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2015 DIGILAW 298 (ORI)

Girija Shankar Satpathy v. Usharani Mishra

2015-05-01

B.K.NAYAK

body2015
JUDGMENT B.K. NAYAK, J. - Judgment dated 30th November,2011 passed by the Civil Judge (Senior Division), Phulbani in C.S. No. 13 of 2010, insofar as it relates to grant of permanent alimony of Rs. 5,00,000/- (rupees five lakh) and a further direction for payment of Rs. 2,00,000/- (rupees two lakh) towards ornaments, dowry articles and other household things etc to the plaintiff-respondent, is challenged in this appeal. 2. Undisputedly marriage between the parties was solemnized on 08.07.2007 according to the Hindu caste and custom. It is stated in the plaint that as per the demand of the appellant and his family members a cash of Rs. 2,00,000/- (rupees two lakh) was paid by the father of the respondent apart from10 bharis of gold ornaments, 20 bharis of silver ornaments, one Godrej Almirah, Colour T.V., Dressing Table, Sofa set, Refrigerator, cot and silk sari and other household articles worth of Rs. 4,00,000/-(rupees four lakh). Admittedly the parties separated soon after the marriage though there is a dispute with regard to date of separation. On separation, the respondent came and resided in her father’s house. The respondent filed the suit for dissolution of marriage on ground of cruelty and for return of the dowry articles and the cash given by her father at the time of marriage. There was no prayer for permanent alimony either in the plaint or by way of independent application. 3. During trial the parties led evidence, on consideration of which the trial Court by the impugned judgment dissolved the marriage between the parties and directed for payment of Rs. 5,00,000/- (Rupees two lakh) as permanent alimony and further amount of Rs. 2, 00,000/- (Rupees Two Lakhs) towards dowry articles, ornaments and other household articles by the appellant to the respondent. 4. During the pendency of this appeal Misc. Case No. 25 of 2015 has been filed by the appellant under Order-41, Rule-27 of the C.P.C. for acceptance of additional evidence to the effect that the respondent has been serving under the CESU as a Clerk with gross salary of Rs. 19,335/- and that in the meantime, after the decree of divorce, she has remarried on 4th June, 2014. Annexure-1/1 series are the informatins(4 sheets) supplied by the CESU to the appellant under RTI with regard to service particulars of the respondent. Annexure-1/2 series is the invitation card with regard to the remarriage of the respondent. 19,335/- and that in the meantime, after the decree of divorce, she has remarried on 4th June, 2014. Annexure-1/1 series are the informatins(4 sheets) supplied by the CESU to the appellant under RTI with regard to service particulars of the respondent. Annexure-1/2 series is the invitation card with regard to the remarriage of the respondent. No objection to the petition is filed. Rather the learned counsel for the respondent has admitted the correctness of the documents vide Annexure-1/1 series and 1/2 series. Therefore, the petition for additional evidence is allowed and the Annexure-1/1 series (4 sheets) are marked as Exts. B,C,D & E and A-1/2 is marked as Ext-F, for the defendant-appellant. 5. Without challenging the decree of divorce, learned counselfor the appellant only assails the order of the Trial Court for payment of Rs. 5,00,000/- (rupees five lakhs) as permanent alimony and Rs. 2,00,000/-(rupees two lakh) towards dowry and other articles. It is submitted by the learned counsel for the appellant that there was no prayer for alimony by the respondent and further that there is no acceptable evidence with regard to giving of any dowry by the father of the respondent. It further submitted that the respondent in her won statement admitted that she was working as Probationary Officer in the ICICI Bank and earned gross salary of Rs. 18,000/- and now working under the CESU and that the appellant was a Clerk in the Post Office having old ailing parents to look after and therefore, the respondent was not entitled to any alimony at all. He also submits that in view of the un-controverted additional evidence that respondent has now been working as a Clerk under CESU and drawing gross salary of Rs. 19,000/- and that in the meantime, after the decree of divorce, she has re-married, she is not entitled to any maintenance and a further sum of Rs. 2,00,000/- (rupees two lakh) towards dowry and ornaments. The Trial Court has not at all considered the evidence with regard to the income and liability of the parties. 6. Learned counsel for the respondent on the other hand submits that there is sufficient evidence, particularly that of P.W.3, the paternal uncle of the respondent, about giving of dowry and cash of Rs. 2,00,000/-. The Trial Court has not at all considered the evidence with regard to the income and liability of the parties. 