Tapaswini Das vs Santosh Kumar Swain on 18 August, 2023

[Cites 53, Cited by 2]

Orissa High Court

Tapaswini Das vs Santosh Kumar Swain on 18 August, 2023

Bench: Biswanath Rath, M.S.Sahoo

       A.F.R
                ORISSA HIGH COURT : C U T T A C K
                               MATA NO.33 OF 2022
                  An application under Section 19 of the Family Court Act


       Tapaswini Das                                     : Appellant

                                      -Versus-

       Santosh Kumar Swain                               : Respondent


             For Appellant                  : M/s.C. Mohanty,
                                              T.K.Sahoo, J.K.Padhi,
                                              Mr. S.Pr. Mishra,

             For Respondent.                : M/s. D. Panda, S. Panda,
                                              A. Mehta, D.K. Panda &
                                              J.P. Behera

                           JUDGMENT

CORAM :

JUSTICE BISWANATH RATH JUSTICE M.S.SAHOO Date of Hearing & Judgment :18.08.2023 Per: Biswanath Rath,J This is a matrimonial appeal under Section 19 of the Family Courts Act at the instance of the wife/respondent involving judgment dated 28.12.2021 passed by Judge, Family Court, Bhubaneswar in C.P.No.980 of 2017 allowing a proceeding under section 13(1) of the Hindu Marriage Act, 1955 at the instance of the husband/opposite party.

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2. Background involving the case is that marriage between the parties was solemnized on 07.06.2015 at Bhubaneswar as per Hindu rites and customs. After solemnization of marriage, both of them resided in the parental house of the husband maintaining their marital status. They led peaceful conjugal life for over an year. Husband claims wife was treated by his parents as a daughter. It is stated, after some months of marriage, there was change in behavior and attitude of the wife. Despite serious changes in the attitude of the wife, the husband took the issues lightly and continued with the wife with love and affection. It is also claimed that while the matter stood thus, father of the husband opened a Savings Bank Account in the name of the respondent/wife and started depositing sum amount regularly in the said account out of his own pensionary benefits for personal expenditure of the wife. There was also attempt to make the wife learn to drive two wheelers to find her easy mobility. It is claimed even after all such arrangements and the sympathy from the husband side, there was no change in the attitude and behavior of the wife towards the family members of the husband. She remained adamant. She showed her arrogant behaviour. It is even alleged, she started not only taking money from the elder members of the family and her husband, she also attempted to withdraw some amount of money from the account opened in her name by her father-in-law using the debit card. Husband raising protest on such Page 2 of 44 // 3 // withdrawal, there was opposition by the wife. Sometime even she was sometime threatening to commit suicide. Husband also alleged despite intimation of attitude and arrogant behavior by the wife to her family members, her parents took the same to be trivial and casual. It is further alleged on 21.1.2016, she locked herself inside the washroom and inflicted some bleeding injuries on her body and of course, she was rescued by the husband and his parents. Husband claims while the wife had been admitted before the elders to behave properly, she even went to give a written expression expressing clearly her repentance and giving hope to rectify her attitude. Husband claims that it all happened in a meeting of the gentries and elders. From 21.5.2016 to 30.5.2016 both the wife and husband visited Bangaluru and Mysore in order to restore peaceful conjugal life and it is at this point of time, wife became pregnant. Husband claims, he has taken all care of the pregnant wife, but unfortunately wife again became arrogant and continued with discontent behavior. Husband's attempt all went in vain. Husband claims, while the matter stood thus on 25.9.2016, the respondent-wife insisted to be separated from his parents and started demanding partition of the family property. She even threatened unless her such demand is fulfilled, she will not continue with husband. Husband also claims to have made endeavour in convincing the wife on the impossibility in separate Page 3 of 44 // 4 // resident considering he has responsibilities towards his elderly parents but the wife being dissatisfied threatened to put an end to her life even remaining pregnant unless the husband arranges a separate house for the wife. Husband failed in his attempt to convince the wife through the members and parent-in-law. It is claimed that while the matter stood thus her mother arrived their home on 28.9.2016 and it is her mother suggested taking the wife outside for a change. Unfortunately, wife volunteered to abandon her in-laws and left her in-laws family with her mother along with all her belongings and ornaments on the same day and since then she has not turned back. Husband alleged all his attempt to bring her back got failed rather the wife continued to threaten to put an end to her life entering into abortion of pregnancy. On 21.1.2017, wife/ respondent gave birth a female child in a private hospital. Husband also alleged that while he was not informed about birth of the female child however coming to know all this from other sources, he rushed to hospital to look to the offspring and claimed on his visit, he received unpleasant treatment from the wife and her family members. On his taking steps to bring the respondent/wife and the newly born girl baby to his home, it all ended in vain. Husband claims, considering the final desertion of the wife from matrimonial home on 28.9.2016 remained willful and all his attempt went in vain. Finding there was no development even after the girl child Page 4 of 44 // 5 // was born, claimed there was complete breakdown of marriage and it is on both the count; cruelty as well as wife volunteering separation and living separately for more than a year, found no other option than to bring the application for divorce. Husband also claims, prior to his filing Section 13 of the Hindu Marriage Act application wife had filed an application under Section 13 of the Hindu Marriage Act seeking divorce against the husband. It is alleged, in the proceeding initiated by the wife she had categorically agreed for divorce. Wife even had gone initiating Criminal Proceeding No.97 of 2017, which also remain subjudice and in the meantime, the husband was constrained to bring C.P.No.980 of 2017 bringing an application under Section 13(1) of the Hindu Marriage Act for dissolution of marriage and grant of divorce.

