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2023 DIGILAW 310 (KAR)

Roopa N. S. v. N. Ramakrishna

2023-02-22

ALOK ARADHE, VIJAYKUMAR A.PATIL

body2023
JUDGMENT/ORDER ALOK ARADHE, J. - Smt.Bindu U., learned counsel for the appellant. None for the respondent. This appeal under Sec. 19(1) of the Family Courts Act, 1984 has been filed against judgment dtd. 6/11/2014 passed by the Family Court by which the petition filed by the appellant seeking dissolution of marriage on the ground of cruelty has been allowed and she has been held entitled to permanent alimony at the rate of Rs.2, 000.00 p.m. Being dissatisfied with the quantum of permanent alimony, the appellant has filed this appeal seeking enhancement of the amount of permanent alimony. 2. Facts giving rise to filing of this appeal briefly stated are that the marriage between the parties was solemnized on 27/3/1997 in Bangalore. Out of the wedlock, a daughter was born to the parties. 3. According to the appellant, she was subjected to cruelty in her matrimonial home. Therefore, she filed a petition under Sec. 13 of the Hindu Marriage Act, 1955 on 20/7/2009 seeking a decree of divorce. The respondent contested the matter. The Family Court, however, vide judgment dtd. 6/11/2014 inter alia held that the appellant has proved the allegation of cruelty and therefore, is entitled to a decree of divorce on the ground of cruelty. It was further held that the respondent runs a tea stall and is employed as a Coolie and his monthly income is Rs.6, 000.00 p.m. The Family Court therefore held the appellant to be entitled to permanent alimony at the rate of Rs.2, 000.00 p.m. Being aggrieved by the quantum of permanent alimony, the appellant / wife has filed this appeal. 4. Learned counsel for the appellant submitted that the respondent has a share in the joint family property and the respondent runs a tea stall as well. Therefore, his income is much more than Rs.6, 000.00 p.m. However, learned counsel for the appellant fairly submitted that the appellant has not filed an affidavit regarding her assets and liabilities. None has appeared on behalf of the respondent. 5. We have considered the submissions made on behalf of the appellant and have perused the record. This Court, by an order dtd. 22/6/2022, had directed the appellant to file statement regarding assets and liabilities in view of the decision of the Supreme Court in RAJNESH Vs. NEHA AND ANOTHER, 2020 SCC Online SC 903. 5. We have considered the submissions made on behalf of the appellant and have perused the record. This Court, by an order dtd. 22/6/2022, had directed the appellant to file statement regarding assets and liabilities in view of the decision of the Supreme Court in RAJNESH Vs. NEHA AND ANOTHER, 2020 SCC Online SC 903. Thereafter, learned counsel for the appellant, on 17/1/2023 prayed for an adjournment to enable her to file an affidavit. However, when the matter is taken up today, learned counsel for the appellant stated that the appellant is not in a position to file the affidavit regarding assets and liabilities. Therefore, an adverse inference has to be drawn against the appellant. The Family Court, on the basis of the evidence adduced by the appellant i.e. Ex.P6, a copy of the sale deed dtd. 15/12/2013 as well as copy of RTC Ex.P7 and the oral evidence of the parties, has recorded a finding that monthly salary of the respondent is between Rs.6, 000.00 to Rs.7, 000.00. The Family Court, by taking into account the income of the respondent as well as the status of the parties, has held the appellant to be entitled to a permanent alimony of Rs.2, 000.00 p.m. for maintenance of herself and her child. The appellant has not been able to point out any material on record to show that the respondent earns more than Rs.6, 000.00 to Rs.7, 000.00 p.m. From the evidence on record, it appears that the respondent is employed as a Coolie and had a tea stall. Therefore, on the basis of material available on record, the Family Court has rightly concluded that the monthly income of the respondent is between Rs.6, 000.00 and Rs.7, 000.00. Out of the aforesaid income, 1/3 of the amount is directed to be paid to the appellant and her daughter on account of the permanent alimony. The finding with regard to grant of permanent alimony is based on meticulous appreciation of evidence on record which does not call for any interference in this appeal. For the aforementioned reasons, we do not find any merit in this appeal. The same fails and is hereby dismissed.