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2003 DIGILAW 262 (PAT)

Lakshmi Rani Kapoor v. Manoj Ambastha

2003-03-05

P.N.YADAV, S.N.JHA

body2003
Judgment S.N.Jha, J. 1. The above noted appeal under Section 19 of the Family Courts Act by the wife (hereinafter referred to as the Appellant) arises from the judgment and order of the Principal Judge, Family Court, Patna dated 28.9.2000 in Matrimonial Case No. 28 of 1996 allowing the petition of the husband (hereinafter referred to as the respondent) for dissolution of marriage on the ground of cruelty and desertion. The review petition is by the husband seeking review of an interim order, dated 19.3.2001, allowing maintenance @ Rs. 4,000/- per month to the wife with effect from 1.10.2000 under Section 25 of the Hindu Marriage Act, 1955. Both the cases were heard together and are disposed of by this common order. 2. It may at the outset be stated that though the appellant has assailed the findings of the family court on the point of cruelty and desertion, she has no grievance against the ultimate order regarding dissolution of marriage. As a matter of fact, from the records it appears that she too wanted divorce. While dealing with the appellants criticism of the relevant findings, this Court, in the interim order dated 19.3.2001, observed that though the case had been filed under Section 13 and not under section 13B of the Hindu Marriage Act, since both parties wanted divorce, the discussions and findings on the point of desertion and cruelty were superfluous. This observation, according to the learned Judges, took "care of appellants grievance against those findings in the impugned judgment and nothing further is required to be said in this regard". With due respect to the learned Judges it may be observed that the conduct of the parties is a relevant consideration in considering the claim for permanent alimony and maintenance under Section 25 of the Hindu Marriage Act. Indeed, adverse findings on these points may even disentitle the applicant to claim maintenance. Therefore, merely because both parties wanted divorce or dissolution of marriage the relevant facts on the point of desertion or cruelty can be taken into consideration while considering such claim. 3. There is however, difficulty in considering the appellants claim for permanent alimony and maintenance. No such issue was framed by the court below and as such no finding on the point was recorded. 3. There is however, difficulty in considering the appellants claim for permanent alimony and maintenance. No such issue was framed by the court below and as such no finding on the point was recorded. In paragraph 27 of the Judgment the court below observed that the respondent i.e. the appellant herein for the first time claimed maintenance in the shape of one time permanent alimony by filing application to that effect on 27.4.2000 but no such claim was made in the written statement which was duly verified and affidavited by her whereas the said application under Section 25 was neither signed nor verified by her, it was signed only by her lawyer. There was also no affidavit in support of application. On this simple ground the court below declined to decide the claim for one time alimony and maintenance under Section 25 of the Act. The Court below committed an apparent error in taking a short cut to virtually reject the application of the appellant. If the application dated 27.4.2000 was defective, the Court shoufd have given opportunity to the appellant to remove the defects. No such opportunity was given. As a matter of fact, from bare perusal of Section 25 it is clear that order on the point of permanent alimony and maintenance can be passed at the time of even after passing of the decree on application made for the purpose. 4. The appellant appearing in person made a fervent appeal to finally decide the claim for one time alimony instead of remanding the case back to the court below for consideration. She submitted that for the last several years she has been regularly appearing in different Courts in connection with different proceedings and her predicament should be cut short by determining the amount in the present appeal itself. Appreciating the plea the appellant which in a sense could also be beneficial to the respondent as by making one time payment he would also be free from the recurring liability-month-to-month-hearing of the case was postponed two-three times so that the parties could work out a settlement and agree on the amount. Unfortunately, despite adjournments the parties could not arrive at settlement and it appeared that there was big gap between the amount claimed by the appellant and the amount the respondent agreed to pay as one time payment. Unfortunately, despite adjournments the parties could not arrive at settlement and it appeared that there was big gap between the amount claimed by the appellant and the amount the respondent agreed to pay as one time payment. In fact, the court even observed that in case the parties reach any understanding it may consider fixing proper instalments; however, the gap between the offer and counter offer to the two sides was too wide and the court ultimately abandoned the endeavour for settlement. 