Karnataka High Court
Mrs Margaret Pereira vs Mr Gerald Castelino on 4 August, 2015
Bench: N.K.Patil, Rathnakala
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF AUGUST 2015
PRESENT
THE HON'BLE MR. JUSTICE N.K. PATIL
AND
THE HON'BLE MRS. JUSTICE RATHNAKALA
MISC. FIRST APPEAL NO.10115/2011 (IDA)
BETWEEN:
MRS.MARGARET PEREIRA
AGED 41 YEARS
W/O GERALA CASTELINO
D/O FRANCIS PEREIRA
RESIDIG AT PARAPADE HOUSE
AKASH BHAVAN, KAVOOR POST,
MANGALORE TALUK, D.K. - 575 003. ...APPELLANT
(BY SRI H.MALATESH FOR SRI P.P.HEGDE, ADV.)
AND:
MR.GERALD CASTELINO
AGED 50 YEARS
SON OF LATE LAWRENCE CASTELINO
RESIDING AT JEABETTU HOUSE,
NITTE VILLAGE, ATTUR POST,
KARKALA TALUK,
UDUPI DISTRICT - 575 013. ...RESPONDENT
(BY SRI B.S.SACHIN & SRI N.V.SRIKANTH FOR
DHARMASHREE ASSOCIATES)
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THIS M.F.A. IS FILED UNDER SECTION 55 OF INDIAN
DIVORCE ACT R/W SEC 19(1) OF FAMILY COURTS ACT,
AGAINST THE JUDGMENT AND DECREE DATED 29.08.2011
PASSED IN M.C. NO.3/2011 (OLD M.C. NO.16/1999 AND
107/2001) ON THE FILE OF JUDGE, FAMILY COURT,
DAKSHINA KANNADA, MANGALORE, ALLOWING THE
PETITION FILED UNDER SECTION 10(X) OF INDIAN
DIVORCE ACT FOR DIVORCE.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 29/07/2015 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY,
RATHNAKALA J., DELIVERED THE FOLLOWING:-
JUDGMENT
The appellant is the aggrieved wife, whose marriage with the respondent has been dissolved by the Family Judge, D.K. Mangalore, by a decree of divorce in M.C.No.3/2011 vide judgment dated 29.8.2011.
2. The parties are Roman Catholic Christians and are governed by Indian Divorce Act, 1869 (hereinafter referred to as 'the Act'). Their marriage was solemnized on 27.12.1995 as per custom prevailing in their community. The husband filed a petition under Section 22 of the Act for judicial separation in M.C.No.16/1999 on the file of Civil Judge (Sr.Dn.) Udupi. The 3 wife filed a petition under Section 32 of the Act for restitution of conjugal rights in M.C.No.49/1999 before the very same Court and also filed an application under Section 32 of the Act, in the petition filed by the husband for judicial separation. She sought interim maintenance by filing an interim application.
3. Subsequently, the case came to be transferred to the Civil Judge (Sr.Dn.), Mangalore. Both cases were clubbed. Two witnesses were examined for the husband and the wife was the sole witness in her case. Subsequently, after establishment of the Family Court, the cases were transferred to the concerned Family Court.
4. In the meanwhile, the husband amended his petition for divorce under Section 10(x) of the Act. The Family Court allowed the petition of the husband and rejected the prayer of the wife for restitution of conjugal rights and also the application filed under Section 37 of the Act for permanent alimony.
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5. Sri.H.Malatesh, Counsel appearing on behalf of Sri.P.P.Hegde, for the appellant/wife after arguing for some time submits that the wife intends to restrict her claim in this appeal in respect of permanent alimony, which is rejected by the court below. She is a housewife having no other avocation or income and the husband being financially sound, reasonable amount in lumpsum may be granted in her favour.
6. Sri.B.S.Sachin, learned Counsel appearing for respondent/husband submits that, the court below on overall consideration of the matter, allowed the case of the husband on the ground of desertion and cruelty and has concluded that she is not entitled for restitution of conjugal rights. It is only when a decree of dissolution of marriage is obtained by the wife, the Court can order for alimony either in lump sum or periodically in favour of the wife. Since the wife herself is the guilty of matrimonial offence in this case, she is not entitled for any maintenance and the prayer of the wife cannot be entertained.
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7. In the light of the above submission, we have gone through the impugned order. The learned Family Court at Para-27 of its discussion in the impugned judgment has noticed that, wife is prosecuting a case for maintenance before the J.M.F.C.Court and getting Rs.2,500/- per month towards maintenance and can work out for enhancement in the said petition, it is not required to grant permanent alimony in the case filed under Section 37 of the Act. She had suppressed the above material facts in her application seeking interim maintenance. Thereby the application of the wife filed under Section 37 of the Act came to be rejected.
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 6 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 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 7 equating the provisions of 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 of default. Whereas, under Section 37 of the Act either a permanent alimony or monthly or weekly payment is 8 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 husband's petition for divorce being decreed, is Section 38 of the Act. However, quoting a wrong 9 provision of law shall not disentitle the party to the relief for which he/she is entitled.
For the discussion supra, the appeal is allowed in part. The order dated 29.8.2011 in M.C.No.3/2011 on the file of the Family Judge, D.K. Mangalore, as far as it relates to dismissing the application filed by the appellant/wife for permanent alimony under Section 37 of Indian Divorce Act is set aside while not disturbing the order of dissolution of the marriage and also rejection of wife's petition for restitution of conjugal rights.
The matter is remitted back to the court below to hold enquiry about the prayer of the wife for permanent alimony by giving opportunity to both parties and pass appropriate order as expeditiously as possible within an outer limit of four months from the date of appearance of both parties.
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If any application is filed by the parties to adduce further evidence/rebuttal evidence in respect of the issue of permanent alimony, the said application shall be allowed.
The parties are directed to appear before the Court below on 28th August 2015 at 11.00 a.m. either personally or through their Counsel.
Office is directed to return the lower court records to the concerned court, forthwith.
Sd/-
JUDGE Sd/-
JUDGE KNM/-