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2014 DIGILAW 288 (JHR)

Banwari Sahu @ Banwari Sao v. Maya Devi

2014-02-21

R.BANUMATHI, SHREE CHANDRASHEKHAR

body2014
JUDGMENT R. Banumathi, C.J. - This First Appeal under Section 19 of the Family Courts Act, 1984 is preferred against the judgment, by which the appellant (husband) has been directed to pay to respondent (wife) a sum of Rs.3,00,000/- (Rupees Three Lacs) as permanent alimony and further monthly maintenance allowance of Rs.4,000/- (Rupees Four Thousand) per month till she gets remarried, vide the judgment dated 18.01.2012 and the decree signed on 23.01.2012 passed in M.T.S. No.89 of 2006 by Shri Ram Rudra Prasad Deo, Principal Judge, Family Court, Hazaribagh. 2. In fact, the appellant had filed the said suit vide M.T.S. No.89 of 2006 seeking for divorce against the respondent-wife where the suit was allowed and decree of divorce is granted and also permanent alimony of Rs.3,00,000/- (Rupees Three Lacs) and monthly allowance of Rs.4,000/- (Rupees Four Thousand) have been awarded to the respondent-wife. Being aggrieved by the amount of permanent alimony and monthly maintenance fixed by court below, the appellant-husband has preferred this appeal. 3. Briefly stated the case of the appellant is as under:- Appellant (husband) got married with the respondent(wife) on 21.05.1990 at Hazaribagh according to Hindu rites and customs. Thereafter, both of them started leading their conjugal life at Balidih in the District of Bokaro. The father-in-law of the appellant took the respondent to his house at Hazaribagh after few days of the marriage with an assurance that the respondent would come back to her husband’s house after Gauna (second ritual of a marriage). It has been further pleaded that after much pressure of the relatives, Gauna ceremony was performed because father of the respondent was not agreed and then the respondent came to her matrimonial home at Baildih in the month of November, 1991. The respondent stayed there about one month and then the father of the respondent started giving wrong advice to her and on 15.10.1992 she went back to her father’s house. The appellant persuaded her several times to bring her back, but in vain. Lastly, on 13.04.1999, the respondent refused to restore the conjugal life with the appellant and demanded Rs.2,000/- (Rupees Two Thousand) per month as maintenance from the appellant. It has further been alleged that the father-in-law of the appellant asked him to live as Gharjamai (permanently at father-in-law’s place) at Hazaribagh. Lastly, on 13.04.1999, the respondent refused to restore the conjugal life with the appellant and demanded Rs.2,000/- (Rupees Two Thousand) per month as maintenance from the appellant. It has further been alleged that the father-in-law of the appellant asked him to live as Gharjamai (permanently at father-in-law’s place) at Hazaribagh. It has also been averred that the respondent has finally withdrawn herself from the society of the appellant and deserted him without any reasonable excuse since 15.10.1992. Then the appellant had filed a suit for Restitution Of Conjugal Rights bearing M.T.S. No.22 of 1999 under Section 9 of the Hindu Marriage Act, 1955 and after hearing both the parties 3rd Additional District Judge, Bokaro passed a judgment on 22.11.2002 in favour of the appellant on contest by which suit for Restitution Of Conjugal Rights was decreed with a direction to the respondent to resume their conjugal life within three months from the date of the judgment. The decree was not complied with by the respondent and therefore the appellant filed a suit seeking for decree of divorce for the dissolution of marriage between appellant and respondent vide M.T.S. No.89 of 2006 whose judgment and decree have been challenged before this Court, so far as it relates to permanent alimony and maintenance allowance. 4. Respondent-Maya Devi appeared in the said matrimonial case i.e. M.T.S. Case No.89 of 2006 and filed her written statement. In her statement, she admitted that after the marriage with the appellant for a period of about one and half months and during her short stay at her matrimonial house, she was not treated properly by the appellant and by his family members. She alleged that she was subjected to mental and physical cruelty for the demand of dowry and the family members of her husband i.e. brother, brother’s wife and mother used to abuse and assault her and did not provide proper food and clothes. The respondent further pleaded that she was sent back to her father’s place with a direction to bring a colour T.V. and Hero Honda motorcycle but the father of the respondent was unable to satisfy the demand of dowry. The respondent further pleaded that she was sent back to her father’s place with a direction to bring a colour T.V. and Hero Honda motorcycle but the father of the respondent was unable to satisfy the demand of dowry. Thereupon, the father and brother of the respondent tried to persuade the appellant and after great persuasion, in the month of January, 1992, the respondent was taken back by the appellant at his native place at Balidih (Disrict-Bokaro) and the respondent remained there continuously till June, 1993, when she was finally driven out from the house with a threatening