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2017 DIGILAW 1007 (ORI)

Manoj Pati v. Anjali Nayak

2017-09-08

I.MAHANTY, K.R.MOHAPATRA

body2017
JUDGMENT : K.R. MOHAPATRA, J. This Matrimonial Appeal under Section 19 of the Family Court Act, 1984 (for short, ‘Act 1984’) has come to be filed assailing the judgment and order dated 05.04.2016 passed by learned Judge, Family Court, Bhawanipatna, Kalahandi in C.P. No.46 of 2015 allowing an application filed under Section 13 of the Hindu Marriage Act, 1955 (for short ‘Act, 1955’), thereby dissolving the marriage between the parties to this appeal by decree of divorce and directing the appellant (for short, ‘husband’) to pay a lump sum amount of Rs.7.00 lakh to the wife, namely, Anjali Nayak (respondent herein) and her daughter towards permanent alimony and maintenance. The appellant in this case essentially challenges the quantum of permanent alimony directed to be paid by him. 2. The respondent herein, namely, Smt. Anajali Nayak (for short ‘wife’) in her application (C.P.No.46 of 2015) under Section 13 of the Act, 1955, contended that marriage between the parties, namely, the appellant and the respondent was solemnized on 24.02.2012 as per Hindu customs and rites. They were blessed with a daughter. At the time of marriage, a sum of Rs.1.00 lakh along with gold ornaments of 8.5 tolas was given by the father of the respondent-wife and besides that, household articles worth Rs.3.00 lakh were also given at the time of marriage. Immediately after the marriage, the family of the appellant-husband demanded Rs.5.00 lakh to run the educational institution established and managed by their family. Since the respondent expressed her inability to bring such a huge amount from her parents, she was subjected to mental and physical torture. As an attempt was made to do away with her life by setting her ablaze, a case under Section 498A/326/307/34 of IPC was registered. The respondent (wife) had also filed a case under the provisions of Protection of Women from Domestic Violence Act, 2005 (for short, ‘Act 2005’). Since there was no possibility of leading a happy conjugal life and for safety of the life and limbs of their daughter, she filed the proceeding under Sections 13 and 25 of the Act, 1955 for the aforesaid relief. 3. The husband (appellant herein) filed his written statement admitting the marriage with the respondent, but denied the allegation of demand of dowry and torture alleged to be meted out to the wife. 3. The husband (appellant herein) filed his written statement admitting the marriage with the respondent, but denied the allegation of demand of dowry and torture alleged to be meted out to the wife. It was contended in the written statement filed by the husband that the wife was always insisting to stay separately from other family members. As the husband was living in a joint family and he had no independent source of income, he did not agree to the proposal. To put pressure on him and on his family members, the wife was always threatening him to rope in the entire family in criminal case on the allegation of demand of dowry and domestic violence. The husband also denied other allegations made by the wife. 4. Taking into consideration the rival contentions of the parties and materials available on record, learned Judge Family Court passed the impugned judgment and order. 5. Although the matter was listed for orders, on consent of learned counsel for the parties, the same is taken up for final disposal. 6. Mr.Mishra, learned counsel for the husband-appellant vehemently argued that the husband has no independent source of income. He entirely depends upon the income of the family from the educational institution at M.Rampur and printing press at Bhawanipatna. The said fact was also known to the family of the wife before marriage. There is no evidence available on record with regard to independent source of income of the husband. Hence, direction to pay lump sum amount of Rs.7.00 lakh as permanent alimony and maintenance to the wife and daughter is excessive, unreasonable and patently illegal. Hence, he prays that reasonable amount of permanent alimony and maintenance be fixed taking into consideration the facts and circumstances of the case. 7. Mr.Nayak, learned counsel for the respondent-wife refuting such submissions contended that the husband in his evidence has admitted that the family of the husband has an educational institution at M.Rampur and a printing press at Bhawanipatna. He being the male member of the family is managing those establishments. The family of the husband and appellant has vast landed property in the district of Kalahandi. As such, the direction of learned Judge, Family Court cannot be faulted with. Hence, he prays for dismissal of the appeal. 8. He being the male member of the family is managing those establishments. The family of the husband and appellant has vast landed property in the district of Kalahandi. As such, the direction of learned Judge, Family Court cannot be faulted with. Hence, he prays for dismissal of the appeal. 8. Since the appellant-husband does not challenge the dissolution of marriage by decree of divorce, the only question that arises for consideration is with regard to quantum of permanent alimony. Learned counsel for the appellant does not dispute the fact that the family of the appellant has an educational institution at M.Rampur and a printing press at Bhawanipatna. He, however contended that the entire family of the appellant is dependent upon the income from those establishments. The family of the appellant has no other source of income. 9. As has been laid down in several judicial pronouncements that alimony is no alms, it is the entitlement of a wife for a decent living. All relevant factors affecting fiscal expenses have to be considered, while assessing quantum of permanent alimony. It is not only the take home salary of the husband, which is of significance, but also the capacity to earn and actual earning of the wife has also to be reckoned with, while assessing/computing the permanent alimony. At the same time, it is to be kept in mind that the wife does not only require two morsels a day, but also requires a reasonable amount to meet all her basic needs of life, which she would have enjoyed if the marital tie would have continued. Similarly, the responsibility, which the wife would have borne, had the relationship continued, is also a relevant aspect to be kept in mind. While granting permanent alimony, no arithmetic formula can be adopted as there cannot be any mathematical exactitude. It depends upon various factors including social status of the parties, respective social needs, the mode of living of the spouse, the financial capacity of the husband and other obligations of the husband etc., which play a vital role in determining the permanent alimony. The Court has to act with pragmatic sincerity to such an issue so that the wife does not meet any kind of man made misfortune. The Court has to act with pragmatic sincerity to such an issue so that the wife does not meet any kind of man made misfortune. The amount of permanent alimony should be such as the wife 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 should not be excessive or affect the living condition of the other party, namely, husband. Hon’ble Supreme Court in the case of Vinny Parmar vs Paramvir Parmar, reported in AIR 2011 SC 2748 , held as under: “(12) As per Section 25, 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.” Keeping the aforesaid principles in mind, the case at hand needs consideration. It is not in dispute that the parties to this appeal are blessed with a daughter, who is a minor. Her interest should also be kept in mind while assessing the quantum of permanent alimony and maintenance. It is not in dispute that the parties to this appeal are blessed with a daughter, who is a minor. Her interest should also be kept in mind while assessing the quantum of permanent alimony and maintenance. Although a plea is taken by the appellant-husband to the effect that he has no independent source of income, no evidence to that effect has been led. On the other hand, it reveals from the materials on record that the family of the appellant is well placed in the society and owns an educational institution at M.Rampur and a printing press at Bhawanipatna. 10. Taking into consideration the facts and circumstances of the case and the materials on record, the age of the respondent-wife and the future prospects of the child, as well, we are of the view that the direction of the learned Judge, Family Court, Bhawanipatna to pay a lump sum of Rs.7.00 lakh (Rupees seven lakh) towards permanent alimony for maintenance to the respondent wife and their daughter is not excessive. The same appears to be reasonable. Accordingly, we are not inclined to entertain this appeal, which is accordingly dismissed. No costs.