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2020 DIGILAW 179 (ORI)

Ranjan Kumar Routray v. Madhumita Mohanty

2020-09-23

BIBHU PRASAD ROUTRAY, S.K.MISHRA

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JUDGMENT : Bibhu Prasad Routray, J. 1. The appellant (husband) has assailed the judgment and decree dated 19.8.2015 passed by the learned Judge, Family Court, Bhubaneswar in Civil Proceedings No. 389 of 2010, by which the learned Judge while passing the order of dissolution of marriage, directed the appellant herein to pay Rs. 35,00,000/- (thirty five lakhs only) towards permanent alimony to the respondent (wife) with a further direction to return all the articles except cost of dress materials, barat expenses and expense of sarees or in lieu thereof pay Rs. 5,00,000/- (rupees five lakhs) towards the cost of the materials to the respondent (wife). 2. The present appellant (husband) was the respondent before the Family Court. The wife (present respondent) filed the aforesaid proceeding praying for a decree for dissolution of marriage with the present appellant. The facts in nutshell of the petitioner (wife) before the Family Court are that the marriage was solemnized between the petitioner and opposite party on 13.03.2000. After some days of marriage, demanding further dowry, physical and mental torture was made on the petitioner and even she was not being provided with food and clothing. The husband was used to come in drunken condition in night and on one occasion i.e., on 25.03.2000, when she suffered from malaria fever, due to some medicines given to her by the husband, some serious mental tension developed in the wife. The husband then used to call her as 'Pagili' and as the torture became intolerable, she was forced to leave the matrimonial home on 3.8.2003 and since then she is staying separately in her parents' house. It is also alleged that in the meantime, the husband (opposite party) has married to another lady, namely, Debaki Routray and out of the said wedlock, one female child, namely, Supriya Routray has born. The husband had also filed one Civil Proceedings vide C.P. No. 766/2003 before the Family Court, Cuttack, which was dismissed on the ground of maintainability. The wife has also filed one criminal case vide G.R. Case No. 113/2004 before the S.D.J.M., Bhubaneswar and another proceedings under Section 18 of the Hindu Adoption and Maintenance Act vide C.P. No. 493 of 2004 and husband had also filed another C.P. No. 508 of 2004. But both these Civil Proceedings filed before the Judge, Family Court, Cuttack were dismissed on the ground of jurisdiction. 3. But both these Civil Proceedings filed before the Judge, Family Court, Cuttack were dismissed on the ground of jurisdiction. 3. Be that as it may, the present dispute in question i.e. C.P. No. 389 of 2010 was initially filed by the petitioner (wife) praying for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, but later the petitioner knowing the fact of second marriage by the opposite party (husband), filed an application for conversion of the same to a petition under Section 13(1) of the Hindu Marriage Act with a prayer for dissolution of marriage by a decree of divorce. 4. As per the petitioner (wife), the opposite party-husband, is a 'B' Class Contractor having lot of landed property and is also the owner of two trucks, one tractor, and one trailer. Besides all these, he has also income from house rent, and in total his income comes to more than Rs. 20.00 lakhs (rupees twenty lakhs) per annum. It was also claimed that her gold ornaments and other articles given during the time of marriage has not been returned by the husband. 5. On the other hand, the opposite party-husband contested the case by averring that the allegations so brought against him in the petition by the wife are not correct as she voluntarily left the matrimonial house on 2.8.2003 without any reasonable cause and further lodged a criminal case for dowry torture against him and his family members. The mental condition of the wife is not normal and she was behaving very strangely during her stay in the matrimonial house for which she had undergone treatment by the doctor. He also submitted his no objection in the dissolution of marriage between them. However, according to him, he is an employed man without having any landed property, nor has any vehicle in his name. 6. The learned Judge, Family Court formulated three points for adjudication of the disputes between the parties, which are to the effect that (i) If there is any criminality and desertion by the wife., (ii) Her entitlement of permanent alimony, if any, in case of divorce. (iii) Her further entitlement towards properties given at the time of marriage. 7. The petitioner examined herself as the sole witness on her behalf and similarly the opposite party (husband) also examined himself as the sole witness on his behalf. (iii) Her further entitlement towards properties given at the time of marriage. 