3. On her appearance, the wife, present applicant while refuting and challenging all the allegations made by the husband in filing written statement contended that the proceeding is not maintainable. She also claimed that there is no cause of action for initiation of such proceeding. Wife also alleged husband did not come to court in clean hands. Wife brought allegation against the husband and family members torturing her physically and mentally on the premises that she has not brought sufficient dowry articles in conformity with their demand. Wife also alleged that there was also torture involving there is poor quality in the Page 5 of 44 // 6 // dowry articles. Wife specifically pleaded that her father gave a sum of Rs.5,00,000/- along with one Color T.V. gold ornaments, wooden furniture along with some other household articles. Wife even alleged in her written statement that in spite of all the above, husband again demanded for a sum of Rs.2,00,000/- to purchase a car. On refusal of such demand, they went on torturing her both physically and mentally. Even during conception the husband and family members did not provide her proper food. It is claimed, no doubt there remain petty matters but such issues are an outcome of torture and abuses physically and mentally to her. On the writing down on a paper, as claimed by the husband, she rather alleged while the wife was residing with the husband in her matrimonial home, she was forced to write down on a blank paper that she has stolen cash and other valuable household articles from their house, that she was engaged in wrong things and that they have forcibly taken away a hand note writing down that the wife has deserted voluntarily the house of the husband. Wife responded saying the husband and his family members drove her out from the house on 28.9.2016 even after knowing that she was already pregnant by such time. While admitting that she gave birth to a female child on 22.01.2017 in a Nursing Home claims information of birth of the baby though given to the husband and his family members, nobody turned to the new born baby Page 6 of 44 // 7 // and she/respondent claims whatever they claimed in this regard are all out and out false. While denying the allegation on her taking away the apparels and ornaments, the wife alleged husband taking away the key of the almirah involved while driven her out from the home and all such articles are in custody of the husband. Thus, while claiming that the husband is a government employee and gets nearly a sum of Rs.50,000/- per month towards his salary apart from having a plot at Cuttack, father is a pension holder also earning house rent from house which he himself owns, the wife while claiming difficulty to survive with a minor girl child claimed, it is only on the hope of reunion between them, she had already withdrawn the C.P. No.452 of 2017, a proceeding for divorce at her instance. It is, accordingly, the wife claims dismissal of the divorce attempt at the instance of the husband.

