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2017 DIGILAW 973 (ORI)

Santosh Kumar Senapati v. Aradhana Tripathy

2017-09-01

I.MAHANTY, K.R.MOHAPATRA

body2017
JUDGMENT K.R. MOHAPATRA, J. - These two Matrimonial Appeals have been filed assailing the judgment and order dated 16.03.2015 passed by learned Judge, Family Court, Bhubaneswar in C.P. No. 295 of 2010. Learned Judge, Family Court, Bhubaneswar, disposed of C.P. No. 295 of 2010, with the following orders: “The petition of the petitioner is allowed on contest. A decree of divorce is passed and the marriage between the petitioner and the respondent is hereby declared dissolved with effect from the date of decree subject to payment of Rs. 60,00,000/- (Rupees sixty lakhs) only to the respondent towards permanent alimony. The parties are directed to exchange the goods given to each of them and while taking steps for exchanging of goods, parties to show their honesty and sincerity to that effect. “ 2. MATA No. 73 of 2015 has been filed by one Sri Santosh Kumar Senapati (for short ‘the husband’) assailing the quantum of permanent alimony directed to be paid to Smt. Aradhana Tripathy (for short ‘the wife’). Matrimonial Appeal bearing MATA No. 75 of 2015 has been filed by the wife assailing part of the decree granting prayer for dissolution of marriage between the parties by a decree of divorce. As both the appeals arise out of the same judgment and order, the same are taken up together for disposal for convenience. 3. Facts in nut shell relevant for proper adjudication of these appeals are that marriage between the parties to these appeals was solemnized on 03.05.2009 at Puri as per the Hindu customs and rites. Due to dissension between the parties, they are living separately since 23.08.2010. They are not blessed with any child. As would reveals from the rival pleadings of the parties before learned Judge, Family Court, Bhubaneswar that there arose difference of opinion between the parties after few days of their marriage and they had never led a happy conjugal life. Lot of allegations and counter allegations had been made in their respective pleadings. Fact remains that, at the time of marriage, the husband was Assistant Professor of Veterinary Medicines in OUAT. Before marriage, the wife was working in a private firm and had an independent source of income. Lot of allegations and counter allegations had been made in their respective pleadings. Fact remains that, at the time of marriage, the husband was Assistant Professor of Veterinary Medicines in OUAT. Before marriage, the wife was working in a private firm and had an independent source of income. As there was no hope for leading a happy conjugal life, the husband filed a petition under Section 13 (1) (i-a) of Hindu Marriage Act, 1955 (for short ‘the Act, 1955’) praying for a decree of dissolution of marriage between the parties by a decree of divorce in Civil Proceeding No. 295 of 2010. The wife contested the proceeding by filing her written statement. Learned Judge, Family Court, Bhubaneswar, holding the husband being treated with cruelty, granted the relief of dissolution of marriage by a decree of divorce and further directed that the husband would pay a sum of Rs. 60.00 lakh to the wife towards permanent alimony. Accordingly, both the parties being aggrieved by the judgment and order dated 16.03.2015 passed in Civil Proceeding No. 295 of 2010 have filed separate appeals, as aforesaid. 4. In course of argument, learned counsel, Mr. Santunu Kumar Sarangi along with Ms. Aditi Hota appearing for the wife, submitted that they would not press the appeal in MATA No. 75 of 2015 filed by the wife against the part of the decree granting relief of dissolution of marriage by a decree of divorce. As such, the dissolution of marriage by a decree of divorce granted by learned Judge, Family Court, Bhubaneswar is confirmed. Thus, the only question that remains to be decided is with regard to the quantum of permanent alimony. 5. Mr. K.P. Mishra, learned counsel for the husband strenuously argued that learned Judge, Family Court, Bhubaneswar, while assessing the quantum of compensation, did not at all take into consideration the essential factors like educational qualification of the wife, family pension entitled to be received by the wife, inheritance of ancestral property by the wife as well as the ability of the wife to earn etc. It is his submission that the wife is a highly educated lady and was earning Rs. 20,000/- per month before the marriage in the year 2009. She being the sole legal heir of her mother, who is a government servant, is entitled to the family pension after her death. It is his submission that the wife is a highly educated lady and was earning Rs. 20,000/- per month before the marriage in the year 2009. She being the sole legal heir of her mother, who is a government servant, is entitled to the family pension after her death. Further, her mother along with her salary is also drawing family pension as her deceased husband was a government servant. The family of the wife has a vast landed property as well as a building in the posh locality of the Puri town, which is being presently used for commercial purpose. She is the sole legal heir to inherit the ancestral property. On the other hand, the husband is working as an Assistant Professor