Research › Search › Judgment

Orissa High Court · body

2015 DIGILAW 418 (ORI)

PRAVAT RANJAN MOHANTY v. RUKMAYANEE MANGARAJ

2015-07-14

S.K.SAHOO, VINOD PRASAD

body2015
JUDGMENT : S.K. Sahoo, J. "Chains do not hold a marriage together. It is threads, hundreds of tiny threads which sew people together through the years." - Simone Signoret 1. MATA No. 84 of 2013 is an appeal preferred by Pravat Ranjan Mohanty (hereafter 'the respondent-husband') under section 19(1) of the Family Courts Act, 1984 read with section 28 of Hindu Marriage Act, 1955 challenging the impugned judgment and order dated 12.7.2013 of the learned Judge, Family Court, Bhubaneswar passed in Civil Proceeding No. 360 of 2010 in allowing the petition filed by Rukmayanee Mangaraj (hereafter 'the petitioner-wife') under section 13(1) of Hindu Marriage Act, 1955 for divorce and passing a decree of divorce and dissolving the marriage between the petitioner-wife and the respondent-husband with effect from the date of decree and further directing the respondent-husband to pay a sum of Rs. 4,00,000/- (rupees four lakhs) to the petitioner-wife within two months of the order towards her permanent alimony. 2. MATA No. 91 of 2013 is an appeal preferred by the petitioner-wife challenging the quantum of permanent alimony fixed by the learned Judge, Family Court, Bhubaneswar in the aforesaid impugned judgment and order dated 12.07.2013 passed in Civil Proceeding No. 360 of 2010 and seeking for enhancement of the permanent alimony to Rs. 10,00,000/- (rupees ten lakhs). 3. The petitioner-wife filed the divorce petition before the learned Civil Judge, Senior Division, Bhubaneswar on 3.9.2010 against the respondent-husband which was registered as MAT C.S. No. 1525 of 2010 which was subsequently transferred to the learned Judge, Family Court, Bhubaneswar and it was reregistered as Civil Proceeding No. 360 of 2010. It is the case of the petitioner-wife that she married the respondent-husband on 26.06.2009 in Maa Gouri Mandap, Ravi Talkies, Bhubaneswar as per Hindu rites and customs and the marriage was solemnized in the house of the respondent-husband situated at Plot No. 7, Suryanagar, Bhubaneswar. At the time of negotiation, the family members of the respondent-husband impressed upon the petitioner-wife that the respondent-husband was doing business and he was having a decent income and two of his brothers were working in the Public Sector Undertakings and the family was very financially sound. It is the further case of the petitioner-wife that after marriage when she reached at her in-laws' house on 27.6.2009, her in-laws family members showed indifferent and apathetic behaviour. It is the further case of the petitioner-wife that after marriage when she reached at her in-laws' house on 27.6.2009, her in-laws family members showed indifferent and apathetic behaviour. During mid-night on that day, the respondent-husband came in a drunken manner and tried to sexually assault the petitioner-wife in a very inhuman manner. The respondent-husband was also smoking cigarette and chewing gutka while doing sex. The petitioner-wife requested the respondent-husband not to smoke and to behave properly but her request did not yield any result. It is the further case of the petitioner-wife that on the fourth night i.e. on 28.06.2009 the respondent-husband came to the bedroom and abused her in filthy language and demanded Rs. 3,00,000/- within a fortnight from her parents. The respondent-husband also kept physical relation with the petitioner-wife against her will. On 29.6.2009 the respondent-husband kicked the petitioner-wife and pulled her by hair forcing her to bring a cup of tea for him. The petitioner-wife narrated the torture on her by her husband before her mother-in-law but unfortunately without showing any sympathy, her mother-in-law scolded her and warned of more torture if she would fail to bring Rs. 3,00,000/- from her father. On the day of reception i.e. on 3.7.2009 the petitioner-wife was suffering from high fever and she requested her husband to get some medicine for her but the respondent-husband again misbehaved with her and shouted at her saying that he was not her servant. The respondent-husband continued to torture the petitioner-wife physically and mentally and even gone to the extent of burning her skin with a lighted cigarette on the sixth day of marriage. The parents of the petitioner-wife had given the household articles, gift items and gold worth of more than Rs. 3,00,000/- at the time of marriage. The respondent-husband was also causing sexual harassment to the petitioner-wife and the parents-in-laws of the petitioner-wife even though were aware about such torture but they were not preventing their son from torturing the daughter-in-law. The cruel abnormal behavior of the respondent-husband made the life of the petitioner-wife virtually