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2017 DIGILAW 1062 (ORI)

Ankita Mohapatra v. Arabinda Mohapatra

2017-09-15

I.MAHANTY, K.R.MOHAPATRA

body2017
JUDGMENT : K.R. MOHAPATRA, J. 1. This Matrimonial Appeal has been filed assailing the judgment and order dated 11.05.2015 passed by learned Judge, Family Court, Puri in C.P. No. 71 of 2014, whereby learned Judge, Family Court, Puri dissolved the marriage between Smt. Ankita Mohapatra (for short ‘the wife’) and Sri Arabinda Mohapatra (for short ‘the husband’) by a decree of divorce and directed the husband to pay a sum of Rs.20.00 lakhs to the wife towards permanent alimony and also to pay a sum of Rs.3000/-per month to their daughter, namely, Miss Anindita Mohapatra, towards her maintenance. 2. Marriage between the parties to this appeal was solemnized on 29.11.2008 as per Hindu rites and customs. During their initial days of marriage, the couple led a happy conjugal life. Out of their wedlock, Miss Anindita Mohapatra was born on 10.8.2009 at Srikrishna Health Care & Reproductive Research Center, Puri. Since the husband was working at Delhi at the relevant point of time, he went back to Delhi alone. It is alleged by the husband that he had requested his wife to accompany him with the child to his place of work, but she refused. The husband had also filed HMA Petition No. 429/12 before learned Principal Judge, Family Court, Dwaraka, New Delhi for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955. Learned Judge, Family Court, Dwaraka vide order dated 22.12.2012 disposed of the petition in terms of the agreement entered into between the parties before the Principal Conciliator for their joint living with certain conditions stipulated in the agreement. The appellant (wife), however, without joining the company of her husband, filed I.C.C. No. 246 of 2012 before learned S.D.J.M., Puri against the respondent (husband) under Section 498-A I.P.C. alleging mental and physical torture and demand of dowry. The respondent (husband) unsuccessfully challenged the order of taking cognizance before this Court in CRLMC No. 1100 of 2014. Ultimately the husband moved the learned Judge, Family Court, Puri in C.P. No. 71 of 2014 praying for dissolution of marriage between the parties by a decree of divorce, which was allowed vide judgment and order dated 11.05.2015. The said judgment is impugned herein. 3. Heard learned counsel for the parties and perused the materials available on record. 4. Ultimately the husband moved the learned Judge, Family Court, Puri in C.P. No. 71 of 2014 praying for dissolution of marriage between the parties by a decree of divorce, which was allowed vide judgment and order dated 11.05.2015. The said judgment is impugned herein. 3. Heard learned counsel for the parties and perused the materials available on record. 4. Although the matter was listed for orders, on consent of both the parties, the same was taken up for final disposal. 5. Learned counsel for the appellant (wife) at the threshold submitted that the husband has already remarried on 27.11.2015. As such, no reunion is possible. Hence, he confined his argument to the quantum of permanent alimony granted in her favour and maintenance to her daughter, namely, Miss Anindita Mohapatra. He submitted that the husband has been working as a Deputy Commandant in CRPF and is posted in the district of Sambalpur. At present, he is drawing a salary of Rs.70,000/-per month. The respondent (husband) has also other source of income from his agricultural land. Hence, permanent alimony of Rs.20.00 lakhs awarded in favour of the appellant (wife) is grossly insufficient. Further, maintenance of Rs.3000/-per month to the daughter, namely, Miss Anindita Mohapatra, is also equally inadequate for her maintenance. Hence, he prayed for enhancement of the same. 6. Learned counsel for the respondent (husband), on the other hand, refuting such submission submitted that take-home salary of the husband is only Rs.55,000/-per month including house rent of Rs.6600/-. Besides that the respondent (husband) is drawing ‘risk allowance’ of Rs.9800/-per month as he has been posted in a Nuxlite affected area in the district of Sambalpur. The said risk allowance would be withdrawn after his transfer from that place. The respondent is also paying a sum of Rs.13,343/-per month towards installment of House Building Loan. He has also made a life insurance policy in the name of his daughter, Miss Anindita Mohapatra and is paying premium of Rs.20,341/-per annum for the same. Hence, he prayed that direction to pay Rs.20.00 lakh towards permanent alimony is at the higher side and needs no inference. Further, a sum of Rs.3000/-per month towards maintenance of his daughter is more than adequate taking into consideration the facts and circumstances of the case. As such, he prayed for dismissal of the appeal. 7. Hence, he prayed that direction to pay Rs.20.00 lakh towards permanent alimony is at the higher side and needs no inference. Further, a sum of Rs.3000/-per month towards maintenance of his daughter is more than adequate taking into consideration the facts and circumstances of the case. As such, he prayed for dismissal of the appeal. 