4. With the above pleading of the parties involved, the trial court framed following issues:

      "(i)    Is the proceeding maintainable?
      (ii)    Is there any cause of action for initiation of this proceeding?

(iii) Is the respondent guilty of cruelty and desertion?

(iv) Is the petitioner entitled to decree of divorce against the respondent?

(v) Is the respondent entitled to get permanent alimony from the petitioner?

(vi) Are parties entitled to any other reliefs?"

5. Basing on such pleading, husband examined two witnesses on his behalf. P.W.1 himself and P.W.2 his father, Surendra Nath Swain. This Page 7 of 44 // 8 // apart, there has been also filing of documents like Driving Licence of wife, Savings Bank Pass Book of the wife bearing A/c.No.20226172974. There has been also filing of the medical prescriptions along with self written note of the wife apart from other documents also involving I C.C. case No.2565 of 2017 and copy of plaint in C.P.No.452 of 2017 and show-cause of the husband in such proceeding.

Similarly, wife also examined two witnesses on her behalf. R.W.1 herself and R.W.2 her father but there has been no filing of documents at the instance of the wife.

6. It is getting into the issues, the C.P. No.980 of 2017 got finally disposed of declaring the marriage between the parties to have dissolved under Section 25 of the Hindu Marriage Act while also directing the husband to pay a lump sum amount of Rs.8,00,000/- towards permanent alimony within a period of three months from the date of the judgment. Through the impugned judgment the Family Court also directed the husband to go on paying a sum of Rs.5,000/- per month towards the maintenance of the minor child by 10th day of each succeeding calendar month to facilitate the mother to meet all her educational and medical expenses till she gets married/able to maintain herself after attaining her majority whichever is earlier, resulting filing of the present appeal by the wife.

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7. This Court here records the statement of the husband and finds from the disclosure through the order-sheet that the husband though has deposited the sum of Rs.8,00,000/-, but the wife/Appellant has not received the same for her protesting the dissolution of marriage and still expecting joining the marital home.

8. Mr. Sidhartha Mishra, learned counsel appearing for the wife while taking this Court to the pleadings of the wife in the written statement and reading the same further taking this Court to the evidence led by the wife in the trial court proceeding to consolidate the wife's attempt to declare the impugned order/judgment bad, in an attempt to revive the conjugal life of both the husband and wife contended that their marriage since solemnized on 7.6.2016, the in-laws not satisfied with the amount of dowry went on claiming further dowry with a clear view to purchase a car. Reason behind driving out the wife from the residence remains on account of non-response of the wife, but additional demand of dowry. Learned counsel also contended, the wife herein gave birth to a girl baby while she was under care and custody of her parents and even though informed the husband/appellant about the above development, the husband neglected even by not attending both the mother and the kid even while they were in hospital. While accusing that there is serious lapse on the part of the husband and her in-laws, the wife also assailed the Page 9 of 44 // 10 // impugned order on the premises that there has been no proper assessment of the evidence led by the husband. It is also claimed that whatever evidence led does not make out the case for divorce. There has been also allegation that the trial court failed in appreciating the reason of separation and failed in extending the legal parlance and taken the issue very lightly. Mr. Mohanty, learned counsel also claimed for there is no pleading or evidence established at the instance of the wife and failed in giving such finding while claimed that there is absolutely no material established the factum of cruelty by the wife, as alleged. The Family Court has given his view in an attempt to concentrate on ordinary allegations and consolidating such facts and evidence. Learned counsel for wife also pleaded looking to the pleading and materials available on record, there is in fact no establishment of the cruelty or desertion at the instance of the wife and the judgment is accordingly remain unsustainable.

9. Mr. Panda, learned counsel for the husband on the other hand in his opposition again taking this Court to the whole plea in the C.P. No.980 of 2017 and the evidence of P.W.1 then taking this Court to the issues framed and the answer of the Family Court on each of the issue involved, claimed there has been clear satisfaction on the cruelty as well as desertion at the instance of the wife and thus defended the judgment Page 10 of 44 // 11 // involved herein. Mr. Panda, learned counsel in the background taken place herein claims divorce between the parties for there is apparent irretrievable breakdown in the marriage and claims, the impugned judgment is justified and needs no interference.

