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2016 DIGILAW 575 (ORI)

PREETI DAS v. NARASING SAHOO

2016-07-28

B.RATH, VINOD PRASAD

body2016
JUDGMENT : Biswanath Rath, J. - This Matrimonial Appeal has been filed under Section 19 of the Family Court Act, 1984 at the instance of the appellants herein-respondents in the Court below assailing the unreasonable grant of Rs. 3,00,000/- (Rupees Three lakhs) as permanent alimony in allowing an application for divorce at the instance of the husband (present respondent). 2. Undisputed facts in short are that the marriage between the appellant no. 1, the wife and respondent, the husband was solemnized on 27.04.2011 at Sidhartha Nagar, Berhampur according to Hindu rites and customs in the house of appellant No. 2, the father of appellant no. 1. After solemnization of marriage, the spouse came to the quarters of the respondent on 29.04.2011. It was alleged by the husband-respondent in the court below that he sensed something unusual and very abnormal in the behaviour of his wife-appellant no. 1, resulting there is no intercourse for the non-cooperation and unwillingness from the side of appellant no. 1. Despite several attempts by the husband-respondent, she behaved in most erratic manner resulting both the spouses spending several sleepless nights. For the untoward behaviour of the appellant no. 1, the respondent alleged to have suffered from mental agony and could not disclose his state of mind before anybody. While the matter stood as such, on 18.5.2011 when the appellant no. 1 was sitting in the quarters of the husband-petitioner, she suddenly fell down, trembled, became unconscious with convulsion of fluid from her mouth. Her both hands and legs became stiff and vigorously shaking, her teeth got locked, eyes looked unusual, her face turned right side and all these continued for about 15 to 20 minutes. On enquiry, the wife herself disclosed that she has been suffering from some mental disorder since 2009 and she is taking medicine regularly being prescribed by Dr. C. Rajesh Reddy of Apollo Hospital, Hyderabad. An attempt was made by the husband-respondent to ascertain the fact from the father-appellant no. 2. The appellant no. 2 instead of replying, scolded the petitioner and gave threatening. The respondent further submitted that the appellant no. 1 as well as appellant no. 2 have suppressed this fact from him prior to the marriage. The matter went to such an extent that the appellant no. 2. The appellant no. 2 instead of replying, scolded the petitioner and gave threatening. The respondent further submitted that the appellant no. 1 as well as appellant no. 2 have suppressed this fact from him prior to the marriage. The matter went to such an extent that the appellant no. 1 did not sleep in the night and apprehending danger to her life resulting the respondent was forced not to sleep entire night. On 30.5.2011 the appellant no. 2 came to the house of the respondent and suggested the respondent to shift his daughter to Apollo Hospital for immediate treatment. Dr. C. Rajesh Reddy was consulted on 02.6.2011 and on examination of the appellant no. 1 and after perusal of previous medical papers since 2009, advised her to continue those medicines regularly. It was further alleged by the respondent that not only the appellant no. 1 but also her family members threatened the respondent to put him in trouble and threatened with dire consequences. Suddenly and unexpectedly the wife-appellant no. 1 in presence of her parents started assaulting the husband-respondent. Meanwhile, on 05.6.2011, the appellant no. 2 lodged a report against the respondent at Mahila Police Station, Berhampur. The O.I.C of the Police blindly favouring the appellant no. 1, detained the respondent in the Police station till 6 P.M and at the end directed the respondent to take his wife with him. While the matter stood thus, on 06.6.2011, the respondent, the appellants and one Pankaj, all came in a car to the quarter of the respondent situates at Berhampur Colony where they all entered into hectic arguments with the respondent and they repeatedly gave threatening to put them behind bar unless they would pull on well and tolerate the conduct of appellant no. 1 and after giving warnings, the brother and father of the appellant no.1 left for Berhampur. Immediately after such incident, appellant no. 1 again entered into quarrels with the family members of the respondent. She remained at Talcher till 1.30 p.m. on 29.6.2011 in between which time she again created some problems and went on insulting the respondent and his parents with constant threatening