hell due to repeated demand of dowry and physical and mental torture for which the petitioner-wife was compelled to leave her matrimonial home bring apprehensive of her life. The cruel abnormal behavior of the respondent-husband made the life of the petitioner-wife virtually hell due to repeated demand of dowry and physical and mental torture for which the petitioner-wife was compelled to leave her matrimonial home bring apprehensive of her life. It is the further case of the petitioner-wife that on 6.7.2009 her brother and sister came to her matrimonial house and requested her in-laws' family members that it was not possible to arrange Rs. 3,00,000/-. The respondent-husband shouted at the petitioner-wife as well as her brother and sister and stated that the petitioner-wife would not be allowed to live in the matrimonial home unless demand was fulfilled. Finding no other option, the petitioner-wife was compelled to leave her in-laws' house. Thereafter even though the petitioner-wife made repeated telephone calls and requested her husband to sort out the dispute but the respondent-husband clearly told that she would only be accepted after fulfillment of the demand of Rs. 3,00,000/-. It is the further case of the petitioner-wife that on 13.2.2010 i.e. the day following Sivaratri, she came to the house of her husband with her brother with a lot of hope of reunion but her in-laws family members did not allow her to stay in the matrimonial house for which she returned back to her parents' place in a state of shock and disbelief. Though the petitioner-wife tried her level best to compromise the dispute but the respondent-husband and his family members were not interested to take her back rather interested for the decree of divorce. On 25.07.2010 the brother of the petitioner-wife came to the house of the respondent-husband as per the suggestion of the elder brother of the husband and received back the personal belongings of the petitioner-wife. It was agreed upon that a dissolution of marriage on mutual consent shall be filed on 28.7.2010 but before signing the petition, the respondent-husband had to hand over a bank draft of Rs. 4,00,000/- to the petitioner-wife towards permanent alimony. However the respondent-husband backed out and thereafter the husband's side did not try to settle the matter in spite of the persuasion of the petitioner-wife. It is the further case of the petitioner-wife that she had no independent source of income and she was leading a miserable life and no financial support had been provided by the respondent-husband. However the respondent-husband backed out and thereafter the husband's side did not try to settle the matter in spite of the persuasion of the petitioner-wife. It is the further case of the petitioner-wife that she had no independent source of income and she was leading a miserable life and no financial support had been provided by the respondent-husband. It is further stated that the marriage between the respondent-husband and petitioner-wife had been broken down irretrievably and therefore a prayer was made for the decree of divorce. 4. The respondent-husband appeared in the case and filed his written statement denying the averments made in the petition for divorce. It is stated that though the respondent-husband was doing a decent business of seeding and coffee plantation but due to naxal/maoist movement, his business was badly affected. It is further stated that the petitioner-wife behaved very roughly on the fourth night and her indifferent attitude towards the respondent-husband and his family members caused serious mental trauma. It is further stated that on 5.7.2009 the brother, sister and sister-in-law of the petitioner-wife came to the house of the respondent-husband to take her for visiting her paternal uncle (father's elder brother) who was suffering from cardiac problem and on that day she took all her ornaments with her which she had brought from her parents' house as well as the gifts which she had received from the side of her husband. It is further stated that the respondent-husband tried to contact the petitioner-wife on several occasions for negotiation but she avoided. It is the further case of the respondent-husband that the petitioner-wife was working in a private company and earning handsome salary and she was not dependant on her parents as alleged by her. 5. The learned Judge, Family Court, Bhubaneswar framed the following issues:-- "(i) Whether the respondent treated the petitioner with cruelty? (ii) Whether the petitioner is entitled to the relief of dissolution of marriage as sought for in the plaint? (iii) Whether the petitioner is entitled to get permanent alimony or monthly maintenance from the respondent?" 6. During hearing of the case before the learned Family Court, the petitioner-wife examined herself as P.W.1 and the respondent-husband examined himself as R.W.1. 