Jharkhand High Court
Sri Manish Ranjan vs Sweta Rani on 23 November, 2022
Bench: Shree Chandrashekhar, Ratnaker Bhengra
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Civil Appellate Jurisdiction)
First Appeal No. 110 of 2019
Sri Manish Ranjan, son of Makeshwar Prasad, resident of Jhiganj, Kunwar
Niwas, Nai Godown, Gaya (Bihar) at present residing at Hyderabad as Chief
Manager, Head office SBI 1st Floor, Administrative Office, Hyderabad-
500001. ......Appellant
Versus
Sweta Rani, daughter of Rajni Kant Prasad, wife of Manish Ranjan, resident
of Flat no. 1444, Strawberry, 4th Floor, Sahara Garden City, Adityapur, PO
Adityapur, PS R.I.T. District Saraikella (Kharsawan). ..... Respondent
With
First Appeal No. 117 of 2019
Sweta Rani, daughter of Rajni Kant Prasad, wife of Manish Ranjan, at
present r/o Apricot/701, Sahara Garden City, Adityapur, PO & PS R.I.T.
District Saraikella (Kharsawan). ......Appellant
Versus
Manish Ranjan, son of Makeshwar Prasad, resident of Jhiganj, Kunwar
Niwas, Nai Godown, PO & PS Naigoda, District Gaya (Bihar) at present
residing at Hyderabad as Chief Manager, SBI Head Office, 1 st Floor,
Prabhat Tower, Gun Factory, Hyderabad, PO Vidyanagar, PS Nallakunda,
District Hydrabad ..... Respondent
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CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
HON'BLE MR. JUSTICE RATNAKER BHENGRA
For the Appellant(s) : Mrs. Ritu Kumar, Advocate
Ms. Shatakshi, Advocate
[In First Appeal No. 110 of 2019]
Mr. Mukesh Kumar Dubey, Advocate
[In First Appeal No. 117 of 2019]
For the Respondent(s) : Mr. Mukesh Kumar Dubey, Advocate
[In First Appeal No. 110 of 2019]
Mrs. Ritu Kumar, Advocate
Ms. Shatakshi, Advocate
[In First Appeal No. 117 of 2019]
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ORDER
rd 23 November 2022 Per, Shree Chandrashekhar, J.
I.A. No.10797 of 2022 in First Appeal No. 117 of 2019 Mr. Mukesh Kumar Dubey, the learned counsel for the appellant has brought to our attention the communication dated 19 th October 2016 addressed to Smt. Sweta Rani.
2 First Appeal No. 110 of 2019with First Appeal No. 117 of 2019
2. Through this communication, the Assistant General Manager of the State Bank of Hyderabad has informed her that gross salary of Manish Ranjan for the month of September, 2016 was Rs.92,930.76/-.
3. Mr. Mukesh Kumar Dubey, the learned counsel for the appellant states that by filing an interlocutory application the appellant intends to bring this document on record to support her claim for enhancement in the quantum of permanent alimony.
4. As would appear from discussions in Original Suit No. 27 of 2017 (in short, the divorce case), the family Court has taken note of income of the respondent in the year 2018 which was about Rs.1-1.25/- lacs.
5. The observations made by the family Court in paragraph no.7 of the divorce case have not been challenged by the appellant in the present proceeding.
6. In view of the aforesaid, we do not feel it necessary to take the aforesaid communication dated 19th October 2016 on record and, accordingly, the interlocutory application filed under Order XLI Rule 27 of the Code of Civil Procedure is disposed of.
First Appeal No. 110 of 2019 with First Appeal No. 117 of 2019
7. The divorce case was filed by Sweta Rani seeking dissolution of her marriage solemnized with Manish Ranjan on 21 st March 2003 at New Godown, Gaya in the State of Bihar. The respondent seeking a decree of divorce on the ground of "cruelty" and "desertion" as envisaged under section 13(1)(i-a) and 13(1)(i-b) of the Hindu Marriage Act, 1955 (hereinafter referred to as "the HM Act") filed the divorce case which has been decreed by judgment dated 11th July 2018.