not to come again. It has further been stated in her pleading before the Court below that on intervention of well wishers, the appellant took her in the month of February, 1995 and she stayed there till August, 1997, after that the appellant came with the respondent at Hazaribagh and left her at her father’s place and thereafter he refused to keep the respondent. The respondent alleged that the suit for Restitution Of Conjugal Rights vide M.T.S. No.22 of 1999 under Section 9 of the Hindu Marriage Act, 1955 was filed by the appellant with a view to save his skin from the offence of committing cruelty and torture caused to the respondent. The respondent further alleged that she was threatened to be killed by the appellant if she went back to the house of her husband and pleaded that the appellant was mainly responsible for her living apart and stated that the appellant was not entitled to any relief and prayed for dismissal of the suit. 5. The Court below on the basis of the pleadings of the parties framed the following issues:- (i) Is the present suit maintainable in its present form? (ii) Whether the appellant has cause of action for the suit? (iii) Whether the appellant treated the respondent with cruelty as also used to abuse assault the respondent brutally? (iv) Whether the appellant fully deserted the respondent for a continuous period for more than two years without any sufficient cause? (v) Whether the judgment passed in Title (Matrimonial) Suit No.22/99 is binding upon the respondent? (vi) Whether the appellant is entitled for dissolution of marriage with respondent? (vii) To what relief or reliefs to which the appellant is entitled to? 6. On these issues parties went for trial. (v) Whether the judgment passed in Title (Matrimonial) Suit No.22/99 is binding upon the respondent? (vi) Whether the appellant is entitled for dissolution of marriage with respondent? (vii) To what relief or reliefs to which the appellant is entitled to? 6. On these issues parties went for trial. The appellant had examined four witnesses on his behalf namely, Md. Minhaz (P.W.1), Shivnandan Sahu (P.W.2), Arjun Mahto (P.W.3), Banwari Sahu (P.W.4 - appellant-husband himself). The respondent had examined altogether six witnesses on her behalf, namely, Gopal Krishna (R.W.1), Talo Rana (R.W.2), Kundan Kumar Gupta (R.W.3), Murari Lal (R.W.4), Om Prakash (R.W.5) and Maya Devi (R.W.6-respondent herself). Apart from the oral evidences led by both the parties, the appellant adduced documentary evidences on his behalf as Ext.-1 which is the certified copy of the judgment and Ext.-1/1 is certified copy of the decree passed in the suit for Restitution Of Conjugal Rights i.e. M.T.S. No.22 of 1999 by 3rd Additional District Judge, Bokaro. The appellant also exhibited Ext.-2 which is the pay slip of the appellant for the month of July, 2011. 7. The Court below after discussing the evidences, oral and documentary adduced on behalf of both the parties, decided the issue nos. (i) to (vii) in favour of the appellant(husband) and decreed the suit for the dissolution of marriage and accordingly marriage tie between the appellant(husband) and respondent(wife) was dissolved by passing the decree of divorce under the Hindu Marriage Act, 1955. The Court below further held that the appellant will pay Rs.3,00,000/- (Rupees Three Lacs) to the respondent as permanent alimony and further directed the appellant to pay Rs.4,000/- (Rupees Four Thousand) per month to the respondent as monthly maintenance until she gets re-married. 8. Being aggrieved by the judgment dated 18.01.2012 passed in M.T.S. No.89 of 2006 appellant has filed this appeal challenging the order regarding payment of Rs.3,00,000/- (Rupees Three Lacs) as permanent alimony and Rs. 4,000/-(Rupees Four Thousand) per month as monthly maintenance allowance to the respondent till her remarriage. The respondent has not filed any appeal challenging the decree of divorce granted in favour of the appellant. Thus, this appeal is confined only to the quantum of maintenance awarded to the respondent. 9. Heard the learned Senior Counsel Mr. Sohail Anwar appearing for appellant and the learned counsel Mr. Ayush Aditya for the respondent. Perused the materials on record and the judgment. 10. Thus, this appeal is confined only to the quantum of maintenance awarded to the respondent. 9. Heard the learned Senior Counsel Mr. Sohail Anwar appearing for appellant and the learned counsel Mr. Ayush Aditya for the respondent. Perused the materials on record and the judgment. 10. The learned Senior Counsel for the appellant submitted that the court below erroneously directed the appellant to pay Rs.3,00,000/- (Rupees Three Lacs) to the respondent as permanent alimony and further directed to pay Rs.4,000/-(Rupees Four Thousand) per month to the respondent as maintenance allowance. It was submitted that under Section 25 of the Hindu Marriage Act the court below could have only ordered “such gross sum or monthly or periodical sum” and the court below erred in passing the judgment directing payment of permanent alimony of Rs.3,00,000/- (Rupees Three Lacs) and maintenance allowance of Rs.4,000/-(Rupees Four Thousand) per month. It was further submitted that the court below failed to take into consideration the fact that the appellant has been appointed in BCCL on compassionate ground and he has obligation to maintain his other family members, besides his old mother, from his own income who are fully dependent upon him and in the light of the fact that the appellant is simply Loco Operator in B.C.C.L, it is impossible for him to make payment of huge amount of Rs.3,00,000/- (Rupees Three Lacs) as permanent alimony to the respondent and Rs.4,000/- (Rupees four thousand) to the respondent till her remarriage. It has also been contended on behalf of the appellant that the Principal Judge, Family Court, Hazaribagh wrongly held that the appellant was getting Rs.31,053/- (Rupees Thirty One Thousand Fifty Three) per month and has overlooked Ext.