10. It is at this stage of the matter, this Court finds, there is serious attempt by the wife who is retracting her challenge in the appeal to the grant of divorce and thereby confining the challenge on quantum of permanent alimony in her continuing the appeal and thus confined the present appeal to this extent only. The wife/appellant in her such attempt brings the following grounds through her affidavit filed in Court on 18.08.2023 taken note herein below:-

"3. That as per the direction of this Hon'ble Court, efforts were made for re-union between the appellant and respondent which is ultimately failed although the wife wants to join with the husband but he refused to accept the wife.

4. That under such circumstances the wife while abandoning her challenge to the decree of divorce is praying for enhancement of the permanent alimony granted to her as well as maintenance granted to her child by the Family Court in the impugned order."

11. Looking to the materials by way of pleadings and evidence though this Court finds, there is serious doubt in the grant of divorce and finds, there exists a serious question required to be decided of course in a given case as to "Even in spite of existence of trivial issues like wife alleged to have been withdrawing some amount on repeated occasions from otherwise reserve funds like meant for God spending, withdrawing Page 11 of 44 // 12 // money from an account though stands in her name but deposit made by her father-in-law, attempting to self-inflicting injury on her body, some occasion showing her arrogance but blessed with a girl child all these taking place within nearly two years of marriage and all these being trivial and common in the present set of conjugal life, if can be construed wife causing cruelty on the husband, while also keeping in view the decision of the Hon'ble apex court in (2009) 6 SCC 379, AIR 2011 Gauhati 183, (2007) 4 SCC 511, (2010) 14 SCC 301, (2013) 9 SCC 1, (2007) 3 SCC 136 further also keeping in view the provision at Section 13(1)(ia) of the Hindu Marriage Act? For the wife appellant here not pressing decree of divorce, this Court feels inclined to keep above issue open to be decided in an appropriate case.

12. In the above background this Court refrain itself from dealing with the grant of divorce and proceeding here only to consider the sufficiency in the quantum of permanent alimony and accordingly proceeds as follows:-

13. It is keeping in view the rival contentions of the parties, this Court finds, marriage between the parties was solemnized on 7.06.2015. There appears, there is allegation that on 21.01.2016 the wife locked herself inside the bathroom and made self inflicted injuries on her own body. While the matter stood thus, it appears, on 21.05.2016 to 30.05.2016 both Page 12 of 44 // 13 // wife and husband visited Bengaluru and Maysoor. The husband here claimed that wife became pregnant in this period and gave birth to a female child on 21.01.2017. On 25.09.2017 the wife claimed a separate house, on 28.09.2017 mother of the wife visited in-laws' house and on 28.09.2017 itself the wife voluntarily left the house of the husband with her mother and did not return thereafter. This Court here finds, there was joint residing of both the husband and wife in the matrimonial home from 7.06.2015 till 28.09.2017, of course may be the wife had visited her parent's house for some time and there is material establishing that there is final desertion on 28.09.2017 and the C.P. No.980/2017 has been brought on 27.12.2017. This Court, therefore, finds, the actual separation was taken place as per the own submission of the husband on 28.09.2017 and for the application for divorce being brought on 27.12.2017 there is hardly separation for few months and not even for half year. Undisputedly the appeal is now confined to quantum of permanent alimony.

