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2017 DIGILAW 1095 (ORI)

Ritanjali Patra v. Bhabani Shankar Patra

2017-09-21

I.MAHANTY, K.R.MOHAPATRA

body2017
JUDGMENT : K.R. Mohapatra, J. 1. Judgment and order dated 03.12.2014 passed by learned Senior Civil Judge, Bhanjanagar in MAT No. 36 of 2013 and consequential decree dated 14.04.2016 passed by learned Judge, Family Court, Berhampur in C.P. No. 152 of 2013 are under challenge in this appeal. 2. Marriage between the parties to this appeal was solemnized on 05.02.2010 as per Hindu rites and custom. They were blessed with a girl child on 21.11.2010. Due to dissension between the parties, the respondent (husband) filed C.P. No. 152 of 2013 before learned Judge, Family Court, Berhampur under Section 13 of the Hindu Marriage Act, 1955 (for short, ‘the Act’) for dissolution of the marriage with the appellant (wife) by a decree of divorce. The said case was subsequently transferred to the court of learned Senior Civil Judge, Bhanjanagar and was renumbered as MAT No. 36 of 2013. 3. Admitting the marriage and parentage of the child, the respondent in his petition under Section 13 of the Act contended inter alia that the appellant went to her parental home on 01.05.2012 with an understanding that she would come back within a month. When she did not return, the respondent went to bring her on 28.06.2012, but the appellant blatantly refused to accompany him. The respondent thereafter approached the permanent and continuous Lok Adalat at Berhampur in P.L.A. Case No. 56 of 2012 for restitution of conjugal rights. Due to non-cooperation of the appellant, the said case was dropped on 04.05.2013. Finding no hope of reunion, the respondent filed the aforesaid case for dissolution of their marriage by a decree of divorce. Due to non-appearance of the appellant, learned Senior Civil Judge proceeded with the matter and passed the impugned judgment and decree ex-parte, which is under challenge in this appeal under Section 19 of the Family Court’s Act. 4. Learned counsel for the appellant-wife submitted that the appellant had entered appearance in C.P. No.152 of 2013 before learned Judge, Family Court, Berhampur on 05.07.2013 and prayed for some time to file written statement. While the matter stood thus, the case record in C.P. No.l52 of 2013 was transferred to the court of learned Senior Civil Judge, Bhanjanagar on 03.12.2013 and was renumbered as MAT No. 36 of 2013. While the matter stood thus, the case record in C.P. No.l52 of 2013 was transferred to the court of learned Senior Civil Judge, Bhanjanagar on 03.12.2013 and was renumbered as MAT No. 36 of 2013. Although notice was issued to the appellant (wife), she had never received any notice from the court of learned Senior Civil Judge, Bhanjanagar for which she could not know about the developments in the matter. The impugned judgment was passed on 03.12.2014 allowing the prayer of the respondent (husband) for dissolving the marriage by a decree of divorce. However, the decree could not be drawn up, due to the order of stay passed by this Court in TRPC No.125 of 2014, which was disposed of transferring the case to the Family Court, Berhampur. Accordingly, learned Senior Civil Judge, Bhanjanagar transferred the matter to the court of learned Judge, Family Court, Berhampur on 16.10.2015. On receiving the case record, learned Judge, Family Court, Berhampur drawn up the decree on 14.04.2016 without issuing notice to the appellant (wife). He further submitted that in the meantime, the respondent (husband) taking undue advantage of the ex parte decree of divorce had remarried. He, therefore, contended that there is no chance of reunion between the parties. He further submitted that while passing the ex parte decree of divorce, learned court below has not considered the question of grant of permanent alimony. He, therefore, prays for a direction to the respondent (husband) to pay a reasonable amount towards permanent alimony. 5. Learned counsel for the respondent, on the other hand, submitted that the appellant (wife) had been served with the notice of the proceeding by Family Court, Berhampur. However, it was subsequently transferred to the court of learned Senior Civil Judge, Bhanjanagar. Accordingly, notices were issued to the appellant (wife). She all along was aware of the proceeding, but preferred not to contest the same. On the other hand, assailing such transfer of the case record, she had moved this Court in TRPC No. 125 of 2014, which was allowed retransferring the case to the Family Court, Berhampur. By the time the order of stay of further proceeding in MAT No. 36 of 2013 was communicated to learned Senior Civil Judge, Bhanjanagar, he had already passed the ex parte judgment allowing the prayer of the respondent (husband) dissolving the marriage by a decree of divorce. By the time the order of stay of further proceeding in MAT No. 36 of 2013 was communicated to learned Senior Civil Judge, Bhanjanagar, he had already passed the ex parte judgment allowing the prayer of the respondent (husband) dissolving the marriage by a decree of divorce. Since no prayer was made for permanent alimony, learned Senior Civil Judge rightly did not allow the same. As such, due to her own latches, the appellant (wife) was not awarded with any permanent alimony. The prayer for grant of permanent alimony cannot be adjudicated in this appeal as the same is made for the first time in this Court. He further submitted that no petition to set aside the ex parte decree of divorce was filed by the appellant (wife) before learned trial court. Hence, this appeal is not maintainable. 