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2016 DIGILAW 715 (UTT)

Davendra Singh v. Sushil Devi

2016-10-07

SERVESH KUMAR GUPTA

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JUDGMENT : Servesh Kumar Gupta, J. Having heard the rival submissions at the stage of admission of this appeal, I think only the following substantial question of law arises: Whether the First Appellate Court was justified in awarding the permanent alimony to the plaintiff/respondent without there being any application for the same against the provisions of Section 25 of the Hindu Marriage Act? 2. As the facts emerged out from the respective submissions of learned Counsel of the parties, it is accepted that the marriage of Smt. Sushila Devi with Davendra Singh was not an arranged one, but was as a consequence of mutual courting and ritually it was held on 23.10.2004. Within a span of one and half years, there spousal relations became very bitter inasmuch as they could not continued together and Smt. Sushila Devi was constrained to leave for her parental house. 3. Although the Hindu Marriage Act does not contemplate the divorce by mutual consent, out of the Court, even though on the stamp paper of Rs. 20/-, a divorce deed was written between them in the presence of their respective father and Pradhans of their villages, besides several other witnesses and they formally (may not be legally) segregated themselves form their relationship with the stipulation that if Smt. Sushila Devi will remarry, then the jewelleries comprising of tops, mangal sutra and nath, which she had carried along with herself, will have to be returned to the husband Davendra Singh. 4. It is not known whether Smt. Sushila Devi remarried or not. However, it amply clear that after executing this deed, Davendra Singh remarried another girl Ms. Godavari and out of their wedlock they have been blessed with a daughter, namely, Nilam. 5. In the above backdrop, an Original Suit was instituted by Smt. Sushila Devi, seeking a legal divorce, on 22.12.2011 in the Court of Civil Judge, where both the parties led their evidence, but the learned Trial Judge was not convinced to accept her prayer. So, the suit was dismissed on 16.8.2014. 6. Appeal No. 5/2014 was preferred against the above judgment and the learned First Appellate Court/District Judge, Bageshwar allowed it on 26.3.2015 and granted divorce to the couple. 7. As regards granting of divorce, the appellant Davendra Singh has not challenged the same in this appeal. So, the suit was dismissed on 16.8.2014. 6. Appeal No. 5/2014 was preferred against the above judgment and the learned First Appellate Court/District Judge, Bageshwar allowed it on 26.3.2015 and granted divorce to the couple. 7. As regards granting of divorce, the appellant Davendra Singh has not challenged the same in this appeal. He is aggrieved only with the additional order directing him to pay the permanent alimony of Rs. 2,50,000/- under Section 25 of the Hindu Marriage Act. 8. I think that such provision of the Act empowers any Court exercising jurisdiction under such Act to grant the permanent alimony and maintenance at the time of passing the decree or any time subsequent thereto. So, the powers of the District Judge in this regard cannot be challenged. 9. The above substantial question of law is answered accordingly. 10. As regards the quantum of this maintenance, learned Counsel has supplicated to the Court that appellant Davendra Singh is an extremely poor person. Having remained unemployed for several years, he has now been employed in some private Class IV job in a school for blinds. He has no immovable property except a square shaped field in the remote hills of mid Himalayas, from where he hails. Otherwise also, the notice can be taken that Tehsil Tharali of District Chamoli, from where both the parties belong to, is a very remote area of this province and the unemployment among the youths is so pervading that they are hardly able to earn their livelihood to meet their both ends meal. 11. So, looking to this aspect, if the quantum of permanent alimony is reduced to the half, then I think that it will meet the ends of justice. 12. In view of what has been set forth above, I reduce the amount of permanent alimony to rupees one lakh twenty five thousand. The same shall be paid in five equal bimonthly instalments and shall be payable in the first week of the calendar month. Any amount, if already paid to Smt. Sushila Devi in this regard, shall be adjusted. 13. Appeal stands disposed of accordingly.