14. For the opinion of this Court, issue on maintenance is already settled by the Hon'ble Supreme Court in the case of Rajnesh Vrs. Neha and Anr. reported in (2021) 2 SCC 324. Through this decision the Hon'ble apex Court has outlined such issue in two compartments such as constitutional objective and the other one for formula fixing maintenance Page 13 of 44 // 14 // as detailed in paragraph nos.4, 5, 12 to 18, 37, 38 & 127 and para 77 to 82, 90.1 and 130 respectively which are all reproduced as herein below:-

"4. In the backdrop of the facts of this case, we considered it fit to frame guidelines on certain aspects pertaining to the payment of maintenance in matrimonial matters. There are different statutes providing for making an application for grant of maintenance/interim maintenance, if any person having sufficient means neglects, or refuses to maintain his wife, children, parents. The different enactments provide an independent and distinct remedy framed with a specific object and purpose. In spite of time-frames being prescribed by various statutes for disposal of interim applications, we have noticed, in practice that in a vast majority of cases, the applications are not disposed of within the time-frame prescribed. To address various issues which arise for consideration in applications for grant of maintenance/interim maintenance, it is necessary to frame guidelines to ensure that there is uniformity and consistency in deciding the same. To seek assistance on these issues, we have appointed Ms Anitha Shenoy and Mr Gopal Sankaranarayanan, Senior Advocates as Amici Curiae, who have graciously accepted to assist this Court.

5. By a further order dated 17-12-2019 [Rajnesh v. Neha, 2019 SCC OnLine SC 1918] , the appellant was directed to pay an amount of Rs 1,45,000 to Respondent 1 wife within a period of 45 days. On the issue of framing guidelines, the National Legal Services Authority was directed to elicit responses from the State Legal Services Authorities of various States.

PART B

12. Given the backdrop of the facts of the present case, which reveal that the application for interim maintenance under Section 125 CrPC has remained pending before the courts for seven years now, and the difficulties encountered in the enforcement of orders passed by the courts, as the wife was constrained to move successive applications for enforcement from time to time, we deem it appropriate to frame guidelines on the issue of maintenance, which would cover overlapping jurisdiction under different enactments for payment of maintenance, payment of interim maintenance, the criteria for determining the quantum of maintenance, the date from which maintenance is to be awarded, and enforcement of orders of maintenance.

Guidelines/Directions on maintenance

13. Maintenance laws have been enacted as a measure of social justice to provide recourse to dependent wives and children for their financial support, so as to prevent them from falling into destitution and vagrancy. Article 15(3) of the Constitution of India provides that:

"15. (3) Nothing in this article shall prevent the State from making any special provision for women and children."

Article 15(3) reinforced by Article 39 of the Constitution of India, which envisages a positive role for the State in fostering change towards Page 14 of 44 // 15 // the empowerment of women, led to the enactment of various legislations from time to time.

14. Krishna Iyer, J. in his judgment in Ramesh Chander Kaushal v. Veena Kaushal [Ramesh Chander Kaushal v. Veena Kaushal, (1978) 4 SCC 70 : 1978 SCC (Cri) 508] held that the object of maintenance laws is : (SCC p. 74, para 9) "9. This provision is a measure of social justice and specially enacted to protect women and children and falls within the constitutional sweep of Article 15(3) reinforced by Article 39. We have no doubt that sections of statutes calling for construction by courts are not petrified print but vibrant words with social functions to fulfil. The brooding presence of the constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social relevance. So viewed, it is possible to be selective in picking out that interpretation out of two alternatives which advances the cause -- the cause of the derelicts."

15. The legislations which have been framed on the issue of maintenance are the Special Marriage Act, 1954 ("SMA"), Section 125 of the Criminal Procedure Code, 1973; and the Protection of Women from Domestic Violence Act, 2005 ("the DV Act") which provide a statutory remedy to women, irrespective of the religious community to which they belong, apart from the personal laws applicable to various religious communities.

I. Issue of Overlapping Jurisdiction

16. Maintenance may be claimed under one or more of the aforementioned statutes, since each of these enactments provides an independent and distinct remedy framed with a specific object and purpose. For instance, a Hindu wife may claim maintenance under the Hindu Adoptions and Maintenance Act, 1956 ("HAMA"), and also in a substantive proceeding for either dissolution of marriage, or restitution of conjugal rights, etc. under the Hindu Marriage Act, 1955 ("HMA") by invoking Sections 24 and 25 of the said Act.