5. Thus the only point is whether and, if so, what alimony - monthly or one time under Section 25 of the Hindu Marriage Act should be paid by he repsondent. Section 25 runs as under : 25. Permanent alimony and maintenances. (1) Any Court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondents own income and other property, if any, the income and other property of the applicant, the conduct of the parties and other circumstances of the case, it may seem to the court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent. (2) If the court is satisfied that there is a change in the circumstances of either party at any time after it has made any order under sub-section (1), it may at the instance of either party, vary, modify or rescind any such order in such manner as the court may deem just. (3) If the Court is satisfied that the party in the whose favour an order has been made under this section has remarried or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, it may at the instance of the other party vary, modify or rescind any such order in such manner as the court may deem just. 6. 6. From a bare reading of the section it is obvious that in considering the claim of the applicant for alimony and maintenance the Court is required to take into account the income and other property of the respondent, the income and other property of the applicant him/ herself, as also the conduct of the parties and other circumstances of the case. It is thus evident that in the absence of evidence on the point of income and other properties of the parties it may be difficult for the Court to reach any conclusion. When this was pointed out to the appellant she stated that the attitude of the respondent was not conducive to adjudication and therefore remand may be futile exercise, and in the circumstances this Court may finally fix the amount which he would accept. I am afraid in the absence of materials on record regarding the salary income, other income, if any, and properties of the husband fixing the amount of alimony would be like taking something out of the hat. This Court is supposed to adjudicate and not arbitrate upon the claim. No adjudication in the absence of evidence on the point is possible. 7. It was submitted that in the case of Dr. Lokeshwari V/s. Dr. Sriniwasa Rao, AIR 2000 Andhra Pradesh 451, the appellate court decided the claim on the basis of applications and affidavits. The case before the High Court arose from suits filed respectively by the husband for divorce and the wife for restitution of conjugal rights. The trial court decreed the husbands suit and dismissed the one filed by the wife. The High Court dismissed both the appeals. The decree of divorce was confirmed. As the wife wanted restitution of application tor permanent alimony in terms of Section 25 of the Hindu Marriage Act in the trial Court. Application was filed in the High Court in the pending appeal. She claimed maintenance @ Rs. 25 thousands per month for herself Rs. 25 thousand per month for her daughter and permanent alimony of 25 lacks for herself and the daughter. She stated that the husband owned vast properties viz. double storeyed building and shops. Besides he had a lucrative medical practice in London. The husband denied the case of the wife. In the counter he gave details of his income and expenditure. 25 thousand per month for her daughter and permanent alimony of 25 lacks for herself and the daughter. She stated that the husband owned vast properties viz. double storeyed building and shops. Besides he had a lucrative medical practice in London. The husband denied the case of the wife. In the counter he gave details of his income and expenditure. He claimed that the wife was herself a qualified doctor in gynaecology and earning more than Rs. ten thousand per month, and besides she had also two buildings at Sikanderabad apart from a house plot. She hailed from a rich family owing huge property at Sikandarabad.The Court observed that in order to grant permanent alimony to a divorced wife, factors such as status of the parties, their sources of income and properties, if any, held by them, their employment etc. are to be taken into consideration. Observing that the wife is a practising qualified postgraduate doctor in gynaecology and as such earning substantial income from her profession, and that the respondent was also a doctor by profession settled in London, he had to maintain his daughter born from the appellant wife second wife and a son born from the second wife, the High Court instead of directing the husband to pay maintenance to the appellant, directed him to pay a lump sum amount towards permanent alimony. In the facts and circumstances the Court quantified the alimony at Rs. 5 lakhs- apart from Rs. 3,31,500 already paid during pendency of the appeal. It would thus appear that the case was decided on its own facts. 