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2020 DIGILAW 177 (ORI)

Swapna Rani Sahoo v. Niranjan Sahoo

2020-09-23

BIBHU PRASAD ROUTRAY, S.K.MISHRA

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JUDGMENT : Bibhu Prasad Routray, J. 1. Aggrieved upon the judgment and decree dated 1.5.2015 passed by the learned Judge, Family Court, Bhubaneswar in C.P. No. 363 of 2010, the present appeal has been filed. 2. Appellant is the wife and respondent is the husband. Respondent raised the matrimonial dispute before the learned Judge, Family Court in the aforementioned civil proceeding under Section 13 of the Hindu Marriage Act praying for dissolution of his marriage with the appellant on the ground of cruelty. 3. The factual aspects, as narrated by the respondent before the Family Court are that, the marriage was solemnized on 22.2.2002 as per the Hindu rites and customs and out of their wedlock, one female child born on 20.3.2005. It is alleged that the appellant-wife after some days of marriage showed her indifferent attitude towards the family members of the respondent and used to visit frequently to her parental house for different intervals and was reluctant to take care of the old ailing parents of the respondent. She also used filthy languages to her in-laws members and assaulted the old parents in-laws physically on two to three occasions. Lastly, on 7.6.2009 the appellant without informing the respondent and his family members went to her parental house along with the minor child and did not return for a long time. When the respondent attempted to bring her back, he was misbehaved by the parents of the appellant and there was a meeting on 15.11.2009 to settle the dispute by the local gentries, which ultimately failed. Thus, it was alleged that the appellant without any rhyme or reason voluntarily deserted the respondent and subjected cruelty to him. 4. The appellant in her reply denied all such allegations of the respondent by stating that the respondent with an ulterior motive filed the case for divorce. She also brought in course of her evidence that, the respondent having extramarital relationship with one of his bank staffs has made all sort of false allegations against her to get the divorce. 5. The learned Judge, Family Court, Bhubaneswar in the impugned judgment and decree allowed the prayer for divorce by passing a decree thereof dissolving the marriage from the date of decree, but no permanent alimony was granted and direction for making provision for residence, maintenance and medical expenses of the appellant and the minor child was passed. 6. 5. The learned Judge, Family Court, Bhubaneswar in the impugned judgment and decree allowed the prayer for divorce by passing a decree thereof dissolving the marriage from the date of decree, but no permanent alimony was granted and direction for making provision for residence, maintenance and medical expenses of the appellant and the minor child was passed. 6. It is argued on behalf of the appellant that the impugned judgment is illegal and completely erroneous as there was no finding by the learned Judge to the effect that marriage has been irretrievably broken down or any established cruelty is there against the husband. But the learned Judge, Family Court on a flimsy ground whimsically concluded that there was mental cruelty on the husband as the wife has made allegations in her evidence about extra-marital relationship of the husband and stated that there was no sexual relationship between them since the year 2009. It is contended that the learned Judge has travelled beyond the pleadings of the parties to make out a case in favour of the respondent to grant decree of divorce. It is further contended that the learned Judge, Family Court was misconceived not to grant any permanent alimony in favour of the appellant and her minor daughter. 7. Pending appeal, an attempt was made by this Court for settlement through mediation, but the same failed. However, a peculiar development took place as admitted by the respondent-husband that he performed the second marriage to one Jagat Kalyani Mahapatra and out of said wedlock, a female child has been born on 27.6.2017. It is submitted by the respondent that after passing of the impugned decree, he remarried on 3.11.2015, which is beyond the appeal period and before presentation of the appeal by the wife-appellant. In support of the same, birth certificate of the female child and marriage photograph have been filed along with an additional affidavit dated 28.3.2019 of the respondent. But the wife-appellant submits that marriage with Jagat Kalyani Mahapatra by the respondent did not take place on 3.11.2015 but much prior to that in the vehicle registration certificate dated 2.7.2014 issued by the R.T.O., Bhubaneswar, Jagat Kalyani Mahapatra stated herself to be the wife of Niranjan Sahoo (present respondent). But the wife-appellant submits that marriage with Jagat Kalyani Mahapatra by the respondent did not take place on 3.11.2015 but much prior to that in the vehicle registration certificate dated 2.7.2014 issued by the R.T.O., Bhubaneswar, Jagat Kalyani Mahapatra stated herself to be the wife of Niranjan Sahoo (present respondent). It is further submitted that since the respondent suppressed his second marriage before this Court as well as before the learned Judge, Family Court, the same cannot be an impediment to the prayer of the appellant to set aside the decree of divorce. However, in course of argument, it is submitted by both the learned counsels that the appellant is suffering from breast cancer and still staying in her in-laws house till date, though the respondent is staying separately at another house with his second wife. 8. However, upon examination of the contentions of both the counsels and the documents brought on record, it can safely be concluded that that the respondent has performed his second marriage, but the actual date of the said marriage is a matter to be decided by the competent court of law. 9. Be that as it may, a close scrutiny of the impugned judgment reveals the same is filled with infirmities. It is for the reason that the court below has come to the conclusion of mental cruelty to the respondent on a whimsical ground that, the appellant has made irresponsible allegations touching the character of the respondent about adultery. Furthermore, the learned Judge, Family Court has erred in not granting permanent alimony specifically. Such infirmities and errors do though make the decree of divorce liable to set aside, but we are not inclined to set aside the decree of divorce in view of the fact that the respondent has remarried. Under the circumstances, we are certainly inclined to grant permanent alimony in favour of the appellant which in our view would solve the purpose substantially. 