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2024 DIGILAW 976 (JHR)

Rajeev Kumar Dev, Son of Ram Ashish Dev v. Vandana Dev, wife of Rajeev Kumar Dev

2024-11-27

ARUN KUMAR RAI, RONGON MUKHOPADHYAY

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JUDGMENT : R. Mukhopadhyay, J. Heard Ms. Ganga Kumari Kachhap, learned counsel appearing for the appellant and Mr. Umesh Kumar Choubey, learned counsel appearing for the respondent. 2. This appeal is directed against that part of the judgment and decree dated 24.01.2023 (decree signed on 04.02.2023) passed by Sri Alok Kumar Dubey, learned Principal Judge, Family Court, Bokaro in Original Suit No. 36 of 2019 whereby and whereunder the appellant has been directed to make payment of permanent alimony of Rs.15 Lacs to the respondent within a period of three months and the appellant has prayed for reduction of the amount of permanent alimony. 3. For the sake of convenience, both the parties are referred to in this judgment as per their status before the learned trial court. 4. The petitioner/husband (appellant herein) had preferred a Suit under Section 13 (ia) A (iii) of the Hindu Marriage Act, 1955 against the respondent/wife (respondent herein) on the basis of various grounds formulated in the application for divorce. 5. The respondent on being noticed, had appeared and filed a written statement in which apart from denying the allegations made by the petitioner in his application for divorce, mention has also been made of the torture committed upon the respondent and her ultimate ouster from her matrimonial house by the petitioner. 6. Based on the pleadings of the parties, the following issues were framed 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 (wife) committed subjected to cruelty against the petitioner (husband) after marriage? (iv) Whether the respondent (wife) deserted her husband (petitioner) since last two years prior to filing of the suit and is entitled to get a decree of dissolution of marriage on the basis of Section 13(ia)A(iii) of the Hindu Marriage Act, 1955 ? (v) Whether the petitioner is entitled to get the relief as prayed for ? 7. The petitioner had examined five witnesses on his behalf while the respondent had examined three witnesses. 8. Issue No.(iii), (iv) and (v) were decided by the learned trial court in the following manner :- “16. (v) Whether the petitioner is entitled to get the relief as prayed for ? 7. The petitioner had examined five witnesses on his behalf while the respondent had examined three witnesses. 8. Issue No.(iii), (iv) and (v) were decided by the learned trial court in the following manner :- “16. After going through the material available on record, I find that the relationship of man and wife in between the parties has broken down irretrievably and in future, there is no chance of their reunion or reformation. Both the parties have been living separately for a quite long period of time. No case for restitution of conjugal rights has been filed by the respondent expressing her willingness to lead her conjugal life with the petitioner. All these, goes to show that she is no longer interested to lead her conjugal life with her husband (Petitioner) and wants part ways from her husband (Petitioner). Hence, Issue Nos. iii, iv & v are decided in favour of the husband/petitioner.” 9. Learned trial court has thereafter considered the factors necessary to be looked into while granting permanent alimony which are as follows :- “17. For deciding permanent alimony, the necessary points to be taken for consideration by the court are :- (i) Parties may lead oral and documentary evidence with respect to income, expenditure, standard of living, etc. before the concerned court, for fixing the permanent alimony payable to the spouse. (ii) In contemporary society, where several marriages do not last for a reasonable length of time, it may be inequitable to direct the contesting spouse to pay permanent alimony to the applicant for the rest of her life. The duration of the marriage would be a relevant factor to be taken into consideration for determining the permanent alimony to be paid. (iii) Provision for grant of reasonable expenses for the marriage of children must be made at the time of determining permanent alimony, where the custody is with the wife. The expenses would be determined by taking into account the financial position of the husband and the customs of the family. (iv) If there are any trust funds/investments created by any spouse/grandparents in favour of the children, this would also be taken into consideration while deciding the final child support.” 10. The conclusion as arrived at reads as under :- “19. (iv) If there are any trust funds/investments created by any spouse/grandparents in favour of the children, this would also be taken into consideration while deciding the final child support.” 10. The conclusion as arrived at reads as under :- “19. It is therefore, ORDERED that the suit be and the same is decreed on contest. The marriage solemnized on 26.06.2009 between the petitioner namely Rajeev Kumar Dev and the respondent namely Vandana Dev stands dissolved under the provision of Section 13 (1) (ia) (ib) of Hindu Marriage Act, 1955, subject to payment of Rs. 15,00,000 (Rupees Fifteen Lakhs) by the Petitioner to the respondent towards her future maintenance and one time permanent alimony to be paid in three installments within three months from today. Thereafter, there will be no relationship of husband and wife in between the Petitioner and the respondent. However, it is made clear that as ordered by this court in Original Maintenance Case No. 109 of 2018, the Petitioner of this case should keep paying Rs.4,000/- (Rupees Four Thousands) per month towards maintenance of their son viz. Rishant Singh till attainment of his majority. It is further made clear that there shall be joint parentship of their son viz. Rishant Singh and the Petitioner shall have visiting right/contact right to meet their son as per convenience of the parties.” 