8. The appellant also placed reliance on Jagdish Prasad Tulsan V/s. Manjula Tulsan, AIR 1975 Calcutta 64, Smt. Sulekha Bairagi V/s. Prof. Kamala Kant Bairagi, AIR 1980 Calcutta 370, Binod Anand Lakra V/s. Smt. Belulah Lakra, AIR 1982 Patna 213 :1982 PLJR 314, Smt. Swayamprabha V/s. A.S. Chandrasekhar, AIR 1982 Karnataka 295, and Surajmal V/s. Rukminibai, AIR 2000 M.P. 48 . 9. In Jagdish Prasad Tulsan vs. Manjula Tulsan, (supra) the appeal arose from an order of the trial court granting permanent alimony to the wife under Section 25 of the Hindu Marriage Act. The husbands plea inter alia was that in view of {he decree of judicial separation on the ground of cruelty and desertion the wife was not entitled to claim maintenance against him. The trial court rejected the plea. The husbands plea inter alia was that in view of {he decree of judicial separation on the ground of cruelty and desertion the wife was not entitled to claim maintenance against him. The trial court rejected the plea. It took the view that judicial separation on the ground of cruelty could not operate as a bar to a wife getting permanent alimony under the Act. The High Court in appeal by the husband observed that though the conduct of the parties may be relevant factor in deciding the claim for permanent alimony under Section 25, each case has to be considered on its own merits. It is not correct to say that grant of judicial separation on the ground of cruelty of the wife is no bar to her getting alimony. Yet the mere fact that she is the guilty party is not by itself sufficient to disentitle her to alimony. In deciding her claim she must be presumed to be innocent. On consideration of the facts and circumstances the High Court fixed the amount of maintenance. In this case, it is relevant to mention that the parties had led evidence and examined witnesses in support of their claim and defence. As a matter of fact, as mentioned above, the appeal itself arose from the order under Section 25 of the Act. Unlike the present case in which even issue was not framed under Section 25, muchless any adjudication made, on the point of alimony. The decision therefore is of no help to the appellant. 10. In Smt. Sulekha Bairagi vs. Kamala Kant Bairagi (supra) the point for consideration was proof of cruelty. The Court held that even after amendment inserting clause (ia) in Section 13(1) of the Hindu Marriage Act by Marriage Laws Amendment Act, 1976, proof of cruelty simplicitor will not suffice. The petitioner will have to prove that cruelty was such as to give rise to a reasonable apprehension in his mind that it will be harmful or injurious to live with the other party. The case of Binod Anand Lakra vs. Smt. Belulah Lakra (supra) arose from a proceeding under the Divorce Act, 1869. The point for consideration was degree of proof in a case of divorce on the ground of adultery. It was held that degree of proof was not the same as in the criminal case. The case of Binod Anand Lakra vs. Smt. Belulah Lakra (supra) arose from a proceeding under the Divorce Act, 1869. The point for consideration was degree of proof in a case of divorce on the ground of adultery. It was held that degree of proof was not the same as in the criminal case. Smt. Swayamprabha vs. A.S. Chandrasekhar, (supra), again, the point for consideration was degree of proof of adultery. The Court, however, also held that levelling allegation without proper foundation would constitute mental cruelty so as to enable the wife to seek divorce on that ground. In Surajmai vs. Rukminibai (supra) the Madhya Pradesh High Court held that no separate application for claiming alimony was required to be made where such ciaim has already been made in the written statement. Some provision must be made at the time of divorce and the wife cannot be thrown on the road. 11. It would thus appear that the case relied upon by the appellant provide little help so far as the question of fixing the amount of alimony is concerned. Some of the cases do appear to be relevant but only to the extent of general guidance. The determining factor in any case is the income and assets of the parties. In the instant case, apart from application and rejoinder no material was brought on record on the basis of which this Court could come to any conclusion about the income of the respondent or his assets and therefore, much though I would have liked to finally fix the amount in this appeal itself, I am constrained to remit the case back to the Court below for decision on the point. 