7. (ii) Whether the petitioner is entitled to the relief of dissolution of marriage as sought for in the plaint? (iii) Whether the petitioner is entitled to get permanent alimony or monthly maintenance from the respondent?" 6. During hearing of the case before the learned Family Court, the petitioner-wife examined herself as P.W.1 and the respondent-husband examined himself as R.W.1. 7. The learned Judge, Family Court vide impugned judgment and order dated 12.7.2013 while answering issue No. (i) came to hold that the respondent-husband mal treated and ill treated the petitioner-wife for non-payment of further dowry for which she was constrained to leave the marital home. The respondent-husband withdrew himself from the society of the petitioner-wife demanding further dowry and tortured her. The torture on the petitioner-wife was not solitary and occasional. There is overwhelming evidence that the respondent-husband subjected the petitioner-wife to physical and mental torture frequently for non-payment of further dowry. The petitioner-wife proved that she was treated with cruelty frequently. So far as issue No. (ii) is concerned, the learned Judge, Family Court held that due to frequent physical and mental torture, the petitioner-wife suffered mental agony and it is apparent that the marriage between the parties had been broken down irretrievably and there was no chance of re-union and if both of them live together, it would be injurious and harmful for them. So far as issue No. (iii) is concerned, the learned Judge, Family Court held that the petitioner-wife had proved that the monthly income of the respondent-husband was Rs. 40,000/- and since the petitioner-wife is the legally married wife of the respondent-husband and she had no income of her own, the respondent-husband is bound to maintain her and the petitioner-wife is entitled to permanent alimony. The learned trial Judge further held that the quantum of permanent alimony is to be fixed considering the status of the parties, income of the respondent-husband and present price index and accordingly fixed the permanent alimony at Rs. 4 lakhs. 8. During pendency of the appeal before this Court, the appellant and the respondent along with their counsels appeared on 7.5.2014 and this Court appointed Dr. Ashok Kumar Mohapatra, learned Senior Advocate as Mediator to mediate the matter. Thereafter the matter was adjourned on number of occasions awaiting the report of the mediator. 4 lakhs. 8. During pendency of the appeal before this Court, the appellant and the respondent along with their counsels appeared on 7.5.2014 and this Court appointed Dr. Ashok Kumar Mohapatra, learned Senior Advocate as Mediator to mediate the matter. Thereafter the matter was adjourned on number of occasions awaiting the report of the mediator. Finally on 2.7.2015, it was informed at the Bar that due to non-appearance of the parties before the mediator, mediation could not take place. It was further intimated that re-conciliation between the parties is not possible. Both the learned counsels of the respective parties after taking instruction submitted before us that in view of the prevailing situation, they are not challenging the decree of divorce and the case may be adjudicated only the quantum of permanent alimony. 9. After going through the pleadings as well as evidence adduced before the learned trial Judge, we found that the learned trial Judge has rightly approached the case and came to a finding that the respondent-husband mal treated and ill treated the petitioner-wife in connection with further demand of dowry and tortured her both physically and mentally on frequent occasions for which the petitioner-wife was constrained to leave the matrimonial home. We are also of the view that from the materials available on records, the learned trial Judge has rightly came to the conclusion that the marriage between the parties had been broken down irretrievably and there was no chance of re-union. The learned counsels for the respective parties also did not challenge the decree of divorce as passed by the learned trial Judge in the impugned judgment and order dated 12.7.2013. Therefore, in our view, the conclusions arrived at by the learned trial Judge clearly rests on proper appreciation of facts and, hence, we concur with the same and hold that the petitioner-wife is entitled to a decree for divorce as rightly held by the trial Judge. Accordingly, the decree of divorce between the petitioner-wife and the respondent-husband and dissolution of their marriage as was passed by the learned Judge, Family Court, Bhubaneswar in Civil Proceeding No. 360 of 2010 is hereby affirmed. 10. Accordingly, the decree of divorce between the petitioner-wife and the respondent-husband and dissolution of their marriage as was passed by the learned Judge, Family Court, Bhubaneswar in Civil Proceeding No. 360 of 2010 is hereby affirmed. 