Karnataka High Court
Sri Daniel Anand vs Smt G N Sujatha on 13 July, 2017
Equivalent citations: AIR 2017 KARNATAKA 171, 2017 (4) AKR 160, (2018) 1 ICC 75, (2018) 1 DMC 697, (2017) 5 KANT LJ 200, (2018) 2 CURCC 320, (2017) 178 ALLINDCAS 865 (KAR), (2018) 2 CURCC 140, (2017) 4 KCCR 3281
Bench: Jayant Patel, S.Sujatha
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF JULY 2017
PRESENT
THE HON'BLE MR.JUSTICE JAYANT PATEL
AND
THE HON'BLE MRS.JUSTICE S.SUJATHA
M.F.A.No.3929/2017 (FC)
BETWEEN :
SRI DANIEL ANAND
S/O JAYAKUMAR
AGED ABOUT 38 YEARS
R/AT # 576, RAMABHAI NAGARA
MYSORE-570008. ... APPELLANT
(BY SMT.S.SUSHEELA, ADVOCATE)
AND :
SMT.G.N.SUJATHA
W/O DANIEL ANAND
D/O NARASIMHA
AGED ABOUT 32 YEARS
R/AT No.122/A, RAILWAY QUARTERS
MYSORE SOUTH, MYSORE-570008. ...RESPONDENT
THIS MFA FILED UNDER SECTION 55(1) OF THE
DIVORCE ACT 1869 SECTION 19(c) OF THE FAMILY COURTS
ACT 1984, AGAINST THE JUDGMENT AND DECREE DATED
01.02.2017 PASSED IN M.C.75/2014 ON THE FILE OF THE PRL.
FAMILY COURT AT MYSURU, ALLOWING THE PETITION FILED
UNDER Section 10(1)(x) OF THE DIVORCE ACT, FOR
DISSOLUTION OF MARRIAGE.
2
THIS APPEAL HAVING BEEN RESERVED FOR ORDERS ON
05.07.2017, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT, THIS DAY, S. SUJATHA, J., PASSED THE
FOLLOWING:
ORDER
This appeal is directed against the Judgment and order passed by the I-Additional Prl. Family Court, Mysuru ('Family Court' for short) in M.C.No.75/2014 directing the appellant herein to pay permanent alimony of Rs.5 lakhs to the respondent.
2. Facts in brief are:
The appellant and the respondent got married to each other as per Christian Customary Rights on 28.12.2016 at Bethel Brothern Church, Krishnamurthypuram, Mysuru. The couple had a female child by name Grace Jacintha in the wedlock, who is now aged about 8 years. Due to the matrimonial disharmony between the couple, the appellant herein filed petition under Section 10 (1) (x) of the Divorce Act, 1869 (the 'Act' for short) before the Family Court. So 3 also, the respondent filed C.Misc.No.437/2014 against the appellant claiming maintenance. The Court below clubbed both the petitions and passed common judgment and order on 01.02.2017. The petition filed by the appellant for divorce was allowed and the C.Misc.No.437/2014 filed by the respondent for maintenance was dismissed. However, while granting the decree of divorce, the Court below directed the appellant herein to pay permanent alimony of Rs.5 lakhs. The said portion of the order directing the appellant to pay permanent alimony of Rs.5 lakhs to the respondent is challenged herein.
3. The learned counsel Smt.S.Susheela appearing for the appellant challenged the impugned order, quantifying the permanent alimony, on two grounds. Firstly, Section 37 of the Act do not entitle the wife to claim for permanent alimony, where the husband has filed the petition for divorce. Placing 4 reliance on Section 37 of the Act, the learned counsel vehemently argued that the Family Court exceeded its jurisdiction in awarding the permanent alimony to the wife exercising the power under Section 37 of the Act. Secondly, it was contended that the respondent is capable of earning, being a beautician whereas the appellant is only a taxi driver not having the assured income. In addition to that, the appellant has to take care of his mother and child who are dependent on him. In the absence of any material placed on record by the respondent, to establish the factum of income of the appellant, permanent alimony of Rs.5 lakhs awarded by the Court below is wholly unsustainable. Thus, the learned counsel sought for setting aside the order impugned, awarding permanent alimony, allowing the appeal.
4. We have heard the learned counsel for the parties and perused the material on record. 5
5. As regards the first point, we find it apt to refer to the legal dictionary to ascertain the meaning of the expression "alimony" and the same is extracted hereunder.
"Alimony. In a legal sense, it is taken for that allowance which a married woman sues for and is entitled to, upon separation from her husband; the allowance made to the wife out of her husband's estate for her support, either during a matrimonial suit, or at its termination, when she proves herself entitled to a separate maintenance."