11. The petitioner / appellant in this appeal though has prayed for reduction in the quantum of the amount of permanent alimony, but the same can be construed to mean that the grant of permanent alimony is itself under challenge. It is to be noted herein that no issue has been specifically framed as to whether the respondent is entitled to grant of permanent alimony and if so, the quantum of such permanent alimony. The impugned order does not reveal that the learned trial court while granting permanent alimony of Rs.15,00,000/- has taken into consideration the various factors necessary for deciding the issue of permanent alimony. In this context, we may refer to the case of Rajnesh Vrs. Neha & Anr. reported in (2021) 2 SCC 324 wherein at para-73 to 81 it has been held as follows:— “73 . Parties may lead oral and documentary evidence with respect to income, expenditure, standard of living, etc. before the court concerned, for fixing the permanent alimony payable to the spouse. 74. Neha & Anr. reported in (2021) 2 SCC 324 wherein at para-73 to 81 it has been held as follows:— “73 . Parties may lead oral and documentary evidence with respect to income, expenditure, standard of living, etc. before the court concerned, for fixing the permanent alimony payable to the spouse. 74. In contemporary society, where several marriages do not last for a reasonable length of time, it may be inequitable to direct the contesting spouse to pay permanent alimony to the applicant for the rest of her life. The duration of the marriage would be a relevant factor to be taken into consideration for determining the permanent alimony to be paid. 75. Provision for grant of reasonable expenses for the marriage of children must be made at the time of determining permanent alimony, where the custody is with the wife. The expenses would be determined by taking into account the financial position of the husband and the customs of the family. 76. If there are any trust funds/investments created by any spouse/grandparents in favour of the children, this would also be taken into consideration while deciding the final child support. III. Criteria for determining quantum of maintenance 77. The objective of granting interim/permanent alimony is to ensure that the dependant spouse is not reduced to destitution or vagrancy on account of the failure of the marriage, and not as a punishment to the other spouse. There is no straitjacket formula for fixing the quantum of maintenance to be awarded. 78. The factors which would weigh with the Court inter alia are the status of the parties; reasonable needs of the wife and dependent children; whether the applicant is educated and professionally qualified; whether the applicant has any independent source of income; whether the income is sufficient to enable her to maintain the same standard of living as she was accustomed to in her matrimonial home; whether the applicant was employed prior to her marriage; whether she was working during the subsistence of the marriage; whether the wife was required to sacrifice her employment opportunities for nurturing the family, child rearing, and looking after adult members of the family; reasonable costs of litigation for a non-working wife. 79. In Manish Jain v. Akanksha Jain this Court held that the financial position of the parents of the applicant-wife, would not be material while determining the quantum of maintenance. 79. In Manish Jain v. Akanksha Jain this Court held that the financial position of the parents of the applicant-wife, would not be material while determining the quantum of maintenance. An order of interim maintenance is conditional on the circumstance that the wife or husband who makes a claim has no independent income, sufficient for her or his support. It is no answer to a claim of maintenance that the wife is educated and could support herself. The court must take into consideration the status of the parties and the capacity of the spouse to pay for her or his support. Maintenance is dependent upon factual situations; the Court should mould the claim for maintenance based on various factors brought before it. 80. On the other hand, the financial capacity of the husband, his actual income, reasonable expenses for his own maintenance, and dependant family members whom he is obliged to maintain under the law, liabilities if any, would be required to be taken into consideration, to arrive at the appropriate quantum of maintenance to be paid. The Court must have due regard to the standard of living of the husband, as well as the spiralling inflation rates and high costs of living. The plea of the husband that he does not possess any source of income ipso facto does not absolve him of his moral duty to maintain his wife if he is able bodied and has educational qualifications. 81. A careful and just balance must be drawn between all relevant factors. The test for determination of maintenance in matrimonial disputes depends on the financial status of the respondent, and the standard of living that the applicant was accustomed to in her matrimonial home. The maintenance amount awarded must be reasonable and realistic, and avoid either of the two extremes i.e. maintenance awarded to the wife should neither be so extravagant which becomes oppressive and unbearable for the respondent, nor should it be so meagre that it drives the wife to penury. The sufficiency of the quantum has to be adjudged so that the wife is able to maintain herself with reasonable comfort.” 12. The learned trial court has noted in brief the factors guiding the grant of permanent alimony, but no findings have been recorded as to how the amount of Rs.15 Lacs has been arrived at. The sufficiency of the quantum has to be adjudged so that the wife is able to maintain herself with reasonable comfort.” 12. The learned trial court has noted in brief the factors guiding the grant of permanent alimony, but no findings have been recorded as to how the amount of Rs.15 Lacs has been arrived at. The determination of the quantum of permanent alimony had to be made in terms of the various factors enumerated in Rajnesh Vrs. Neha & Anr. (supra) and in absence of valid reasonings that part of the impugned judgment dated 24.01.2023 which grants permanent alimony of Rs.15 Lacs to the respondent, is hereby quashed and set aside and the matter is remanded back to the learned trial court to pass a fresh order in accordance with law only with respect to the issue of permanent alimony. While arriving at a conclusion the learned trial court may take fresh evidence both oral and documentary in determination of the quantum of permanent alimony. The exercise so indicated must be completed within a period of four months from the date of receipt/production of a copy of this judgment. 13. This appeal is allowed to the extent mentioned herein above. 14. Pending Interlocutory application, if any, stands closed.