Research › Search › Judgment

Jharkhand High Court · body

2004 DIGILAW 204 (JHR)

Om Prakash Gupta v. Asha Devi

2004-02-24

P.K.BALASUBRAMANYAN, TAPEN SEN

body2004
ORDER 1. With consent of the counsel, the appeal itself was taken up for final disposal when the interlocutory application was moved. 2. This appeal is by the husband. The appellant challenges the order passed by the Principal Judge, Family Court, Dhanbad in an application under Section 25 of the Hindu Marriage Act, 1955 (the Act) filed by the wife. The parties got married on 17.5.1989. The husband applied for divorce and as per Matrimonial Suit No. 11 of 1995 obtained a decree for divorce on 23.1.1998 on the ground of desertion by the wife. It is said that the husband subsequently remarried and has got a child in that wedlock. The present application was filed by the divorced wife invoking Section 25 of the Act and pleading that she had no means of livelihood; that she has been residing with her widowed mother and no alimony was granted while granting the decree for divorce and that she was entitled to alimony. She claimed alimony at the rate of Rs. 5,000/- per month on the basis that her former husband was employed as Driver in the Railways and his salary was Rs. 15,000/- per month. The divorced husband, in addition to questioning the maintainability of the application also contended that the wife was not entitled to maintenance since she led an unchaste life and that she had other means of livelihood and did not need the payment of any alimony for her sustenance. It was also contended that the salary of the husband was around Rs. 12,000/- per month and he had to maintain the subsequently married wife and child and also the joint family consisting of his brothers and sisters. It was further submitted that the quantum claimed by the wife was too high in any event. 3. The trial Court on the wording of Section 25 of the Act found that an application for alimony subsequent to a deeree for divorce was maintainable. It found that the salary of the husband exceeded Rs. 10,000/- per month as per the salary certificate filed in the trial Court. It further held that it has not been established that, the divorced wife led an unchaste life. It found from the evidence brought from the side of the husband itself that she was residing with her widowed mother and that she had no other means of livelihood. 10,000/- per month as per the salary certificate filed in the trial Court. It further held that it has not been established that, the divorced wife led an unchaste life. It found from the evidence brought from the side of the husband itself that she was residing with her widowed mother and that she had no other means of livelihood. Thus, the trial Court held that the wife is entitled to permanent alimony and taking note of the salary of the husband, fixed the alimony at Rs. 3,000/- per month, directing the same to be deducted by the employer from the salary of the husband to be paid over to the divorced wife. It also awarded a sum of Rs. 5,000/- towards litigation costs. This decree is challenged by the divorced husband. 4. The learned counsel for the appellant contended that the application under Section 25 of the Act was not maintainable; that the wife has not shown that she is entitled to claim alimony in terms of Section 25 of the Act; that in any event, the quantum is too high and the award of litigation expenses was uncalled for since she had not even claimed such expenses. The learned counsel for the respondent on the other hand submitted that the application was perfectly maintainable. The evidence clearly disclosed that the divorced wife had no other means of livelihood and she was living with her widowed mother and in the circumstances, there is no reason to interfere with the finding of the lower Court. The quantum fixed was reasonable and there is no justification in interfering with the same. As regards the cost of litigation, though there was no prayer in the petition for awarding the costs of litigation, after all it was in the discretion of the trial Court and there was no reason why this Court should interfere with that part of the decree. 5. We have anxiously considered the rival submissions of the parties. On the wording of Section 25 of the Act, it is clear that an application for alimony even subsequent to a decree for divorce is maintainable. No authority could be brought to our notice taking the view that such an application is not maintainable. On the plain wording of the Section 25 of the Act, the finding of the trial Court that the application is maintainable is seen to be wholly correct. No authority could be brought to our notice taking the view that such an application is not maintainable. On the plain wording of the Section 25 of the Act, the finding of the trial Court that the application is maintainable is seen to be wholly correct. We, therefore, overrule the argument that the application was not maintainable. 6. The evidence brought to our notice clearly indicates that the wife was living with her widowed mother in the house of her mother. The suggestion by the divorced husband that his former wife was being taken care of by her bahnoi remains a mere suggestion. There is no evidence in support of that allegation. Even the brother of the divorced husband, examined in the case on his behalf, admitted that the divorced wife was living with her widowed mother. Even the divorced husband in that context initially did not deny the suggestion that she was living with her mother. In this situation, we are satisfied that the trial Court was fully justified in holding that the divorced wife was living with her widowed mother and there was no one to look after her. Admittedly, she has not remarried. The suggestion that she had some illicit connection with her brother- in-law has also not been established by any legal evidence. In this situation, the finding that she is entitled to alimony, is also seen to be fully justified and cannot be interfered with. 7. So far as the quantum is concerned, no doubt the Court below has exercised its discretion. In the matter of fixing the quantum of alimony to be paid to the divorced wife, the Court below has not properly weighed the fact that the husband had obtained a decree for divorced on the ground of desertion by the wife and he had subsequently married and had begotten a child in the wedlock and he had the same if not more of an obligation towards that wife and the child born in that wedlock. It is seen that the salary of the husband is shown as Rs. 12,000/- per month. In the circumstance, what the Court below has done is to order one fourth of the gross salary to be paid to the divorced wife towards maintenance. We think that the Court below had erred a little in doing so. It is seen that the salary of the husband is shown as Rs. 12,000/- per month. In the circumstance, what the Court below has done is to order one fourth of the gross salary to be paid to the divorced wife towards maintenance. We think that the Court below had erred a little in doing so. Some weight should have been given to the fact that the entire Rs. 12,000/- could not be considered as the take home salary of the divorced husband and some consideration should have been given to the other obligation in him of maintaining the subsequently wedded wife and child born through her. We think that in the circumstances taken as a whole, the quantum of monthly alimony payable to the wife should be fixed at Rs. 2,500/-. We, therefore, reduce the quantum of maintenance to Rs. 2,500/- per month. 8. It is no doubt true that the award of litigation expenses to some extent is in the discretion of the Court. But we cannot overlook the fact that there was no prayer in that behalf by the wife. Considering that the divorced husband is being saddled with the liability to pay alimony to his ex-wife, we feel that discretion should have been exercised not to award any litigation expenses to the wife especially when she has not asked for it. In that circumstance, we vacate the decree awarding litigation expenses and direct the parties to suffer their respective costs both here and in the Court below. 9. We, therefore, allow this appeal in part and modify the decree of the trial Court by reducing the permanent maintenance alimony payable to the wife to Rs. 2,500/-during her life time or until she remarries. We delete the direction for payment of litigation expenses. The other direction in the decree to the employer stands confirmed. The parties will suffer their respective costs.