that unless they tolerate her, she would put an end to her life by committing suicide. Appellant no. 1 all through kept herself aloof and did not do even the household works. On 29.6.2011 at 1.20 p.m., parents of the appellant no. Appellant no. 1 all through kept herself aloof and did not do even the household works. On 29.6.2011 at 1.20 p.m., parents of the appellant no. 1 reached the house of the respondent and took away the appellant no. 1 with them and since then she was residing at Berhampur. The respondent thus submitted that both the spouse stayed together for a period of maximum 45 days. The entire period passed with quarrel and behaviour from her side was most abnormal. The respondent further alleged that apart from the bad behaviour, the appellant no. 1 was also suffering from mental disorder/epilepsy since long and the fact being suppressed from the respondent all through. Thus, on the premises indicated here in above and finding no possibility of maintenance of conjugal right, the respondent filed the matrimonial case seeking decree for dissolution of marriage thereby granting decree of divorce on the ground of mental and physical cruelty. Being noticed, the present appellants appeared in the matter and by denying each and every allegations at the instance of the respondent, in a joint written statement, the appellant no. 2 very categorically disclosed regarding epilepsy disorder tendency with the appellant no. 1 and contended that it was within the control at the relevant point of time because of regular medication and medicine was required to continue. The written statement further disclosed the fact that the appellant no. 1 was under the treatment of Doctor C. Rajesh Reddy of Apollo Hospital, Hyderabad and that the appellant no. 1 can lead a happy marriage life were all within the knowledge of the respondent. It was next contended that the marriage was solemnized with due information of the previous ailment with the appellant no. 1. In the marriage, not only the appellants side fulfilled all the demand from the side of the respondent, they have even met with all expenses on account of hotel bills for deluxe rooms, fooding for the guests of respondent, band parties, hire charges of car, flower decoration of the car, as demanded by the respondent and his family members. The allegation that the appellant no.1 did not cooperate the respondent on the 4th night was submitted to be false and concoctive. The appellant no. 1, on the other hand, alleged that incidents alleged to have happened was due to non-cooperation of the respondent. The appellant no. The allegation that the appellant no.1 did not cooperate the respondent on the 4th night was submitted to be false and concoctive. The appellant no. 1, on the other hand, alleged that incidents alleged to have happened was due to non-cooperation of the respondent. The appellant no. 1 specifically alleged that the respondent is rather medically unfit to maintain a conjugal life and remaining busy to see blue pictures in the bed room. The appellant no. 1 also alleged that the weakness of the respondent was well within the knowledge of his parents and for this reason, only marriage of the respondent got delayed. The respondent side used to be misbehaved by in laws. The respondent side even got annoyed in the matter of transferring a sum of Rs. 10,00,000/- (Rupees ten lakhs) from appellant no. 1?s account to the account of respondent resulting which, his family members did not allow her to enter into her bed room. They even retained forcibly her wearing apparels as well as medicines, she used to take regularly. She was not even provided food for two days putting pressure on her for transfer of the amount to the respondent?s account. Respondent visited with Appellant no. 1 to Hyderabad, met with the Doctor and on this occasion the Doctor had a clear advice to continue with the medicines in time so that there may not be any problem to lead the conjugal life in the presence of the respondent. Appellant no. 1 further alleged that the respondent was an impotent person and having no sexual ability got married with the appellant no. 1 in spite of his weakness and therefore, the respondent rather cheated the appellant no. 1. On 6.6.2011 the respondent came along with appellant no. 1 to Talcher and gave an undertaking to Police assuring to take care of the appellant no. 1. Consequently, both of them stayed together till 29.6.2011 on which date she was forcibly driven out from their house. While submitting as above, appellants prayed for dismissal of the suit along with a prayer for grant of maintenance of at least Rs. 15,000/- (Rupees fifteen thousand) per month in favour of the appellant no. 1 along with a sum of Rs. 50,000/- (Rupees fifty thousand) as litigation expenses. 