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2013 Supreme(All) 2498
ALLAHABAD HIGH COURT
(Lucknow Bench)
Before : Rajiv Sharma and Dr. Satish Chandra, JJ.
Jitendra Saksena .....Appellant/plaintiff
Versus
Mallika Saxena .....Respondent/defendant
(First Appeal No. 63 of 2006, decided on 25th October, 2013)
Counsel :
Sudeep Seth for the Appellant/plaintiff; Anil Kumar Tewari and Amit Jaiswal for the Respondent.
Headnote:Hindu Marriage Act, 1955—Sections 12, 24, 27 and 28—Family Court Act, 1984—Section 19—Marriage—Dissolution of—Permanent alimony—Concealment of age and pregnancy—Compromise between parties, outside the Court—Respondent-wife sought for dissolution of marriage provided she granted permanent alimony to which appellant agreed—Matrimonial bond between the parties had been wrecked beyond the hope of salvage and could not be repaired—There had been total disappearance of emotional substratum in the marriage—Having regard to facts and circumstances of the case, it would be appropriate to grant decree of divorce and fix permanent alimony a sum of Rs. Twenty Five Lacs towards permanent alimony payable by the husband to the wife. [Paras 12, 13, 16, 17 and 18]
Based on the provided legal document, here are the key points:
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The marriage between Jitendra Saksena and Mallika Saxena was solemnized on 29.11.2001 according to Hindu rituals and customs. (!)
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The respondent, Mallika Saxena, disclosed her age as 29 years during pregnancy tests, but records later revealed she was actually born in 1968, making her four years older than the appellant. The appellant contended that this concealment of age and pregnancy was fraudulent and sought annulment of marriage on these grounds. (!) (!) (!)
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The respondent became pregnant shortly after marriage, with ultrasound evidence indicating a pregnancy within the first few weeks of marriage. The respondent underwent an abortion without informing the appellant. The appellant alleged that this was done under duress and due to torture by the respondent and her family. (!) (!)
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The respondent sent a legal notice for mutual divorce, demanding permanent alimony, which the appellant agreed to upon certain conditions. The appellant filed a petition for annulment of marriage due to concealment of age and pregnancy, while the respondent filed for maintenance, which was dismissed. (!) (!)
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Multiple cases were filed and dismissed in the Family Court, including suits for annulment and maintenance, reflecting ongoing matrimonial disputes. (!) (!)
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During proceedings, both parties appeared before the court multiple times, and attempts were made to settle the dispute amicably through mediation, leading to a mutual understanding to resolve the matter outside the court. (!) (!)
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The court observed that the marriage had become irretrievably broken down due to incompatibility and the total disappearance of emotional connection, indicating that the marriage could not be salvaged. (!) (!)
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The court determined that the marriage was effectively over, and the primary concern was to fix a just and reasonable amount of permanent alimony. (!) (!)
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Considering the circumstances, the court ordered the husband to pay a sum of Rs. 25 lakhs as permanent alimony to the wife, with half payable within three months and the remaining half within the next three months. Both parties were directed to withdraw pending cases accordingly. (!) (!)
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The appeal was finally disposed of on these terms, emphasizing the importance of a pragmatic approach to matrimonial disputes, especially when the marriage is deemed irretrievably broken. (!) (!)
Please let me know if you need further analysis or specific legal advice regarding this case.
By the Court.—Heard Sri Sudeep Seth, learned counsel for the appellant/plaintiff and Sri Anil Kumar Tewari, Senior Advocate, assisted by Sri Amit Jaiswal, Counsel for the respondent.
2. Appellant-Jitendra Saksena, who is said to be husband of respondent-Mallika Saxena, has preferred the instant First Appeal under Section 19 of the Family Court Act read with Section 28 of Hindu Marriage Act, 1955, against the judgment and order dated 27.2.2006 passed by the Principal Judge, Family Court, Lucknow in Suit No. 265 of 2002 : Jitendra Saksena v. Mallika Saxena, preferred under Section 12 of the Hindu Marriage Act alongwith Suit No. 1188 of 2004 : Mallika Saxena v. Jitendra Saksena, preferred under Section 27 of the Hindu Marriage Act, whereby the Family Court has dismissed both the above cases i.e. Suit Nos. 265 of 2002 and 1188 of 2004.
3. Shorn off unnecessary details the facts of the case are as under :
4. The marriage of appellant-Sri Jitendra Saksena was solemnized with respondent-Smt. Mallika Saxena in accordance with Hindu rituals, customs and tradition on 29.11.2001.
5. According to the appellant, in the first week of December, 2001, respondent-Smt. Mallika Saxena complained about pain in stomach and also she informed the appellant that her period had elapsed. Similar complain was made on 15.1.2002 also and as such, appellant took her wife (respondent) to the Gynecologist, whereupon Doctor informed them that respondent was pregnant and she was advised for ultrasound and other tests. Respondent had disclosed to the Gynecologist that Last Menstrual Period (LMP) was on 7.12.2001 and disclosed her age to be 29 years, which was noted by the Doctor in its prescription dated 15.1.2002. Pursuant to the advise of the Doctor, ultrasound of respondent was done on 21.1.2002, in which, live foetus of 7±1 week of gestation was reported. All of a sudden, without any intimation, on 22.1.2002, respondent went to her parents’ house and took away all her jewellery and belongings. On 29.1.2002, parents of respondent came to the appellant’s house and took all original prescriptions and pathological reports etc. of the respondent for further treatment, however, appellant had retained photocopies of the same. On 1.2.2002, respondent underwent abortion and terminated pregnancy, without even informing the appellant. Thereafter, respondent sent a legal notice to the appellant for mutual divorce on 14.2.2002, alleging therein that due to torture of appellant and his members of family, pregnancy was terminated but the respondent had neither filed any FIR of torture nor any report of Doctor showing torture upon the body of the respondent.
6. Later on, when the appellant received the said legal notice, the appellant inquired from the records of the University, whereby he came to know that date of birth of the respondent is 21.9.1968 as reflected from her High School Certificate and not 21.1.1972 as was disclosed in the bio-data. Thus, the respondent is four years elder to the appellant and the consent of the appellant for marriage was obtained by playing fraud and as such, the appellant replied to the said legal notice to the effect that he would take appropriate proceedings for annulment of marriage instead of divorce with mutual consent. Thereafter, the appellant filed the petition for annulment of marriage by a decree of nullity under Section 12 (1) ©(d) of the Hindu Marriage Act for concealment of age and pregnancy, registered as Regular Suit No. 265 of 2002 in the Court of Principal Judge, Family Court, Lucknow, whereas respondent filed an application for maintenance under Section 24 of the Hindu Marriage Act. The said application for maintenance under Section 24 of the Hindu Marriage Act, however was dismissed by the Family Court.
7. According to the appellant, during pendency of Regular Suit No. 265 of 2002, respondent preferred a petition under Section 27 of the Hindu Marriage Act, which was registered as Case No. 1188 of 2004. The Princi