-2 (Pay slip of July, 2011) which transpires that the appellant’s net payment is Rs.10,750/- (Rupees Ten Thousand Seven Hundred Fifty) only. It was submitted that the quantum of maintenance is exorbitant and has been awarded without taking into consideration the actual salary which the appellant is earning. 11. The learned counsel for the respondent submitted that the court below has rightly passed the order after appreciating all the evidences available on record and the appellant, with a mala fide intention in order to avoid the payment of permanent alimony and maintenance order passed by the court below, has filed this appeal. 11. The learned counsel for the respondent submitted that the court below has rightly passed the order after appreciating all the evidences available on record and the appellant, with a mala fide intention in order to avoid the payment of permanent alimony and maintenance order passed by the court below, has filed this appeal. It is argued that the appellant is employed in the BCCL and his earning is adequate to make the payment of the maintenance as awarded by the court below and therefore, the appeal is fit to be dismissed. 12. The judgment and decree passed in M.T.S. No. 89 of 2006 has two parts. The first part is the decree of divorce granted under Section 13(1)(ia) of the Hindu Marriage Act. Though the divorce was granted on the ground of cruelty under Section 13(1)(ia) in the judgment of the court below, there is not much of discussion of evidence on the aspect of cruelty. In paragraph 16 of the judgment, the court below held that inspite of the decree of restitution of conjugal rights passed in M.T.S. No. 22/99, the respondent-wife has not rejoined her husband. Observing that since more than 12 years have passed and there is no possibility of reunion and that the marriage is irretrievably broken down, the court below granted divorce and dissolved the marriage of the appellant and the respondent. The appellant has no grievance with the first part of the judgment and decree. As against that part of judgment granting divorce, the respondent-wife has not filed any appeal. Therefore, it is not necessary for us to refer to the evidence adduced by the parties on the aspect of cruelty. 13. The grievance of the appellant is the order of maintenance under which the appellant has been directed to pay a lump sum amount of Rs.3,00,000/- (Rupees Three Lacs) to the respondent as permanent alimony and further directed to pay Rs.4,000/- per month to the respondent as monthly maintenance allowance till her remarriage. 14. It is seen from the record that the court below did not frame an issue relating to permanent alimony or maintenance in the suit. In the court below the respondent-wife filed a petition seeking interim maintenance during the pendency of Divorce Suit M.T.S. No. 89 of 2006 and on 05.12.2007 the court below passed order directing interim maintenance of Rs.1,000/- (Rupees One Thousand) per month to the respondent-wife. In the court below the respondent-wife filed a petition seeking interim maintenance during the pendency of Divorce Suit M.T.S. No. 89 of 2006 and on 05.12.2007 the court below passed order directing interim maintenance of Rs.1,000/- (Rupees One Thousand) per month to the respondent-wife. On 05.09.2011 the respondent-wife again filed a petition interalia praying that if a decree of divorce is passed in favour of the appellant, the permanent alimony be given to the respondent and that maintenance allowance be enhanced to the tune of Rs.10,000/-(Rupees Ten Thousand) per month. The appellant is an employee of BCCL, earning more than Rs.31,000/-(Rupees Thirty One Thousand) and his then gross salary was Rs.31,053.07. The appellant raised the plea that his take home salary after deductions is only Rs.8,000/- (Rupees Eight Thousand) per month and that he has the elderly parents and other family members to take care of and therefore, he is not in a position to pay maintenance allowance to the respondent. Pointing out that the respondent is a housewife and that she has no source of income, the court below after considering the economic condition, status of the respondent and the income, ordered permanent alimony of Rs.3,00,000/- (Rupees Three Lacs) and further directed the appellant to pay Rs.4,000/- (Rupees Four Thousand) per month to the respondent as maintenance. 