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2009 DIGILAW 432 (AP)

Simi George v. Sukumar George @ Sukkumar George

2009-07-07

L.NARASIMHA REDDY

body2009
JUDGMENT Both the revisions are filed against the order dated 18-02-2008 passed by the Family Court, Secunderabad, in I.A.No. 336 of 2007 in F.C.O.P.No. 142 of 2007. For the sake of convenience, the parties are referred to, as arrayed in C.R.P.No.2611 of 2008. 2. The marriage between the petitioner and the respondent took place on 04-08-2006. For both of them, it is not the first marriage. They are separated from their former spouses. While the petitioner is from Hyderabad, the respondent hails from Chennai. After the marriage, they started living at Chennai, for some time. However, shortly thereafter, the marriage appears to have run into rough weather. 3. The respondent filed O.P. No. 3113 of 2006, under Section 25 of the Special Marriage Act, 1954 (for short 'the Act') in the I Additional Family Court, Chennai, to declare the marriage between himself and the petitioner as null and void. Later on, he has not only withdrawn the O.P., but also withdrew some of the allegations made against the petitioner. The respondent, in turn, filed O.P. No. 1026 of 2007 before the Family Court, Chennai, for restitution of conjugal rights. 4. The petitioner filed F.C.O.P.No. 142 of 2007 in the Family Court, Secunderabad, against the respondent, for divorce. She also filed I.A.No.336 of 2007 under Section 36 of the Act, for maintenance @ Rs.1,60,000/per month. The petitioner states that she is the daughter of retired Colonel, worked as a Teacher, for some time, and thereafter, became a Super Model. She states that apart from featuring several advertisements, she has also acted in a couple of movies, and that she was crowned as Miss Punjab and Mrs. Hyderabad. It is stated that before her marriage with the respondent, she was earning about Rs.70,000/- per month, from her profession. 5. The petitioner states that on estrangement of her previous marriage, she came in touch with the respondent in matrimonial site, and the same resulted in marriage. It is her case that even before her marriage, the respondent used to pay her Rs.50,000/- per month from November, 2005 onwards, and on his request, she removed her profile from the matrimonial site. 6. Alleging that the respondent started harassing her physically, and mentally, she started living separately. It is her case that even before her marriage, the respondent used to pay her Rs.50,000/- per month from November, 2005 onwards, and on his request, she removed her profile from the matrimonial site. 6. Alleging that the respondent started harassing her physically, and mentally, she started living separately. According to the petitioner, the respondent is sending approximately Rs.1,60,000/- per month to his divorced wife, Shashikala George, for the past five years, and that she stands on the same footing. She has also mentioned about the activities, income, and properties of the respondent. 7. A detailed counter-affidavit was filed by the respondent, denying the allegations made by the petitioner. He admitted the marriage between himself and the petitioner, and their acquaintance before the marriage. He, however, pleaded that on account of the indifferent attitude exhibited by the petitioner, the marriage failed, and he was forced to file a divorce petition, hardly within four months from the date of marriage. He denied the allegations as to his income and wealth, as well as quantum of amount being sent to his former wife. It is also alleged that the amount was sent mostly for the education of the children, through his first wife, who are living in Australia. 8. The trial Court initially passed an order on 11-09-2007, directing that the respondent shall pay a sum of Rs.50,000/- per month towards maintenance to the petitioner. The respondent filed C.R.P.No.4870 of 2007, feeling aggrieved by the order dated 11-09-2007. The revision was allowed on 18-02-2008, and the matter was remanded to the Family Court, for fresh consideration and disposal. Through the order under revision, the Family Court directed that the respondent shall pay maintenance @ Rs.50,000/- per month from the date of application, till 31-10-2007, and thereafter, @ Rs.30,000/- per month. Complaining that the amount awarded by the Family Court is inadequate and insufficient, the petitioner filed C.R.P.No.2611 of 2008. The respondent, on the other hand, filed C.R.P.No. 2542 of 2008, stating that the amount is excessive and disproportionate to his income. 9. Sri Manu, learned counsel for the petitioner, submits that there is no denial of the fact that his client was acting as a model, before her marriage; earning quite a substantial amount, and had to stop her career, on account of the marriage. 