8. This judgment in the divorce case has been challenged by the appellant on the ground that without answering the issue no.(ii) - whether the petitioner is entitled for permanent alimony?; the family Court has awarded Rs.25,00,000/- to the respondent as permanent alimony.
9. Briefly stated, marriage of the appellant with the respondent which was solemnized on 21st March 2003 could not continue beyond 2009 even though the couple were blessed with two sons. The respondent has pleaded that on occasion of the marriage Rs.6,51,000/- in cash, a Fiat Palio Car worth Rs.4,50,000/-, jewelries valued at about Rs.2,00,000/- and other 3 First Appeal No. 110 of 2019 with First Appeal No. 117 of 2019 household articles were given by her parents. She has made allegations of physical assault by the appellant on account of which she was constrained to lodge PC Case No. 09 of 2010 on 13 th March 2010 which was later on registered as Adityapur PS Case No. 61 of 2010 under sections 323, 325, 307, 498A, 387 of the Indian Penal Code and section 23 of the Domestic Violence Act. She has further stated that the appellant filed the petition under section 9 of the HM Act registered as Matrimonial Title Suit No. 373 of 2010 which has been dismissed on 25th June 2015. She has also stated that in Misc. Case No. 03 of 2011 which was filed for maintenance the appellant has been directed to pay Rs.17,000/- per month for expenses for the respondent and two children.
10. In the divorce case, the appellant did not appear and, therefore, the divorce case was set for ex parte against him.
11. The following issues have been framed by the family Court:
"(i) Whether the petitioner is entitled for a decree of divorce u/s (1b) of the Hindu Marriage Act, on the ground of cruelty and desertion?
(ii) Whether the petitioner is entitled for permanent alimony?
(iii) Whether the petitioner is entitled for any other relief?"
12. On 3rd November 2022, the following order was passed by this Court:
"First Appeal No. 117 of 2019The following prayer has been made in First Appeal No. 117 of 2019:
"1. That by virtue of this present appeal, the appellant named hereinabove intends to move this Hon'ble Court for setting aside of the order dated 11.07.2018 decree dated 27.07.2018 passed in Original Suit No. 27 of 2017 passed by Smt Veena Misra, Principal Judge, Family Court, Seraikella Kharsawan, by which the application of the appellant under section 13(1) of the Hindu Marriage Act, 1955 has been allowed and a permanent alimony of Rs. 25,00, 000 has been granted in favour of the appellant."
However, in course of hearing, Mr. Mukesh Kumar Dubey, the learned counsel for the appellant submits that he has been instructed by the appellant to confine the present First Appeal only to quantum of alimony granted by the Family Court while granting divorce - she is seeking enhancement of the amount of alimony.
The learned counsel for the appellant shall file an affidavit sworn by the appellant in this regard, within two weeks.
4 First Appeal No. 110 of 2019with First Appeal No. 117 of 2019 First Appeal No. 110 of 2019 The following prayer has been made in First Appeal No. 110 of 2019:
"1. That the present of memo of appeal is directed against the judgment dated 11.7.2018 and signing of decree dated 27.7.2018 passed by Smt. Veena Misra, Learned Principal Judge, Family Court, Seraikella (Kharsawan) in Original Suit No. 27/2017 whereby and where under by the aforesaid judgment and decree the suit filed by the respondent/petitioner under section 13(1) (ia)(ib) of the Hindu Marriage Act for dissolution of marriage was allowed ex-parte and also awarded permanent alimony of Rs.2500000/- in favour of the respondent/petitioner."
However, in course of hearing, Mrs. Ritu Kumar, the learned counsel for the appellant submits that she has been instructed by the appellant to confine the present First Appeal only to quantum of alimony granted by the Family Court while granting divorce - it is on the higher side.
The learned counsel for the appellant shall file an affidavit sworn by the appellant in this regard, within two weeks.
First Appeal No. 110 of 2019 with First Appeal No. 117 of 2019 Post these matters on 23rd November 2022."
13. By filing an affidavit dated 21st November 2022, the appellant in First Appeal No. 110 of 2019 who is the husband has confined this Appeal to the quantum of alimony awarded to the respondent by the family Court.