15. The question falling for consideration is whether the lump-sum permanent alimony of Rs.3,00,000/- (Rupees Three Lacs) plus monthly maintenance allowance of Rs.4,000/- (Rupees Four Thousand) is on the higher side. 16. Section 25 of the Hindu Marriage Act lays down that for arriving at a quantum of permanent maintenance to be ordered, the court must have regard to the respondent’s own income and property and also the income and property of the appellant and conduct of the parties and facts and circumstances of the case. There is no rigid rule or any fixed criteria as to the quantum of maintenance and the matter of assessment is left to the discretion of the court. The court has to consider all relevant circumstances keeping in view the status and station of the parties, ability of the spouses to earn and their future prospects and reasonable requirements of the respondent. 17. The court has to consider all relevant circumstances keeping in view the status and station of the parties, ability of the spouses to earn and their future prospects and reasonable requirements of the respondent. 17. The contention of the appellant is that the respondent had been living apart for a number of years and that she was able to earn a living and therefore no monthly allowance be ordered to the respondent. In our considered view, it is not a sufficient ground for not making an order of maintenance under Section 25 of the Hindu Marriage Act. 18. The learned Senior Counsel for the appellant further submitted that under Section 25 of the Hindu Marriage Act, the court could have either ordered a gross amount as permanent alimony or such monthly or periodical sum could have been ordered but not both. Since the appellant expressed his difficulties in paying substantial amount as lump-sum maintenance amount, the court below appears to have split the maintenance amount in part as permanent alimony and Rs.4,000/- (Rupees Four Thousand) per month as monthly maintenance allowance. The judgment of the court below directing permanent alimony of Rs.3,00,000/- (Rupees Three lacs) and monthly allowance of Rs.4,000/- (Rupees Four Thousand) cannot be faulted. 19. The judgment of the court below was passed on 18.01.2012 and even though two years elapsed, the appellant had not paid any amount towards the maintenance allowance of Rs.4,000/- (Rupees Four Thousand) per month. When the appeal came up for hearing, we have directed the appellant to pay the arrears of maintenance to the respondent. The appellant has made payment of Rs.25,000/- (vide order dated 25th November, 2013) and further amount of Rs.15,000/- (vide order dated 9th December, 2013) totalling Rs.40,000/- (Rupees Forty Thousand) which was received by the respondent. The learned Senior Counsel for the appellant submitted that since decree of divorce has been granted by the court below, a direction for payment of monthly maintenance allowance of Rs.4,000/- (Rupees Four Thousand) may be suitably modified as lump-sum amount in order to give quietus to the dispute between the parties. The said course was also agreeable to the learned counsel for the respondent. 20. The said course was also agreeable to the learned counsel for the respondent. 20. Since by the judgment and decree of the court the marriage between the parties has been dissolved, it would be more convenient and beneficial for the respondent to take one time permanent alimony rather to bank upon monthly maintenance allowance inasmuch as if the appellant flouts the payment of monthly allowance, it would be a cumbersome procedure for the respondent-wife to recover. Enhancement of the permanent alimony in lieu of monthly allowance of Rs.4,000/- (Rupees Four Thousand) per month would be in the interest of both parties. Therefore, we are of the view that instead of upholding maintenance allowance of Rs.4,000/- (Rupees Four Thousand) per month, it would be in the interest of both parties to award further lump-sum of Rs.2,40,000/-(Rupees Two Lacs and Forty Thousand) in lieu of maintenance allowance of Rs.4,000/- per month. Thus, adding this lump-sum maintenance amount of Rs.2,40,000/-(Rupees Two Lacs and Forty Thousand) in the permanent alimony of Rs.3,00,000/- (Rupees Three lacs) already awarded by the court below, the permanent alimony is enhanced to Rs.5,40,000/-(Rupees Five lacs and Forty Thousand) which, in our considered view, would be adequate and fair. 21. In lieu of monthly maintenance allowance of Rs.4,000/-(Rupees Four Thousand) per month, a lump-sum amount of Rs.2,40,000/-(Rupees Two Lacs and Forty Thousand) is awarded and the permanent alimony is enhanced from Rs.3,00,000/- (Rupees Three Lacs) to Rs.5,40,000/-(Rupees Five Lacs and Forty Thousand). The amount of Rs.40,000/-(Rupees Forty Thousand) which has been paid by the appellant during the pendency of the First Appeal before this Court shall be adjusted as against the permanent alimony of Rs.5,40,000/-(Rupees Five Lacs and Forty Thousand) and the permanent alimony payable is Rs.5,00,000/-(Rupees Five Lacs). The appellant is directed to pay the aforesaid amount of Rs.5,00,000/-(Rupees Five Lacs) within six months from the date of this order failing which, the respondent is at liberty to realize the said amount through the process of court. 22. The judgment dated 18.01.2012 (decree signed on 23.01.2012) passed by Shri Ram Rudra Prasad Deo, Principal Judge, Family Court, Hazaribagh in M.T.S. No. 89 of 2006 is modified to that extent and this First Appeal is partly allowed.