9. Sri Manu, learned counsel for the petitioner, submits that there is no denial of the fact that his client was acting as a model, before her marriage; earning quite a substantial amount, and had to stop her career, on account of the marriage. He contends that the respondent is a builder of international reputation, and the turn over of his organization runs into several crores. Learned counsel submits that the very fact that the respondent is sending approximately RS.1,60,000/- per month to his former wife discloses the social and financial status, in which he wants to see his family members, whether erstwhile or otherwise. 10. Learned counsel for the petitioner further submits that the reason mentioned by the Family Court, for reducing the maintenance, with effect from 31-10-2007, is totally untenable, and that it ought to have been pressed into service, for granting a higher amount of maintenance. 11. Sri B. Vijaysen Reddy, learned counsel for the respondent, on the other hand, submits that his client, no doubt, is associated with M/s. Sky Homes Private Limited, but is only being paid salary, by it. He contends that the marriage failed solely on account of non-cooperation and indifferent attitude, on the part of the petitioner. It is urged by him that the petitioner had independent income of her own, and the fact that she has been travelling to Chennai by Air, to pursue the matter even after the estrangement of the marriage discloses her financial status. Learned counsel submits that certain ~tray entries and remittances from the accounts of the organization, handled by the respondent; were portrayed, as though they are regular payments, being made to the former wife of the respondent. He further submits that the amount granted by the Family Court, for both the spells, is excessive, from the point of view of the necessity of the petitioner, as well as the resources available at the disposal of the respondent. 12. The petitioner and the respondent are from elite society. Their earlier marriages did not subsist. After being separated from their former spouses, the petitioner and the respondent came together, and marriage was performed on 04-08-2006, by way of registration, at Hyderabad. However, even this union was a short-lived one. For them, the Family Court, and not the family home became a preferred choice. Their earlier marriages did not subsist. After being separated from their former spouses, the petitioner and the respondent came together, and marriage was performed on 04-08-2006, by way of registration, at Hyderabad. However, even this union was a short-lived one. For them, the Family Court, and not the family home became a preferred choice. The respondent filed O.P. in Family Court, Chennai, for declaration, that the marriage is null and void. However, he has withdrawn the same. The petitioner approached the Family Court, Chennai, with an O.P., for restitution of conjugal rights. She has also filed a.p.No.142 of 2007 in the Family Court. Secunderabad, for divorce, and in that O.P., she filed application under Section 36 of the Act, for maintenance, pending disposal of the O.P. 13. In the course of enquiry into the I.A.No. 336 of 2007, Exs.A-1 to A-122 were filed, on behalf of the petitioner. The respondent filed Exs.B-1 to B-71. The advent of information technology became handy for the parties, to have access to the records, or information of each other. Much of the documentary evidence is the information retrieved by one party, relating to the other. No oral evidence was adduced. 14. Before the trial Court as well as this Court, fairly large number of precedents are cited by both the parties. A common principle, that runs through the catena of decisions is, that, (a) the maintenance to be granted to a woman spouse cannot be in terms of providing a mere living; (b) the financial condition of both the parties must be taken into account, while determining the quantum, and (c) the social status and way of living of both the parties, before they parted ways, must be taken into account. 15. Reference in this context may be made to the judgments of the Supreme Court in Rajesh Burmann v. Mutul Chatterjee 2008 (8) SCJ 882 and Komalam Amma v. Kumara Pillai Raghavan Pillai 2009 (1) ALT 14 (SC) = 2009 (1) SCJ 190. Several High Courts have also laid down principles in this regard, and it is not necessary to refer to all of them in detail. 16. Several High Courts have also laid down principles in this regard, and it is not necessary to refer to all of them in detail. 16. Section 36 of the Act reads as under: "Sec.36: Alimony Pendente lite: Where in any proceeding under Chapter V or Chapter VI it appears to the District Court that the wife has no independent income sufficient for her support and the necessary expenses of the proceeding it may, on the application of the wife, order the husband to pay to her the expenses of the proceeding, and weekly or monthly during the proceeding such sum as, having regard to the husband's income, it may seem to the court to be reasonable". 