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2016 DIGILAW 66 (KAR)

Yashodhara Vittala Shetty v. Poornima

2016-01-19

N.K.PATIL, S.SUJATHA

body2016
JUDGMENT : This appeal is directed against the portion of the Judgment to the extent of directing the appellant to pay permanent alimony of Rs.3,00,000/- within three months from the date of Judgment vide judgment and decree dated 10.07.2015 passed by the Family Court, Dakshina Kannada at Mangalore in M.C.No.41/2014. 2. Facts in brief are that: The appellant married the respondent on 10.11.2013 at Kateel Town. It is averred by the appellant that on the date of marriage it had come to the notice of the appellant that the respondent suffers from mental disorder, immediately the same was informed to the respondent’s family members, in turn they took the respondent to their home, since then they are residing separately. In the petition filed by the appellant before the Family Court, Dakshina Kannada at Mangalore under Section 12(1)(a) & (c) of the Hindu Marriage Act, 1955 (the ‘Act’ for short) to declare the marriage solemnized on 10.11.2015 between the appellant and respondent as null and void, the respondent did not appear before the Family Court, a Court guardian was appointed. The trial Court after elaborately considering the evidence placed on record by the parties, allowed the petition filed by the appellant dissolving the marriage of the petitioner with respondent solemnized on 10.11.2013 at Sri Durga Parameshwari Temple, Kateel by granting decree of nullity with effect from the date of the judgment. However, appellant was directed to pay permanent alimony/maintenance of Rs.3,00 lakh in lumpsum to the respondent within three months from the date of the judgment. 3. Being aggrieved by the portion of the judgment and decree as far as directing the appellant to pay an amount of Rs.3.00 lakh as permanent alimony to the respondent the appellant is before this Court. 4. Heard the learned counsel appearing for the appellant. The learned counsel would submit that the marriage itself is not established and the trial Judge having held that the marriage is null and void, ought not to have directed permanent alimony to be paid by the appellant. Family Court has failed to appreciate the principles regarding permanent alimony in the proper perspective. It is further contended that in the circumstances, the respondent not appearing before the Family Court and no documents being produced to prove the income of the petitioner and expenses of the respondent, the Family Court erred in awarding huge amount of permanent alimony. Family Court has failed to appreciate the principles regarding permanent alimony in the proper perspective. It is further contended that in the circumstances, the respondent not appearing before the Family Court and no documents being produced to prove the income of the petitioner and expenses of the respondent, the Family Court erred in awarding huge amount of permanent alimony. In support of his contention, learned counsel places reliance on the Judgment of this Court in the case of Gurubasamma vs Irawwa & Ors. reported in ILR 1996 Kar.3615. 5. We have considered the submissions made by the learned counsel for the appellant and perused the material on record. 6. It is not in dispute that the marriage of the appellant was solemnized with the respondent on 10.11.2013 at Sri Durga Parameshwari Temple, Mangalore district as per the rites and customs prevailing in their community. It is also an admitted fact that at the time of marriage, appellant was aged 38 years and was running a mobile shop at Gujarat. The allegation of the appellant is that on the date of marriage, at night, he noticed that the respondent was abnormal in her behaviour and suffering from mental disorder which is said to have been disclosed immediately before the relatives of the respondent and her mother. It is further alleged that suppressing this mental disorder with which the respondent was suffering, he was made to marry the respondent. 7. After service of summons by the Family Court, the respondent did not appear before the Court nor her relatives had come forward to represent her by appearing as guardian. A Court guardian was appointed pursuant to the application filed by the applicant under Order 32 Rule 3 of CPC. The Court guardian after taking instructions from the respondent and her relatives, filed counter denying all the allegations made by the appellant. The elder sister of the respondent Smt.Pramila Diwakar Shetty was examined as RW1. The defence of the respondent was that she was healthy, keeping good mental health, but, it is only on the date of marriage, as the appellant informed her that he would not take her to Gujarat where he is permanently residing and asked her to reside along with his mother in the native place, made her to develop a shock and depression and she started behaving abnormally. The mental depression was caused only due to the appellant’s behavior. The mental depression was caused only due to the appellant’s behavior. The Family Court has appreciated the evidence placed by the parties and has come to a conclusion that the appellant has consented to the marriage on the misrepresentation and fraud played by the respondent and her relatives and as such, annulled the marriage solemnized between the appellant and the respondent by a decree of nullity with effect from the date of Judgment. 8. The Family Court considering the young age of the respondent, residing in her parent’s house from the very next day of the marriage and the poor financial status of the respondent who does not have any income of her own and a dependent on her mother coupled with the marriage expenses borne by the respondent’s parents, as per the evidence amounting to Rs.3,00,000/-, awarded the permanent alimony of Rs.3,00,000/-. The Family Court has elaborately considered the provisions of Section 12(2)(a)(II) of the Act in the light of the Judgments relied upon by the parties and accordingly, held that even in case of decree of nullity passed by the Court, wife is entitled to claim maintenance or permanent alimony. 9. We have noticed that the respondent has filed I.A.VII under Section 25 of the Hindu Marriage Act, 1956. The wife/husband who had suffered a decree of nullity is also entitled to maintenance/permanent alimony under this provision. Section 25 of the Act is an enabling provision which provides that any Court exercising jurisdiction under this Act may, at the time of passing ‘any decree’ has powers to award permanent alimony/maintenance. In terms of the said provision, the phrase ‘any decree’ includes even the decree of nullity passed under Section 12 of the Act. The words ‘wife or husband’ enumerated in Section 25 of the Act gets the colour from the associated words ‘at the time of passing any decree’. A harmonious reading would indicate that Section 25 of the Act does not deprive the wife from claiming the permanent alimony/maintenance even in cases where the marriage is declared a nullity (any decree) under the Act. Hence, we are of the opinion that albeit the marriage solemnized between the appellant and the respondent is dissolved by a decree of nullity, Section 25 of the Act is applicable. Hence, we are of the opinion that albeit the marriage solemnized between the appellant and the respondent is dissolved by a decree of nullity, Section 25 of the Act is applicable. Taking into consideration the factual background of this case wherein the respondent requires medical assistance, food, clothing and shelter for her life vis-à-vis the business of the appellant who is running a mobile shop, permanent alimony or maintenance of Rs.3,00,000/- awarded by the Family Court is justifiable and does not warrant any interference by this Court. It is also significant to note that the portion of the judgment declaring the marriage as a nullity with effect from the date of judgment by the Family Court is accepted/not challenged by the appellant. The judgment relied upon by the learned counsel for the appellant is not applicable to the facts of the case. Accordingly, we dismiss the appeal as devoid of merits.