10. Adverting to our attention to determine the quantum of permanent alimony, Section 25 of Hindu Marriage Act which deals with permanent alimony and maintenance encompasses within the expression 'Court exercising jurisdiction under the Act' 'at the time of passing any decree or at any time subsequent thereto', to grant alimony or maintenance in all kinds of decrees such as restitution of conjugal rights under section 9, judicial separation under section 10, declaring marriage as null and void under section 11, annulment of marriage as voidable under section 12 and divorce under section 13. As per the evidence of the petitioner-wife, she has no source of income and her old and ailing parents are not in a position to maintain her and she has no place of residence and therefore she has to reside in a rented house. She has further stated that the respondent-husband was doing his own control business and also getting about Rs. 30,000/- as his share from the house rent of his family house situated at Surya Nagar, Bhubaneswar and his monthly income was Rs. 40,000/-. The learned trial judge has assessed the income of the respondent-husband to be Rs. 40,000/-. Nothing has been brought out in the cross examination to controvert such statement nor has even any suggestion been given to her disputing such statement. Though the respondent-husband has stated that petitioner-wife was working in a private company and earning handsome salary but no documentary evidence has been produced in support of such statement. Thus in view of the unchallenged testimony of the petitioner-wife, we are of the view that the learned trial Judge has rightly held that the monthly income of the respondent-husband was Rs. 40,000/-. 11. During hearing of the case, the learned counsel for the respondent-husband while challenging the findings of the learned trial Judge regarding fixation of permanent alimony to be on the higher side tried to impress upon us by contending that his client is not in a position to pay an amount of Rs. 4,00,000/- to the petitioner-wife towards permanent alimony and in view of his financial stringency, the quantum be reduced to Rs. 2,00,000/-. 4,00,000/- to the petitioner-wife towards permanent alimony and in view of his financial stringency, the quantum be reduced to Rs. 2,00,000/-. The learned counsel for the petitioner-wife, per contra contended that it would be very much difficult on the part of his client to manage throughout the life with just Rs. 4,00,000/- and even if she keeps the said amount in fixed deposits, the interest which she would get might not be sufficient for her fooding, clothing, lodging, medical expenses and day to day necessities and accordingly urged that the quantum be enhanced to Rs. 10,000,00/-. 12. To determine amount of permanent alimony to be paid so that the entitled spouse lives a dignified life according to the standard of the other side is an upheaval and arduous task. Length of marriage, time since the spouses are living separately, age of the parties, relative income of both the spouses, financial prospects of the parties, health of the parties and fault in breaking down of the marriage are some of the factors which can be kept in mind while fixing the permanent alimony. In case of U. Sree Vs. U. Srinivas, AIR 2013 SC 415 : (2013) 116 CLT 35 : (2013) 1 CTC 113 : (2013) 1 DMC 91 : (2012) 12 JT 358 : (2013) 1 RCR(Civil) 883 : (2012) 12 SCALE 98 : (2013) 2 SCC 114 : (2013) AIRSCW 44, the Hon'ble Supreme Court held that it is 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. In case of Vinny Parmvir Parmar Vs. Parmvir Parmar, AIR 2011 SC 2748 : (2011) 2 DMC 754 : (2011) 7 JT 553 : (2011) 3 RCR(Civil) 900 : (2011) 7 SCALE 741 : (2011) 13 SCC 112 : (2011) 9 SCR 371 : (2011) AIRSCW 4340 : (2011) 5 Supreme 74 , it is held as follows:-- "12. In case of Vinny Parmvir Parmar Vs. Parmvir Parmar, AIR 2011 SC 2748 : (2011) 2 DMC 754 : (2011) 7 JT 553 : (2011) 3 RCR(Civil) 900 : (2011) 7 SCALE 741 : (2011) 13 SCC 112 : (2011) 9 SCR 371 : (2011) AIRSCW 4340 : (2011) 5 Supreme 74 , it is held as follows:-- "12. As per Section 25 of Hindu Marriage Act, while considering the claim for permanent alimony and maintenance of either spouse, the respondent'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." In case of Dipak Bash v. Smitarani Bash which both of us disposed of on 16.03.2015 in connection with MATA Nos. 14 and 26 of 2013, my esteemed brother Hon'ble Justice Vinod Prasad has held as follows:-- "19. Alimony is no alms. It is entitlement of a wife for a decent living. All relevant factors affecting fiscal expenses have to be considered. It is not the home take salary alone which is of significance. Capacity to earn and actual earning has also to be reckoned with. Alimony is no alms. It is