10. Now for determining the adequate quantum of permanent alimony, Section 25 of the Hindu Marriage Act is required to be resorted to. The principles in this regard have been propounded by the Hon'ble Supreme Court in several decisions. 10. Now for determining the adequate quantum of permanent alimony, Section 25 of the Hindu Marriage Act is required to be resorted to. The principles in this regard have been propounded by the Hon'ble Supreme Court in several decisions. In the case of Vinny Paramvir Parmar v. Paramvir Parmar, reported in A.I.R. 2011 SC 2748, it is held: "12) As per Section 25, while considering the claim for permanent alimony and maintenance of either spouse, the husband'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. 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." 11. In the case of U. Sree v. U. Srinivas, reported in A.I.R. 2013 SC 415, it is held: "32. xx xx xx .................Be it stated, 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. xx xx xx .................Be it stated, 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. In Vinny Parmvir Parmar v. Parmvir Parmar, while dealing with the concept of permanent alimony, this Court has observed that while granting permanent alimony, the Court is required 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 the mode of life she was used to 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. 34. Keeping in mind the aforesaid broad principles, we may proceed to address the issue. The respondent himself has asserted that he has earned name and fame in the world of music and has been performing concerts in various parts of India and abroad. He had agreed to buy a flat in Hyderabad though it did not materialize because of the demand of the wife to have a flat in a different locality where the price of the flat is extremely high. Be that as it may, 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 to such an issue so that the wife does not meet any kind of man-made misfortune. Regard being had to the status of the husband, the social strata to which the parties belong and further taking note of the orders of this Court on earlier occasions, we think it appropriate to fix the permanent alimony at Rs. 50 lacs which shall be deposited before the learned Family Judge within a period of four months out of which Rs. 20 lacs shall be kept in a fixed deposit in the name of the son in a nationalized bank which would be utilized for his benefit. The deposit shall be made in such a manner so that the respondent wife would be in a position to draw maximum quarterly interest. 20 lacs shall be kept in a fixed deposit in the name of the son in a nationalized bank which would be utilized for his benefit. The deposit shall be made in such a manner so that the respondent wife would be in a position to draw maximum quarterly interest. We may want to clarify that any amount deposited earlier shall stand excluded." 12. This Court in the case of Ruby @ Pritipadma Pradhan v. Debasish Pradhan, reported in 2014(II) ILR CUT 709 after taking note of various decisions of the Hon'ble Supreme Court, have held: "xx xx xx 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. (h) It is to be seen that the amount fixed cannot be excessive of affecting the living condition of the other party." 13. (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." 13. The Hon'ble Supreme Court in the case of Kalyan Dey Chowdhury v. Rita Dey Chowdhury Nee Nanday, reported in (2017) 14 SCC 200 have observed that wife is entitled to 25% of the net salary of the husband towards her maintenance. 14. In view of the principles laid down in the aforesaid decisions, the quantum of permanent alimony is to be computed by considering the factual aspects in the present case. It is admitted by the respondent in course of argument as well as in the note filed by him dated 20.11.2019 that, he is getting Rs. 41,000/- being an employee of the insurance sector in a private Insurance Company. It is also admitted by the parties that the appellant is staying in her in-laws house sharing the common roof with the family members of the respondent. It is also not disputed that respondent is bearing the educational expenses of the minor daughter, who was reading in Saraswati Shishu Vidya Mandir. The age of the appellant was 29 years and respondent was 35 years in the year 2010 as mentioned in the impugned judgment which means presently they would be 39 years and 45 years respectively. The appellant is also suffering from breast cancer and is under treatment. 15. Considering the income of the husband and age of the parties, it is felt appropriate to fix the monthly permanent alimony at Rs. 10,000/- and taking multiplier 12, the total amount comes to Rs. 14,40,000/-. But considering the other relevant factors that the appellant is staying in her in-laws house and respondent is bearing the educational expenses of the minor daughter, and other circumstances of the case, in our opinion, it would be appropriate to fix an amount of Rs. 7,00,000/-. Apart from this, the respondent is also liable to provide shelter to the appellant during her life time so also the educational and marriage expenses and other expenses of the daughter till her marriage. 16. Accordingly, it is ordered that the decree of divorce between the parties is confirmed and the respondent is directed to pay a sum of Rs. Apart from this, the respondent is also liable to provide shelter to the appellant during her life time so also the educational and marriage expenses and other expenses of the daughter till her marriage. 16. Accordingly, it is ordered that the decree of divorce between the parties is confirmed and the respondent is directed to pay a sum of Rs. 7,00,000/-(seven lakhs) to the appellant towards permanent alimony. The respondent is further directed to continue to provide residential accommodation to the wife during her life time and he shall bear all the expenses of the minor daughter- Singdha Rani Sahoo including her educational and marriage expenses and other expenses. 17. The appeal is disposed of with aforesaid modification in the impugned judgment and decree. S.K. Mishra, J. I agree.