Rupali Mahanty, daughter of Shri Gopal Prasad Mahanty v. Subhashish Sannigrahi, son of Shri Bijoy Chandra Sannigrahi
2022-03-24
RATNAKER BHENGRA, SHREE CHANDRASHEKHAR
body2022
DigiLaw.ai
ORDER : Shree Chandrashekhar, J. The ex-wife of the respondent is aggrieved of a part of the judgment delivered in Original Suit No. 76 of 2018 to the extent that the learned Principal Judge, Family Court, Bokaro has awarded Rs. 25,00,000/-as permanent alimony to her. 2. By the judgment dated 22nd December 2020, Original Suit No. 76 of 2018 was decreed and marriage of the petitioner/appellant with Subhashish Sannigrahi solemnized on 17th February 1996 was dissolved. 3. The appellant instituted Original Suit No. 76 of 2018 for dissolution of her marriage on the ground of cruelty as provided under section 13(1) (ia) of the Hindu Marriage Act, 1955. 4. The Family Court framed the following issues for adjudication: “(i) Whether the suit is maintainable in its present form? (ii) Whether the petitioner has valid cause of action for the suit? (iii) Whether the respondent (Husband) committed subjected to cruelty against the petitioner (Wife) after marriage and whether the petitioner (Wife) is entitled to get a Decree of dissolution of marriage on the basis of crutlty u/S. 13(1)(ia) of Hindu Marriage Act, 1955? (iv) Whether the petitioner is entitled to get the relief as prayed for? 5. The appellant examined herself as PW1 and her father came to the witness box to support her as PW2. Subhashish Sannigrahi brought his brother as RW2 and his maternal nephew as RW3, besides examining himself as RW1. 6. In his written statement, the respondent took a stand that it was his wife who was at fault and contested the allegations of cruelty levelled by his wife against him. 7. In the judgment in Original Suit No. 76 of 2018, the learned Principal Judge, Family Court, Bokaro reproduced the evidence laid by the parties and considered other materials on record. In paragraph No.15 of the judgment in Original Suit No. 76 of 2018, the learned Principal Judge, Family Court, Bokaro has recorded that the Whatsapp conversations which are marked as Ext.-X & X/2 for identification indicate that the relationship between the parties was not so cordial. On the basis of letters Ext.-1 series written by PW1 to PW2, the learned Judge concluded that the wife was subjected to physical and mental cruelty at the hands of her husband. 8. The aforesaid findings and the judgment and decree in Original Suit No. 76 of 2018 are not under challenge at the instance of the respondent. 9.
On the basis of letters Ext.-1 series written by PW1 to PW2, the learned Judge concluded that the wife was subjected to physical and mental cruelty at the hands of her husband. 8. The aforesaid findings and the judgment and decree in Original Suit No. 76 of 2018 are not under challenge at the instance of the respondent. 9. As regards permanent alimony, the Principal Judge, Family Court, Bokaro has taken note of payslip of Subhashish Sannigrahi and a Duplex house owned by him at Darjeeling. 10. The learned Principal Judge, Family Court, Bokaro finally concluded as under: “15. ............ On the basis of the documents as discussed above on record as well as the details of the income of the respondent, I find that the respondent/husband has sufficient means. In the light of the guidelines given by the Hon'ble Supreme Court of India, in the case of Rajnesh Versus Neha and Another as reported in 2020 SCC Online SC 903, I have gone through the documents regarding income of the respondent and his superannuation is in the year 2024, I am of the opinion that Rs.25,00.000/-(Rupees Twenty five lakhs) as permanent alimony would be sufficient to maintain the petitioner. 16. On the basis of above discussions, this suit of the petitioner is decreed on contest subject to payment of Rs.25,00,000/-(Rupees Twenty five lakhs) as one time permanent alimony/for future maintenance to the respondent. 17. It is therefore, ORDERED : that the suit be and the same is hereby decreed on contest subject to payment of Rs.25,00,000/-(Rupees Twenty five lakhs) by the respondent to the petitioner towards her permanent alimony and for future maintenance within two months in two installments and the marriage solemnized between the petitioner with the respondent on 17.02.1996 stands dissolved on the payment of Rs.25,00,000/-(Rupees Twenty five lakhs) by the respondent to the Petitioner as permanent alimony and for future maintenance.” 11. The quantum of alimony awarded by the Family Court has been challenged by the appellant on the ground that it is not sufficient rather inadequate for her to maintain herself for life and, moreover, the learned Family Court Judge did not consider the materials brought on record by her. 12. Mr. Manoj Tandon, the learned counsel for the respondent, would refer to the order dated 22nd December 2020 passed in Original Suit No. 76 of 2018 to submit that permanent alimony of Rs.
