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2013 DIGILAW 426 (GAU)

Rumy Choudhury (Ms. ) v. Wing Co. Vikash Hora

2013-06-18

INDIRA SHAH

body2013
Iqbal Ahmed Ansari, J. By this common judgment and order, we propose to dispose of both, the matrimonial appeal as well as the miscellaneous case, namely, Mat. Appeal No. 2/2010 and Misc. Case No. 320/2013 respectively. Mat. Appeal No. 2/2010 has arisen out of the judgment and decree, dated 07.03.2009, passed in Title Suit (Divorce) No. 15/2005, whereby the learned Addl. District Judge (FTC), Sonitpur, has, while dissolving the marriage between the parties to the appeal, has granted, by taking recourse to Section 25 of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act') permanent alimony of a sum of Rs. 2.00 lakhs to the appellant, who had sought for divorce by resorting to Section 13 of the Act. As far as Misc. Case No. 320/2013 is concerned, it arose out of an application, filed by the appellant herein, under Section 26 of the Act, seeking maintenance for the two children of the parties concerned during pendency of the matrimonial appeal. We have heard Mr. P.K. Tiwari, learned counsel, for the appellant, and Mr. P.P. Sarma, learned counsel, appearing on behalf of the respondent. 2. The material facts, giving rise to the present appeal, may, in brief, be set out as under: (i) The parties to the appeal are permanent Commissioned Officers in the Indian Air Force. While the respondent is a fighter pilot, the appellant is in administration. The marriage between the parties to the appeal was solemnized, on 30.04.1999, at Lucknow. In course of time, two male children were born to the parties. (ii) After five years of her marriage with the respondent, the appellant instituted Title Suit (Divorce) No. 15 of 2005, under Section 13 of the Act, seeking a decree of divorce on the ground of cruelty. The appellant also made, during pendency of the suit, an application, under Section 25 of the Act, seeking one-time permanent alimony of Rs. 10,00,000/- and/or a sum of Rs. 15,000/- per month as alimony for the rest of her life. (iii) At the time, when the appellant instituted the suit, she was a Short Service Commission Officer and in terms of the service benefits, she was substantially weaker than the respondent. (iv) Yet, during pendency of the suit, the respondent filed an application, under Section 26 of the Act, seeking custody of his two male children. This application gave rise to Misc. (iv) Yet, during pendency of the suit, the respondent filed an application, under Section 26 of the Act, seeking custody of his two male children. This application gave rise to Misc. (J) Case No. 35 of 2005. While the application, made by the respondent, under Section 26 of the Act, was pending, the appellant, too, made an application, under Section 26 of the Act, seeking maintenance for the two children. The application, so made by the appellant, gave rise to, as already indicated above, Misc. (J) Case No. 99 of 2005. (v) On 26.10.2006, both these cases were decided by separate orders. In Misc. (J) Case No. 35 of 2005, which the respondent had filed, the learned Court below, while declining to give him custody of the two children, allowed him visitation right, once in a fortnight, without, however, disturbing the lives of the children and their mother, i.e., the appellant herein. So far as Misc. (J) Case No. 99 of 2005 was concerned, the learned Court below directed the respondent to pay, as maintenance, Rs. 4,000/- per month for each of his said two children. In total, a sum of Rs. 8,000/- per month was directed by the learned Court below to be paid by the respondent, as an interim measure, towards maintenance of his two children, for, until the direction was given, on 26.10.2006, in Misc. (J) Case No. 99 of 2005, the respondent had not made payment of any sum as maintenance for their two children. 3. Though the respondent had, initially, filed a written statement in Title Suit (Divorce) No. 15 of 2005, he withdraw his written statement by petition No. 225 of 2008, filed, in this regard, on 18.12.2008 and declined to contest the suit. 4. At the end, the learned Court below has held, vide judgment, dated 07.03.2009, passed in Title Suit (Divorce) No. 15 of 2005, the appellant entitled to the relief as regards dissolution of her marriage with the respondent with effect from the date of the order, i.e., 07.03.2009. The impugned decree, dissolving the marital-tie between the appellant and the respondent, accordingly followed. 5. By a separate order, made 07.03.2009, in Misc. (J) Case No. 2 of 2005, which had arisen, as already indicated above, on an application made, under Section 25 of the Act, by the appellant seeking one-time permanent alimony and maintenance of a sum of Rs. The impugned decree, dissolving the marital-tie between the appellant and the respondent, accordingly followed. 