desertion” by the appellant-wife,which as such were on appreciation of evidence on record – Inview of the fact that the couple are not staying together since May,2011, it can be said to be a case of irretrievable breakdown ofmarriage between them – Respondent-husband has already re-Gmarried – Therefore, in the facts and circumstances of the case andin exercise of powers under Art.142 of the Constitution of India,the decree passed by the Family Court, confirmed by the High Court,dissolving the marriage between the parties is not interfered withon account of irretrievable breakdown of marriage – However,H
liability and responsibility of the father to maintain the child wouldcontinue till the child/son attains the age of majority – The son hasa right to be maintained as per the status of his father – It is reportedthat the mother is not earning anything and is residing at her parentalhouse – Therefore, a reasonable/sufficient amount is required formaintenance of her son including his education etc. which shallhave to be paid by respondent-husband – Respondent is directed topay Rs. 50,000/- per month w.e.f December 2019 towardsmaintenance of minor son.
Disposing of the appeal, the Court
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Conclusion
Disposing of the appeal, the Court
HELD : 1. There are concurrent findings recorded by theFamily Court as well as the High Court on “cruelty” and“desertion” by the appellant-wife, which as such are onappreciation of evidence on record. The appellant-wife madenumber of complaints against the respondent-husband to hisemployer-Army Authorities making serious allegations of extra-marital affairs. On the basis of the complaints made by theappellant-wife, an enquiry was initiated by the Army Authoritiesand the Army Authorities exonerated the respondent-husbandof the allegation of extra-marital affairs. Considering the fact thatboth, the appellant-wife and the respondent-husband are notstaying together since May, 2011 and therefore it can be saidthat there is irretrievable breakdown of marriage between them.It is also reported that the respondent-husband has already re-married. Therefore, no useful purpose shall be served to furtherenter into the merits of the findings recorded by the courts belowon “cruelty” and “desertion” by the appellant-wife. Therefore,in the facts and circumstances of the case and in exercise ofpowers under Article 142 of the Constitution of India, the decreepassed by the Family Court, confirmed by the High Court,dissolving the marriage between the appellant-wife andthe respondent-husband is not required to be interferedwith on account of irretrievable breakdown of marriage.[Paras 4, 5][626-F-H; 627-A-C]
2. At the same time, the respondent-husband cannot beabsolved from his liability and responsibility to maintain his sontill he attains the age of majority. Whatever be the dispute betweenthe husband and the wife, a child should not be made to suffer.
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AThe liability and responsibility of the father to maintain the childcontinues till the child/son attains the age of majority. It alsocannot be disputed that the son has a right to be maintained asper the status of his father. It is reported that the mother is notearning anything. She is residing at her parental house at Jaipur.Therefore, a reasonable/sufficient amount is required for theBmaintenance of her son including his education etc. which shallhave to be paid by the respondent-husband, irrespective of thedecree of dissolution of marriage between the appellant-wife andthe respondent-husband. The amount which was being paidpursuant to the order passed by the Army Authorities onC15.11.2012 has also been stopped by the respondent-husbandsince December, 2019. The decree of divorce/dissolution of themarriage between the appellant-wife and the respondent-husbandis confirmed. However, the respondent-husband is directed topay Rs.50,000/- per month with effect from December, 2019 tothe appellant-wife towards the maintenance of son as per theDstatus of the respondent. [Paras 5, 6][627-C-G]CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6374of 2021.
From the Judgment and Order dated 18.09.2019 of the High CourtEof Judicature for Rajasthan Bench at Jaipur in D.B. Civil MiscellaneousAppeal No.2845 of 2018.
Ms. Neela Gokhale, Ms. Anannya Ghosh, Ilam Paridi, Ms. ShradhaAgrawal, Kushal Choudhary, Brian Henry Moses, Advs. for the Appellant.
The Judgment of the Court was delivered byF
M. R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the High Court of Judicature for Rajasthan at Jaipurpassed in D.B. Civil Miscellaneous Appeal No. 2845 of 2018, by whichthe Division Bench of the High Court has dismissed the said appealGpreferred by the appellant herein and has confirmed the judgment anddecree passed by the learned Family Court dissolving the marriagebetween the appellant and the respondent on the ground of cruelty anddesertion by the appellant herein, the original appellant-wife has preferredthe present appeal.
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2. The facts leading to the present appeal in nutshell are as under:
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2. The facts leading to the present appeal in nutshell are as under:
That the marriage between the appellant and the respondent wassolemnised on 16.11.2005. That the respondent herein was serving asan Army Officer as Major. That out of the said wedlock, the appellantand the respondent had one son Pranav Tyagi who is aged 13 yearspresently being born on 23.2.2008. That the dispute arose between thehusband and the wife. That the appellant-wife filed number of complaintsagainst the respondent-husband before his employer – Army Authoritiesincluding the extra-marital affairs of the respondent-husband. An enquirywas initiated by the Army Authorities against the respondent-husbandfor extra-marital affairs on the basis of the complaints dated 29.09.2014and 5.2.2015 made by the appellant-wife. In the enquiry, the respondent-husband was exonerated.
2.1 That the respondent-husband filed Case No. 1496/2016 againstthe appellant-wife before the learned Family Court, Jaipur on 25.11.2014seeking a decree of divorce and dissolution of marriage on the ground ofcruelty and desertion by the appellant-wife. That, in the meantime andsince 2012, the Army Authorities were deducting 27.5% of the salaryper month from the pay and allowances of the respondent-husband asper Section 90(1) of the Army Act, 1950. That by judgment and decreedated 19.05.2018, the learned Family Court passed a decree fordissolution of marriage between the appellant and the respondent on theground of cruelty and desertion by the appellant-wife.
