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2002 DIGILAW 438 (ORI)

PRAFULLA KUMAR NATHSHARMA v. JAYANT NATHSHARMA

2002-07-18

B.PANIGRAHI, P.K.MISRA

body2002
JUDGMENT : B. Panigrahi, J. - The husband, who was the Petitioner before the learned Judge, Family Court, Cuttack, in a proceeding u/s 13 of the Hindu Marriage Act, has filed this appeal against the order of the trial Court, whereby, while allowing the prayer for divorce, the Appellant has been directed to pay a sum of Rs. 70,000/ - as permanent alimony to the Respondent-wife. 2. The Appellant filed an application u/s 13 of the Hindu Marriage Act for dissolution of the marriage, which was solemnized between the parties some time in 1978. It was alleged by the Appellant that in the year 1981, the Respondent-wife developed extra-marital relationship with one Gangadhar Nathsharma, which was subsequently detected by his family members. The further allegation leveled by the Appellant was that since the Respondent-wife was of easy virtue, it was impossible to continue to live with her. He had taken her to a Gynecologist, who had opined that the Respondent wife is in capable of being a mother due to inherent defect. The matter was referred to a Panch and bilaterally there was a divorce as far back as on 16.10.1988. 3. The Respondent-wife denied all the allegations and pleaded that on account of physical and mental agony caused by the Appellant and she being treated cruelly, it became impossible for her to live with the Appellant. Accordingly, she had no other alternative but to leave her marital home and take shelter in the house of her father. She had also filed a separate application for maintenance u/s 125 of the Code of Criminal Procedure. The Appellant is serving as a Supervisor in a private company at Paradip and is getting a salary of Rs. 1,500/- per month. That apart, he has got immovable properties at his native place wherefrom he uses to derive some extra income. 4. Witnesses were examined on either side. The learned Judge, Family Court, came to the conclusion that the Appellant-husband failed to prove the allegation of adultery leveled against the Respondent. Unfounded allegation of adultery itself is sufficient to grant maintenance. On a thorough resume of the evidence placed before the trial court, it came to the conclusion that the Appellant significantly failed to prove adultery alleged to have been committed by the Respondent-wife. Unfounded allegation of adultery itself is sufficient to grant maintenance. On a thorough resume of the evidence placed before the trial court, it came to the conclusion that the Appellant significantly failed to prove adultery alleged to have been committed by the Respondent-wife. At the same time, it also came to the conclusion that the marital relationship between the parties has been completely broken and, therefore, it is impossible for the parties to live together under the same roof. As per the version of the Respondent-wife it was impossible for her to continue with the Appellant inasmuch as the latter has married for the second time and children have been born through the second wife. In that view of the matter, even though there was no ground for divorce, the learned Judge, Family Court, taking into consideration the ground reality of the situation, has directed the Appellant to pay Rs. 70,000/- towards maintenance of the Respondent within a period of one month. Till such payment is made, the proceeding is deemed to be pending. The decree of divorce shall be operative only in the event of such money being paid to the Respondent. On payment of the amount, the same shall be kept in fixed deposit and the income derived there from shall be utilized for the maintenance of the Respondent-wife. 5. Mr. Mohanty, learned Counsel appearing for the Appellant, did not challenge the grant of divorce passed by the learned Judge, Family Court. His only grievance is with regard to the direction for payment of permanent alimony of Rs. 70,000/-. He fervently urged that since the Appellant is incapable of paying a sum of Rs. 70,000/- at a time, he may be allowed to pay Rs. 1,000/- per month. This has been strongly resisted by the learned Counsel appearing for the Respondent-wife. We are at a loss to understand, if we allow such a prayer, how many years the Respondent-wife shall take to realize the amount from the Appellant ? There is also no ground to grant such a prayer. The Appellant is directed to pay the aforesaid amount as soon as possible. Till such payment is made, he shall be obliged to pay Rs. 500/- per month as interim maintenance, either by money-order or by bank draft, to the Respondent. 6. There is also no ground to grant such a prayer. The Appellant is directed to pay the aforesaid amount as soon as possible. Till such payment is made, he shall be obliged to pay Rs. 500/- per month as interim maintenance, either by money-order or by bank draft, to the Respondent. 6. In the result, we do not find any merit in the appeal, which is accordingly dismissed and the order of the learned Judge, Family Court, Cuttack is hereby confirmed. Final Result : Dismissed