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2019 DIGILAW 322 (GAU)

UTPAL DAS v. RINKI SARKAR D/O SABIN SARKAR

2019-03-08

A.S.BOPANNA, SANJAY KUMAR MEDHI

body2019
JUDGMENT : A.S. BOPANNA, J. 1. Heard Ms. Dipika Kalita and Ms. Rumi Kalita, learned counsel for the appellant. 2. The appellant is before this Court assailing the order dated 7.12.2018 passed by the Family Court in Misc. Case (J) No.179/2015. The appellant is the former husband of the respondent. The fact that there was certain marital dispute between the parties and, in that light, the appellant herein has filed a petition in F.C. (Civil) No.419/2014 seeking for decree of divorce and the same has been granted through the order dated 10.3.2015 is not in dispute. Subsequent to the decree of divorce, the respondent herein has filed a petition under Section 25 of the Hindu Marriage Act seeking permanent alimony of Rs.15 lakhs. The Court below, through the order dated 7.12.2018, has allowed the petition in part granting the alimony of Rs.2,50,000/-. The appellant claiming to be aggrieved by the same is before this Court in this appeal. 3. Heard the learned counsel for the appellant and also perused the appeal papers. 4. The learned counsel for the appellant while assailing the order would contend that though the petition in F.C. (Civil) No.419/2014 was filed by the appellant herein for decree of divorce, during the pendency of the proceedings, the parties had entered into an agreement whereby the respondent had conceded to the prayer for decree of divorce and in the said agreement had also agreed that there would be no claim between the parties against each other. She contends that the said agreement was marked as "Y" in the said proceedings and in the background of such agreement having been entered into between the parties, the decree of divorce being granted, a subsequent petition seeking alimony is not justified. She, therefore, contends that the petition was liable to be rejected. Alternate contention put forth by the learned counsel is that the quantum of permanent alimony as granted even otherwise is on the higher side and, therefore, the same calls for interference. 5. Having taken note of the submissions as put forth by the learned counsel for the appellant, we have perused the appeal papers, more particularly the order dated 7.12.2018. It is noticed that the Court below before arriving at the conclusion has taken into consideration the evidence tendered by the parties. The respondent herein had examined herself as P.W.1 and two witnesses were also examined. It is noticed that the Court below before arriving at the conclusion has taken into consideration the evidence tendered by the parties. The respondent herein had examined herself as P.W.1 and two witnesses were also examined. The appellant herein had examined himself as D.W.1 and had also examined witnesses. 6. The first issue for consideration is as to whether in that background the agreement, said to have been entered in the earlier proceedings, be considered as a bar for the respondent herein to seek for the alimony. Firstly, in that regard it is seen that the Court below has observed that what was available in the proceeding in F.C. (Civil) No.419/2014 is a photocopy of the said agreement. Though the agreement was marked as "Y", the Court below has in-fact taken note of the same and has arrived at the conclusion that the same would not be enforceable in a matter of the present nature. 7. In that regard, the law is well settled that the maintenance or the alimony to be granted is to enable the party who seeks the same subsequent to the dissolution of the marriage to maintain herself. At that stage, what would be relevant is as to whether the party seeking for such maintenance or alimony is able to maintain herself. In that regard, the Court below in-fact has referred to the evidence available on record and has arrived at the conclusion that the respondent is entitled to the alimony to maintain herself. That apart, with regard to the income of the appellant, though the respondent had contended that he is working as a lecturer in a Engineering College, the Court below has taken note that his educational qualification is only M.Sc. and there is no conclusive proof that he is a lecturer. 8. Be that as it may, keeping in view the status of the parties and also taking note of the fact that even if the contention of the appellant herein that he is earning his livelihood through private tuition is taken note, the fact that an alimony of Rs.2,50,000/- has been awarded, in any event the said amount cannot be considered as excessive if the age of the respondent herein and the remaining part of her life is kept in view. Therefore, we see no reason to interfere with the order impugned herein. 9. Therefore, we see no reason to interfere with the order impugned herein. 9. The appeal, accordingly, being devoid of merit stands disposed of.