3. To substantiate their pleadings, the parties led evidence by producing appellant no. 1 and the respondent as witnesses from their side. 15,000/- (Rupees fifteen thousand) per month in favour of the appellant no. 1 along with a sum of Rs. 50,000/- (Rupees fifty thousand) as litigation expenses. 3. To substantiate their pleadings, the parties led evidence by producing appellant no. 1 and the respondent as witnesses from their side. This apart, both the parties also exhibited documents vide Ext.1 to Ext.3 and Ext. A to Ext. E/7 respectively. Considering the rival contentions of the parties and after going through the evidence and materials available on record, the learned Judge, Family Court, Berhampur, district Ganjam while allowing the petition for decree of divorce against the appellant no. 1 subject to however deposit a sum of Rs. 3,00,000/- (Rupees three lakhs in favour of the appellant no.1 within a period of two months hence. 4. Assailing the judgment and decree passed in the Civil Proceeding No. 124 of 2013, the present appellants (respondents in the court below) submitted that the direction of the court below to the present respondent to pay a sum of Rs. 3,00,000/- (Rupees three lakhs) to the appellant no. 1 towards permanent alimony is illegal bereft of information available vide Ext.3. The quantum of permanent alimony decided by the family court is highly at a lower side and looking to the information with regard to income of the husband, she should have been provided with due permanent alimony. The appellants also alleged that even though the appellants had prayed for interim maintenance or litigation expenses, but the Family Court has not granted either any interim maintenance of litigation expenses all through the proceeding. The appellants in paragraph-D of the appeal memo made a categoric claim that in view of the strange relationship between the parties, they do not challenge the decree of divorce. In the above premises and based on the documents vide Ext.3, the appellants sought for reversal of the judgment and decree passed by the Family Court so far it relates to grant of permanent alimony and prayed for a sum of Rs. 45,00,000/- (Rupees forty five lakhs) towards permanent alimony along with future monthly maintenance at the rate of Rs. 30,000/- (Rupees thirty thousand) per month from the date of filing of the Civil Proceeding i.e. 28.12.2011 till disposal of the MATA. 5. 45,00,000/- (Rupees forty five lakhs) towards permanent alimony along with future monthly maintenance at the rate of Rs. 30,000/- (Rupees thirty thousand) per month from the date of filing of the Civil Proceeding i.e. 28.12.2011 till disposal of the MATA. 5. Learned counsel appearing for the husband on the other hand justifying the judgment and decree passed in the matrimonial proceeding, contended that the Family Court has granted just alimony in favour of the wife. There is no scope for interfering in the impugned judgment and decree and consequently prayed for dismissal of the matrimonial appeal. 6. Scanning of the order-sheet, it is found that the attempt for reunion of the spouses by the court was impossibility for both the parties showing no interest. Under the compelling situation, this Court by order dated 19.1.2016 determine to consider the quantum of alimony only. Consequently, this Court now proceed to determine the quantum of alimony only. 7. Scanning of the matrimonial appeal, this Court finds that memorandum of the appeal is wholly silent on the aspect of employment and the earning of the respondent. But scan of the written statement at the instance of the appellants, this Court finds the appellants have taken averments in paragraph- 41 that they are in requirement of a sum of Rs. 15,000/- (Rupees fifteen thousand) as maintenance per month apart from litigation expenses of Rs. 50,000/- (Rupees fifty thousand). Scanning the evidence of P.W.1 in the cross examination side, in paragraph-36, the respondent had a clear statement of getting Rs. 36,000/- (Rupees thirty six thousand) per month as gross salary. Scanning of evidence of D.W.1, the appellant no. 1, in paragraph-35 of the chief she has categorically stated that the respondent is not only a rich man drawing a very handsome salary of about Rs. 60,000/- (Rupees sixty thousand) but also has got two valuable household plots in Bhubaneswar at Khandagiri and Argul worth more than 50,00,000/- (Rupees fifty lakhs). This apart, the appellant no. 1 also made