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2018 DIGILAW 851 (ORI)

Bandita Mishra v. Ramakrishna Mishra

2018-12-18

A.K.MISHRA, S.K.MISHRA

body2018
JUDGMENT Dr. A.K. MISHRA, J. - This appeal, preferred by the –wife, is directed against the judgment dtd. 18.11.2014 of learned Judge Family Court, Puri in C.P. No.403 of 2010 whereby and where under the marriage between the appellant and respondent-husband was dissolved by a decree of divorce and the husband was directed to pay a sum of Rs.1,00,000/- towards permanent alimony of the wife and future maintenance of her daughter. 2. The petitioner married respondent on 25.5.2003 as per Hindu Caste and Customs. From their wed-lock, on 10.06.2005, a daughter was born. The wife, on account of ill-treatment meted out to her, stayed separately and for having not returned, the husband instituted a proceeding for divorce on 17.12.2010 on the ground of desertion since 05.12.2005. The wife controverted the factum of desertion but admitted relationship and birth of a daughter. In her written statement, she had alleged second marriage of the husband and filing of FIR at Chandanpur Police Station. Considering the rival pleadings, learned lower Court framed one issue “as to whether the respondent-wife deserted the petitioner-husband for a continuous period of not less than two years immediately preceding the presentation of the petition”. The husband examined himself and his mother. The wife examined herself, her mother and brother-in-law. LIC policy and copies of sale deeds and willnama were exhibited from the side of the husband while copy of order-sheet of a proceeding before the Women Commissioner and record of rights in the name of husband’s father were exhibited at the behest of wife. Analysing the evidence on record, both oral and documentary, the learned lower court has recorded a finding that on the ground of desertion, the petition for divorce deserves to be considered and consequently dissolved the marriage dtd. 25.5.2003 U/s. 13 (1) (i-b) of the Hindu Marriage Act, 1955. Incidentally learned lower court made assessment of the documentary evidence including the fact that prior to marriage, husband had secured one LIC policy in favour of respondent-wife paying premium and directed the husband to pay a sum of Rs.1,00,000/- (one lakh) towards permanent alimony of the wife and for future maintenance of their daughter. 3. In this appeal, the said decree of divorce and granting of permanent alimony have been challenged but in course of argument Mr. Sangram Rath, learned counsel for the appellant-wife expressly abandoned the challenge to the decree of divorce. 3. In this appeal, the said decree of divorce and granting of permanent alimony have been challenged but in course of argument Mr. Sangram Rath, learned counsel for the appellant-wife expressly abandoned the challenge to the decree of divorce. It is unequivocally submitted that this appeal may be confined to the amount of permanent alimony which is inadequate in the facts and circumstances of the case. It is argued with vehemence that the respondent-husband having source of income from business and ancestral landed property, is capable to maintain the appellant and her minor daughter and for that the amount of permanent alimony be enhanced to Rs.5,00,000/-. 4. Mr. Trilochan Panigrahi, learned Counsel appearing for the husband repelled the above contention stating that husband has neither any income from business nor has any landed property to own and possess for which he is unable to pay even the awarded amount of Rs.1,00,000/-. 5. As the challenge to the decree of divorce is taken back, this appeal is confined to a sole point - as to whether the permanent alimony amount of Rs.1,00,000/- awarded by the Lower Court is to be enhanced ? 6. It is indisputable that the respondent-husband does not own any landed property in his name. The sale deeds and record of rights which are filed and exhibited do not indicate the extent of land under command of the respondent and the income therefrom. Though in the written statement at paragraph 9, the respondent-wife had pleaded that her husband was earning Rs.25,000/- per month from the business, the evidence in regard to the detail of the same is conspicuously silent. Husband as P.W. 1 has admitted in his evidence at paragraph 6 that prior to marriage, after engagement, he had paid premium towards LIC policy bearing No.585301619 dtd. 28.03.2003 up to the year 2007. Exhibit-1 the original LIC policy reveals that the annual premium of Rs.7,525/- was payable in the name of Bandita Mishra, the respondent-wife Exhibit-3 reveals that the premium has not been paid after March, 2009. The starting revelation of the evidenced adduced from both the sides is that the husband had income for which he had paid LIC premium which was in the name of his wife and both of them had shared a rented house. It strikes at the root and proves that husband has ability to earn. The starting revelation of the evidenced adduced from both the sides is that the husband had income for which he had paid LIC premium which was in the name of his wife and both of them had shared a rented house. It strikes at the root and proves that husband has ability to earn. Under legal obligation, the husband has to pay permanent alimony. Added to this, no evidence is adduced to show that the wife-appellant has any source of income. 7. On a fresh assessment of the evidence on record, in the above manner, the sole point of adequacy of alimony needs narration. 