in the College of Veterinary Science and Animal Husbandry in OUAT. He is drawing a net salary of Rs. 31,400/- per month. The husband is also a physically handicapped person and is advised daily physiotherapy for the life time. He has 40% permanent disability of his right hand, the condition of which is deteriorating day-by-day. He spends Rs. 5,000/- to 6,000/- per month for physiotherapy, evidence of which was produced before the Family Court. The expenditure of the husband towards physiotherapy and medicines are not reimbursable by the University. The husband has no other source of income than his salary. The husband is also facing a criminal case in G.R. No. 838 of 2008 pending in the Court of learned S.D.J.M., Bhubaneswar under Section 498-A of I.P.C. along with allied offences instituted at the instance of the wife. If he is convicted in the said criminal case, there is every likelihood of he being dismissed from government service. All these relevant factors have not been taken into consideration by learned Judge, Family Court, while answering Issue No. 3 with regard to the quantum of permanent alimony. Learned Judge, Family Court has also not taken into consideration the income and dependency of the husband, which is paramount. Hence, Mr. Mishra, contended that the quantum of permanent alimony fixed by learned Judge, Family Court is exceptionally high and the same is without any basis. Hence, he prayed for fixing a reasonable amount of permanent alimony, which would be just and proper in the facts and circumstances of the case. 6. Mr. Hence, Mr. Mishra, contended that the quantum of permanent alimony fixed by learned Judge, Family Court is exceptionally high and the same is without any basis. Hence, he prayed for fixing a reasonable amount of permanent alimony, which would be just and proper in the facts and circumstances of the case. 6. Mr. Sarangi, learned counsel for the wife refuting such submissions contended that the husband was an Assistant Professor at the time of marriage, i.e., in the year 2009 and he has been promoted to the cadre of Associate Professor in the meantime. Mr. Sarangi referring to the documents filed by the husband in course of hearing of the appeals submitted that the husband is at present working as an Associate Professor and his gross salary is Rs. 62,756/-. Further, the husband is also earning a good amount from private practice, as he is a Specialist in Veterinary Medicines. Due to the marriage, the wife had to resign from her private service from which she was earning Rs. 20,000/- per month. At present, she is completely depending upon her mother for sustenance. 7. Mr. Sarangi, further submitted that taking advantage of pendency of the appeals, the husband is neither paying permanent alimony as directed by learned Judge, Family Court, nor is paying Rs. 8,000/- per month towards interim maintenance as directed by learned Judge, Family Court during pendency of C.P. No. 295 of 2010. Thus, the wife is in a distress condition. The husband has a vast landed property at his native place at Sisilo and he is earning a handsome amount towards his share in the income from agriculture. Learned Judge Family Court, Bhubaneswar, while assessing the quantum of permanent alimony, has taken into consideration the age of the wife, her dependency as well as the amount required for leading comfortable life and assessed the permanent alimony at Rs. 60.00 lakhs, which is just and reasonable and needs no interference. 8. During pendency of these appeals, this Court, by order No. 5 dated 20.01.2017, directed the parties to work out the possibility of mediation. Accordingly, Smt. Sanjukta Patra, Advocate was appointed as the Mediator. An effective mediation on the quantum of permanent alimony was held. However, in spite of the best efforts, it ended in failure and learned Mediator submitted her failure report on 10.02.2017, which forms part of the record. 9. Accordingly, Smt. Sanjukta Patra, Advocate was appointed as the Mediator. An effective mediation on the quantum of permanent alimony was held. However, in spite of the best efforts, it ended in failure and learned Mediator submitted her failure report on 10.02.2017, which forms part of the record. 9. Although, the matters were listed for orders, on consent of learned counsel for the parties, the appeals are taken up for final disposal. 10. Section 25 of the Act, 1955 empowers the Court to grant the relief of permanent alimony at the time of passing a decree under the provisions of the said Act or at any time subsequent thereto. In exercise of such power, learned Judge, Family Court awarded a permanent alimony of Rs. 60.00 lakh to be paid by the husband to the wife. The pay slip of the husband for the month of May, 2017 discloses that the gross salary of the husband was Rs. 62,756/- and his take home salary was Rs. 31,400/- per month. In a recent decision in the case of Kalayan Dey Chowdhury Vs. Rita Dey Chowdhury Nee Nanday (Civil Appeal No. 5369 of 2017), Hon’ble Supreme Court following the case law in Dr. Kulbhushan Kumar vs. Raj Kumari and Anr., reported in (1970)3 SCC 129 held as follows: “16. … Following Dr. Kulbhushan Kumar vs. Raj Kumari and Anr. (1970) 3 SCC 129 , in this case, it was held that 25% of the husband’s net salary would be just and proper to be awarded as maintenance to the respondent-wife. The amount of permanent alimony awarded to the wife must be befitting the status of the parties and the capacity of the suppose to pay maintenance. Maintenance is always dependant on the factual situation of the case and the Court would be justified in moulding the claim for maintenance passed on various factors…. “ 11. 