12. Mr. Manoj Tandon, the learned counsel for the respondent, would refer to the order dated 22nd December 2020 passed in Original Suit No. 76 of 2018 to submit that permanent alimony of Rs. 25,00,000/-awarded to the appellant is more than sufficient. 13. It is not in dispute that an application under section 24 of the Hindu Marriage Act was filed by the appellant in which the learned Principal Judge, Family Court, Bokaro awarded Rs.20,000/-per month as interim maintenance pendente lite. This order was challenged by the appellant in Civil Revision No. 20 of 2019 and by an order dated 8th November 2019 a learned Single Judge of this Court ordered notice to the respondent who came to this Court with WP(C) No. 2199 of 2019 against the said order of interim maintenance pendente lite. 14. Both the petitions were heard together and disposed of on 24th January 2020 in the following terms: “9. It is made clear that till the final decision is made afresh, the respondent husband shall continue to make the payment of maintenance amount of Rs.20,000/-per month to the petitioner wife, and upon the fresh order being passed by the Court below, the impugned order dated 28.01.2019 shall stand recalled. 10. It is an admitted position that as on today, the evidences of both the parties are concluded in the Court below and even the arguments of the petitioner have also been heard. The case is pending only for the arguments of the respondent-husband. It would be appropriate that while deciding the application of maintenance, the Court below shall also dispose of the original suit at an early date, without giving any unnecessary adjournment to either of the parties. 11. Both these applications are accordingly disposed of, with the directions / observations as above.” 15. The appellant-in-person would draw our attention to the order dated 13th January 2020 passed in Original Suit No. 76 of 2018 to submit that in the judgment in Original Suit No. 76 of 2018 there is no discussion by the learned Principal Judge, Family Court, Bokaro on the issues raised by her. She would submit that she raised arguments on quantum of permanent alimony on the basis of her written notes of arguments, however, the records which are received in the Registry do not contain the material exhibits including the written notes of arguments.
She would submit that she raised arguments on quantum of permanent alimony on the basis of her written notes of arguments, however, the records which are received in the Registry do not contain the material exhibits including the written notes of arguments. The appellant has shown to us documents relating to a house at Kolkata in respect of which the respondent was cross-examined in paragraph No. 62 and 63 of his evidence, however, the same is not included in the records which are sent to this Court. The appellant-in-person further submits that the respondent in his evidence in the Court said that he was paying Rs.25,000/-and sometimes Rs.40,000/-per month for the maintenance of the appellant and their child and, therefore, going by his own account the amount of permanent alimony as awarded by the learned Family Court Judge was grossly inadequate. 16. The Family Courts Act, 1984 was enacted by the Parliament in the Thirty-fifth year of the Republic of India. Section 7 of the Family Courts Act, 1984 deals with jurisdictions exercisable by any district Court or any subordinate civil Court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation to section 7. We would further indicate that under section 9 of the Code of Civil Procedure all Courts shall have plenary jurisdiction to try all suits of the civil nature excepting suits of which their cognizance is either expressly or impliedly barred. The Family Court, Bokaro, therefore, would also have plenary jurisdiction to determine all issues raised in Original Suit No. 76 of 2018. However, we find that on the question of award of permanent alimony the judgment in Original Suit No. 76 of 2018 lacks discussion on material aspects of the matter. 17. Section 25 of the Hindu Marriage Act, 1955, which is an enabling provision, reads as under: “25.
However, we find that on the question of award of permanent alimony the judgment in Original Suit No. 76 of 2018 lacks discussion on material aspects of the matter. 17. Section 25 of the Hindu Marriage Act, 1955, which is an enabling provision, reads as under: “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. (2) If the court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under sub-section (1), it may at the instance of either party, vary, modify or rescind any such order in such manner as the court may deem just. (3) If the court is satisfied that the party in whose favour an order has been made under this section has re-married or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, it may at the instance of the other party vary, modify or rescind any such order in such matter as the court may deem fit.” 18. The important expressions used under section 25 of the Act are “at the time of passing any decree” and, “at any time subsequent thereto”. It has been held that section 25 of the Act enables the Court to award maintenance at the time of passing any type of decree resulting in breach of marriage so that a financially dependant spouse is not rendered destitute.
