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2013 DIGILAW 343 (ORI)

Biswajit Dash v. Milan Dash

2013-08-27

B.R.SARANGI, S.PANDA

body2013
JUDGMENT Dr. B.R.Sarangi, J. - This appeal is directed against the judgment and decree dated 17.03.2011 passed by learned Judge, Family Court, Bhubaneswar in Civil Proceeding No. 11/2011/Mat-340/2007 granting dissolution of marriage with a decree of divorce and payment of permanent alimony of Rs.15,00,000/- including Rs.4,00,000/- towards properties retained to the respondent-wife within two months, failing which the same shall be recovered by putting the decree into execution and assessed the cost at Rs.10,000/- which the appellant-husband shall pay to the respondent-wife. 2. The admitted fact is that appellant-husband and respondent-wife were married on 04.02.2005 at Bhubaneswar according to Hindu rites and customs. They lived together for a few weeks after their marriage. They have no issue. The appellant-husband flew back to his place of service in United Kingdom and the respondent-wife returned to her parent’s house. On the allegation of dowry demand and cruelty against her husband-appellant and her in-laws, the respondent-wife lodged an F.I.R. in Mahila Police Station, Bhubaneswar on 15.2.2008, which was registered as Mahila P.S.Case No. 30 of 2008 (Ext.1). The appellant-husband filed Civil Proceeding No.11 of 2011 before the learned Civil Judge (Senior Division), Bhubaneswar under Section 13(i)(i-B) and (iii) of the Hindu Marriage Act for dissolution of marriage by granting a decree of divorce. 3. In the Civil Proceeding attempts were made by the court for conciliation. Though the respondent-wife was present, the appellant-husband remained absent. However, the respondent-wife filed a counter claim also for dissolution of marriage and return of her articles and for permanent alimony. Learned Judge, Family Court, Bhubaneswar heard both the civil proceeding filed by the appellant-husband and the counter claim filed by the respondent-wife analogously and disposed of both the proceedings by judgment dated 17.3.2011. 4. In order to substantiate the case, the appellant-husband could not examine any witness, whereas the respondent-wife examined herself as R.W.1 and one Sachidananda Ratha as R.W.2. Further, no documents was filed by the appellant-husband, whereas the respondent-wife relied upon Exts.1 to 3 in support of her case. 5. The appellant-husband in his application has stated that during the period of joint living, the respondent-wife showed suicidal tendency and she was irritating and insulting him and his old parents before the outsiders and the respondent-wife allowed strangers to come to the matrimonial house and when the same was refused, she got annoyed. 5. The appellant-husband in his application has stated that during the period of joint living, the respondent-wife showed suicidal tendency and she was irritating and insulting him and his old parents before the outsiders and the respondent-wife allowed strangers to come to the matrimonial house and when the same was refused, she got annoyed. On two occasions, i.e. on 10.2.2005 and 25.2.2005, the respondent-wife left the matrimonial house and remained absent and took the plea of having visited her father. More so, she was not co-operating with the appellant-husband for cohabitation and showing violent conduct. Under such situation, the petitioner-husband could not live and lost hope to live together with the respondent-wife and prayed for a decree of divorce on the ground of cruelty. 6. In the counter claim filed by the respondent-wife, she denied the allegations stating that the same are false and fabricated. The respondent-wife stated that her husband and in-laws were subjecting her to cruelty for more dowry and deserted her. Even she wanted to establish relationship with her husband even after he flew back to his place of work, but she could not contact him in the address given to her as the same was subsequently found to be fake. Therefore, she claimed for dissolution of marriage by a decree of divorce and also claimed for return of articles and sought for permanent alimony. 7. On the basis of the materials available on record, learned Judge, Family Court, Bhubaneswar formulated a question for determination, i.e. “who of the spouses treated the other with cruelty and deserted and in case the marriage is dissolved what should be the quantum of permanent alimony and how the properties of the one should be returned to the other”. After due adjudication and going through the materials available on record, learned Judge, Family Court, Bhubaneswar has specifically stated that the wife, whose marriage is only two weeks old, cannot venture to break her marriage by lodging F.I.R. against her husband and his relatives unless cruelty shown to her was to the extent of a breaking point. The effect of the evidence remains unmitigated for the same having not been challenged. The effect of the evidence remains unmitigated for the same having not been challenged. Learned Judge, Family Court has given a finding that “it is therefore, established that the wife was treated with cruelty by her husband and the cruelty was such that she did not condone the same and struck to the same even at the cost of breaking her marriage. Husband’s pleadings of the wife admitting the strangers to the house and not returning in the night are veiled aspects of character assassination, which are synonymous with cruelty of highest order to a wife. These aspects amply justify dissolution of the marriage of the two.” 8. So far as the return of the articles are concerned, learned Judge, Family Court has assessed the same at Rs.4 lakhs, which was retained by the appellant-husband and apart from the same directed for payment of permanent alimony of Rs.11 lakhs to respondent-wife. 9. During pendency of the appeal, efforts were also made for reconciliation and the same having failed, parties decided to remain aloof from each other by effecting the dissolution of marriage in the shape of decree of divorce. Therefore, the judgment passed by the learned Judge, Family Court, Bhubaneswar with regard to grant of dissolution of marriage by decree of divorce is upheld. 