12. It was submitted on behalf of the appellant that she did not live in her sasural even for a single day and she has no idea about the assets and properties of the respondent. She has also no idea about his income from salary or other sources. The submission though attractive cannot be accepted, for no request was made in the Court below to call upon the respondents to disclose particulars of his income and assets. Indeed, no issue was framed on the point. If the Court committed mistake the appellants should have approached this Court during pendency of the matrimonial case for direction to frame issue and decide the claim. Indeed, no issue was framed on the point. If the Court committed mistake the appellants should have approached this Court during pendency of the matrimonial case for direction to frame issue and decide the claim. The appropriate course, in the facts and circumstances, appears to be to direct the Family Court to frame issue relating to permanent alimony and maintenance under Section 25 of the Hindu Marriage Act and decide the same. 13. In fairness to the respondent, I also must notice the cases relied upon by his counsel in support of the respondents denial of the appellants claim. The cases relied upon by the counsel for the respondent are Umesh Chand Sharma V/s. Rameshwari Devi, AIR 1982 Rajasthan 83, Vagish Kumar V/s. Smt. Sandhya Kumari, 1997 (1) PLJR 118 and Sadhna Devi V/s. Birendra Kumar, 1998 (2) PLJR 344 . In Umesh Chand Sharma vs. Rameshwari Devi (supra) the Rajasthan High Court held that the phrase conduct of the parties and other circumstances of the case in Section 25(1) of the Act qualifies the phrase "such gross sum or such monthly or periodical sum". The wife is not disentitled to permanent alimony in case of divorce on ground of desertion by her but her conduct should be considered while determining the quantum. In Bagish Kumar vs. Sandhya Kumari (supra) this Court observed that where decree of divorce is granted to the husband on the ground of desertion by the wife without any case it would be unjust and arbitrary to saddle him with the burden of maintenance even though he has been held to be not guilty of misconduct or cessation of marital relationship. Lastly, in Sadhna Devi vs. Birendra Kumar (supra), in the facts and circumstances, this Court held that refusal of the wife to live with her husband on the ground that he was studying and not doing any job despite decree of restitution of conjugal rights disentitled her to claim maintenance pendente lite under Section 24 of the Act. 14. Lastly, in Sadhna Devi vs. Birendra Kumar (supra), in the facts and circumstances, this Court held that refusal of the wife to live with her husband on the ground that he was studying and not doing any job despite decree of restitution of conjugal rights disentitled her to claim maintenance pendente lite under Section 24 of the Act. 14. Though, as indicated above, the findings on the point of desertion and cruelty on grounds of which the Family Court has decreed the husbands case for divorce are relevant while deciding the question as to whether the appellant is entitled to alimony, I am advisedly not going into the correctness or otherwise of the findings in the absence of any decision on the point of alimony and maintenance. The Family Court is required to first decide the point taking into account the relevant facts and circumstances after giving the parties opportunity to adduce evidence. Only then occasion will arise for this Court to go into that question. 15. In the above premises, without going into the findings of the Family Court or the decree passed by it, the case is remitted back for decision on the claim for alimony and maintenance under Section 25 of the Hindu Marriage Act after framing issue in that regard. Considering that the matrimonial case was filed in the year 1996 i.e. about 7 yeas ago, it is desirable that the decision on the issue is rendered within a time frame. In the facts and circumstances, the Family Court is directed to give its decision within four months of receipt of a copy of the order. The respondent will meanwhile keep paying maintenance @ Rs. 4000/- per month as directed by this Court by its interim order dated 19.3.2001. 16. Civil Review No. 60/2001 has been filed for reviewing the interim order dated 19.3.2001. In view of the order passed above, the question of reviewing the said order does not arise. 17. In the result, the Misc. appeal is disposed of with observation and directions mentioned above. The review petition also stands disposed of. There will be no order as to costs. P.N.Yadav, J. 18 I agree.