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2016 DIGILAW 578 (ORI)

BASANTI NAYAK v. BADRINARAYAN NAYAK

2016-07-28

B.RATH, VINOD PRASAD

body2016
JUDGMENT : Mr. Biswanath Rath, J. - Matrimonial Appeal No. 40 of 2009 is filed by the wife-appellant (petitioner in the court below) assailing the judgment and order dated 24.01.2009 passed by the Judge, Family Court, Rourkela in C.P.No. 197 of 2005, a proceeding under Section 13(I) (ia) and (ib) of the Hindu Marriage Act,1955 and in the Misc. Case No. 13 of 2008, a petition under Section 25 of the Hindu Marriage Act, whereby the court below while declaring the marriage between the parties dissolved on and from the date of the order, allowed the Misc. Case No. 13 of 2008 entitling the appellant-wife to get permanent alimony of Rs. 2,50,000/-(Two Lakhs Fifty Thousand) from the respondent No. 1-husband and the amount as awarded was directed to be paid to the appellant within two months with further direction that failure of which the appellant would be entitled to realise the same from the respondent No. 1 through process of the Court. This Appeal is confined to the order passed in the Misc. Case No. 13 of 2008 along with C.P. No. 197 of 2005 for enhancement of the quantum of permanent alimony awarded by the Judge, Family Court, Rourkela. 2. Similarly Matrimonial Appeal No. 48 of 2009 is at the instance of appellant-husband (Opp. party No. 1 in the court below) in assailing the order/judgment dated 24.01.2009 passed both in C.P.No. 197 of 2005 and Misc. Case No. 13 of 2008, prayed for dismissal of both the proceedings by this Court. During course of argument and for the developments taken in the meanwhile, this appellant who is also the respondent No. 1 in the M.A.T.A. No. 40 of 2009 confines his argument to the grant of permanent alimony on the ground of being excess. Respondent Nos. 2 and 3 are common in both the above appeals. 3. Looking to the common facts involved in both the Appeals, argument were confined to the quantum of alimony only and since both the Appeals can be decided by a common judgment, were heard them analogously and this common judgment is passed. 4. Short back ground of the factual aspect involved in the original case as laid down by the wife in the lower court, is that both the wife and husband being Hindus got married on 07.7.1991 according to Hindu Rites and Customs. 4. Short back ground of the factual aspect involved in the original case as laid down by the wife in the lower court, is that both the wife and husband being Hindus got married on 07.7.1991 according to Hindu Rites and Customs. Both the spouse led their marital life in the house of the husband. Respondent No. 2 in both the appeals is the sister-in-law being the brother?s wife of the husband and respondent No. 3 is the brother-in-law being the Bhinoi of the husband. The wife alleged that after marriage, all the three Opp. parties in the court below started to harass and ill-treat her physically and mentally in various ways by condemning that the dowry articles brought by the wife are all of low quality and they demanded further cash dowry of Rs. 5,000/-.It was further alleged by the wife that not only the husband had illicit relationship with respondent No. 2 in both the appeals but the respondent No. 2 was also even behaving with her as the actual wife of her husband. The wife claiming to be an eye witness of the cohabitation between her husband and respondent No. 2, alleged that on her protest on each occasion, she was assaulted by both the husband and respondent No. 2. The matter went to such an extent that on an occasion the respondent No. 3 with the connivance of husband attempted to rape her but by God?s grace, she narrowly escaped. The wife specifically alleged that on 09.8.1995 she saw her husband and respondent No.2 were having sexual intercourse during day time. Her protest resulted in a merciless and brutal assault causing her severe physical injuries leading to her hospitalization. Involving the issue in between them, on 17.02.1996 a village meeting was convened to resolve the dispute between the wife and the husband and in the said meeting the husband while admitting his guilt, assured the village committee to have a peaceful marital life. It is further alleged that unfortunately few days after re-peatation of the aforesaid inhuman activities by all the respondents in MATA No. 40 of 2009 have again started. Finding no improvement in the situation, a caste meeting of the parties was convened on 27.10.2001, in which the husband agreed to pay a maintenance of Rs. 99, 000/-, out of which only a sum of Rs. Finding no improvement in the situation, a caste meeting of the parties was convened on 27.10.2001, in which the husband agreed to pay a maintenance of Rs. 99, 000/-, out of which only a sum of Rs. 26,000/- (Rupees Twenty-six thousand) has been paid to her, that too in two instalments. It is further alleged that on 01.9.2001 the husband forcibly took the signatures of the wife on a Stamp paper consenting her husband keeping a second wife and immediately thereafter on 03.9.2001 the husband and respondent No. 2 in a combined effort drove the wife out of her matrimonial home and since then she has been residing in her father?s house. On 27.7.2005 her husband married another woman namely Sunanda Patel of village-Ghatimal without the knowledge of the wife compelling her to come forward to initiate the Matrimonial proceeding for dissolution of her marriage with husband, where after a case was registered as C.P.No. 197 of 2005 in the file of Judge, Family Court, Rourkela. 