17. In Nanak Chand v. Chandra Kishore Aggarwal [Nanak Chand v. Chandra Kishore Aggarwal, (1969) 3 SCC 802 : 1970 SCC (Cri) 127] , the Supreme Court held that there was no inconsistency between the CrPC and HAMA. Section 4(b) of the HAMA would not repeal or affect the provisions of Section 488 of the old CrPC. It was held that : (SCC pp. 804-05, para 4) "4. ... Both can stand together. The Maintenance Act is an act to amend and codify the law relating to adoptions and maintenance among Hindus. The law was substantially similar before and nobody ever suggested that Hindu Law, as in force immediately before the commencement of this Act, insofar as it dealt with the maintenance of children, was in any way inconsistent with Section 488 CrPC. The scope of the two laws is different. Section 488 provides a summary remedy and is applicable to all persons belonging to all religions and has no relationship with the personal law of the parties. Recently the question came before the Allahabad High Court in Ram Singh v. State [Ram Singh v. State, 1962 SCC OnLine All 191 : AIR 1963 All 355] , before the Calcutta High Court in Mahabir Agarwalla v. Gita Roy [Mahabir Agarwalla v. Gita Roy, (1962) 2 Cri LJ 528 (Cal)] and before the Patna High Court in Nalini Ranjan Chakravarty v. Kiran Rani Chakravarty [Nalini Ranjan Page 15 of 44 // 16 // Chakravarty v. Kiran Rani Chakravarty, 1964 SCC OnLine Pat 160 : AIR 1965 Pat 442] . The three High Courts have, in our view, correctly come to the conclusion that Section 4(b) of the Maintenance Act does not repeal or affect in any manner the provisions contained in Section 488 CrPC."

(emphasis supplied)

18. While it is true that a party is not precluded from approaching the Court under one or more enactments, since the nature and purpose of the relief under each Act is distinct and independent, it is equally true that the simultaneous operation of these Acts, would lead to multiplicity of proceedings and conflicting orders. This would have the inevitable effect of overlapping jurisdiction. This process requires to be streamlined, so that the respondent husband is not obligated to comply with successive orders of maintenance passed under different enactments. For instance, if in a previous proceeding under Section 125 CrPC, an amount is awarded towards maintenance, in the subsequent proceeding filed for dissolution of marriage under the Hindu Marriage Act, where an application for maintenance pendente lite is filed under Section 24 of that Act, or for maintenance under Section 25, the payment awarded in the earlier proceeding must be taken note of, while deciding the amount awarded under HMA.

37. In Chaturbhuj v. Sita Bai [Chaturbhuj v. Sita Bai, (2008) 2 SCC 316 : (2008) 1 SCC (Civ) 547 : (2008) 1 SCC (Cri) 356] this Court held that the object of maintenance proceedings is not to punish a person for his past neglect, but to prevent vagrancy and destitution of a deserted wife by providing her food, clothing and shelter by a speedy remedy. Section 125 CrPC is a measure of social justice especially enacted to protect women and children, and falls within the constitutional sweep of Article 15(3), reinforced by Article 39 of the Constitution.

38. Proceedings under Section 125 CrPC are summary in nature. In Bhuwan Mohan Singh v. Meena [Bhuwan Mohan Singh v. Meena, (2015) 6 SCC 353 : (2015) 3 SCC (Civ) 321 : (2015) 4 SCC (Cri) 200] this Court held that Section 125 CrPC was conceived to ameliorate the agony, anguish, financial suffering of a woman who had left her matrimonial home, so that some suitable arrangements could be made to enable her to sustain herself and the children. Since it is the sacrosanct duty of the husband to provide financial support to the wife and minor children, the husband was required to earn money even by physical labour, if he is able- bodied, and could not avoid his obligation, except on any legally permissible ground mentioned in the statute.

127. In view of the foregoing discussion as contained in Part B -- I to V of this judgment, we deem it appropriate to pass the following directions in exercise of our powers under Article 142 of the Constitution of India.