17. The section provides for grant of alimony pendente lite, which may seem to the Court to be reasonable. Whether or not an amount claimed by a party, or granted by the Court, towards alimony pendente lite, is reasonable, would depend upon the income of the parties, the necessity of the person, claiming alimony and the social status, whicty1he parties maintained, before they parted company. 18. A perusal of the pleadings in the I.A., as well as the material relied upon by the parties herein disclosed that the respondent is closely associated with the construction company, which has its activities across the world. Even on his own showing the respondent has not only arranged for luxuries, residence and Car to the petitioner, before the marriage, but also presented jewellery, worth lakhs. It is not denied that the petitioner was working as a model and was earning substantial amount, before her marriage with the respondent, and that she had to give up the same, in view of their union. 19. Whatever may be the truth or otherwise of the allegations made by the parties against each other, the fact remains that the petitioner does not have any independent source of income, at present. The lifestyle of the respondent is almost aristocratic, if one goes by the record placed before this Court. The allegation made by the petitioner that the respondent is sending amount equivalent to, about RS.1.5 lakhs to his former wife, is prima facie, substantiated with the filing of the extracts of Bank Accounts of the company. The respondent, no doubt, tried to defend himself, by stating that life in Australia needs comparatively larger amount, and that his children are also studying there. The respondent, no doubt, tried to defend himself, by stating that life in Australia needs comparatively larger amount, and that his children are also studying there. Even if that is accepted, one can easily imagine the manner in which the respondent intended, as to how even his former spouse must live. It is noteworthy that there does not exist any order from any Court, directing him to pay amount to his former wife, Shashikala George. His relationship with the petitioner is yet to be snapped. If he is so liberal, towards his divorced wife, he cannot afford to be substantially different towards the one, whose relationship with him still subsists, at least as regards alimony. It is true that the cost of living in Australia is on a higher side, and it cannot be equated with the one, in India. 20. The Family Court, Secunderabad, took the view that the petitioner is entitled for a sum of Rs.50,000/- per month towards maintenance, from the date of application, till 31-10-2007. In the month of October, 2007, the Car, which was provided to the petitioner, by the respondent, or his company; was seized. With that, the petitioner is deprived of the facility, and she may have to incur additional expenditure. Strangely enough, the Family Court took that factor into account, for reducing the maintenance to Rs.30,000/- from November 2007 onwards. An observation was made to the effect that, since the petitioner is not doing anything, she does not have to move anywhere. That cannot be countenanced, or sustained. 21. The expenditure being incurred by the petitioner towards her residence alone is in the range of about Rs.13,000/- to Rs.14,000/-. To lead a life, commensurate with the status of the petitioner, as well as the respondent, she needs at least Rs.35,000/- more. Even this would not restore to her, to the financial and social status, which she was enjoying, before her marriage, much less with the one, that prevailed, when she parted company with the respondent. 22. It the petitioner gets any independent income of her own, during the pendency of the O.P., it shall always be open to the respondent to seek modification of the amount, now granted; duly pleading the necessary facts. This Court is of the view that there is no justification for reduction of the amount of alimony from 31-10-2007 onwards. 23. 22. It the petitioner gets any independent income of her own, during the pendency of the O.P., it shall always be open to the respondent to seek modification of the amount, now granted; duly pleading the necessary facts. This Court is of the view that there is no justification for reduction of the amount of alimony from 31-10-2007 onwards. 23. Hence, (a) C.R.P.No.2611 of 2008 is partly allowed, and the order, dated 18-02-2008 passed by the Family Court, Secunderabad, in I.A.No.336 of 2008 In F.C.O.P.No.142 of 2007, is modified, to the effect that, the petitioner shall be entitled to be paid alimony pendente lite, under Section 36 of the Act, @ Rs.50,000/- (fifty thousand), per month, from the date of presentation of the I. A. , till the disposal of the F.C.O.P.No.142 of 2007; (b) C. R. P .No. 2542 of 2008 is dismissed, and (c) in case the petitioner gets any income of her own, during the pendency of the O.P., it shall be open to the respondent to file an application for modification of the order in I.A.No.336 of 2007. 24. There shall be no order as to costs.