7. The petitioner examined herself as the sole witness on her behalf and similarly the opposite party (husband) also examined himself as the sole witness on his behalf. Though the petitioner adduced as many as 36 documents as exhibits for her evidence, the husband adduced no documentary evidence. Basing on the evidence so adduced by the parties, the Family Judge, decreed the case in favour of the wife by dissolving the marriage granting the decree of divorce. The learned Judge, Family Court further directed the husband-opposite party therein to pay Rs. 35,00,000/- (rupees thirty five lakhs) as permanent alimony with a further direction to return all the articles except the dress materials and other expenses or in lieu of the same, to pay Rs. 5,00,000/- (rupees five lakhs) to the petitioner-wife. 8. Both the parties in the present appeal did not raise any question as to the dissolution of marriage by granting decree of divorce between them and their sole dispute is with regard to the quantum of permanent alimony granted by the Judge, Family Court and further amount of rupees five lakhs in lieu of return of articles of the wife. When the husband has raised objection that the quantum of permanent alimony is on higher side, the wife by filing cross objection claimed that the same should be enhanced to rupees fifty lakhs. 9. It is contended by the appellant-husband that neither he is a 'B' Class contractor nor he has any truck, tractor or trailer in his name except one car, which was purchased by his father and used as a taxi. It is the further stand of the appellant that in the meantime, i.e., in the year 2009 there was a family partition of the landed property and the total landed property fall into his share is around four acres only. Further the vehicles viz. trucks, tractor and trailer have been sold in the meantime. In this regard, to substantiate, an application has been filed under Order-41, Rule 27 by the appellant-husband praying to adduce the said documents as additional evidence. 10. Further the vehicles viz. trucks, tractor and trailer have been sold in the meantime. In this regard, to substantiate, an application has been filed under Order-41, Rule 27 by the appellant-husband praying to adduce the said documents as additional evidence. 10. Now, coming to examine the prayer of the appellant in respect of adducing additional evidence, the law is clear on the point that the provisions of Order 41 Rule 27 has not been engrafted in the Code so as to patch up the weak points in the case and to fill up the omission in the Court of Appeal. It does not authorize any lacunae or gaps in evidence to be filled up. The authority and jurisdiction as conferred on to the Appellate Court to let in fresh evidence is restricted to the purpose of pronouncement of judgment in a particular way (see N. Kamalam (dead) Vs. Ayyasamy, AIR 2001 SC 2802 ). 11. Further the Apex Court in the case of the Municipal Corporation of Greater Bombay v. Lala Pancham and others ( AIR 1965 SC 1008 ) has observed that, the requirement of the High Court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. It is recorded at paragraph-9 as follows: "..........This provision does not entitle the High Court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in a case. It does not entitle the appellate Court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way. In other words, it is only for removing a lacuna in the evidence that the appellate court is empowered to admit additional evidence. The High Court does not say that there is any such lacuna in this case. On the other hand what it says is that certain documentary evidence on record supports in a large measure the plaintiffs contention about fraud and mala fides. We shall deal with these documents presently but before that we must point out that the power under cl. (b) of sub-r. (1) of r. 27 cannot be exercised for adding to the evidence already on record except upon one of the ground specified in the provision". We shall deal with these documents presently but before that we must point out that the power under cl. (b) of sub-r. (1) of r. 27 cannot be exercised for adding to the evidence already on record except upon one of the ground specified in the provision". Thus it becomes clear that under the scope of Order 41 Rule 27, C.P.C., the parties to an appeal shall not be entitled to produce additional evidence, either oral or documentary, unless they have shown that in spite of due diligence, they could not produce such documents and that such documents are required to enable the court to pronounce a proper judgment. 12. In the present facts of the case at hand, while pressing for additional evidence, it is submitted that due to inadvertent mistake by the lawyer of the appellant (husband) in the trial court these evidences could not be adduced and the same may be admitted by this court in terms of the provision under Rule 27(1) (b), Order 41 of the Civil Procedure Code. Now to see the evidences which the appellant proposes to adduce are, the copy of the family partition deed dated 13.11.2009, copy of the fresh enquiry report of the R.I., Balianta in Misc. Case No. 61 of 2013 regarding income of the appellant, copy of the contractor's license of the appellant to show that he was a 'C' Class contractor till 2006, and the copy of the registration certificates of the vehicles showing the name of transferees, in whose favour the vehicles have been sold. Under Order 41, Rule 27 read with Section 107 of the C.P.C., additional evidence before the appellate court cannot be admitted except on three grounds enumerated in clause (a), (aa) & (b) in sub-rule (1) of Rule 27. Obviously, the appellant does not press for first two grounds as his case does not fall within the ambit of those two grounds. What he prays for is to consider it under Clause (b) of sub-rule (1) by citing the reason of inadvertent mistake of the conducting lawyer before the Family Court. But as discussed earlier, Supreme Court in the case of Municipal Corporation of Greater Bombay (supra) has said that, this provision does not entitle the appellate court to let in fresh evidence only for the purpose of pronouncement of judgment in a particular way. 13. But as discussed earlier, Supreme Court in the case of Municipal Corporation of Greater Bombay (supra) has said that, this provision does not entitle the appellate court to let in fresh evidence only for the purpose of pronouncement of judgment in a particular way. 13. In the case of Haryana State Industrial Development Corporation Vs. M/s. Cork Manufacturing Co., reported in AIR 2008 SC 56 , it has been held at paragraph 17 that, lack of proper legal advice or inadvertence to produce the document in evidence is not a ground to hold that there was substantial cause for acceptance of the additional evidence. So the appellant fails to stand on his own reason. 