77. The objective of granting interim/permanent alimony is to ensure that the dependent 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 Page 16 of 44 // 17 // 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. [ Refer to Jasbir Kaur Sehgal v. District Judge, Dehradun, (1997) 7 SCC 7; Refer to Vinny Parmvir Parmar v. Parmvir Parmar, (2011) 13 SCC 112 : (2012) 3 SCC (Civ) 290]

79. In Manish Jain v. Akanksha Jain [Manish Jain v. Akanksha Jain, (2017) 15 SCC 801 : (2018) 2 SCC (Civ) 712] 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 dependent 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. [Reema Salkan v. Sumer Singh Salkan, (2019) 12 SCC 303 :

(2018) 5 SCC (Civ) 596 : (2019) 4 SCC (Cri) 339]

(2008) 1 SCC (Cri) 356] 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.

82. Section 23 of the HAMA provides statutory guidance with respect to the criteria for determining the quantum of maintenance. Sub-section (2) of Section 23 of the HAMA provides the following factors which may be taken into consideration : (i) position and status of the parties, (ii) reasonable wants of the claimant, (iii) if the petitioner/claimant is living separately, the justification for the same, (iv) value of the claimant's Page 17 of 44 // 18 // property and any income derived from such property, (v) income from claimant's own earning or from any other source.

90.1. In Shailja v. Khobbanna [Shailja v. Khobbanna, (2018) 12 SCC 199 : (2018) 5 SCC (Civ) 308; See also the decision of the Karnataka High Court in P. Suresh v. S. Deepa, 2016 SCC OnLine Kar 8848 : 2016 Cri LJ 4794 (Kar)] , this Court held that merely because the wife is capable of earning, it would not be a sufficient ground to reduce the maintenance awarded by the Family Court. The court has to determine whether the income of the wife is sufficient to enable her to maintain herself, in accordance with the lifestyle of her husband in the matrimonial home. [Chaturbhuj v. Sita Bai, (2008) 2 SCC 316 : (2008) 1 SCC (Civ) 547 :

(2008) 1 SCC (Cri) 356] Sustenance does not mean, and cannot be allowed to mean mere survival. [Vipul Lakhanpal v. Pooja Sharma, 2015 SCC OnLine HP 1252 : 2015 Cri LJ 3451]

130. For determining the quantum of maintenance payable to an applicant, the court shall take into account the criteria enumerated in Part B

-- III of the judgment. The aforesaid factors are however not exhaustive, and the court concerned may exercise its discretion to consider any other factor(s) which may be necessary or of relevance in the facts and circumstances of a case."

Above principle can very well be applied also in the case of permanent alimony and this Court, accordingly, proceeding to decide the matter as follows:-

15. It appears, on the asking of the Family Judge there has been filing of financial status of the respective parties, which discloses that the husband-respondent being an employee under the District Judiciary is in receipt of monthly salary. As per the information received in course of hearing through the salary certificate presently the husband is drawing gross salary at Rs.40,000/- and odd per month. Apart from salary the husband though had a valuable plot at Cuttack, but he has already sold this plot and is enjoying with the sale price therein. As appears, the husband is the only son of his father and three of his sisters are all married and staying away with their husbands. Father has also a valuable Page 18 of 44 // 19 // building at IRC Village, Bhubaneswar and apart from pension at the rate of Rs.32,000/- per month being a retired Government employee the father of the husband gets a sum of Rs.30,000/- per month as house rent.