7. Pursuant to the direction of this Court vide order no.5 dated 31.3.2017, the respondent (husband) had deposited two demand drafts amounting to Rs.20,72,000/-before the Registrar (Judicial) of this Court, which has been invested in short term interest bearing account. Further, vide order dated 21.07.2017, this Court taking into consideration that the only question remains for consideration in the present appeal is with regard to permanent alimony, directed both the parties to appear before the Coordinator, High Court Mediation Centre on 31.07.2017 to workout a possibility of mediation. However, learned Mediator after an effective mediation submitted a failure report on 30.08.2017, which forms part of the record. 8. It is not in dispute that the respondent (husband) is serving as Deputy Commandant of CRPF and is posted at Sambalpur. The information provided by the office of Deputy Director General of Police, Group Center, CRPF, Sambalpur, Odisha to the appellant (wife) under the provisions of the R.T.I. Act on 20.04.2017 reveals that gross salary of the respondent (husband) is Rs.68,412/-per month and his home-take salary is Rs.52,812/-per month. The aforesaid information provided under the R.T.I. Act to the wife has been annexed to Misc. Case No. 110 of 2017 filed by the wife for enhancement of permanent alimony, which forms part of the record. 9. The Hon’ble Supreme Court in the case of Kalyan Dey Chowdhury v. Rita Dey Chowdhury Nee Nanday in Civil Appeal No. 5369 of 2017 (disposed of on 19.04.2017) placing reliance on Dr. Kulbhushan Kumar v. Raj Kumari and another, reported in (1970) 3 SCC 129 , has laid down that the wife is entitled to 25% of the net salary of the husband towards her maintenance. Taking into consideration the age of the husband and his future prospect in service, we round up the monthly net salary of the husband at Rs.55,000/-. Thus, the wife would be entitled to Rs.13,750/-(Rupees thirteen thousand seven hundred fifty) towards her monthly maintenance. Taking into consideration the age of the husband and his future prospect in service, we round up the monthly net salary of the husband at Rs.55,000/-. Thus, the wife would be entitled to Rs.13,750/-(Rupees thirteen thousand seven hundred fifty) towards her monthly maintenance. Further, this Court in the case of Ruby @ Pritipadma Pradhan v. Debasis Pradhan, reported in 2014 (II) ILR CUT 709, had laid down the broad guidelines to assess the quantum of permanent alimony. Taking into consideration the said guidelines and the fact that the age of the wife was 30 years at the time of filing of the civil proceeding before learned Judge, Family Court, Puri and the normal life expectancy of a female to be 70 years at the minimum, we compound it for 15 years. As such, the wife would be entitled to permanent alimony of (Rs.13,750/-x 12 x 15 =) Rs.24,75,000/-. However, we round up the same at Rs.25,00,000/-(Rupees twenty five lakhs). Since Rs.20,72,000/-has been deposited before this Court by the respondent (husband), which is invested in a fixed deposit, the same shall be disbursed along with accrued interest in favour of the appellant on proper identification. Rest of the amount shall be deposited before learned Judge, Family Court, Puri in C.P. No. 71 of 2014 by the husband within a period two months from today, which shall be disbursed in favour of the appellant on proper identification. 10. Learned Judge, Family Court, Puri has awarded a sum of Rs.3000/-per month towards maintenance of the daughter. Taking into consideration her age to be 8 years at present and that she is pursuing her studies, we feel it proper to award a lump sum amount instead of monthly maintenance, which would be just and proper in the interest of justice. Keeping in view the status and financial condition of the husband and that he has made an insurance policy in the name of his daughter (Anindita), we feel it proper that a sum of Rs.5,00,000/-(Rupees five lakh only) should be deposited in the name of Miss Anindita Mohapara in a fixed deposit scheme in any Nationalized Bank by the respondent (husband) for her study as well as marriage. It is made clear that on attaining the age of 18 years, 25% of the amount along with proportional interest accrued thereon, can be withdrawn by Miss Anindita Mohapatra for her further studies. It is made clear that on attaining the age of 18 years, 25% of the amount along with proportional interest accrued thereon, can be withdrawn by Miss Anindita Mohapatra for her further studies. Rest 75% of the amount along with accrued interest can be withdrawn by her at the time of her marriage on attaining the age of 30 years, whichever is earlier. 11. In view of the discussions made above, the appeal is allowed in part with a direction to the respondent (husband) to pay a sum of Rs.25,00,000/-(Rupees twenty five lakh only) to the appellant (wife) as permanent alimony and to deposit a sum of Rs.5,00,000/-(Rupees five lakh only) in the name of his daughter, namely, Miss Anindita Mohapatra, in any Nationalized Bank in fixed deposit scheme towards her maintenance, education and marriage within a period of two months, which shall be disbursed in their favour in the manner as directed above. Failure on the part of the respondent to deposit the aforesaid amount as directed above, the appellant will be at liberty to recover the same by taking recourse to law. 12. With the aforesaid modification of the impugned judgment and order, the appeal is disposed of, but in the circumstances, there shall be no order as to costs.