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2017 DIGILAW 27 (ORI)

Umakanta Barik v. Rukmini Barik

2017-01-04

BISWAJIT MOHANTY, I.MAHANTY

body2017
JUDGMENT : Biswajit Mohanty, J. The appellant Umakanta Barik has filed MATA No.81 of 2014 with a prayer to set aside the order dated 21.6.2014 of the learned Judge, Family Court, Sambalpur in Civil Proceeding No.133 of 2012 so far as it directs payment of permanent alimony of Rs.7,00,000/-to the respondent wife. In the alternative, the appellant has prayed for modification of the above noted order directing payment of permanent alimony. It may be noted here that vide judgment dated 21.6.2014, the learned Judge, Family Court, Sambalpur has dissolved the marriage between the appellant Umakanta Barik and respondent Rukmini Barik by a decree of divorce on the ground that the respondent treated the appellant with cruelty after solemnization of marriage. 2. Thus the present MATA has been filed by the appellant challenging the order of permanent alimony only. The respondent has filed a cross objection praying for enhancement of permanent alimony to Rs.90,00,000/-. To such cross objection, the appellant has filed an objection affidavit on 13.7.2015 and in reply to which, the respondent has filed a rejoinder on 21.9.2015. Therefore, the dispute now revolves only around the question of permanent alimony and nothing else. 3. Learned counsel for the appellant mainly submitted that the fixation of permanent alimony at Rs.7,00,000/-is without any basis as it does not take into account the mandatory requirements of Section-25 of the Hindu Marriage Act, 1955. According to him, such quantum is to be determined taking into account the income and other properties of both the husband and wife and conduct of both the parties and other circumstances of the case. All these things have been ignored by the learned Judge, Family Court. Further, according to him, the appellant in his cross-examination clearly stated that he is getting Rs.1000/-per night by singing and in a year he usually gets around 20 calls for singing and that the music group/orchestra party which he earlier had is no more in existence. Thus, the appellant has very meagre income. Therefore, it would not be possible for the appellant to pay permanent alimony of Rs.7,00,000/-to the respondent, namely, Rukmini Barik. Secondly, he submitted that the conduct of the respondent shows that she treated the appellant with cruelty after solemnization of marriage. Thus, the appellant has very meagre income. Therefore, it would not be possible for the appellant to pay permanent alimony of Rs.7,00,000/-to the respondent, namely, Rukmini Barik. Secondly, he submitted that the conduct of the respondent shows that she treated the appellant with cruelty after solemnization of marriage. Such conduct of the respondent along with other circumstances showing cruel behavior of the respondent has not been taken into account by the learned Judge, Family Court, Sambalpur while deciding the quantum of permanent alimony. Accordingly, he submitted that the quantum of permanent alimony as directed to be paid by the learned Judge, Family Court, Sambalpur should be set aside or should be drastically reduced keeping in mind the meagre income of the appellant as indicated above. 4. Per Contra, learned counsel for the respondent submitted that the quantum of permanent alimony directed to be paid by the learned Judge, Family Court, Sambalpur is on lower side which requires to be enhanced. In this context, the learned counsel for the respondent pointed out that the meagre income as submitted by the learned counsel for the appellant cannot be believed because as per the evidence of the appellant himself, the appellant happens to be a influential person, who has spent Rs.5,000/-towards his dress only during marriage and according to the evidence of P.W.2, who happens to be the mother of appellant as well as P.W.3 around 3000 persons accompanied the bridegroom i.e. appellant in his marriage as ‘Barajatri’. All these show the financial position and the clout of the appellant. Further, he submitted that the P.W.2, who happens to be the mother of the appellant in her evidence, has clearly stated that the appellant is a famous singer and has released many music cassettes. Therefore, the plea of the appellant relating to his meagre income ought not to be believed. Further, he submitted that there is no dispute that the respondent has no income whatsoever. In this context, he invited the attention of this Court to the averments made in Para-6 of the cross objection, which remained undisputed by the appellant in his objection affidavit to cross objection/cross appeal filed by the respondent. The learned counsel for the respondent also invited the attention of this Court to Para-5 of the objection affidavit filed by the appellant to the cross appeal/cross objection filed by the respondent. The learned counsel for the respondent also invited the attention of this Court to Para-5 of the objection affidavit filed by the appellant to the cross appeal/cross objection filed by the respondent. In the said Para, it has been made clear that the appellant is a famous singer of Western Odisha and that prior to this case he has released many musical cassettes. Further, in Paras-6 and 9 the appellant has admitted that he is earning a sum of Rs.20,000/-per month as a singer subject to the availability of work. Further, the learned counsel for the respondent submitted that though in Ground-C she averred that the parents of the appellant have Ac.0.070 decimals of homestead land and have own house in Sambalpur Town and thus they never need any assistance from the appellant, the same has remained undisputed. With regard to the conduct of the respondent as found by the learned Judge, Family Court, Sambalpur, the learned counsel for the respondent pointed out that even where cruelty on the part of wife has been proved and the same has become the basis for dissolution of marriage, still the Hon’ble Supreme Court in U.Sree –vrs U.Srinivas as reported in AIR 2013 S.C. 415 has awarded a lump sum of Rs.50,00,000/-as permanent alimony. In such background, the learned counsel for the respondent submitted that the quantum of permanent alimony be modified to Rs.90,00,000/-. 