14. Apart from these, perusal of those documents, as filed along with the petition dated 27.04.2017, reveals that the same are some Photostat copies even without the certificate or any endorsement mentioning thereon that the same are true copies of the original. A bare perusal of the said documents does not satisfy the test of admissibility in the evidence, even within the scope of Section 65 of the Indian Evidence Act. Further, perusal of the documents reveals that in the alleged partition deed dated 13.11.2009, this present appellant has not been mentioned as a party though all other family members including the brother of the father of the appellant and his sons were parties therein. Therefore, the genuineness of any such partition deed seems to be doubtful prima facie. 15. Similarly, the copies of the registration certificates of the trucks, tractor and trailer, so produced before us, do not reveal the date of sale or date of transfer of ownership. It is relevant to mention here that originally the matrimonial dispute was filed in the year 2007 and the order of interim maintenance was passed on 29.08.2009 directing the appellant to pay sum of Rs. 5,000/- (five thousand) per month to the wife as interim maintenance. Therefore, these purported documents of partition as well as sale of vehicles have been effected during the pendency of the dispute between the parties and it appears that all these have been done intentionally to frustrate the claim of maintenance of the wife. 16. Further, opposing the claim of the respondent-wife that the appellant is a 'B' Class contractor, the appellant-husband has filed certain documents. 16. Further, opposing the claim of the respondent-wife that the appellant is a 'B' Class contractor, the appellant-husband has filed certain documents. It is stated by the appellant that he is not a 'B' Class Contractor, somehow he was a 'C' Class contractor till 2006 and thereafter he is not doing the contractorship. The documents, so far filed by the appellant to show that he is not a 'B' Class contractor, but was earlier a 'C' Class contractor only till 2006 is also not appearing acceptable at this point, since it is seen from the LCR that it was adduced as Ext. 'A' in I.A. No. 17/2007 (for interim maintenance in C.P. No. 389 of 2010). However, the said document is not relevant at this stage, because as per the contention of the respondent-wife, the appellant subsequently in the year 2007 has changed his status of 'C' Class Contractor to 'B' Class Contractor and in this regard he has made admission in the plaint filed by him i.e., C.S. No. 109/2007 in the Court of learned Civil Judge (Jr. Divn.), Bhubaneswar (under Ext. 10) claiming that he is a 'B' Class contractor. After going through the documents in C.S. No. 109/2007, it factually appears that the appellant-husband himself has declared in the said plaint that he is a 'B' Class contractor. 17. As regards the annual income of the appellant on the basis of the fresh enquiry report of the R.I., Balianta, the same is also not found to be an admissible document at this stage as to his income, because the same has not attained finality in view of the pendency of the proceedings before the Tahasildar, besides the fact that it has excluded the income of the appellant from other sources and it is only confined to agricultural land. It is to be reminded here that as per the respondent-wife, the appellant has multiple sources of income e.g. house rent, contractorship, vehicles etc. other than the agricultural income. Thus for the aforesaid reasons, we do not see any merit in the submission and prayer of the appellant to permit him to adduce additional evidence through those aforementioned documents and accordingly, the said prayer is rejected. 18. other than the agricultural income. Thus for the aforesaid reasons, we do not see any merit in the submission and prayer of the appellant to permit him to adduce additional evidence through those aforementioned documents and accordingly, the said prayer is rejected. 