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2020 DIGILAW 337 (MP)

Roshni v. Anand

2020-03-02

MOHD.FAHIM ANWAR, SUJOY PAUL

body2020
JUDGMENT Anwar, J.--1. This first appeal under section-19 of Family Courts Act, 1984 has been filed by the appellant/wife against the judgment and decree dated 23.11.2016 passed by Principal Judge, Family Court, Seoni in RCS-HM No. 11800026-A/2016, whereby the application filed by the appellant under section 12 (1) (a) of the Hindu Marriage Act, 1955 was partly allowed by declaring her marriage with the respondent as null and void but denying her claim for permanent alimony. Being aggrieved by this part of the judgment and decree, the appellant has preferred this appeal. 2. It is not in dispute that the appellant is married wife of respondent. Their marriage was solemnized on 11.6.2015 at Seoni as per Hindu rites and rituals prevalent amongst Hindu Society. After marriage they lived together peacefully for a very short period. During this period they have not begotten any child. Appellant has filed a suit for declaring their marriage to be null and void on the ground that their marriage has not been consummated owing to the impotence of the respondent. The said suit was decreed in her favour. 3. Learned counsel appearing on behalf of appellant/wife has submitted in short that she has filed the suit for declaring her marriage with the respondent to be null and void and with that relief she also sought permanent alimony/maintenance under section 25 (1) of the Hindu Marriage Act, 1955 although the respondent is a Central Government employee but at that time she was not having any proof regarding his income so in absence of the proof of income her claim for permanent alimony was rejected. It is submitted that later on, she applied under Right To Information Act for providing the details of salary of the respondent, which was provided to her. The salary slips and other documents have been filed along with interlocutory application which has been allowed and said documents have been taken on record. Learned counsel for the appellant submitted that considering the said proof regarding the income of the respondent, he be directed to pay Rs. 15,000/- per month as alimony/maintenance from 23.11.2016 i.e. from the date of impugned judgment. 4. Respondent has not appeared during the course of hearing of the appeal despite service of notice upon him. 5. Heard learned counsel for the appellant. 6. 15,000/- per month as alimony/maintenance from 23.11.2016 i.e. from the date of impugned judgment. 4. Respondent has not appeared during the course of hearing of the appeal despite service of notice upon him. 5. Heard learned counsel for the appellant. 6. It is to be decided as to whether the appellant/wife deserves to get any amount of alimony/maintenance from the respondent. If 'Yes' then what will be its quantum and from which date it will be payable to the appellant? 7. Provision of sub-section (1) of section 25 of the Act is relevant, which reads thus: "25. Permanent alimony and maintenance- (1) Any Court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent's own income and other property, if any, the income and other property of the applicant, the conduct of the parties and other circumstances of the case, it may seem to the Court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent." 8. The original suit of the appellant was for declaring her marriage with the respondent, dated 11.6.2015 to be null and void. The said suit was decreed vide judgment and decree dated 23.11.2016 in favour of the appellant. In the said suit, appellant has also filed an application under section 25 of the Hindu Marriage Act. The respondent after appearance on the initial stage has stopped appearing; therefore, the case was proceeded ex-parte and evidence of the appellant was also recorded in absence of the respondent. On considering the said evidence, the suit filed by the appellant was allowed and her marriage with the respondent was declared as void. At that time, appellant has also made request for granting her alimony/maintenance, which was rejected with the specific observation that she has not filed any documentary proof regarding service and income of the respondent. 9. At this stage, appellant has filed the salary slip of the respondent, which is of August, 2018. At that time, appellant has also made request for granting her alimony/maintenance, which was rejected with the specific observation that she has not filed any documentary proof regarding service and income of the respondent. 9. At this stage, appellant has filed the salary slip of the respondent, which is of August, 2018. On going through the same, it appears that respondent is serving in Western Coalfields Limited on the post of Security Guard and getting Rs. 35,000/- as gross monthly salary and after deduction he is getting the net salary of Rs. 28,361/-. The evidence led by the appellant is not discarded by the respondent. 10. In the case of Dr. Kulbhushan Kumar v. Raj Kumari and anr. (1970) 3 SCC 129 , it was held that 25% of the husband's net salary would be just and proper to be awarded as maintenance to the respondentwife. It is also held that 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. 11. Since in August, 2018, the net salary of the respondent/husband was Rs. 28,361/- per month, in the interest of justice, we think it proper to award the amount of Rs. 7,000/- per month as maintenance to the appellant/wife. 12. In the result, the appeal filed by the appellant/wife stands allowed and an amount of Rs. 7,000/- as alimony/maintenance per month is awarded to the appellant/wife from the date of filing of this appeal i.e. from 5.10.2018 and to this extent the impugned judgment is modified. The alimony/ maintenance of Rs. 7,000/- per month is payable to the appellant/wife on or before 10th of every succeeding english calendar month. No costs. ..................