2.2 Feeling aggrieved and dissatisfied with the judgment and decreepassed by the learned Family Court dissolving the marriage between theappellant and the respondent, the appellant herein preferred an appealbefore the High Court being D.B. Civil Miscellaneous Appeal No. 2845/2018. By the impugned judgment and order, the High Court has dismissedthe said appeal and has confirmed the judgment and decree passed bythe learned family Court. Hence, the present appeal is at the instance ofthe appellant-wife.
3. We have heard Ms. Neela Gokhale, learned Advocate appearingon behalf of the appellant. It is very unfortunate that though served, therespondent-husband has not appeared in the present appeal and it isreported that despite the order of status quo passed by this Court videinterim order dated 22.11.2019, the respondent-husband has re-married.
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A3.1 Number of submissions have been made by the learnedAdvocate appearing on behalf of the appellant-wife on the findingsrecorded by the learned Family Court as well as the High Court oncruelty and desertion by the appellant-wife. It is also the case on behalfof the appellant-wife that subsequently and despite the order of statusquo passed by this Court on 22.11.2019, the respondent-husband hasBre-married and that is why he is not appearing in the present proceedings.
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3.2 It is urged on behalf of the appellant-wife that in the alternative,the findings against the appellant-wife on “cruelty” may be expungedand marriage may be continued to remain dissolved on account ofirretrievable breakdown of marriage since both wife and husband areCresiding separately since May, 2011 and the respondent-husband hasalready re-married. However, it is submitted to direct the respondent-husband to pay maintenance to the appellant-wife and minor son – Pranavas they have no means of maintaining themselves and have noindependent income to sustain themselves.D
3.3 It is submitted that since December, 2019, the appellant-wifeand her son are not being paid any maintenance which they werereceiving from the Army Authorities as per order passed by the ArmyAuthorities dated 15.11.2012. It is submitted that the appellant and herson were getting Rs. 40,000/- towards maintenance which they receivedEfrom 2012 till November, 2019. It is therefore prayed to direct therespondent-husband to pay the maintenance to the appellant and herminor son.
4. Having heard learned counsel for the appellant-wife and havinggone through the findings recorded by the learned Family Court as wellFas by the High Court, on “cruelty” and “desertion” by the appellant-wife, we are of the view that there are concurrent findings recorded bythe learned Family Court as well as the High Court on “cruelty” and“desertion” by the appellant-wife, which as such are on appreciation ofevidence on record. The appellant-wife made number of complaintsagainst the respondent-husband to his employer – Army AuthoritiesGmaking serious allegations of extra-marital affairs. On the basis of thecomplaints made by the appellant-wife, an enquiry was initiated by theArmy Authorities and the Army Authorities exonerated the respondent-husband of the allegation of extra-marital affairs.
5. However, considering the fact that both, the appellant-wife andHthe respondent-husband are not staying together since May, 2011 and therefore it can be said that there is irretrievable breakdown of marriagebetween them. It is also reported that the respondent-husband has alreadyre-married. Therefore, no useful purpose shall be served to further enterinto the merits of the findings recorded by the courts below on “cruelty”and “desertion” by the appellant-wife. Therefore, in the facts andcircumstances of the case and in exercise of powers under Article 142of the Constitution of India, the decree passed by the learned FamilyCourt, confirmed by the High Court, dissolving the marriage betweenthe appellant-wife and the respondent-husband is not required to beinterfered with on account of irretrievable breakdown of marriage.
However, at the same time, the respondent-husband cannot beabsolved from his liability and responsibility to maintain his son Pranavtill he attains the age of majority. Whatever be the dispute between thehusband and the wife, a child should not be made to suffer. The liabilityand responsibility of the father to maintain the child continues till thechild/son attains the age of majority. It also cannot be disputed that theson Pranav has a right to be maintained as per the status of his father. Itis reported that the mother is not earning anything. She is residing at herparental house at Jaipur. Therefore, a reasonable/sufficient amount isrequired for the maintenance of her son including his education etc.which shall have to be paid by the respondent-husband, irrespective ofthe decree of dissolution of marriage between the appellant-wife andthe respondent-husband. The amount which was being paid pursuant tothe order passed by the Army Authorities on 15.11.2012 has also beenstopped by the respondent-husband since December, 2019.
6. In view of the above and for the reasons stated above, thepresent appeal stands disposed of by confirming the decree of divorce/dissolution of the marriage between the appellant-wife and therespondent-husband. However, the respondent-husband is directed topay Rs.50,000/- per month with effect from December, 2019 to theappellant-wife towards the maintenance of son Pranav as per the statusof the respondent herein. The arrears @ Rs. 50,000/- per month sinceDecember, 2019 to November, 2021 shall be paid within a period ofeight weeks from today. The current maintenance @ Rs. 50,000/- permonth from the month of December, 2021 onwards be deducted fromthe salary of the respondent-husband by the Army Authorities, whichshall be directly credited in the bank account of the appellant-mother.The appellant-mother is directed to furnish the bank details to the Army AB
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AAuthorities within a period of one week from today. It is further orderedthat if the arrears @ Rs. 50,000/- per month commencing from December,2019 till November, 2021, as ordered hereinabove is not paid by therespondent-father within a period of eight weeks from today, in thatcase, the recovery of arrears + monthly maintenance shall be workedout by the Army Authorities and the same shall be deducted in equalBmonthly instalments from the salary of the respondent-father, so as notto exceed 50% of the total monthly pay and allowances of the respondent.7. The instant appeal stands disposed of, with the aforesaiddirections.
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Devika GujralAppeal disposed of.
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