5. In his opposition, the husband on his appearance though filed his written statement in C.P.No. 197 of 2005 but subsequently did not participate in the hearing. The written statement filed by the husband appears to be denial of all the allegations raised by the wife on the aspect of demand of dowry, ill-treatment, harassment to the wife and keeping extra marital relationship with the respondent No.2.The husband also denied to have admitted his guilt before the village Punch and to have driven out the wife from his house and also denied to have married a second wife. On the other hand, the husband while alleging that he was being unnecessarily harassed through police at the instance of the wife but at the same time admitted regarding the settlement between the parties on the intervention of the caste people and payment of maintenance of Rs. 26,000/-(Rupees Twenty-six thousand) by him to the wife and claimed that for the payment of maintenance to the wife at the intervention of the caste people, relationship between the husband and wife have been ceased. Respondent Nos. 2 and 3 in both the appeals did not appear to contest the matter and were set ex parte. The lower court proceeding disclosed that attempt for conciliation at the instance of the lower court did not succeed. Respondent Nos. 2 and 3 in both the appeals did not appear to contest the matter and were set ex parte. The lower court proceeding disclosed that attempt for conciliation at the instance of the lower court did not succeed. Pending disposal of the C.P.No. 197 of 2005 the wife filed a petition under Section 25 of the Hindu Marriage Act against the husband praying therein for monthly maintenance of Rs. 3000/-(Rupees Three thousand) or in the alternative for grant of permanent alimony of Rs. 5,00,000/- (Five Lakhs) to be paid by the husband. 6. Both the Civil Proceedings were heard together by the Judge, Family Court, Rourkela . Taking into consideration the pleadings of the rival parties and the materials available on record, the Judge, Family Court, Rourkela disposed both the C.P and Misc. Case, thereby while allowing the C.P.No. 197 of 2005 declared the marriage between the wife and husband to have been dissolved from the date of the order, in disposal of Misc. case No. 13 of 2008 granted permanent alimony of Rs. 2, 50,000/-(Rupees Two Lakhs Fifty Thousand) to be paid by the husband to the wife. 7. The order sheet in MATA No. 40 of 2009 discloses that this Court?s attempt for conciliation of the matter between the parties failed recording as follows: " In spite of our persuasion, reconciliation is not possible" 8. During course of final argument on 22.6.2016, learned counsel appearing for both parties combindly submitted that in view of the developments taken place in between, there is no chance for re-union of the parties and consequently they are not challenging the decree of divorce granted by the trial court and their argument confines only to the question of quantum of permanent alimony. Hence this Court proceeds only to decide the question of quantum of alimony which runs as follows: 9. Pleadings in the court below on the question of financial position of the parties as appearing particularly from Misc. Case No. 13 of 2008 arising out of C.P.No. 197 of 2005 reveals that the husband is working as a Postmaster under the control of Postal Superintendent, Sambalpur and is earning a lot through agricultural source and on the basis of above, the wife claimed permanent alimony of Rs. 5,00,000/-(Rupees Five Lakhs) or at least a sum of Rs. 3000/-(Rupees Three thousand) only per month towards maintenance in the court below. 5,00,000/-(Rupees Five Lakhs) or at least a sum of Rs. 3000/-(Rupees Three thousand) only per month towards maintenance in the court below. In filing an objection to the show cause, the wife again contended that the monthly salary of husband working as Postmaster is Rs. 8,000/-(Rupees Eight thousand) as per the Central Salary Enhancement Scheme of the Central Government of India. Further the husband is also a Gountia as well as a landlord of village-Peruabhadi and he is the owner of land under Khata No. 167, 153 and 154 having an area of A.22.82 decs, A.8.00 decs. and A.7.57 decs. respectively situated in village - Peruabhadi. In this way, the husband is also earning Rs. 2,00,000/-(Rupees Two Lakhs) per annum from the agricultural sources, whereas the wife is not only a poor lady but also have no source of income from any quarter and is in the status of an orphan. Apart from filing the petition as well as the objection to the claim of the husband, the wife had also filed number of documents to establish her case on the income of the husband. The husband had also filed an objection to the above claim of the wife. In a few line objection, the husband contended that he has the income of Rs. 3318/- per month out of his salary. This apart, he has also admitted that he has a share in the landed property to the extent of A.2.50 decs. which is in his possession. 10. In so far as the evidence led by the parties is concerned, the wife produced three witnesses including herself as P.W.1. In chief, at paragraph-8, she has made a categoric statement that the husband is working as Village Post-Master in his Village Post Office and is getting a monthly salary of Rs. 4,000/- (Rupees Four thousand) and that she has no source of income and her father is also very poor. However, the husband filed his salary certificate marked as Ext.A. That apart, this Court also finds that the wife had also filed several record of rights, which have been marked as Exts.1,2 and 3 in proof of her claim with regard to the properties held by the husband and his family members. 