Research › Search › Judgment

Uttarakhand High Court · body

2009 DIGILAW 381 (UTT)

DHARAMVEER YADAV v. RAJRANI

2009-07-22

B.S.VERMA, PRAFULLA C.PANT

body2009
JUDGMENT (Oral – Hon’ble Prafulla C. Pant, J.) This appeal, preferred under Section 19 of Family Courts Act, 1984, is directed against the order dated 20.09.2003, passed by Family Court, Dehradun, in Misc. Case No. 12 of 2003, whereby said court has allowed the application moved under Section 25 of Hindu Marriage Act, 1955, by the respondents for maintenance and directed the appellant to pay Rs. 8,000/- p.m. to respondent No. 1 and Rs. 5,000/- p.m. to respondent No. 2 (in all Rs. 13,000/- p.m.). 2. Heard learned counsel for the parties and perused the papers on record. 3. Brief facts giving rise to this appeal are that appellant Dharamveer Yadav got married to respondent No. 1 Rajrani on 22.02.1992. Out of said wedlock their son Master Arjun alias Shivam was born. The respondent No. 1 Rajrani filed a suit for divorce, which was decreed on 05.05.2001. Thereafter, it appears that she filed an application under Section 125 of Cr.P.C. and was getting R. 1,000/- p.m., as maintenance. She moved another application after divorce under Section 25 of Hindu Marriage Act, 1955, for maintenance amounting Rs. 13,000/- p.m. for herself and her son. It is alleged in the application moved by respondents No. 1 & 2 that appellant’s salary is Rs. 8,500/- p.m. It is also alleged that he has agricultural income and earning from selling milk. It appears that the appellant did not contest the petition and the application under Section 25 of Hindu Marriage Act, 1955, for alimony, was heard ex parte. The trial court accepted the prayer of the respondents and directed the appellant to pay Rs. 13,000/- p.m., as maintenance to the respondents. Aggrieved by said order dated 20.09.2003, passed by Judge, Family Court, Dehradun, in Misc. Case No. 12 of 2003, this appeal is filed by the divorced husband. 4. Learned counsel for the appellant (divorced husband) submitted that admittedly appellant’s salary is Rs. 8,500/- p.m. In this contention, it is argued that he is a Driver and he has no capacity to pay the amount awarded by the Judge, Family Court, Dehradun. It is further contended that this application, moved under Order 9, Rule 13 of C.P.C. against the order dated 20.09.2003 was also rejected by the trial court vide its order dated 26.05.2008, which is also under challenge in this appeal. It is further contended that this application, moved under Order 9, Rule 13 of C.P.C. against the order dated 20.09.2003 was also rejected by the trial court vide its order dated 26.05.2008, which is also under challenge in this appeal. Learned counsel for the appellant further submitted that after the decree was obtained by respondent No. 1, the appellant has now remarried and has to maintain his wife and children. Learned counsel for the appellant contended that the trial court has neither taken into consideration Rs. 1,000/- p.m., already being paid under Section 125 of Cr.P.C., nor considered the fact that the total income of the appellant, who was a Driver, was only Rs. 8,500/- p.m., and awarded the alimony at an arbitrary rate i.e. Rs. 13,000/- p.m., mere for asking of the respondents. 5. Having considered the submissions of learned counsel for the parties and after going through the papers on record, we are of the view that the trial court has not applied its mind to the facts of the case before granting alimony at the rate of Rs. 13,000/- p.m. There was no proof on the record for the agricultural income of the appellant. The trial court has also failed to take note of the admitted fact that respondent No. 1 was already getting Rs. 1,000/- p.m., as maintenance under Section 125 Cr.P.C. The trial court has failed even to take note of the fact that the appellant will have to maintain himself from his earnings. That being so, the impugned order dated 20.09.2003, passed by the trial court, awarding maintenance at the rate of Rs. 13,000/- p.m., is liable to be set aside. After considering the economic status of the parties (appellant is a Driver) and the facts and circumstances of the case, we are of the view that payment of one time permanent alimony amounting Rs. 2,50,000/- to the respondents (Rs. 2,00,000/- for the respondent No. 1 and Rs. 50,000/- for the respondent No. 2) by the appellant would meet the ends of justice. 6. Accordingly, this appeal is partly allowed and impugned order dated 20.09.2003, passed by the Judge, Family Court, Dehradun, in Misc. Case No. 12 of 2003 is set aside. However, the order dated 26.05.2008, passed in Misc. Case No. 160 of 2007 is left undisturbed and to that extent appeal is dismissed. 6. Accordingly, this appeal is partly allowed and impugned order dated 20.09.2003, passed by the Judge, Family Court, Dehradun, in Misc. Case No. 12 of 2003 is set aside. However, the order dated 26.05.2008, passed in Misc. Case No. 160 of 2007 is left undisturbed and to that extent appeal is dismissed. The application moved under Section 25 of Hindu Marriage Act, 1955 is allowed with the direction that the appellant shall pay to the respondents or deposit in their favour before the trial court, within a period of three months, a lumpsum permanent alimony total amounting Rs. 2,50,000/- (Rs. 2,00,000/- for the respondent No. 1 – Rajrani and Rs. 50,000/- for the respondent No. 2 – Master Arjun alias Shivam), failing which this appeal shall stand dismissed.