6. Thus, Permanent alimony is the support given to the wife under the provisions of the Act, post divorce, to ensure a decent life to the wife. It is the support to the wife lest she suffering vagrancy if, she is not able to maintain herself. It is well settled position of law by now that the amount of permanent alimony must be sufficient to ensure that a woman lives with dignity after separating from her husband. As regards granting 6 of permanent alimony to the wife under the provisions of the Act is considered, the issue is no more res integra, in view of the Division Bench judgment of this Court in the case of Mrs.Margaret Pereira V/s. Mr.Gerald Castelino in MFA.10115/2011 (DD 04.08.2015). The relevant para is extracted herein:
"8. We have given our anxious consideration to the rival submissions made at the Bar. The contention that the wife is not entitled for permanent alimony in a case where dissolution of marriage is granted in favour of the husband, may not be the correct proposition. Sections 36 to 39 of the Act cover the subject of alimony to an aggrieved wife. While Section 36 deals with alimony pendente lite to the wife, Section 37 deals with permanent alimony to a wife where a decree of dissolution of marriage or decree of judicial separation is obtained by the wife. Section 38 is the relevant provision for the present circumstances, which reads thus:
"38. Court may direct payment of alimony to wife or to her 7 trustee.- In all cases in which the Court makes any decree or order for alimony, it may direct the same to be paid either to the wife herself, or to any trustee on her behalf to be approved by the Court, and may impose any terms or restrictions which to the Court seem expedient, and may from time to time appoint a new trustee, if it appears to be the Court expedient so to do."
A plain reading of the above provision would contemplate that the Court may order permanent alimony either to her or to her trustee in any case instituted either by the wife or by the husband. The statute expressly or impliedly does not debar a wife, who was respondent in divorce petition for permanent alimony
9. The court below has rejected her application mainly on the ground that already she is enjoying maintenance amount by virtue of an order passed by the jurisdictional J.M.F.C.Court, therefore, she is not entitled for separate permanent alimony. In our considered opinion, the court below misdirected itself in equating the provisions of 8 Section 125 of the Code of Criminal Procedure to that of Section 38 of Indian Divorce Act. While Section 125(1)(a) of Cr.P.C. contemplates maintenance amount to a wife, who is unable to maintain herself, Explanation (b) of the very same provision contemplates that "wife" includes a woman, who has been divorced by or has obtained a divorce from her husband and has not re- married. The maintenance amount ordered in a petition under Section 125 of Cr.P.C. is monthly allowance as provided in second proviso to same Section. Under Section 125 of Cr.P.C., there is no provision to order permanent alimony. Though an order is passed in favour of wife under Section 125 of Cr.P.C. unless the husband defaults and monthly allowance becomes due, the wife cannot invoke Section 128 of Cr.P.C. to recover the maintenance amount. It is only on default on the part of the husband to pay maintenance, she can execute the maintenance order under Section 128 of Cr.P.C. for recovery of amount within limitation period of 11 months from the date 9 of default. Whereas, under Section 37 of the Act either a permanent alimony or monthly or weekly payment is possible. When Sections 37 and 38 of the Act are read in conjunction with each other, the relief of payment of alimony applies to all cases, as available under Section 37 of the Act. In our considered opinion, this Court could not have out rightly rejected to apply the benefit of Section 38 in favour of the wife on the ground that she has the order of maintenance passed by the JMFC Court. It was still possible for the Court to pass an order under Section 38 keeping in view the amount of maintenance passed by the JMFC Court. In that view of the matter, we are of the considered opinion that the Court below has to hold an enquiry about the question of permanent alimony after giving opportunity to both the parties.
10. At this juncture, we have noticed that the wife had invoked the provision of Section 37 of the Act seeking permanent maintenance of Rs.30 lakhs. But the provision applicable in the present circumstances of the 10 husband's petition for divorce being decreed, is Section 38 of the Act. However, quoting a wrong provision of law shall not disentitle the party to the relief for which he/she is entitled."
7. We are of the view that purposive approach to the provisions of the Act would sub-serve achieving the objects of the Act rather than the literal construction. Cardinal Rule of construction is that the statute has to be read as a harmonious whole to ascertain the legislative intent. A conjoint reading of the Sections 36 to 39 of the Act makes it clear that there is no legal impediment or embargo under the Act for a wife, respondent in divorce petition, to seek for permanent alimony. Accordingly, the first contention of the learned counsel for the appellant deserves to be negated and is accordingly rejected.
8. As regards the second point, as aforesaid the relevant factors which are required to be examined 11 while granting permanent alimony are: (1) Financial condition; (2) The standard of living of the parties; (3) The length of the marriage; (4) The age of the parties; (5) Physical condition of the parties; and (6) Ability of the person to support the recipient. It is significant to note that in a recent judgment, the Hon'ble Apex Court has set a benchmark in the case of Kalyan Dey Chowdhury
-v- Rita Dey Chowdhury Nee Nandy reported in AIR 2017 SC 2383, it is held that 25% of the income of the husband would be an appropriate maintenance amount to the wife. The Family Court has considered the evidence on record to quantify the amount towards the permanent alimony which is the amount based on the financial ability of the person qua the status, the dependency of the wife coupled with the inflation in consumer prices and value of the money, the maintenance amount quantified at Rs.5 lakhs, at any stretch of imagination cannot be considered as excessive or exorbitant. Accordingly, we are not inclined 12 to interfere with the well reasoned order of the Court below.
9. For the aforesaid reasons, the appeal stands dismissed as devoid of merits.
IA-2/2017 seeking for stay of the impugned order do not survive for consideration in view of the dismissal of the appeal.
Sd/-
JUDGE Sd/-
JUDGE NC.