5. By a separate order, made 07.03.2009, in Misc. (J) Case No. 2 of 2005, which had arisen, as already indicated above, on an application made, under Section 25 of the Act, by the appellant seeking one-time permanent alimony and maintenance of a sum of Rs. 10,00,000/-, or a monthly alimony of Rs. 15,000/- for the rest of her life, the learned Court below has granted the appellant onetime permanent alimony of a sum of Rs. 2,00,000/-. 6. With the help of the present appeal, which the appellant has preferred, she has questioned the correctness of the quantum of permanent alimony, which the learned Court below has awarded to her. In this regard, the appellant has pointed out, inter alia, that while granting permanent alimony, the learned Court below has illegally and wrongly taken into account the fact that a sum of Rs. 8,000/- was being paid by the respondent towards maintenance of his children. The sum of Rs. 8,000/-, which was being paid by the respondent as an interim measure maintenance for the two children, could not have been regarded, according to the appeal, as a factor, and ought not to have been regarded as a factor governing determination of the quantum of permanent alimony awardable to the appellant. 7. The limited question, therefore, which arose for determination in the present appeal, is this: Whether, in the facts and circumstances of the present case, the sum of Rs. 2,00,000/-, as permanent alimony, is just, fair and reasonable and, if not, what ought to have been the amount of permanent alimony for the appellant? 8. Coupled with the above, an application, under Section 26 of the Act, has been made, in the present appeal, by the appellant herein, seeking maintenance, for the two children, at the rate of Rs. 32,925/-, per month, till the children attain their age of majority. This application, made under Section 26 of the Act, has given rise to Misc. (J) Case No. 320/2013. 9. Yet another question, therefore, which, naturally, arises for determination, is: Whether the respondent is bound to pay maintenance to the two male children of the parties concerned and, if so, what shall be the amount of maintenance payable by the respondent to his two children? 10. (J) Case No. 320/2013. 9. Yet another question, therefore, which, naturally, arises for determination, is: Whether the respondent is bound to pay maintenance to the two male children of the parties concerned and, if so, what shall be the amount of maintenance payable by the respondent to his two children? 10. While considering the application, made under Section 26 of the Act, seeking maintenance for the minor children of the parties concerned, it needs to be noted that this appeal is an extension of the suit, wherein maintenance, as an interim measure, of a total sum of Rs. 8,000/- had been granted by the learned Court below until the date of the judgment, passed, on 07.03.2009, by the learned Court below granting a decree of divorce. 11. What cannot be ignored, while considering the present appeal against the quantum of permanent alimony, is that the payment of maintenance to the two children was, and remains till date, legal obligation and duty of the respondent, who has fathered the said two children, though the children are in the care and custody of their mother by order of the Court. 12. Notwithstanding, therefore, the fact that the appellant holds the custody of the children, the children do not forfeit or lose their right to receive maintenance from both their parents, namely, the appellant as well as the respondent. 13. In the circumstances, mentioned above, while considering the application seeking permanent alimony, the learned Court below fell into serious error in taking into account the quantum of maintenance, which, as an interim measure, the respondent had been paying to his two children. The maintenance, paid or payable to the two children, ought not to have been considered as a factor for determining the permanent alimony to be awarded to the appellant, when the learned Court below had found that the appellant was, otherwise, entitled to receive permanent alimony. 14. In fact, as against the direction to pay permanent alimony, the respondent has not even filed any appeal and has not disputed his liability to pay permanent alimony. Consequently, the conclusion, reached by the learned Court below, that with the dissolution of her marriage, the appellant is also entitled to be paid, in the context of the facts of the present case, permanent alimony from the respondent, is, in the facts and circumstances of the present case, wholly correct. 15. Consequently, the conclusion, reached by the learned Court below, that with the dissolution of her marriage, the appellant is also entitled to be paid, in the context of the facts of the present case, permanent alimony from the respondent, is, in the facts and circumstances of the present case, wholly correct. 15. The question, however, remains as to what shall be the reasonable amount of permanent alimony to be paid by the respondent as a one-time measure? 