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2019 DIGILAW 86 (ORI)

Sandipa @ Sandeepa Swain @ Routray v. Bibhuti Bhusan Swain

2019-02-04

J.P.DAS, S.K.MISHRA

body2019
JUDGMENT : J.P. Das, J. This common judgment shall dispose of the aforesaid j two matrimonial appeals both directed against the judgment dated 30.09.2015 passed by the learned Judge, Family Court, Berhampur in C.P. No.104 of 2014 dissolving the marriage between the parties and granting permanent alimony in favour of the wife and the minor child. 2. In both the appeals, the challenge by both the parties is limited to .the grant and quantum of permanent alimony. The wife is the appellant in MATA No.184 of 2015 and the husband is the appellant in MATA No. 194 of 2015. The husband initiated the proceeding under section 13 of the Hindu Marriage Act before the Judge, Family Court seeking divorce against the wife with the allegations that she non-cooperated in maintaining matrimonial relationship showing arrogant abnormal behaviour and also suffered from mental illness like schizophrenia. The wife entering appearance refuted the allegations counter alleging that from the very inception of marriage since the year 2007 she was mentally and physically tortured and ill treated by her husband and in-laws demanding more dowry. She was also not allowed to accompany her husband to his place of service or while going to U.K. initially. However, acceding to the prayer for divorce she counter claimed for permanent alimony for herself and her minor son born out of the wed-lock on the submissions that the husband was earning around Rs. 3.00 lakhs per-month besides having landed-properties. She claimed permanent alimony of Rs. 50.00 lakhs for herself and her son and also claimed another Rs. 50.00 lakhs for having a residential accommodation. She also alleged that all golden ornaments given to her at the time of marriage had also been retained by her in-laws which she is entitled to get back. 3. Considering the rival contentions and the oral as well as the documentary evidence placed before it, the learned trial Court disbelieved the allegations made by the husband against the wife including the mental illness but granted the decree of divorce dissolving the marriage between the parties with the observations that the marriage had broken down irrevocably an.d the parties were staying separately for more than five years. Attempt for reconciliation also failed apart from the fact that the wife had acceded to prayer for divorce. Considering the materials available on record, the learned trial Court awarded a permanent alimony of Rs. Attempt for reconciliation also failed apart from the fact that the wife had acceded to prayer for divorce. Considering the materials available on record, the learned trial Court awarded a permanent alimony of Rs. 10.00 lakhs in favour of the minor child and Rs. 7.00 lakhs in favour of the wife. 4. It was submitted on behalf of the appellant wife that the learned trial Court erroneously disbelieved the submissions made on her behalf regarding the financial status of the husband and the amount as awarded is too low. Relying upon a decision of this Court reported in 2019 (I) OLR 184 (Bandita Mishra vs. Ramakrishna Mishra), it was submitted by learned Counsel for the wife that 25% of the net income calculated for a period of 14 years should have been awarded as permanent alimony in favour of the wife and the minor child. 5. Per contra it was submitted on behalf of the husband that the learned trial Court has awarded an imaginary amount as permanent alimony beyond the paying capacity of the husband, apart from the fact that the divorce having been allowed basing upon the allegations made against the wife she is not entitled for any permanent alimony. 6. As regards the grant of permanent alimony it has been observed by the Hon'ble Courts that it should be according to the mode of living, the age, habits, wants and class of the life of the parties. It should be such that the lady can live in a reasonable comfort, more or less, to which she was accustomed while living with her husband. 7. The Hon'ble Apex Court in the case of Vinny Paramvir Parmar vs. Paramvir Parmar, reported in AIR 2011 SC 2748 has observed that : "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 as 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. 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 as 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." 8. It was further observed by the Hon'ble Apex Court in the case of U. Sree vs. U. Srinivas, reported in AIR 2013 SC 415 , 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." 9. On the touch stone of the aforesaid observations and guidelines, considering the rival contentions of the parties in the case at hand, it is seen that no convincing material was placed on behalf of the wife before he learned trial Court in support of her counter claim that the husband was earning Rs. 3,00,000/- per month besides having landed properties. On the other hand, the husband who was working in the office of the CGI information Systems and Management Consultants Pvt. Ltd., produced lis salary certificate for the month of May, 2015 which showed that his gross monthly salary was Rs. 87,038/- and net salary was Rs. 73,656/-. ts had been observed by the learned trial Court, the respondent failed to provide her claims with any material evidence as to the specific income if the husband from salary and/or other sources. The minor son born out if the wed lock, who was eight years by the time of disposal of the proceeding in the year 2015 deserved to be maintained by the husband another along with the wife. It was also the case of the wife that prior to her marriage she was serving in HDFC Bank which she quit after the marriage. As seen from the pleadings of the parties, it was no where pleaded on behalf of the wife that she was not capable of earning or was living in distress. The learned trial Court considering all the material aspects has awarded the amount of Rs. As seen from the pleadings of the parties, it was no where pleaded on behalf of the wife that she was not capable of earning or was living in distress. The learned trial Court considering all the material aspects has awarded the amount of Rs. 10.00 lakhs in favour of the minor son to be kept in a fixed deposit for a period of eight years and Rs. 7.00 lakhs in favour of the wife towards one time permanent alimony. As submitted by learned Counsel for the husband, the amount so awarded has already been paid. 10. Considering the facts and circumstances as narrated above, we do not find any compelling reason to interfere with the amount of permanent alimony awarded by the learned trial Court, either to increase or reduce it. 11. Accordingly, both the matrimonial appeals stand dismissed for being devoid of any merit. 12. The direction of the learned Trial Court as to the return of gold jewellery be complied with promptitude. I agree.