NEHA TYAGIversusLIEUTENANT COLONEL DEEPAK TYAGI

622                       [2021]
               SUPREME COURT     9 S.C.R. 622
                              REPORTS                     [2021] 9 S.C.R.


A                               NEHA TYAGI
                                       v.
                 LIEUTENANT COLONEL DEEPAK TYAGI
                        (Civil Appeal No. 6374 of 2021)
B                           DECEMBER 01, 2021
                 [M. R. SHAH AND A. S. BOPANNA, JJ.]
            Matrimonial disputes: Divorce and maintenance – Appellant-
      wife filed complaints against respondent-husband before his
      employer Army Authorities including allegations of extra-marital
C
      affairs – Respondent was exonerated after enquiry by Army
      Authorities – Thereafter, he filed divorce petition on the ground of
      cruelty and desertion by appellant wife – Meanwhile, Army
      Authorities started deducting 27.5% of the salary per month from
      the pay and allowances of the respondent in terms of s. 90(1) of the
D     Army Act, 1950 – Family Court passed decree of divorce – High
      Court 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 findings
      against her on ‘cruelty’ may be expunged on account of irretrievable
      breakdown of marriage since the parties were residing separately
E
      since 2011 and respondent-husband has remarried – Appellant
      further prayed for direction to respondent to pay maintenance to
      wife and minor son – It was submitted that since December 2019,
      the appellant-wife and her son were not paid any maintenance which
      they were receiving from Army Authorities – Held: There were
F     concurrent findings recorded by the Family Court as well as the
      High Court on “cruelty” and “desertion” by the appellant-wife,
      which as such were on appreciation of evidence on record – In
      view of the fact that the couple are not staying together since May,
      2011, it can be said to be a case of irretrievable breakdown of
      marriage between them – Respondent-husband has already re-
G
      married – Therefore, in the facts and circumstances of the case and
      in 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 with
      on account of irretrievable breakdown of marriage – However,
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                                      622
  NEHA TYAGI v. LIEUTENANT COLONEL DEEPAK TYAGI                             623


liability and responsibility of the father to maintain the child would      A
continue till the child/son attains the age of majority – The son has
a right to be maintained as per the status of his father – It is reported
that the mother is not earning anything and is residing at her parental
house – Therefore, a reasonable/sufficient amount is required for
maintenance of her son including his education etc. which shall
                                                                            B
have to be paid by respondent-husband – Respondent is directed to
pay Rs. 50,000/- per month w.e.f December 2019 towards
maintenance of minor son.
      Disposing of the appeal, the Court
       HELD : 1. There are concurrent findings recorded by the              C
Family Court as well as the High Court on “cruelty” and
“desertion” by the appellant-wife, which as such are on
appreciation of evidence on record. The appellant-wife made
number of complaints against the respondent-husband to his
employer-Army Authorities making serious allegations of extra-
marital affairs. On the basis of the complaints made by the                 D
appellant-wife, an enquiry was initiated by the Army Authorities
and the Army Authorities exonerated the respondent-husband
of the allegation of extra-marital affairs. Considering the fact that
both, the appellant-wife and the respondent-husband are not
staying together since May, 2011 and therefore it can be said               E
that 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 further
enter into the merits of the findings recorded by the courts below
on “cruelty” and “desertion” by the appellant-wife. Therefore,
in the facts and circumstances of the case and in exercise of               F
powers under Article 142 of the Constitution of India, the decree
passed by the Family Court, confirmed by the High Court,
dissolving the marriage between the appellant-wife and
the respondent-husband is not required to be interfered
with on account of irretrievable breakdown of marriage.                     G
[Paras 4, 5][626-F-H; 627-A-C]
        2. At the same time, the respondent-husband cannot be
absolved from his liability and responsibility to maintain his son
till he attains the age of majority. Whatever be the dispute between
the husband and the wife, a child should not be made to suffer.             H
624             SUPREME COURT REPORTS                           [2021] 9 S.C.R.