a categoric statement that the respondent?s father is also a well bodied man having good income. From the lower court record, this Court finds that in order to establish the income of the respondent, the appellants have filed the pay particulars of respondent which they obtained through Right to Information Act and marked as Ext.3. Perusal of Ext.3 discloses that the respondent had earned taxable salary Rs. From the lower court record, this Court finds that in order to establish the income of the respondent, the appellants have filed the pay particulars of respondent which they obtained through Right to Information Act and marked as Ext.3. Perusal of Ext.3 discloses that the respondent had earned taxable salary Rs. 5,15,237.11 paise in the financial year, 2011-12 with a savings of Rs. 1,42,012.00 paise in the same year. Similarly, his taxable salary in the financial year, 2012-13 remained at Rs. 8,02,258.03 paise with a savings of Rs. 1,50,386/- in the same year and in the financial year 2013-14, the respondent by October, 2013 had also earned Rs. 4,88,073.24 paise. From the above, it is not only clear that the respondent is an employee of Central Government Public Sector undertaking, namely, Mahanadi Coalfields Limited but also as on October, 2013, he was in the scale of monthly basic at Rs. 30,037,12 paise along with several other benefits as indicated in Ext.3. Ext.3 also discloses the gross salary of the respondent in October, 2013 payable as Rs. 55,168.57paise and net salary remaining at Rs. 43,480/-. Considering the receivables of the respondent even accepting for the time being, the net salary of the respondent at Rs. 43,480/- in October, 2013, there is no doubt that the husband-respondent is leading a comfortable life. 8. In the case of U. Sree v. U. Srinivas, reported in AIR 2013 SC 415 , it was held by the Apex Court that it is the 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 and should be obstructed from facing any man-made misfortune. In the case of Vinny Parmvir Parmar v. Parmvir Parmar, reported in AIR 2011 SC 2748 , the Apex Court in paragraph 12 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. 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 flexed 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 of permanent alimony". 9. Considering the fact that the husband is responsible for maintaining his wife by obtaining decree of divorce and further considering the economic status of the parties, particularly keeping in view that the wife remain unemployed and having no property to her pocket, their respective needs, the capacity of the husband to pay and further looking to the mode of calculation in the long list of Apex Court decision as well as of this Court, this Court feels it appropriate to grant at least ?th of the gross salary of the respondent in October, 2013 totalling at Rs. 55.168.57/-, 25% of which comes to roundabout at Rs. 13,000/- (Rupees thirteen thousand) per month. Considering the age of the wife hardly 35 years by this time and applying at least 16 years multiplying factor, this Court feels to grant at least Rs. 25,00,000/- (Rupees twenty five lakhs) as permanent alimony in favour of the appellant no. 55.168.57/-, 25% of which comes to roundabout at Rs. 13,000/- (Rupees thirteen thousand) per month. Considering the age of the wife hardly 35 years by this time and applying at least 16 years multiplying factor, this Court feels to grant at least Rs. 25,00,000/- (Rupees twenty five lakhs) as permanent alimony in favour of the appellant no. 1 at least to maintain a normal life all through. This Court also looking to the suffering of the appellant no. 1 in her facing litigation after litigation for no fault of her also grants a sum of Rs. 25,000/- (Rupees twenty five thousand) as litigation expenses in favour of the appellant no. 1. 10. Under the circumstances, this Court while maintaining the decree of divorce granted by the learned Judge, Family Court, Berhampur in Civil Proceeding No. 124 of 2013 for reason of recorded disagreement of the parties but modifies the grant of alimony at Rs. 3,00,000/- (Rupees three lakhs) by enhancing the same to Rs. 25,00,000/- (Twenty five lakhs) to be paid to the appellant no. 1 by the respondent within a period of two months along with a sum of Rs. 25,000/- (Rupees twenty five thousand) towards litigation expenses in favour of the appellant no. 1 which is also to be paid within the same time. 11. In the result, the appeal succeeds. However, there is no order as to cost but with the litigation expenses as awarded here in above. Vinod Prasad, J. - I agree. Final Result : Allowed