16. Before we deal further with the question of permanent alimony, it is pertinent to note that the appellant has filed her statement of salary and allowances as well as the statement of salary and allowances of the respondent. Their pay details show that while the respondent receives, after making all deductions, a sum of Rs. 54,790/-, the appellant receives, after deductions, a sum of Rs. 31,796/-. 17. Coupled with the above, the respondent has also given particulars of the amounts, which are required for maintaining the two children, one of whom studies in Class-V and the other in Class-VIII. The particulars of the maintenance required, when added together, give rise to a sum of Rs. 32,925/-. The correctness of these particulars has not been questioned by the respondent. Resultantly, therefore, the fact that the maintenance, for the two children of the parties concerned, requires a sum of Rs. 32,925/-, per month, cannot be doubted. 18. Although the appellant receives, upon deductions, a sum of Rs. 31,796/- and the respondent receives, upon deductions, a sum of Rs. 54,790/-, both of them are equally liable to pay for maintenance of their children and, in these circumstances, we are clearly of the view that the respondent is bound to pay, at least, a sum of Rs. 16,000/- towards maintenance of his two children. To put it a little differently, while the respondent is not only legally bound to pay, at least, Rs. 16,000/- per month, the earlier sum of Rs. 8,000/-, paid as an interim measure maintenance towards his two children, ought not to have been treated as a factor, and could not have been a factor, governing determination of the quantum of permanent alimony. 19. In the context of the facts and attending circumstances of the present case, we are clearly of the view that the sum of Rs. 8,000/-, paid as an interim measure maintenance towards his two children, ought not to have been treated as a factor, and could not have been a factor, governing determination of the quantum of permanent alimony. 19. In the context of the facts and attending circumstances of the present case, we are clearly of the view that the sum of Rs. 2,00,000/- as permanent alimony, in favour of the appellant, is, too low, extra-ordinarily meager, wholly unreasonable, totally unfair and completely unjust and cannot, therefore, be legally sustained. 20. Having taken into account all the relevant factors, we are clearly of the view, and we hold, that the learned Court below ought to have granted, at least, a sum of Rs. 5,00,000/- as a one-time permanent alimony, and maintenance, payable by the respondent to the appellant, besides, of course, paying a sum of Rs. 16,000/- per month, as maintenance, for the two children of the parties concerned. 21. In the result and for the reasons discussed above, the appeal for enhancement of quantum of permanent alimony as well as the claim for maintenance of the children, as made by the appellant, succeed. 22. We accordingly direct the respondent herein to pay to the appellant one-time permanent alimony of a sum of Rs. 5,00,000/- within three months from today, failing which the appellant shall remain entitled to receive interest @ 8% p.a. on the unpaid amount. 23. We further direct that the respondent shall pay a sum of Rs. 16,000/- per month towards maintenance of his two children with effect from the date of the decree, i.e., 07.03.2009 and, upon attaining the age of majority of his elder son, the respondent shall continue to pay a sum of Rs. 8,000/- towards maintenance of his younger child until the time the younger child attains the age of majority. Failure to pay maintenance to the children, as directed hereinbefore, will carry interest at the rate of 8%, per annum, with effect from the date of the impugned decree, or the date of non-payment of maintenance, whichever is earlier. 24. Admittedly, the respondent has not paid any amount towards maintenance allowance since the time the decree, dissolving the marriage between the parties concerned, was granted. Failure, on the part of the respondent to pay maintenance per month, as directed hereinbefore, shall make him liable to face consequences of non-compliance with the directions so given. 25. 24. Admittedly, the respondent has not paid any amount towards maintenance allowance since the time the decree, dissolving the marriage between the parties concerned, was granted. Failure, on the part of the respondent to pay maintenance per month, as directed hereinbefore, shall make him liable to face consequences of non-compliance with the directions so given. 25. Let decrees be drawn in terms of our directions for payment of permanent alimony and also in terms of our direction for payment of money towards maintenance of the two children of the parties to this appeal. 26. The Mat. Appeal No. 2/2010 as well as the Misc. Case No. 320/2013 are hereby allowed, with costs, to the extent as indicated above. Send back the LCR.