A     The liability and responsibility of the father to maintain the child
      continues till the child/son attains the age of majority. It also
      cannot be disputed that the son has a right to be maintained as
      per the status of his father. It is reported that the mother is not
      earning anything. She is residing at her parental house at Jaipur.
      Therefore, a reasonable/sufficient amount is required for the
B
      maintenance of her son including his education etc. which shall
      have to be paid by the respondent-husband, irrespective of the
      decree of dissolution of marriage between the appellant-wife and
      the respondent-husband. The amount which was being paid
      pursuant to the order passed by the Army Authorities on
C     15.11.2012 has also been stopped by the respondent-husband
      since December, 2019. The decree of divorce/dissolution of the
      marriage between the appellant-wife and the respondent-husband
      is confirmed. However, the respondent-husband is directed to
      pay Rs.50,000/- per month with effect from December, 2019 to
      the appellant-wife towards the maintenance of son as per the
D
      status of the respondent. [Paras 5, 6][627-C-G]
            CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6374
      of 2021.
             From the Judgment and Order dated 18.09.2019 of the High Court
E     of Judicature for Rajasthan Bench at Jaipur in D.B. Civil Miscellaneous
      Appeal No.2845 of 2018.
           Ms. Neela Gokhale, Ms. Anannya Ghosh, Ilam Paridi, Ms. Shradha
      Agrawal, Kushal Choudhary, Brian Henry Moses, Advs. for the Appellant.
            The Judgment of the Court was delivered by
F
            M. R. SHAH, J.
             1. Feeling aggrieved and dissatisfied with the impugned judgment
      and order passed by the High Court of Judicature for Rajasthan at Jaipur
      passed in D.B. Civil Miscellaneous Appeal No. 2845 of 2018, by which
      the Division Bench of the High Court has dismissed the said appeal
G
      preferred by the appellant herein and has confirmed the judgment and
      decree passed by the learned Family Court dissolving the marriage
      between the appellant and the respondent on the ground of cruelty and
      desertion by the appellant herein, the original appellant-wife has preferred
      the present appeal.
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  NEHA TYAGI v. LIEUTENANT COLONEL DEEPAK TYAGI                              625
                    [M. R. SHAH, J.]

      2. The facts leading to the present appeal in nutshell are as under:   A
       That the marriage between the appellant and the respondent was
solemnised on 16.11.2005. That the respondent herein was serving as
an Army Officer as Major. That out of the said wedlock, the appellant
and the respondent had one son Pranav Tyagi who is aged 13 years
presently being born on 23.2.2008. That the dispute arose between the        B
husband and the wife. That the appellant-wife filed number of complaints
against the respondent-husband before his employer – Army Authorities
including the extra-marital affairs of the respondent-husband. An enquiry
was initiated by the Army Authorities against the respondent-husband
for extra-marital affairs on the basis of the complaints dated 29.09.2014
and 5.2.2015 made by the appellant-wife. In the enquiry, the respondent-     C
husband was exonerated.
       2.1 That the respondent-husband filed Case No. 1496/2016 against
the appellant-wife before the learned Family Court, Jaipur on 25.11.2014
seeking a decree of divorce and dissolution of marriage on the ground of
cruelty and desertion by the appellant-wife. That, in the meantime and       D
since 2012, the Army Authorities were deducting 27.5% of the salary
per month from the pay and allowances of the respondent-husband as
per Section 90(1) of the Army Act, 1950. That by judgment and decree
dated 19.05.2018, the learned Family Court passed a decree for
dissolution of marriage between the appellant and the respondent on the      E
ground of cruelty and desertion by the appellant-wife.
       2.2 Feeling aggrieved and dissatisfied with the judgment and decree
passed by the learned Family Court dissolving the marriage between the
appellant and the respondent, the appellant herein preferred an appeal
before the High Court being D.B. Civil Miscellaneous Appeal No. 2845/        F
2018. By the impugned judgment and order, the High Court has dismissed
the said appeal and has confirmed the judgment and decree passed by
the learned family Court. Hence, the present appeal is at the instance of
the appellant-wife.
       3. We have heard Ms. Neela Gokhale, learned Advocate appearing        G
on behalf of the appellant. It is very unfortunate that though served, the
respondent-husband has not appeared in the present appeal and it is
reported that despite the order of status quo passed by this Court vide
interim order dated 22.11.2019, the respondent-husband has re-married.

                                                                             H
626             SUPREME COURT REPORTS                              [2021] 9 S.C.R.