It has been held that section 25 of the Act enables the Court to award maintenance at the time of passing any type of decree resulting in breach of marriage so that a financially dependant spouse is not rendered destitute. The scope of section 25 is very wide and it confers ample powers in the Family Court to pass appropriate orders for maintenance and permanent alimony. 19. In “Rameshchandra Rampratapji Daga vs Rameshwari Rameshchandra Daga” (2005) 2 SCC 33 a plea was raised that when the marriage is found null and void under section 11 of the Hindu Marriage Act, the question of grant of permanent alimony for maintenance would not arise. The Hon'ble Supreme Court has held as under: “18. In the present case, on the husband's petition, a decree declaring the second marriage as null and void has been granted. The learned counsel has argued that where the marriage is found to be null and void — meaning non-existent in the eye of the law or non est, the present respondent cannot lay a claim as wife for grant of permanent alimony or maintenance. We have critically examined the provisions of Section 25 in the light of conflicting decisions of the High Court cited before us. In our considered opinion, as has been held by this Court in Chand Dhawan case, the expression used in the opening part of Section 25 enabling the “court exercising jurisdiction under the Act” “at the time of passing any decree or at any time subsequent thereto” to grant alimony or maintenance cannot be restricted only to, as contended, decree of judicial separation under Section 10 or divorce under Section 13. When the legislature has used such wide expression as “at the time of passing of any decree”, it encompasses within the expression all kinds of decrees such as restitution of conjugal rights under Section 9, judicial separation under Section 10, declaring marriage as null and void under Section 11, annulment of marriage as voidable under Section 12 and divorce under Section 13.” 20. In the judgment passed in Original Suit No. 76 of 2018, the learned Principal Judge, Family Court, Bokaro has not discussed status of the parties, the living standards the wife would have been enjoying in her matrimonial home and the other parameters which should have been taken into consideration for fixing the amount of permanent alimony.
In the judgment passed in Original Suit No. 76 of 2018, the learned Principal Judge, Family Court, Bokaro has not discussed status of the parties, the living standards the wife would have been enjoying in her matrimonial home and the other parameters which should have been taken into consideration for fixing the amount of permanent alimony. In “Kalyan Dey Chowdhury v. Rita Dey Chowdhury Nee Nandy” (2017) 14 SCC 200 the Hon'ble Supreme Court has observed 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. However, without any such discussion the learned Family Court Judge came to a conclusion that the award of Rs. 25,00,000/-as permanent alimony to the wife is reasonable, adequate and sufficient for her to maintain herself for life. 21. Mr. Manoj Tandon, the learned counsel for the appellant, would try to contend that after receiving the total amount of Rs. 25,00,000/-as awarded to her as permanent alimony the appellant cannot challenge the same in the present First Appeal. However, we are not inclined to dismiss this Appeal on such ground primarily for the reason that the principles of estoppel, acquaintance etc. are not applied in the matters of statutory right to appeal. 22. In “Jalendra Padhiary v. Pragati Chhotray” (2018) 16 SCC 773 the Hon'ble Supreme Court has observed that there is a need to pass reasoned order in every case, which must contain the narration of the bare facts of the case of the parties to the lis, the issues arising in the case, the submissions urged by the parties, the legal principles applicable to the issues involved and the reasons in support of the findings recorded by the Court which should be based on appreciation of evidence on all the material issues arising in the case. “Jalendra Padhiary” was also a case arising from the Family Courts Act in which the award of alimony by the Family Court was under challenge. The Hon'ble Supreme Court, after the aforesaid discussions in paragraph No.16 of the reported judgment, set-aside the order passed by the Hon'ble High Court and remanded the matter for a fresh consideration. 23.
“Jalendra Padhiary” was also a case arising from the Family Courts Act in which the award of alimony by the Family Court was under challenge. The Hon'ble Supreme Court, after the aforesaid discussions in paragraph No.16 of the reported judgment, set-aside the order passed by the Hon'ble High Court and remanded the matter for a fresh consideration. 23. In the circumstances of the case, we are of the opinion that on the question of quantum of permanent alimony the judgment passed in Original Suit No. 76 of 2018 requires interference by this Court for a fresh decision by the Family Court. 24. The judgment passed in Original Suit No. 76 of 2018 in respect to award of permanent alimony of Rs. 25,00,000/-, which according to the parties, has been received by the appellant is set-aside and the matter is remanded back to the Family Court, Bokaro. The parties are permitted to file further affidavits as per enclosure-I to the judgment in “Rajnesh v. Neha” (2021) 2 SCC 324 , in addition to the materials already brought on record. 25. We order accordingly. 26. FA No. 15 of 2021 is allowed to the above extent.