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2006 DIGILAW 366 (AP)

K. Sharvani v. K. Srinivasa Kumar

2006-03-14

B.SESHASAYANA REDDY, D.S.R.VERMA

body2006
D. S. R. VARMA, J. ( 1 ) HEARD both sides. ( 2 ) THIS Family Court Appeal is directed against the order, dated 1 -12-2005, passed by the Judge, Family Court, Secunderabad, in memo (SR ). No. 6890 of 2005 in E. P. No. 13 of 2003, rescinding the order, dated 21 -7-2003, passed by it in O. P. No,249 of 2002, wherein and where by originally a sum of rs. 1,80,000/- was granted in favour of the appellant-wife towards permanent alimony. ( 3 ) THE appellant is the wife and the respondent is the husband. ( 4 ) FOR the sake of convenience, the appellant and the respondent will be referred to as "the wife" and "the husband" respectively. ( 5 ) THE facts of the case, in brief, are as under If drifted into the past, the appellant and the respondent were wife and husband respectively. Originally, the spouses filed o. P. No. 249of2002undersection13-Boft he hindu Marriage Act, 1955, (for short the Act ), before the Family Court, Secunderabad, seeking divorce, which was allowed by order, dated 21 -7-2003, subjectto certain conditions, which are not in dispute. One among the said conditions was that the husband has to pay a sum of Rs. 1,80,000/- to the wife towards permanent alimony. Initially, on the date of filing the said O. P. , a sum of Rs. 90,000/- was paid to the wife by the husband, and it was also agreed by both the parties that the balance amount of Rs. 90,000/- would and should be paid within six months from 21-7-2003. However, the Court below granted one year time, to pay the said amount, from the date of the decree, i. e. , by 20-7-2004. The undisputed fact is that the said amount was not paid. In the meanwhile, the appellant-wife filed execution Petition being E. P. No. 13 of 2005 in the Family Court, Secunderabad,for the default committed by the husband. ( 6 ) IN other words, at least till the date of filing the E. P. , the amount, which was originally agreed to be paid to the wife, was not paid by the husband. Subsequent to the filing of the said E. P. , and during the pendency of the same, the wife got remarried. ( 7 ) ONTHATSCORE,on3-10-2005, thehusband filed a memo being Memo (SR ). Subsequent to the filing of the said E. P. , and during the pendency of the same, the wife got remarried. ( 7 ) ONTHATSCORE,on3-10-2005, thehusband filed a memo being Memo (SR ). No. 6890 of 2005 in E. P. No. 13 of 2005 in the Court below, stating, inter alia, that he came to know that the wife got remarried and was gainfully employed. Therefore, he prayed the Court below to rescind or modify the earlier order, dated 21-7-2003, passed in O. P. No. 249 of 2002 granting permanent alimony. ( 8 ) IN this connection, the learned counsel appearing for the husband relies on subsection (2) of Section-25 of the Act, which is asunder:-"if the Court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under sub-section (1), it may, at the instance of either party, vary, modify, rescind any such order in such manner as the Court may deem just. " ( 9 ) THE above provision postulates that if there is any change in the circumstances of either party subsequent to the order passed under sub-section (1) of Section 25 of the act, the Court may, at the instance of either party, vary, modify, rescind any such order passed under sub-section (1) of Section 25 of the Act, as it deems just. ( 10 ) IN the instant case, the subsequent changes being highlighted by the husband are that - (1) the remarriage contracted by the wife and (2) her gainful employment. ( 11 ) IT is nowhere stated in the memo filed by the husband, seeking modification of the original orderpassed by the Court below, as to when the remarriage of the wife was occasioned northe particulars of her gainful employment. The said memo, obviously, had been filed in the month of October, 2005. ( 12 ) THE most important aspect to be noticed here is that the original order passed by the Court below in the O. P. , filed by both the parties under Section-13-B of the Act, was on21-7-2003. The decretal order in O. P. No. 249 of 2002 categorically indicates as under"the 1st petitioner be and hereby directed to pay remaining balance of Rs. The decretal order in O. P. No. 249 of 2002 categorically indicates as under"the 1st petitioner be and hereby directed to pay remaining balance of Rs. 90,0007- (Rupees ninety thousand only) to the 2nd petitioner within one year and the 1s1 petitioner is further directed to send the balance amount by way of D. D. or Money order and kept a receipt of the same. " ( 13 ) FROM a perusal of the order in the said o. P. No. 249 of 2002, it is clear that the said condition was precedent for filing O. P. No. 249 of 2002 under Section 13 - B of the Act. Therefore, a right had accrued on the wife from 21-7-2003, on which date the O. P. , was decreed, and there was a default on the part of the husband in paying the balance amount of rs. 90,000/- towards permanent alimony, resulting in filing E. P. No. 13 of 2005 by the wife and during the pendency of the same, the wife got remarried. This is an admitted fact. ( 14 ) BUT, in ourconsidered view, this factum by itself does not amount to "a change in the circumstances of either party at any time after the Court has made an order under subsection (1)". The reason is that, the change, if any, in the circumstances subsequent to the order passed by the Court below is created by the husband himself by committing default of the original order passed in the said O. P. The abovementioned condition incorporated in the decree is executable. Therefore, having committed default and created the circumstances, which do amount to change in circumstances, the same cannot be taken to the advantage of the defaulter himself. ( 15 ) FURTHER more, how the husband can file a memo before the Executing Court is another aspect to be debated. In fact, the husband ought to have filed a petition, supported by an affidavit, in this regard before the Court below and that Court was equally erroneous, though not unwise, in rescinding the original order. ( 15 ) FURTHER more, how the husband can file a memo before the Executing Court is another aspect to be debated. In fact, the husband ought to have filed a petition, supported by an affidavit, in this regard before the Court below and that Court was equally erroneous, though not unwise, in rescinding the original order. However, on one aspect, we agree with the contention of the learned counsel appearing forthe husband who relied on sub-section (2) of Section-25 of the Act, which postulates that any change in the circumstances of either party, after the Court has made an order under sub-section (1), enables the Court to modify or vary or rescind the original order passed by it, but such changed circumstances shall occur in normal course but not be created by the husband. ( 16 ) AS already pointed out, the change of circumstances had been created to the disadvantage of the wife and to the advantage of the husband himself and the same cannot be a ground for this Court to interfere with the original order in any manner. ( 17 ) HOWEVER, on the same ground i. e. , since the change of circumstances had been created by the husband himself to the disadvantage of the wife, the present Family court Appeal is liable to be allowed and is, accordingly, allowed with costs of Rs. 5,000/- (Rupees Five thousand only ). Consequently, the order, dated 1-12-2005, passed by the judge, Family Court, Secunderabad, in Memo (SR ). No. 6890 of 2005 in E. P. No. 13 of 2003 is set aside.