14. In First Appeal No. 117 of 2019, the appellant who is the wife has filed a similar affidavit stating as under:
"3. That the present appellant states that she confines her prayer only to the extent of grant of alimony as present appellant is only aggrieved by the judgment and Decree dated 11.07.2018 and 27.07.2018 only to the extent of grant of alimony in the matter as it was fixed by Rs.25,00,000/- only."
15. In view of the aforesaid, the only question which is required to be examined in these First Appeals is whether the family Court was justified in awarding Rs.25,00,000/- to the wife as permanent alimony without a petition filed by her and without ascertaining income of the parties.
16. The entire consideration in this regard is in paragraph no. 7 of the judgment dated 11th July 2018, which is reproduced below:
"7. Point No.2:-
So far as the claim of the petitioner regarding permanent alimony is concerned it transpires that the petitioner has no source of income and that she has filed a Misc. case no.03/11 5 First Appeal No. 110 of 2019 with First Appeal No. 117 of 2019 wherein she has been awarded maintenance to the tune of Rs.17,000/- per month. This fact has been stated by P.W.1 in her examination-in-chief para 13 that she has been awarded Rs.17,000/- per month as maintenance allowance for herself and her two minor sons. It is stated that the O.P. is posted as Chief Manager, State Bank of Hyderabad and is earning between 1 to 1.25 lac per month, whereas petitioner has no source of income.
On the basis of material on record it is clear that the petitioner has been able to prove her case for divorce on the ground of desertion and cruelty. She is having no source of income. As such she is entitled for a permanent alimony. Keeping in view of the status of the parties and salary of the respondent a permanent alimony of Rs.25 lakhs is awarded to the petitioner."
17. Section 25 of the HM Act provides that 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 make an order for maintenance of such gross sums or such monthly or periodical sum for a term not exceeding the life of the applicant as may be fit and proper. Section 25 of the HM Act further provides that before making any order under this provision the Court shall have regard to the respondent's own income and other property of the applicant. It further provides that conduct of the parties and other circumstances of the case also may be relevant for the purposes of making an order under section 25 of the HM Act, 1955.
18. A mere glance at paragraph no.7 of the judgment in the divorce case would disclose that there is no consideration by the family Court on the aforesaid aspects of the matter. This is also quite apparent on a mere glance at the judgment dated 11th July 2018 that there was no material before the family Court to arrive at a conclusion that the appellant has such income to pay alimony of Rs.25,00,000/- to the respondent.
19. Ms. Shatakshi, the learned counsel for the appellant submits that the issue which arises in the divorce case is whether a wife who has herself filed the petition for divorce can seek maintenance and alimony under section 25 of the HM Act and, that too, without any application by her.
20. The aforesaid plea urged on behalf of the appellant may very well be contested before the family Court and then we would have the benefit of the submissions made on behalf of the parties and finding of the 6 First Appeal No. 110 of 2019 with First Appeal No. 117 of 2019 Court and, therefore, we are not inclined to reflect on this issue and would simply set aside that part of the judgment dated 11th July 2018 by which the respondent has been awarded permanent alimony to the tune of Rs.25,00,000/-, with a direction to the family Court to adjudicate issue no.(ii) by permitting the parties to lead evidence on that issue.
21. Accordingly, the judgment in Original Suit No. 27 of 2017 is set aside to the aforesaid extent and the said suit is restored to its original file for the aforesaid purpose only.
22. First Appeal No. 110 of 2019 is allowed in the aforesaid terms. First Appeal No. 117 of 2019 which has been filed by the wife for enhancement of the amount of alimony is not supported by sufficient evidence but, instead of dismissing this First Appeal, we would simply dispose of First Appeal No. 117 of 2019 with liberty to the appellant to lead evidence in support of her claim, if it is legally maintainable. We have adopted this course of action for the reason that we have already set aside part of the judgment dated 11th July 2018 awarding alimony of Rs.25,00,000/- to the wife. Now, permitting the parties to lead further evidence on issue no.(ii) would not cause prejudice to any party.
(Shree Chandrashekhar, J.) (Ratnaker Bhengra, J.) Jharkhand High Court, Ranchi Dated: 23rd November 2022 RKM/ N.A.F.R