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2014 DIGILAW 824 (ORI)

Pratima Mohapatra @ Nepak v. Dibakar Mohapatra

2014-12-02

PRAMATH PATNAIK, VINOD PRASAD

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JUDGMENT PRAMATH PATNAIK, J. 1. This appeal has been filed by the appellant wife under Section 19(1) of the Family Court Act, 1984. The challenge has been made to the impugned judgment and order dated 04.11.2011 passed by the learned Judge, Family Court, Bhubaneswar in Civil Proceeding No. 578 of 2011 inter alia to the extent of enhancement of permanent alimony from Rs.3,00,000/- (rupees three lakhs) to Rs.20,00,000/- (rupees twenty lakhs). 2. The facts as depicted in this appeal are that the present appellant filed a petition under Section 13 of the Hindu Marriage Act before the learned Judge, Family Court, Bhubaneswar inter alia praying for passing of a decree of divorce by dissolution of marriage and further prayer for a direction to the respondent to pay Rs.20,00,000/-towards permanent alimony to her along with cost of the suit vide C.P. No. 578 of 2011. 3. The appellant and respondent being Hindus got married on 25.02.1988. The appellant after marriage stayed in her in-laws house and led conjugal life. It has been stated that the parents of the respondent constructed a building at Kamapalli, Berhampur. Thereafter the respondent started demanding more valuable articles and the house at Berhampur belonging to the parents of the appellant. Since the demand was not acceded to, the appellant was subjected to torture and mental cruelty and the situations became so unbearable that she had left her in-laws house. Since 13.09.1991, both the appellant and respondent have been staying separately. The appellant is staying with her daughter. During the subsistence of the first marriage, the respondent got married for the second time which shattered the hopes of the appellant for a reunion. Left with no alternative, the appellant filed the aforesaid proceeding seeking a decree of divorce and consequential permanent alimony. Despite service of notice, the respondent chose neither to appear nor to file any objection controverting the allegation/averments made by the appellant. The present respondent had earlier filed a suit in the court of learned Civil Judge (Sr. Division), Berhampur vide O.S. No. 26 of 1993 seeking a decree of divorce which was dismissed on contest on 04.12.2002. Against the order of dismissal, the present respondent preferred an appeal before the learned District Judge, Berhampur which was numbered as Mat Appeal No. 02 of 2003 subsequently transferred to 2nd Addl. District Judge, Berhampur and renumbered as Mat Appeal No. 1 of 2006. Against the order of dismissal, the present respondent preferred an appeal before the learned District Judge, Berhampur which was numbered as Mat Appeal No. 02 of 2003 subsequently transferred to 2nd Addl. District Judge, Berhampur and renumbered as Mat Appeal No. 1 of 2006. Subsequently, the respondent withdrew his appeal on 18.02.2006. During pendency of O.S. No. 26 of 1993, the present respondent filed an application under Section 151, C.P.C. with a prayer to pass a decree of divorce without examining the parties. The present appellant who was the respondent in that case had filed counter and learned Civil Judge (Sr. Division), Berhampur after hearing the application, rejected the same. Against that order, the present respondent filed a Civil Revision before the learned District Judge, Berhampur in Civil Revision No. 31 of 2000 which was transferred to the court of 1st Addl. District Judge, Berhampur, renumbered as Civil Revision No. 5 of 2000 and the same was dismissed vide order dated 23.02.2001. The present respondent preferred writ application vide O.J.C. No. 9168 of 2001 challenging the order of dismissal in civil revision. This Court vide order dated 12.05.2008 disposed of the said writ application inter alia directing the trial court to dispose of the same as expeditiously as possible preferably within a period of four months, if there will be no impediment. However, at the time of disposal of the writ application, the fact of dismissal of the O.S. No. 26 of 1993 on 04.12.2002 was not brought to the notice of this Court. 4. On perusal of factual matrix, learned Civil Judge (Sr. Division), Berhampur while deciding issue nos. 2 and 3 held that the respondent subjected the appellant with the cruelty and desertion. Since the allegation/averments made by the appellant has not been controverted/rebutted by the respondent, learned Judge, Family Court, Bhubaneswar has come to the categorical finding that there are just grounds for dissolution of marriage and the appellant is entitled for divorce. So far as permanent alimony is concerned, learned Judge, Family Court, Bhubaneswar has fixed Rs.3,00,000/- (rupees three lakhs) towards permanent alimony. 5. After perusal of the lower court records, we have bestowed our anxious consideration. So far as permanent alimony is concerned, learned Judge, Family Court, Bhubaneswar has fixed Rs.3,00,000/- (rupees three lakhs) towards permanent alimony. 