7-a. A Division Bench of this Court, in the judgment rendered in the case of Ruby @ Pritipadma Pradhan Vrs. Debasish Pradhan – OLR 2014 (II) 691, after analyzing the ratio laid down by Hon’ble Supreme Court, has summed up the following principles:- “17. Thus, after considering the above position of law, it is evident that the following principles emerge from the judgments available in the field :- (a) Maintenance depends upon the summation of all the facts of the situation involved in the particular case. (b) For granting maintenance, the scale and mode of living, the age, habits, wants and class of the life of the parties has to be regarded. (c) Maintenance being such that the wife could live in a reasonable comfort; considering her status and mode of life which she was used to while living with her husband. (d) During the pendency of the suit for maintenance, which may take a considerable time to attain finality, the wife cannot be forced to face starvation till she is subsequently granted maintenance from the date of the filing of the suit. (e) Maintenance must necessarily encompass a provision for residence. Maintenance is given so that the lady can live in the manner, more or less, to which she was accustomed. (f) Maintenance, necessarily must encompass a provision for residence. Maintenance is given so that the lady can live in the manner, more or less, to which she was accustomed. The concept of maintenance must, therefore, include provision for food and clothing and the like and take into account the basic need of a roof over the head. (g) Maintenance must vary according to the position and status of a person. It does not only mean food and raiment. The concept of maintenance must, therefore, include provision for food and clothing and the like and take into account the basic need of a roof over the head. (g) Maintenance must vary according to the position and status of a person. It does not only mean food and raiment. (h) It is to be seen that the amount fixed cannot be excessive of affecting the living condition of the other party. 7-b. In the case of Miss Moumita Roychoudhury Vrs. Abhjit - OLR 2013 (Supp.) (II) 874, the Division Bench of this Court while enhancing the amount of permanent alimony, has referred to the judgments of Hon’ble Apex Court in the following manner :- “19. The apex Court in Vinny Parmvir Parmar v. Parmvir Parmar, AIR 2011 SC 2748 held as follows : “...... 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 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.” 20. In Vishawanath Sitaram Agrawal v. Sau. Sarla Vishwanath Agrawal, reported in AIR 2012 SC 2586 the Apex Court while granting permanent alimony has observed that the amount that has already been paid to the respondent-wife towards alimony is to be ignored as the same had been paid by virtue of the interim orders passed by the courts. It is not expected that the respondent-wife has sustained herself without spending the said money, ‘21. It is not expected that the respondent-wife has sustained herself without spending the said money, ‘21. In U. Sree v. U. Srinivas, AIR 2013 SC 415 , the Apex Court while dealing with Section 25 of the Act has observed as follows :- “.....while granting permanent alimony, no arithmetic formula can be adopted as there cannot he mathematical exactitude. It shall depend upon the status of the parties their respective social needs, the financial capacity of the husband and other obligations.” In the said judgment the Apex Court has also observed that “....it is the duty of the court to see that the wife lives with dignity and comfort and not a 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 to such an issue so that the wife does not meet any kind of man made misfortune......” And then held that :- “23. In view of the fact that law discussed above, this court has the power under Section 25 of the Act to award permanent alimony just like the original court. The respondent being the Director of a company, taking his social status and income on the basis of income tax return, share valuation certificate and the balance sheet of the company into consideration, it would be just and proper to award a sum of Rs.15 lakhs towards the permanent alimony in favour of the appellant-wife, though she has claimed compensation of Rs.10 lakhs and also return of her articles as mentioned in Schedule-A of the petition. Accordingly, we direct the respondent to pay a sum of Rs.15 lakhs within a period of two months. 7.c. in the case of Kalyan Dey Chowdhury Vrs. Rita Dey Chowdhury Nee Nandy – AIR 2017 SC 2383 , their Lordships of Hon’ble Apex Court at paragraph 16 have calculated the permanent alimony on the basis of 25% of the salary of the husband in the following words:- “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 spouse to pay maintenance. (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 spouse 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.....” 8. In the case at hand, the husband-respondent is capable to earn and the appellate-wife and minor daughter have no source of income. The wife needs spousal support from the husband. Husband’s ability to earn as a daily labourer to extend spousal support is a factum of necessity. His bad economy is not the outcome of bad health. As a necessary corollary, we feel it proper to adopt 25% of the husband’s net income per month as a basis towards spousal support. The incremental period to cap the permanent alimony depends upon the age, income and status of the parties. Considering the daily income of a labourer in the present time @ Rs.300/- per day and giving concession for five days, the monthly income of respondent-husband would be Rs.300/- X 25 = Rs.7,500/- per month. The annual income would be Rs.7,500/- X 12 = Rs.90,000/-. Drawing support from a principle of deduction of 25% from monthly income, the husband-respondent can contribute Rs.22,500/- per annum. For permanent alimony, having regards to the age, income and status of the parties and their daughter as well as the date of decree of divorce, it is just and proper to extend incremental period for 14 years. On computation of the said 25% of annual income of husband for 14 years, the amount would be Rs.22,500/- X 14 = Rs.3,15,000/-. But judicial conscience commands to round up the same to Rs.3,00,000/- (Three lakhs). 9. In the wake of above analysis, the awarded amount of Rs.1,00,000/- towards permanent alimony is found inadequate and the same is required to be enhanced to the tune of Rs.3,00,000/-. Accordingly the appeal is to be allowed in part. 10. Hence it is ordered: The appeal is allowed in part on contest without cost. The decree of divorce in the impugned judgment dtd. 18.11.2014 dissolving the marriage between the appellant and respondent is hereby confirmed. Accordingly the appeal is to be allowed in part. 10. Hence it is ordered: The appeal is allowed in part on contest without cost. The decree of divorce in the impugned judgment dtd. 18.11.2014 dissolving the marriage between the appellant and respondent is hereby confirmed. The award of permanent alimony is modified to the effect that respondent-husband is directed to pay a sum of Rs.3,00,000/- (Three Lakhs) towards permanent alimony of the appellant. The same shall be paid within three months hence. S.K. MISHRA, J. I agree. Appeal alloowed in part.