A            3.1 Number of submissions have been made by the learned
      Advocate appearing on behalf of the appellant-wife on the findings
      recorded by the learned Family Court as well as the High Court on
      cruelty and desertion by the appellant-wife. It is also the case on behalf
      of the appellant-wife that subsequently and despite the order of status
      quo passed by this Court on 22.11.2019, the respondent-husband has
B
      re-married and that is why he is not appearing in the present proceedings.
              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 expunged
      and marriage may be continued to remain dissolved on account of
      irretrievable breakdown of marriage since both wife and husband are
C     residing separately since May, 2011 and the respondent-husband has
      already re-married. However, it is submitted to direct the respondent-
      husband to pay maintenance to the appellant-wife and minor son – Pranav
      as they have no means of maintaining themselves and have no
      independent income to sustain themselves.
D           3.3 It is submitted that since December, 2019, the appellant-wife
      and her son are not being paid any maintenance which they were
      receiving from the Army Authorities as per order passed by the Army
      Authorities dated 15.11.2012. It is submitted that the appellant and her
      son were getting Rs. 40,000/- towards maintenance which they received
E     from 2012 till November, 2019. It is therefore prayed to direct the
      respondent-husband to pay the maintenance to the appellant and her
      minor son.
             4. Having heard learned counsel for the appellant-wife and having
      gone through the findings recorded by the learned Family Court as well
F     as by the High Court, on “cruelty” and “desertion” by the appellant-
      wife, we are of the view that there are concurrent findings recorded by
      the learned Family Court as well as the High Court on “cruelty” and
      “desertion” by the appellant-wife, which as such are on appreciation of
      evidence on record. The appellant-wife made number of complaints
      against the respondent-husband to his employer – Army Authorities
G     making serious allegations of extra-marital affairs. On the basis of the
      complaints made by the appellant-wife, an enquiry was initiated by the
      Army 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 and
H     the respondent-husband are not staying together since May, 2011 and
  NEHA TYAGI v. LIEUTENANT COLONEL DEEPAK TYAGI                               627
                    [M. R. SHAH, J.]

therefore it can be said that there is irretrievable breakdown of marriage    A
between them. It is also reported that the respondent-husband has already
re-married. Therefore, no useful purpose shall be served to further enter
into the merits of the findings recorded by the courts below on “cruelty”
and “desertion” by the appellant-wife. Therefore, in the facts and
circumstances of the case and in exercise of powers under Article 142
                                                                              B
of the Constitution of India, the decree passed by the learned Family
Court, confirmed by the High Court, dissolving the marriage between
the appellant-wife and the respondent-husband is not required to be
interfered with on account of irretrievable breakdown of marriage.
        However, at the same time, the respondent-husband cannot be
absolved from his liability and responsibility to maintain his son Pranav     C
till he attains the age of majority. Whatever be the dispute between the
husband and the wife, a child should not be made to suffer. The liability
and responsibility of the father to maintain the child continues till the
child/son attains the age of majority. It also cannot be disputed that the
son Pranav has a right to be maintained as per the status of his father. It   D
is reported that the mother is not earning anything. She is residing at her
parental house at Jaipur. Therefore, a reasonable/sufficient amount is
required for the maintenance of her son including his education etc.
which shall have to be paid by the respondent-husband, irrespective of
the decree of dissolution of marriage between the appellant-wife and
the respondent-husband. The amount which was being paid pursuant to           E
the order passed by the Army Authorities on 15.11.2012 has also been
stopped by the respondent-husband since December, 2019.
       6. In view of the above and for the reasons stated above, the
present appeal stands disposed of by confirming the decree of divorce/
dissolution of the marriage between the appellant-wife and the                F
respondent-husband. However, the respondent-husband is directed to
pay Rs.50,000/- per month with effect from December, 2019 to the
appellant-wife towards the maintenance of son Pranav as per the status
of the respondent herein. The arrears @ Rs. 50,000/- per month since
December, 2019 to November, 2021 shall be paid within a period of             G
eight weeks from today. The current maintenance @ Rs. 50,000/- per
month from the month of December, 2021 onwards be deducted from
the salary of the respondent-husband by the Army Authorities, which
shall be directly credited in the bank account of the appellant-mother.
The appellant-mother is directed to furnish the bank details to the Army
                                                                              H
628              SUPREME COURT REPORTS                        [2021] 9 S.C.R.


A     Authorities within a period of one week from today. It is further ordered
      that if the arrears @ Rs. 50,000/- per month commencing from December,
      2019 till November, 2021, as ordered hereinabove is not paid by the
      respondent-father within a period of eight weeks from today, in that
      case, the recovery of arrears + monthly maintenance shall be worked
      out by the Army Authorities and the same shall be deducted in equal
B
      monthly instalments from the salary of the respondent-father, so as not
      to exceed 50% of the total monthly pay and allowances of the respondent.
             7. The instant appeal stands disposed of, with the aforesaid
      directions.
C
      Devika Gujral                                            Appeal disposed of.




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