6. Learned counsel for the respondent on the other hand submits that there is sufficient evidence, particularly that of P.W.3, the paternal uncle of the respondent, about giving of dowry and cash of Rs. 2,00,000/-. With regard to the direction about payment of permanent alimony it is submitted that even if no prayer was made the Court below was in its jurisdiction to grant such alimony and that keeping in view the present day cost of living and the status and position of the parties, grant of Rs. 5,00,000/- (rupees five lakh) as permanent alimony is not exorbitant. 7. Section-25 of the Hindu Marriage Act makes provision for grant of permanent alimony and maintenance which is as follows:- “25. 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 maybe, 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 or 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] “ It is seen that as per Sub -section-(1) of Section 25 maintenance can be granted by either party to the other keeping in view the income of the parties concerned and their liabilities their conduct and other circumstances. Sub-section-(2) speaks about variation, modification or rescinding of order of maintenance by the Court on being satisfied about change of circumstances by the parties. Sub-section-(3), apart from other things, also provides for rescinding of the order of maintenance on the remarriage of the party in whose favour maintenance order has been passed. 8. With regard to the question of alimony, it is seen that the respondent being examined as P.W.1 stated that she was working as P.O. in the ICICI Bank on the date of her evidence. N cross examination, she has stated that her gross income was more than eighteen thousand per month. It also transpires from the documents Ext. –B,C,D & E that she is working under CESU having a gross monthly income of Rs. 19,335/- (rupees nineteen thousand three hundred thirty five . Uncontroverted evidence of the appellant-defendant with regard to his salary is that he draws a gross monthly salary of Rs. 22,000/-. It also transpires from his evidence that he has old ailing parents who are dependent on him. Keeping in view the aforesaid position, I am of the view that the respondent is not entitled to any maintenance from the appellant. Accordingly, the direction of the Court below granting a lump sum maintenance of Rs. 5,00,000/- (rupees five lakh) in favour of the respondent is set aside. 9. It is stated in the plaint that as demanded by the defendant and his family members a cash of Rs. 2,00,000/- (rupees two lakh) was paid to them by the father of the respondent. There is no pleading as to when and where and to whom such payment was made. 9. It is stated in the plaint that as demanded by the defendant and his family members a cash of Rs. 2,00,000/- (rupees two lakh) was paid to them by the father of the respondent. There is no pleading as to when and where and to whom such payment was made. It is also stated that in addition to the above Rs. 2,00,000/- (rupees tow lakhs), gold ornaments of 10 bharis, silver ornaments of 20 bharis, Godrej Almirah, Colour T.V., Refrigerator, cot etc. were given. With regard to T.V., Refrigerator, etc no brand name or description or value has bene furnished. In the written statement and evidence of the respondent demand and receipt of Rs. 2,00,000/-(rupees two lakh) and other articles have been denied. P.W.2 is the father of the respondent who had allegedly given the cash and the other dowry articles. Except stating in Para-2 of his evidence that he gave sufficient dowry, he has not whispered a word about payment to the appellant by him of Rs. 2,00,000/- (rupees two lakh). On the contrary, in his cross examination he has stated that though giving of dowry is illegal, he had given all those articles as required by his daughter, the respondent. This statement makes it amply clear that nothing was given to the appellant and that whatever was given it was given for the respondent. There is neither any pleading nor proof that the articles or ornaments given to the respondent by her father have been illegally retained by the appellant or his family members. P.W.3 who is the brother of P.W.2 states that a cash of Rs. 2,00,000/- (rupees two lakh), 10 bharis of gold ornaments, and other articles were given by way of dowry, but in his cross examination the admitted lack of his personal knowledge about from which shop articles were purchased. On the failure of P.W.2, who had allegedly given the cash and other articles, to say about such payment and giving, the evidence of P.W.3 is of no value at all. In the aforesaid circumstance, the direction of the Trial Court for payment of Rs. 2,00,000/- (rupees two lakh) to the respondent by the appellant towards dowry articles is erroneous and unsustainable. Accordingly the appeal is allowed and the judgment and decree of the Trial Court in so far as it relates to direction for payment of permanent alimony of Rs. In the aforesaid circumstance, the direction of the Trial Court for payment of Rs. 2,00,000/- (rupees two lakh) to the respondent by the appellant towards dowry articles is erroneous and unsustainable. Accordingly the appeal is allowed and the judgment and decree of the Trial Court in so far as it relates to direction for payment of permanent alimony of Rs. 5,00,000/- (rupees five lakh) and an additional amount of Rs. 2,00,000/-(rupees two lakh) by the appellant, is set aside. Appeal allowed.