18. It is also relevant here to notice that during pendency of this appeal before this Court, the appellant, in a fraudulent way, tried his best to overcome the order of the Family Court with regard to payment of Rs. 5,00,000/- (five lakhs) in lieu of return of the articles given by the respondent-wife during marriage. When an objection was raised by the respondent-wife regarding the manipulation of the seizure list and zima nama by the husband-appellant, to that extent, this Court ultimately directed for an enquiry by a Deputy Superintendent of Police so as to verify the manipulation of the documents, and as per the report, the truth unveiled that this appellant, with an oblique motive, interpolated the seizure list dated 30.04.2004 and Zima Nama dated 14.06.2004 in GR Case No. 113/2004, in the Court of learned J.M.F.C. (O), Bhubaneswar, to misguide this Court and to show that the wife has taken back her gold ornaments. Reason for stating this aspect here is to highlight the conduct of the appellant to the extent that he has manipulated the documents for misguiding the Court. It is well settled proposition of law that a false statement made in the court or in the pleadings, or filing of any manipulated documents, intentionally to mislead the court and obtain a favorable order, amounts to criminal contempt as it tends to impede the administration of justice. However, we refrain ourselves in taking such action against the appellant-husband with a warning to him that he shall not repeat such conduct in future. 19. Now, to examine the quantum of permanent alimony granted by the Judge, Family Court, which is the sole subject matter of dispute between the parties before this Court, as per the contention of the appellant, the same is on very higher side whereas wife-respondent filed her cross-objection to enhance the same to Rs. 50,00,000/- (fifty lakhs). Here the principles are need to be enunciated at the outset before delving to relevant factual aspects on this point. The Hon'ble Supreme Court in the case of Vinny Parmvir Parmar Vs. 50,00,000/- (fifty lakhs). Here the principles are need to be enunciated at the outset before delving to relevant factual aspects on this point. The Hon'ble Supreme Court in the case of Vinny Parmvir Parmar Vs. Parmvir Parmar, reported in (2011) 13 SCC 112 : AIR 2011 SC 2748 , has observed as follows: "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 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 (sic keep) in mind while determining maintenance or permanent alimony." The Apex Court in the case of U. Sree vs. U. Srinivas, (2013) 2 SCC 114 : AIR 2013 SC 415 , has also made it clear that while granting permanent alimony, no arithmetic formula can be adopted. The specific observations of Hon'ble Court at paragraph 33 of judgment, reads as under: "33. ............ As a decree is passed, the wife is entitled to permanent alimony for her sustenance. Be it stated, while granting permanent alimony, no arithmetic formula can be adopted as there cannot be mathematical exactitude. The specific observations of Hon'ble Court at paragraph 33 of judgment, reads as under: "33. ............ As a decree is passed, the wife is entitled to permanent alimony for her sustenance. 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 [ (2011) 13 SCC 112 : (2012) 3 SCC (Civ) 290] (SCC p. 116, para 12) 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. ..........." 20. In view of the above, keeping in view that no arithmetical formula can be adopted as there cannot be any mathematical exactitude while granting permanent alimony and having regard to the present facts and situation of the case concerning the income aspects of the appellant as well as the other sources of income, which have been well taken note of by the learned Judge, Family Court in the impugned judgment, we are not inclined to disagree or diverge from the quantum fixed by the learned Judge, Family Court. The reasons being that, as it appears, besides other, the total landed property including the ancestral land are coming around 20 acres and most of the properties are situated within the area of Bhubaneswar Development Authority. Further, the number of vehicles possessed by the appellant during that relevant time shows his affluence of income. Having perused the evidence of the parties adduced as P.W. 1 and R.W. 1, it reveals that the statements of the appellant are simply denial in nature to all the statements of the wife (P.W. 1). The appellant has also not denied about the remarriage despite the documents adduced by the respondent-wife under Exts. 30 to 36, which are clear that he has remarried and also become the father of one girl child through the second marriage to one Debaki Routray. Similarly the wife's claim to enhance the quantum is also found devoid of any substantial reason. 30 to 36, which are clear that he has remarried and also become the father of one girl child through the second marriage to one Debaki Routray. Similarly the wife's claim to enhance the quantum is also found devoid of any substantial reason. 21. Thus, after thorough analysis of the impugned order and the materials available in the lower court records as well as the materials produced before us, we do not see any reason to interfere with the same. However, considering the submission of the appellant that he has paid a total sum of Rs. 5,35,000/-(rupees five lakhs thirty five thousand) towards interim maintenance, which should be adjusted from the permanent alimony of Rs. 35,00,000/- (rupees thirty five lakhs), we are inclined to accept the same and it is directed that the amount, if any, paid by the appellant towards interim maintenance be adjusted from the amount of permanent alimony. Further, it is made clear that the direction issued by the Family Court for payment of Rs. 5,00,000/- (rupees five lakhs) in lieu of return of the articles is also confirmed. 22. In the result, the appeal stands dismissed and the judgment and decree dated 19.8.2015 passed by the learned Judge, Family Court, Bhubaneswar in Civil Proceedings No. 389 of 2010 is affirmed with aforesaid clarification towards adjustment of interim maintenance, if any, paid. Appeal is dismissed. No order as to costs. S.K. Mishra, J. I agree.