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2011 DIGILAW 256 (UTT)

ANUPAMA PANDEY v. ASHUTOSH PANDEY

2011-04-22

PRAFULLA C.PANT, SERVESH KUMAR GUPTA

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JUDGMENT Prafulla C. Pant, J. This appeal, preferred u/s 19 of Family Courts Act, 1984, is directed against the order dated 13.05.2010, passed by Judge, Family Court, Udham Singh Nagar, in Matrimonial Case No. 244 of 2007, whereby said court has dismissed the petition of the Appellant moved u/s 25 and 27 of Hindu Marriage Act, 1955. 2. Heard learned Counsel for the parties, and perused the lower court record. 3. Brief facts of the case, are that, the Appellant Anupama got married to Respondent Ashutosh Pandey on 09.07.2000. Two children were born out of the wedlock on 10.07.2003 in Holland, where the Appellant and the Respondent lived together for sometime. It appears that after the parties came back to India in February 2004, their relations soured. In the year 2005 the husband filed a divorce petition before the Judge Family Court Udham Singh Nagar. While said petition was pending against the Appellant, she moved an application u/s 25 and 27 of Hindu Marriage Act, 1955, claiming alimony and return of Stridhan. She pleaded that her parents spent Rs. 15 lacs in the marriage, which included Rs. 3 lacs as value of the articles given to her, and Rs. 2 lacs spent in purchasing jewelery and Rs. 3 lacs cash. She further pleaded that since her husband is keen to get the decree of divorce, it would be difficult for her to maintain herself and her children. Hence the petition. 4. The Respondent contested the application filed by the Appellant before the trial court and pleaded that though he was Program Manager with Phillips Company in Holland, and was earning Euro 3,700/-per month (approximately Rs. 2, 40,000 per month) but he lost the job after the Petitioner sent complaints against him. It is also pleaded by the husband that after returning from Holland the Petitioner (present Appellant) is employed with G.B. Pant University and getting handsome in salary. It is also pleaded by him that he is already paying the maintenance awarded by the Magistrate u/s 125 of Cr.P.C., which includes Rs. 4,000 per month to the Appellant and Rs. 2,000 per month to each of the children. 5. On the basis of pleading of the parties, the trial court framed following issues: (i) Whether, the Petitioner is entitled to maintenance at the rate of Rs. 1 lac per month, as claimed by her? 4,000 per month to the Appellant and Rs. 2,000 per month to each of the children. 5. On the basis of pleading of the parties, the trial court framed following issues: (i) Whether, the Petitioner is entitled to maintenance at the rate of Rs. 1 lac per month, as claimed by her? (ii) Whether, the Petitioner is entitled to get back the articles and gifts etc, gifted to her in the marriage ? (iii) To what relief, if any, the Petitioner entitled ? The trial court after recording the evidence of the parties, and after hearing them found that since the Petitioner (present Appellant) is employed as Assistant Professor in G.B. Pant University, and the husband lost his job, it is not a fit case for granting alimony to the wife. As to the Stridhan the trial court observed that there are no receipts of purchase in support of the list of articles of Stridhan, as such the petition was dismissed. 6. Learned Counsel for the Appellant argued that the trial court has erred in law in dismissing the petition u/s 25/27 of Hindu Marriage Act, 1955. Merely, for the reason that the receipts of purchase, were not filed with the list of articles given in the marriage, the petition can not be dismissed. Attention of this Court is drawn to para-2 of the written statement filed by the husband (present Respondent) in which he has not specifically denied that the value of the articles given in the marriage from the side of the wife to him is wrong. It has been stated by the husband in said para of the written statement that from his side jwelery of value Rs. 2 lacs and clothing value of Rs. 1 lac were given to the wife. As such, from the pleading itself the value of the Stridhan of the wife comes out to be Rs. 8,00,000 ( Rs. 5 lacs plus Rs. 3 lacs). Since said value is admitted in the pleading itself, no further proof is required to be given for the same. The guests who come in the marriage and give gifts to the bride, do not give receipts with it. 8. As far as the permanent alimony is concerned, we agree with the trial court that the Appellant is admittedly serving as Assistant Professor in G.B. Pant University. The guests who come in the marriage and give gifts to the bride, do not give receipts with it. 8. As far as the permanent alimony is concerned, we agree with the trial court that the Appellant is admittedly serving as Assistant Professor in G.B. Pant University. It has also come on the record that the husband is no more in the service of the Phillips Company, and he has lost that job. However he is still admittedly in Holland. Both the parties are present before this Court today, identified by their counsel. We made efforts for reconciliation but failed. 9. Considering the facts and circumstances of the present case, as discussed above, we are of the view that the Appellant/Petitioner should have been awarded Rs. 8 lacs towards the Stridhan and Rs. 10 lacs towards permanent one time alimony. Learned Counsel for the Respondent drew attention of this Court to an application for compromise moved on 24.02.2009 before the trial court with which draft compromise is annexed. In para -3 of said compromise it is mentioned that the husband shall pay to the wife one time alimony of Rs. 5 lacs. However, this document is not signed by any of the parties. As such, it could not be said that it was an agreement between the husband and wife before the trial court. (It is pertinent to mention here that decree of divorce has been separately passed by the Family Court, on petition of the husband which is affirmed by this Court today). 10. For the reasons as discussed above, this appeal is allowed. The impugned judgment and order dated 13.05.2010, passed by Judge Family Court, Udham Singh Nagar in Matrimonial Case No. 244 of 2007 is hereby set aside. The application moved by the Appellant u/s 25/27 of Hindu Marriage Act, 1955, before the trial court stands allowed, for a sum of Rs. 8 lacs u/s 27 and lumpsum amount of Rs. 10 lacs u/s 25 of the Act. Costs easy.