10. The question now comes for consideration as to what should be the appropriate quantum of permanent alimony to be granted to the respondent-wife. Learned Judge, Family Court, Bhubaneswar granted permanent alimony of Rs.11 lakhs and Rs.4 lakhs towards cost of the property retained by the appellant-husband, the same was not agreed by the respondent-wife. She vehemently urged that taking into consideration the social status of the respondent-wife, length of life, and income of her husband, the permanent alimony granted by the learned Judge, Family Court is inadequate. Pursuant to the order dated 16.7.2013, instruction has been obtained regarding the income of the appellant-husband and a salary certificate has been produced to that effect. On perusal of the said salary certificate dated 15.7.2013 issued by the ICTS (UK) Ltd., where the appellant-husband is serving, it is revealed that his net pay after all deductions is 1166.67 pounds for the month of July, 2013. 11. On perusal of the said salary certificate dated 15.7.2013 issued by the ICTS (UK) Ltd., where the appellant-husband is serving, it is revealed that his net pay after all deductions is 1166.67 pounds for the month of July, 2013. 11. Section 25 of the Hindu Marriage Act deals with permanent alimony, which reads as follows: “25.Permanent alimony and maintenance- Any Court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as having regard to the respondent’s own income and other property, if any, the income and other property of the applicant, the conduct of the parties and other circumstances of the case, it may seem to the Court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent. (2) 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 or rescind any such order in such manner as the Court may deem just. (2) 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 or rescind any such order in such manner as the Court may deem just. (3) If the Court is satisfied that the party in whose favour an order has been made under this section has re-married or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, it may at the instance of the other party vary, modify or rescind any such order in such manner as the Court may deem just.” A perusal of the above provision makes it clear that any Court exercising jurisdiction under the Hindu Marriage Act, before granting permanent alimony under Section 25 of the Act, is required to consider the following: (a) that the order granting permanent alimony is made at the time of passing any decree under the Act, 1955 or at any time subsequent thereto, (b) the income and other property of the applicant, (c) the respondent’s own income and other property, (d) the conduct of the parties, and (e) other circumstances of the case. 12. The apex Court in Vinny Parmvir Parmar v. Parmvir Parmar, AIR 2011 SC 2748 held as follows:- It is further seen that the court considering such claim has to consider all the above relevant materials and determine the amount which is to be just for living standard. No fixed formula can be laid for fixing the amount of maintenance. It has to be in the nature of things which depend on various facts and circumstances of each case. The court has to consider the status of the parties, their respective needs, the capacity of the husband to pay, having regard to reasonable expenses for his own maintenance and others whom he is obliged to maintain under the law and statute. The courts also have to take note of the fact that the amount of maintenance fixed for the wife should be such as she can live in reasonable comfort was used to live when she lived with her husband. The courts also have to take note of the fact that the amount of maintenance fixed for the wife should be such as she can live in reasonable comfort was used to live when she lived with her husband. At the same time, the amount so fixed cannot be excessive or affect the living condition of the other party. These are all the broad principles courts have to be kept in mind while determining maintenance or permanent alimony. 13. In Vishwanath Sitaram Agrawal v. Sau. Sarla Vishwanath Agrawal, reported in 2012 (II) OLR (SC) 456, AIR 2012 SC 2586 the apex Court while granting permanent alimony has observed that the amount that has already been paid to the respondent-wife towards alimony is to be ignored as the same had been paid by virtue of the interim orders passed by the courts. It is not expected that the respondent-wife has sustained herself without spending the said money. 14. In U. Sree v. U. Srinivas, AIR 2013 SC 415 , the apex Court while dealing with Section 25 of the Act has observed as follows:- “…….. while granting permanent alimony, no arithmetic formula can be adopted as there can not be mathematical exactitude. It shall depend upon the status of the parties their respective social needs, the financial capacity of the husband and other obligations.” In the said judgment the apex Court has also observed that: “…….. it is the duty of the court to see that the wife lives with dignity and comfort and not in penury. The living need not be luxurious but simultaneously she should not be left to live in discomfort. The court has to act with pragmatic sensibility to such an issue so that the wife does not meet any kind of man made misfortune………” 15. In view of the aforesaid position of law referred to supra and taking into account the present income of the appellant-husband, the permanent alimony is determined at Rs.14 lakhs in addition to which the appellant-husband is also liable to pay Rs. 3 lakh towards the cost of articles retained, thereby he is liable to pay Rs.17 lakhs (seventeen lakhs) to the respondent-wife. 16. It is stated by Mr.S.P.Mishra, learned Sr. Counsel appearing for the appellant-husband that the criminal case initiated at the instance of the respondent-wife is pending against the appellant-husband. 3 lakh towards the cost of articles retained, thereby he is liable to pay Rs.17 lakhs (seventeen lakhs) to the respondent-wife. 16. It is stated by Mr.S.P.Mishra, learned Sr. Counsel appearing for the appellant-husband that the criminal case initiated at the instance of the respondent-wife is pending against the appellant-husband. Therefore, we direct that in the event the appellant-husband pays the aforesaid amount of Rs.17 lakhs (seventeen lakhs) and produces the receipt in support of payment, the criminal proceeding so initiated by the respondent-wife or any other proceedings between the parties in connection therewith, shall be dropped. The entire exercise shall be done within a period of three months from the date of passing of this order. 17. With the aforesaid observation and direction, the appeal is disposed of. S. Panda, J. I agree Appeal disposed of.