5. Before dealing with the respective submissions made by the learned counsel for both the parties, we have to understand the position of law on fixation of quantum of permanent alimony. 6. The Hon’ble Supreme Court in Vinny Parmvir Parmar –vrs-Parmvir Parmar reported in AIR 2011 S.C. 2748 has made it clear that:-“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. 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”. 7. Further the Hon’ble Supreme Court in U.Sree -vrs-U.Srinivas as reported in AIR 2013 S.C. 415 has made it clear that while granting permanent alimony, no arithmetic formula can be adopted as there cannot be mathematical exactitude. It shall depend upon the status of the parties, their respective social needs, the financial capacity of the husband and other obligations. It has been further made clear that it is the duty of the Court to see that the wife lives with dignity and comfort and not in penury. The living need not be luxurious but simultaneously she should not be left to live in discomfort. The Court has to act with pragmatic sensibility so that the wife does not meet any kind of man-made misfortune. 8. The fact of this case is that the husband (appellant) happens to be an influential person and as per evidence on record he is also a commerce graduate. This fact is clear from the scanning of the evidence of P.W.1 and P.W.2. P.W.2 in her evidence has also made it clear that his son (appellant) is a famous singer of Western Odisha and has released many music cassettes. Further, in the objection affidavit to the cross objection/cross appeal the appellant admits that he earns a sum of Rs.20,000/-per month subject to availability of work. P.W.2 in her evidence has also made it clear that his son (appellant) is a famous singer of Western Odisha and has released many music cassettes. Further, in the objection affidavit to the cross objection/cross appeal the appellant admits that he earns a sum of Rs.20,000/-per month subject to availability of work. In his objection affidavit to the cross objection, he has also admitted that he is a famous singer of Western Odisha and has released many musical cassettes. In sharp contrast to this, it remains undisputed that the respondent wife has no source of income. There also exists no evidence as to the other properties held by her. The only thing goes against her is though the marriage has been dissolved on the ground of cruelty by her, the same remains unchallenged. But the conduct of the husband is also not above board. This is because while in his cross-examination he has stated that he was getting Rs.1000/-by singing per night and in a year he usually gets around 20 calls for singing, however, in his objection affidavit to the cross objection/cross appeal filed by the respondent at Para-6, he has admitted that he earns a sum of Rs.20,000/-per month as a singer subject to availability of work. Therefore, the contention of learned counsel for the appellant that the appellant is earning a meagre amount cannot be accepted. We cannot be oblivious to the principle that the quantum should be so fixed so that wife lives with dignity and comfort and not in penury and the living should not be luxurious, but she should not be left to live with discomfort. 9. In such view of the matter, considering the status of the parties and all circumstances as indicated earlier, we are not inclined to accept the prayer of the appellant. Rather, we are of the view that in the interest of justice the quantum of the permanent alimony be enhanced to Rs.10,00,000/-(Rupees Ten lakhs) keeping in mind the well settled principles as enunciated by the Hon’ble Supreme Court. This in our view would be just and proper as the above noted amount if put in a fixed deposit would guarantee a decent monthly maintenance for the respondent wife in the background of current interest rate. The details of such deposit would be discussed a little later. This in our view would be just and proper as the above noted amount if put in a fixed deposit would guarantee a decent monthly maintenance for the respondent wife in the background of current interest rate. The details of such deposit would be discussed a little later. This Court is not willing to accept the prayer of the respondent wife to enhance the quantum of permanent alimony to Rs.90,00,000/-as she has failed to prove the high quantum of income of the husband and his possession of vast properties in order to warrant award of permanent alimony to the tune of Rs.90,00,000/-It may be noted here that pursuant to the direction of this Court dated 14.10.2014, the appellant had deposited Rs.3,50,000/-(Rupees Three lakh fifty thousand) before the Registrar (Judicial) of this Court in shape of account payee Bank Draft. Further, pursuant to the order dated 12.5.2016 out of Rs.3,50,000/-(Rupees Three lakh fifty thousand), the Registrar(Judicial) has released Rs.50,000/-(Rupees fifty thousand) to the respondent wife. Therefore, the Registrar(Judicial) is directed to release the balance amount of Rs.3,00,000/-(Rupees Three Lakhs) along with interest in favour of the learned Judge, Family Court, Sambalpur immediately, who on receipt of the same shall keep the same in fixed deposit in the name of respondent wife in such a manner so that the respondent wife would be in a position to draw the maximum interest which can be paid to her at monthly intervals. The appellant is directed to deposit the balance amount of Rs.6,50,000/-(Rupees Six lakhs fifty thousand) within a period of three months with learned Judge, Family Court, Sambalpur which shall also be kept in a fixed deposit in the name of respondent wife so that the respondent wife would be in a position to draw the maximum interest and such interest should be paid on a monthly basis to her. It is made clear that without permission of the learned Judge, Family Court, Sambalpur, the respondent wife will not be allowed to encash the fixed deposit as the object behind making such deposit is to take care of her monthly financial requirement. Accordingly, the MATA filed by the appellant and the cross objection/cross appeal filed by the respondent are disposed of.