11. However, the husband filed his salary certificate marked as Ext.A. That apart, this Court also finds that the wife had also filed several record of rights, which have been marked as Exts.1,2 and 3 in proof of her claim with regard to the properties held by the husband and his family members. 11. Considering the rival contentions of the parties and the materials available on record, while considering the aspect of permanent alimony, in alternate, monthly maintenance, the Family Court relying on Ext.A observed that the husband has gross salary of Rs. 3,439/- per month. Consequently holding the annual salary of the husband rounded up to Rs. 41,000/-(Rupees Forty-one thousand) and further observing that husband is not the sole owner of the properties vide Exts.1, 2 and 3, came to hold that the annual agricultural income of the husband cannot be less than Rs. 9,000/-(Rupees Nine thousand) per annum. The Family Court thus held that the wife is entitled to permanent alimony of Rs. 2, 50,000/- (Rupees Two lakhs and fifty thousand). 12. From the submissions of the respective parties, documents available on record and the observations made by the Judge, Family Court, Rourkela, there is no dispute that the husband not only is working as a Village Post-Master and drawing gross salary of Rs. 3,439/- per month at the relevant point of time but also is the owner of some landed properties. The husband has also source of agricultural income and the wife established that she has no income at all to her pocket. Further, the facts available in the case and as has been admitted during course of argument by the learned counsel for the husband that after the decree of divorce is passed, the husband got re-married and thus, he is leading a comfortable life. 13. 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. 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. 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". 14. Considering the fact that the husband is not willing to take back the wife to his company for the reason of his second marriage, the wife is left with no choice of leaving and maintaining her separately all through her life. This Court observes that the husband is duty bound to see proper maintenance of his divorced wife. Looking to the economic status of the parties, particularly, keeping in view that the husband is able to maintain his second wife; this Court holds that the husband is leading a luxurious life. 15. This Court observes that the husband is duty bound to see proper maintenance of his divorced wife. Looking to the economic status of the parties, particularly, keeping in view that the husband is able to maintain his second wife; this Court holds that the husband is leading a luxurious life. 15. Keeping in view that the wife remains unemployed and having no property to her pocket for her minimum requirement to maintain herself in the present society, the capacity of husband to pay and further looking to the mode of calculation in the long list of Hon?ble Apex Court?s decision as well as of this Court and the settled position of law that the husband is not only oblige to maintain his wife at her such age, husband is also duty bound to pay such compensation/permanent alimony to his wife, so that she can at least live in a reasonable comfort, this Court feels, at least a sum of Rs. 5,000/- (Rupees five thousand) per month will meet the wife in a position to led at least a just life. Considering that the wife is now at her old age, she will also require some medical attendance and spend some money towards medicines. Therefore, she is also entitled to some amount for her health necessities. Considering her age to be 42 years at the time of filing of the original case and presently is of 53 years, she is entitled to, at the minimum, Rs. 5,00,000/- (Rupees Five lakhs) as permanent alimony and this apart, she be also paid a sum of Rs. 1,00,000/- (Rupees One lakh) towards her health hazards in future. 16. Under the circumstances, while holding the impugned award of permanent alimony fixed by the Judge, Family Court, Rourkela as insufficient, this Court enhances the permanent alimony to the extent of Rs. 6, 00,000/- (Rupees Six lakhs) inclusive of Rs. 1, 00,000/-(Rupees One lakh) towards health security, which amounts are required to be paid by the husband to the wife within a period of one month from the date of this judgment. 17. Under the circumstances, while dismissing MATA No. 48 of 2009, this Court allows MATA No. 40 of 2009 with the modification of the judgment by enhancing the permanent alimony to Rs. 5,00,000/-(Rupees Five lakhs) besides a sum of Rs. 1,00,000/-(Rupees One lakh) towards health security making it to a total sum of Rs. 17. Under the circumstances, while dismissing MATA No. 48 of 2009, this Court allows MATA No. 40 of 2009 with the modification of the judgment by enhancing the permanent alimony to Rs. 5,00,000/-(Rupees Five lakhs) besides a sum of Rs. 1,00,000/-(Rupees One lakh) towards health security making it to a total sum of Rs. 6,00,000/- (Rupees Six lakhs) and further with a sum of Rs. 20,000/- (Rupees twenty thousands) towards litigation expenses. The amount indicated herein above is required to be paid by the husband-respondent no. 1 in MATA No. 40 of 2009 within the same time. Vinod Prasad, J. - I agree.