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2012 DIGILAW 667 (GAU)

Mrinali Barua Patgiri v. Jayanta Kumar Patgiri

2012-06-04

AMITAVA ROY, ANIMA HAZARIKA

body2012
JUDGMENT Amitava Roy, J. 1. The appellant, being aggrieved by the judgment and order dated 10.3.2006 passed by the learned District Judge, Golaghat in Title Suit No. 07/2004 instituted by the respondent herein decreeing dissolution of marriage between the parties, seeks redress. Misc. Case No. 2464/2010 filed by the appellant wife praying for permanent alimony to her has been registered on an application under Section 25 of the Hindu Marriage Act, 1955 (for short 'the Act'). We have heard Ms. P. Bhattacharjee, learned counsel for the appellant and Mr. B.N. Sarma, learned counsel for the respondent. 2. At the threshold of the arguments, it has been submitted on behalf of the appellant that though the respondent has contracted second marriage within five days of the judgment and order impugned, in blatant violation of law, she is not interested to pursue her grounds assailing the dissolution of marriage and that she would confine her prayer to the relief of permanent alimony under Section 25 of the Act. In this view of the matter, it would not be essential to dilate in details on the pleaded version of the parties bearing on the facts leading to institution of the proceedings resulting in dissolution of marriage. 3. Suffice it to mention that the parties were married on 18.5.2000 at Guwahati as per Hindu customs and rites and estranged themselves for recurring differences between them since 1st week of August, 2001. The parties are at issue as to the intervening developments pertaining to cash and ornaments and other valuable articles lodged by them in the locker of the bank which was in their joint names. Whereas the respondent has alleged that the appellant by fraudulently operating the locker had removed the contents thereof to her single advantage and benefit, this has been stoutly refuted by the latter. It transpires from the records that the appellant had instituted a proceeding on 8.4.2002 before the learned Chief Judicial Magistrate, Golaghat against the respondent under Section 406 of the Cr.P.C. asserting that her stridhan properties had been illegally retained at her matrimonial home. It was on 18.4.2002 that the appellant filed an affidavit in the court to the effect that if the said stridhan properties are retrieved and handed over to her, she would not be interested to continue with the marital relationship and further she would not demand any alimony from the respondent. It was on 18.4.2002 that the appellant filed an affidavit in the court to the effect that if the said stridhan properties are retrieved and handed over to her, she would not be interested to continue with the marital relationship and further she would not demand any alimony from the respondent. She thereafter on 5.9.2002 filed an application under Section 125 Cr.P.C. in the court of Judicial Magistrate, 1st Class at Golaghat against the respondent. By order dated 4.6.2003 passed in that proceeding, the learned Judicial Magistrate, Golaghat while closing the same required the respondent to pay to the appellant monthly maintenance allowance of Rs. 900/-. It was, thereafter, that he filed the petition under Section 13 of the Hindu Marriage Act, 1955 in the court of learned District Judge, Dhubri seeking a decree for dissolution of marriage. This proceeding was subsequent thereto transferred to the court of learned District Judge, Golaghat at the instance of the appellant herein. Though she contested the suit by filing written statement, the same was allowed and the marriage between the parties was dissolved. No order, however, for permanent alimony under Section 25 of the Act was passed. 4. During the pendency of the appeal, it had been brought to the notice of this Court that within five days of the passing of the impugned judgment and decree, the respondent had remarried and that since April, 2006, the monthly maintenance allowance of Rs. 900/- as ordered on 4.6.2003 had not been paid by him. By order dated 5.1.2012 passed in MC No. 2464/2010 he was directed to be present in person on the next date fixed, i.e. 27.2.2012 and a direction was also issued to the District Transport Officer, Kamrup (Enforcement), Betkuchi, Guwahati to deduct a sum of Rs. 900/- from his salary and remit the amount to the appellant. The said authority was also directed to deduct an amount of Rs. 5,000/- per month from his salary for a period of ten months towards recovery of the arrears of maintenance of more than Rs. 50,000/- and to remit the same to the appellant. It now transpires from the order dated 19.4.2012 passed in the accompanying Mat. Appl. No. 11/2006 that pursuant to the above direction of this Court, an amount of Rs. 5,900/- is being deducted from the salary of the respondent from February, 2012. 