6. It would be opt to mention here that vide order No.6 dated 20.01.2017, both the parties were directed to appear before the Coordinator, High Court Mediation Centre to work out a possibility of mediation. Accordingly, Mr. Bibhudananda Mohapatra, learned counsel of this Court was appointed as a Mediator by this Court. In course of mediation, the appellant (wife) expressed her unwillingness to return to her matrimonial home because of the reason that the respondent (husband) had remarried after passing of the ex parte decree of divorce. She, therefore, insisted upon grant of permanent alimony. In spite of best effort of learned Mediator, both the parties did not agree to the particular amount to be granted to the appellant (wife) as permanent alimony. As such, learned Mediator submitted his failure report on 26.04.2017. Thus, consideration in this matter is only with regard to the quantum of permanent alimony. 7. As there was no evidence available on record with regard to the income of the husband, this Court vide order No.10 dated 14.07.2017 directed the respondent to produce his latest salary certificate to enable the Court to assess the quantum of permanent alimony to be granted in favour of the appellant (wife). Pursuant to the direction of this Court, the respondent (husband) filed his current salary certificate on 08.09.2007, which has been taken on record. Pursuant to the direction of this Court, the respondent (husband) filed his current salary certificate on 08.09.2007, which has been taken on record. The current salary certificate issued by the Block Education Officer, Buguda, Ganjam in favour of the respondent discloses that the respondent is working as an Assistant Teacher in Project Primary School at Brudabanpalli under Block Education Office, Buguda, Ganjam. The salary certificate contains the salary particulars of the respondent for the months of January 2017 to June 2017. The gross salary of the husband for the months of January, 2017 to June, 2017 was @ Rs.21,614/- per month. The net salary of the respondent for the months of January to March, 2017 was @ Rs.17,064/- per month and from April, 2017 to June, 2017 it was @ Rs.18,579/- per month. Thus, taking into consideration the net salary of the respondent to be Rs.18,679/-, we proceed to assess the permanent alimony. 8. 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, the wife is entitled to Rs.4,644.75 per month towards 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 24 years at the time of filing of the matrimonial case before learned Judge, Family Court, Berhampur and the normal life expectancy of a female to be 70 years in India at the minimum, we compound it at 15 years. As such, the wife would be entitled to permanent alimony of (Rs.4,645/-x 12 x 15 =) Rs.8,39,655/-. Taking into consideration the rising trend of price and future prospect of the respondent (husband), we round up the permanent alimony at Rs.9,00,000/-(Rupees nine lakh). The parties to this appeal are blessed with a daughter, who is at present seven years old. As such, the wife would be entitled to permanent alimony of (Rs.4,645/-x 12 x 15 =) Rs.8,39,655/-. Taking into consideration the rising trend of price and future prospect of the respondent (husband), we round up the permanent alimony at Rs.9,00,000/-(Rupees nine lakh). The parties to this appeal are blessed with a daughter, who is at present seven years old. Keeping in view her maintenance and education in one hand and the paying capacity of the respondent (husband) on the other, we feel it proper that a sum of Rs.3,00,000/- (Rupees three lakh) be deposited by the respondent in the name of his daughter in any Nationalized bank in a fixed deposit scheme. On attaining the age of 18 years, the daughter would be entitled to withdraw the said amount for higher education. 9. We, therefore, allow the appeal in part modifying the impugned judgment and decree as aforesaid and direct the respondent (husband) to pay a sum of Rs.9,00,000/- (Rupees nine lakh only) to the appellant (wife) towards permanent alimony and deposit a sum of Rs.3,00,000/- (Rupees three lakh only) in the name of his daughter, which shall be disbursed in the manner, as directed above. Payment of permanent alimony as well as deposit in the name of the daughter shall be made within a period of two months hence, failing which the appellant (wife) shall be at liberty to recover the same by taking recourse to law. In the circumstances, there shall be no order as to costs.