entitlement of a wife for a decent living. All relevant factors affecting fiscal expenses have to be considered. It is not the home take salary alone which is of significance. Capacity to earn and actual earning has also to be reckoned with. Savings made by the husband for securing his future life is also significant and has to be counted while determining the amount of alimony. Wife does not require only two morsels a day but she requires a reasonable amount to meet all her basic needs for a life which she would have enjoyed had the marital tie would have continued. The amount of money received at the time of marriage has also to be counted. While fixing alimony, all essential future expenses of all kinds have to be considered. The contention that take home salary of the husband is the only relevant criterion is illogical and faulty. Wife's capacity to earn after separation is also a relevant factor to be kept in mind. Similarly the responsibility which the wife would have borne had the relationship continued is also a relevant aspect to be kept in mind. Residence, future possibility of maintaining oneself alone, clothing, fooding, biological requirements of a female and many further aspects are other significant points which have to be kept in mind.........While granting permanent alimony, no arithmetic formula can be adopted as there cannot be mathematical exactitude. It shall depend upon the social status of the parties, their respective social needs, the way of living of the spouse, the financial capacity of the husband and other obligations. It is 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. 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. 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." In case of Shamima Farooqui Vs. Shahid Khan(2015) 4 AD (SC) 301 : AIR 2015 SC 2025 : (2015) 2 AKR 758 : (2015) 90 ALLCC 43 : (2015) ALLMR(Cri) 2046 : (2015) 2 ALT(Cri) 419 : (2015) 2 BomCR(Cri) 289 : (2015) 2 CCR 205 : (2015) CriLJ 2551 : (2015) 2 Crimes 133 : (2015) 3 CTC 80 : (2015) 2 JCC 1285 : (2015) 2 JLJR 476 : (2015) 2 KLJ 202 : (2015) 4 LW 106 : (2015) 2 LW(Cri) 224 : (2015) 2 MLJ(Cri) 237 : (2015) 2 NCC 282 : (2015) 2 OLR 68 : (2015) 3 PLJR 58 : (2015) 178 PLR 696 : (2015) 2 RCR(Civil) 628 : (2015) 2 RCR(Criminal) 526 : (2015) 2 RLW 1769 : (2015) 4 SCALE 521 : (2015) 5 SCC 705 : (2015) 5 SCJ 342 , it is held as follows:-- "14.............A woman, who is constrained to leave the marital home, should not be allowed to feel that she has fallen from grace and move hither and thither arranging for sustenance. As per law, she is entitled to lead a life in the similar manner as she would have lived in the house of her husband. And that is where the status and strata of the husband comes into play and that is where the legal obligation of the husband becomes a prominent one." 13. Considering the economic status of the parties, their respective needs, the capacity of the husband to pay and taking note of the fact that the amount of permanent alimony fixed for the wife should be such that she can live in reasonable comfort and simultaneously it should not be excessive and affect the living condition of the husband and considering the young age of the wife and that she has to meet any kind of man-made misfortune in future, we are of the view that in the facts and circumstances of the case, a direction to the respondent-husband to pay Rs. 4 lakhs (Rupees four lakhs only) as one time alimony to the petitioner-wife as was fixed by the leaned trial Judge can be said to be quite reasonable in the ends of justice. 14. Accordingly, we affirm the decree of divorce granted by the Judge, Family Court, Bhubaneswar in Civil Proceeding No. 360 of 2010 dissolving the marriage between the parties namely petitioner-wife Rukmayanee Mangaraj and respondent-husband Pravat Ranjan Mohanty so also the quantum of Rs. 4,00,000/- (Rupees four lakhs only) as fixed by the learned trial Judge towards the permanent alimony. The respondent-husband Pravat Ranjan Mohanty shall pay to the petitioner-wife Rukmayanee Mangaraj Rs. 4,00,000/- (Rupees four lakhs only) as a lump sum amount of permanent alimony in addition to what he has already paid in different proceedings to the petitioner-wife, within a period of one month from the date of this judgment failing which the petitioner-wife shall be at liberty to realize the same from the respondent-husband through due process of law. The amount that has already been paid to the petitioner-wife towards maintenance is to be ignored as the same had been paid by virtue of the interim orders passed by the Courts and it is not expected that the petitioner-wife has sustained herself without spending the said money. 15. With the aforesaid observation and direction, both the MATA applications stand dismissed. No order as to costs. Vinod Prasad, J. I agree. Final Result : Dismissed