50,000/- and to remit the same to the appellant. It now transpires from the order dated 19.4.2012 passed in the accompanying Mat. Appl. No. 11/2006 that pursuant to the above direction of this Court, an amount of Rs. 5,900/- is being deducted from the salary of the respondent from February, 2012. On being queried by us, learned counsel for the appellant has affirmed that as on date, the deducted amount at the above rate has been received by her (appellant) for two months. 5. In view of the limited scope of adjudication left to this Court namely, (i) entitlement of the appellant wife to maintenance pendente lite or permanent alimony; (ii) if yes, the amount thereof, the scrutiny of the facts as available on record would understandably be limited within this periphery. 6. The pleadings of the parties as available in MC No. 2464/2010 demonstrate the following salient features:-- (i) The respondent is presently serving as Enforcement Checker in the establishment of the District Transport Office, Dhubri and drawing monthly salary of Rs. 15,039/-. (ii) He had married again on 15.3.2006. (iii) He has a family comprising of 5/6 members including two minor children and old ailing mother besides his newly married wife. (iv) He had not paid the monthly maintenance allowance of Rs. 900/- from April, 2006. (v) An amount of Rs. 5,900/- is being deducted from his salary towards the current and/or arrear maintenance allowances from the month of February, 2012. (vi) The appellant wife has her own income from a job in a private company. (vii) She is also engaged in a transport business. (viii) Her mother has various sources of income. 7. Upon hearing the learned counsel appearing for the parties and on a consideration of the materials available on record bearing on the issue of grant of permanent alimony, we are of the view, judged by the prescription of S. 25 of the Act, that the appellant is entitled thereto (permanent alimony). We are of the unhesitant opinion having regard to the respondent's own income and absence of independent earning of the appellant, the latter is entitled to such a relief as contemplated under law. Though the respondent has alleged that the appellant has her own income there is no tangible material in support of this assertion. We are of the unhesitant opinion having regard to the respondent's own income and absence of independent earning of the appellant, the latter is entitled to such a relief as contemplated under law. Though the respondent has alleged that the appellant has her own income there is no tangible material in support of this assertion. Noticeably, though the learned Chief Judicial Magistrate, Golaghat vide order dated 4.6.2003 had directed the appellant to make payment of monthly maintenance allowance of Rs. 900/-, this order has remained unassailed and in spite thereof admittedly he has abstained from making this payment from April 2006 and had contracted second marriage within five days of passing the judgment decreeing the dissolution of marriage of the parties, in violation of section 15 of the Act. 8. Though in response to the order dated 5.1.2012 passed by this Court, the respondent has submitted a 'show cause' contending inter alia that he had remarried and had stopped paying monthly maintenance allowance of Rs. 900/- on the advice of his counsel, who has since expired, we are not convinced by this explanation. Be that as it may, we are of the opinion that as on date, the amount of Rs. 900/- as ordered by the learned Chief Judicial Magistrate, Golaghat needs adequate enhancement to ensure a dignified life of the appellant wife. 9. As adverted to hereinabove, the respondent has a monthly income of Rs. 15,039/- as claimed by him and has to maintain five family members including himself, two of whom are minor children through his second marriage. In that view of the matter, on a reasonable and modest estimate, we are of the opinion that the appellant wife is entitled, as on date, to a maintenance of Rs. 2,500/- per month. Considering the average life span of an Indian woman subject to the accompanying uncertainties, according to us, permanent alimony of Rs. 7,50,000/- as one time settlement of all dues and issues would be adequate and in the interest of justice. In arriving at this figure, we have borne in mind the attendant facts and circumstances, the conduct of the respondent and also his allegation that the appellant had removed the cash, ornaments and other valuables from their joint locker. 10. 7,50,000/- as one time settlement of all dues and issues would be adequate and in the interest of justice. In arriving at this figure, we have borne in mind the attendant facts and circumstances, the conduct of the respondent and also his allegation that the appellant had removed the cash, ornaments and other valuables from their joint locker. 10. The respondent would make the payment before the Registry of this Court by an account payee cheque or demand draft, as the case may be, within a period of 6 (six) months from today failing which it would be construed to be its contempt in law. Needless to say that the amount at the rate of Rs. 5,900/- being deducted as on date, would stand adjusted against the permanent alimony fixed by the Court, as above. The appeal and the Misc. case referred to hereinabove are disposed of in the above terms. No costs.