5. After perusal of the lower court records, we have bestowed our anxious consideration. Learned counsel for the appellant has assailed the impugned judgment and order dated 04.11.2011 on the following grounds: (i) That the permanent alimony granted by the learned Judge, Family Court, Bhubaneswar appears to have been made without considering the cost of living in the present society as well as the economic condition of the appellant. (ii) Learned Judge, Family Court, Bhubaneswar has erred in law in not taking into consideration the maintenance of the unmarried daughter who has attained marriage of the age and the marriage expenses to be incurred by the appellant. (iii) Learned Judge, Family Court, Bhubaneswar has acted illegally in fixing the permanent alimony to Rs.3,00,000/- (rupees three lakhs). Although no rebuttal evidence has been made by the respondent regarding the income. On the other hand, learned counsel for the respondent husband has strenuously urged and vehemently defended the impugned judgment passed by the learned Judge, Family Court, Bhubaneswar. 6. Section 25 of the Hindu Marriage Act deals with permanent alimony and maintenance, which reads as under:- “Permanent alimony and maintenance – (1) 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 husband shall pay to the appellant 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 husband’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 husband.” 7. Hon’ble apex Court in a catena of decisions has dealt with Section 25 of the Hindu Marriage Act pertaining to permanent alimony and maintenance. The guidelines propounded by the Hon’ble apex Court in landmark judgments in the case of Vinny Paramvir Parmar vs. Paramvir Parmar, AIR 2011 SC 2748 . Hon’ble apex Court in a catena of decisions has dealt with Section 25 of the Hindu Marriage Act pertaining to permanent alimony and maintenance. The guidelines propounded by the Hon’ble apex Court in landmark judgments in the case of Vinny Paramvir Parmar vs. Paramvir Parmar, AIR 2011 SC 2748 . Paragraph-12 of the said judgment held as follows: “12. As per Section 25, while considering the claim for permanent alimony and maintenance of either spouse, the husband’s own income and other property, and the income and other property of the applicant are all relevant material in addition to the conduct of the parties and other circumstances of the case. 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 considering her status and mode of life she 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.” 8. In the case of U. Sree vs. U. Srinivas, AIR 2013 SC 415 , the Hon’ble Supreme Court has determined the permanent alimony taking into consideration the status of the husband and social strata to which both the parties belonged. Hon’ble apex Court has held that no arithmetical formal can be adopted but the alimony would depend on status of parties, their social needs, financial capacity of husband and other issues and the court has to ensure that the wife lives not luxuriously but with dignity with comfort. Hon’ble apex Court has held that no arithmetical formal can be adopted but the alimony would depend on status of parties, their social needs, financial capacity of husband and other issues and the court has to ensure that the wife lives not luxuriously but with dignity with comfort. Therefore the quantum is to be fixed considering the status and strata to which the husband and the wife belong. 9. So far as the basis of the claim for permanent alimony of the appellant is concerned, the appellant in the proceeding before the learned Judge, Family Court, Bhubaneswar has submitted that the respondent being a practicing advocate of the Berhampur Bar Association, has been earning Rs.50,000/- per month. He has also got a double storied building getting monthly income of Rs.10,000/-. The respondent has also got agricultural land and from that sources is getting Rs.1,00,000/- per annum and also getting interest from fixed deposits. The said assertion of the appellant has gone un-rebutted and doctrine of non-traverse applies in this case. 10. During course of argument, it has been stated at the Bar by the learned counsel for the appellant that the appellant being a hapless and helpless woman has been taking utmost care of her daughter and in the meantime she has got married for which more than 11 lakhs has been spent. Apart from that the appellant has to maintain herself and she has to bear all her future medical expenses. The conduct of the respondent has put the appellant in a state of destitute. 11. The appellant at the time of filing of the MATA was 51 years and the life expectancy of a female being 70 years minimum, we feel it appropriate to enhance the monthly permanent alimony to Rs.5,000/- (rupees five thousand) per month and taking into consideration compounding the same for 19 years, the whole permanent alimony comes to around about Rs.11,40,000/- (rupees eleven lakh forty thousand) without deduction of any amount which has already been paid to the appellant wife under the direction of different courts in the meantime. The amount of permanent alimony will be paid to the appellant wife within a period of six months in three equal installments. First installment falling on 31st January 2015, second installment on 31st March 2015 and the last installment shall be paid by 31st May 2015. The amount of permanent alimony will be paid to the appellant wife within a period of six months in three equal installments. First installment falling on 31st January 2015, second installment on 31st March 2015 and the last installment shall be paid by 31st May 2015. On failure of payment of aforesaid installments in time, the amount shall carry 7% interest per annum and the appellant will be free to take recourse to law for its realization. With the aforesaid direction, we allow the MATA No. 93 of 2012 but there shall be no order as to cost.