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. 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 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 Curt 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 is further seen that the Curt 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. 12. Mr. Mishra, learned counsel for the husband has filed the salary slip of the husband, which discloses the gross salary of the husband for the month of May, 2017 was Rs. 62,746/- and his take home salary was Rs. 31,400/- (rounded at Rs. 32,000/-). Keeping in view the ratio decided Kalayan Dey Chowdury (supra), the wife would be entitled to 25% of the take home salary of the husband, i.e., Rs. 8,000/- per month towards her maintenance, the wife, at the time of presentation of the appeal, was aged 33 years and has a normal life expectancy up to 70 years. This Court in the case of Ruby @ Pritipadma Pradhan –v- Debasis Pradhan, reported in 2014 (II) ILR CUT 709 has laid down some broad guidelines in determining the permanent alimony. It is held inter alia in paragraph-19 as follows:- “19. This Court in the case of Ruby @ Pritipadma Pradhan –v- Debasis Pradhan, reported in 2014 (II) ILR CUT 709 has laid down some broad guidelines in determining the permanent alimony. It is held inter alia in paragraph-19 as follows:- “19. From the perusal of the number of decisions by the Hon’ble Apex Court, shown at Bar, each of the decisions makes it clear that the paramount consideration for granting permanent alimony a Court has to consider the status of the parties, their respective needs, the capacity of the husband to pay, having regard to the reasonable expenses for his own maintenance and others whom, he is obliged to maintain under law and statute. Further, taking note of the fact that the amount for maintenance fixed for wife should be such, as she can live in reasonable comfort considering her status and mode of life when she was used to live with her husband. It is also the duty of the Court to see that the amount so fixed, cannot be excessive or affect the living condition of other parties. Apart from the wife maintaining herself, she has also to bear all her future medical expenses besides attending to the requirements at her family end considering the fact that there is no chance of re union, the fact that on record the husband’s salary is Rs. 52,000/- in all and looking to the age of the wife which is hardly 29 years at the time of filing of MATA Case and the life expectancy of a female being 70 at the minimum, we feel it appropriate to enhance the monthly permanent alimony to Rs. 11,500/- (rupees eleven thousand five hundred) per month and taking into consideration, compounding the same for 15 years, the whole permanent alimony we make it round at Rs. 20,00,000/- (rupees twenty lakhs) without deduction of any amount which has already been paid to the wife under the direction of different Courts in the meanwhile, which will forfeit all her claims.” (emphasis supplied.) 13. Taking into consideration the broad guidelines laid down (supra), the permanent alimony would be (Rs. 8,000/- x12x15) =Rs. 14,40,000/-. Although alleged, the wife could not produce any material to the effect that the husband has any other source of income. Taking into consideration the broad guidelines laid down (supra), the permanent alimony would be (Rs. 8,000/- x12x15) =Rs. 14,40,000/-. Although alleged, the wife could not produce any material to the effect that the husband has any other source of income. However, keeping in view the prospect of hike in salary of the husband, trend of price rise as well as other unforeseen circumstances, we assess the permanent alimony to be paid by the husband to the wife at Rs. 20.00 lakh. Learned Judge, Family Court, while answering Issue No. 3 with regard to quantum of permanent alimony, did not at all take into consideration the aforesaid principles laid down by different High Courts and Hon’ble Supreme Court in fixing the permanent alimony at Rs. 60.00 lakh, as permanent alimony by the husband to the wife, is excessive, unreasonable and without any basis. Thus, the same is not sustainable. 14. In view of the discussion made above, while dismissing MATA No. 75 of 2015 as not pressed, we allow MATA No. 73 of 2015 in part and modify the impugned judgment and order by directing that the husband shall pay a sum of Rs. 20.00 lakh (rupees twenty lakh) to the wife as permanent alimony within a period of one month. The husband shall also pay arrear interim maintenance amount @ Rs. 8,000/- per month as directed by learned Judge, Family Court, Bhubaneswar, till the date of payment of permanent alimony after adjusting the amount, if any, paid in the meantime. On failure of the husband in paying the permanent alimony as well as interim maintenance as directed above, the wife will be at liberty to recover the same by taking recourse to law. In the circumstances, there shall be no order as to costs. Ordered accordingly.