Therefore it appears, the husband is a burden less person and his parents have sufficient means to assist themselves. Looking to the social status of the wife who undisputedly is now 32 years old having a girl kid of nearly six years being unemployed is fully dependent on her parents. Comparing the financial status between the parties, further taking into account the settled principle of law observing that the wife should also lead a respectful life, may be not in strict comparison with that of the husband. However, keeping in mind the standard of living in a smart city like Bhubaneswar, cost of house rent in concrete roof house not less than ten thousand per month in addition to which, one will require to spent on her and on her girl kid towards fooding, clothing, education of the minor kid and medical expenditure etc. this Court finds, payment of maintenance at the rate of Rs.5000/- per month only in favour of the girl child along with grant of a sum of Rs.8,00,000/- lump sum in favour of the wife, may not be sufficient. For there is grant of a lump sum in favour of the wife at the rate of Rs.8,00,000/- this Court to find out a minimum decent life of the wife along with minor girl child, considers as follows:- Page 19 of 44

// 20 // Wife to substantiate her claim on permanent alimony in her evidence in para-5 of the chief also corroborated the above. Husband of course has not led any evidence on the above score. Here this Court, however, finds, the Family Court has framed issue no.iv & v which reads as follows:-

"iv) Is the Petitioner entitled to the decree of divorce against the respondent?

v) Is the respondent entitled to get permanent alimony from the Petitioner?"

16. Allowing on issue no.v, the Family Court has the following observation:-

"07. It appears from the evidence of RW-1 is that she is taking shelter at her father's house along with her minor daughter. She has no income to maintain herself and her minor daughter. The petitioner is a govt. employee and gets Rs.50,000/- per month as his salary. He has a valuable plot at Cuttack. He is the only son of his father. His father has a valuable building at IRC village and gets Rs.30,000/- p.m as house rent. His father is a retd. Employee and he is getting huge amount as his pension. Petitioner is a burden free person and he has sufficient means to maintain his wife and his minor daughter.

As per disclosure statements of Assets and Liabilities of the petitioner, he is a govt. employee. He is aged about 33 years at present. His monthly expenditure is Rs.17,990. He has been paying interim maintenance of Rs.4200 p.m. as per order passed in CRP No.97 of 2017. He has aged parents. His family receives Rs.32,000/- per month towards family pension of his father. His mother is a house wife and no income. Rs.30,000/- is spent for his dependents per month. His mother is a diabetic patient. He has one daughter through the respondent who was born on 21.01.2017. She is in the custody of the respondent. He is giving Rs.2000/- towards the medical expenses of the dependent child and Rs.1000/- towards her school fee per month. He gets Rs.27096 as his net salary p.m. He is now working as a senior clerk. He has incurred a loan of Rs.3,00,000/- for renovation of his residential building. He has to pay Rs.77,000/- towards the loan amount. He is paying Rs.6990 p.m towards repayment of above said outstanding loan dues. The respondent is getting Rs.8000/- to Rs.10000/- per month working at modern health care, Bhubaneswar.

Disclosure statements of Assets and Liabilities submitted by the respondent discloses that she is aged about 31 years. She is residing at her parental house from 28.09.2016. Her expenses is Rs.30,000/- p.m. She is receiving Rs.4200/- per month towards her interim maintenance.

Page 20 of 44

// 21 // Her daughter is with her who is now at the age of 4 years. She expends Rs.35,000/- per month for the maintenance of her dependent. Petitioner is getting Rs.50,000/- per month as his salary. Her disclosure statements remain silent about her income from any source.

"The aged parents, a virtuous wife and an infant child must be maintained even by doing a hundred misdeeds"(Manu).

"Maintenance" in general means keeping something in good condition.

If claimant has independent income and sufficient means of maintaining herself, no amount of maintenance can be granted to her. A wife who is financial weak and economically dependent, is entitled to maintenance.

Unfair conduct of applicant to marriage his/ her responsibility to breaking the marriage or is guilty of the matrimonial offences, the Court may still grant her maintenance though quantum of maintenance may be affected. An act may amount to misconduct for matrimonial relief, it may be ignored for awarding maintenance.

The maintenance cannot be denied to a wife on the ground that she refused to earn though she was capable of doing so.

In the case of Bhagaban Dutta, top Court has highlighted that even a wife having substantial income of her own, is entitled to claim maintenance from her husband.

The case is whether the wife is in a position to maintain herself in the way she was used to in the place of her husband. The wife should be in a position to maintain standard of living which is neither luxurious nor penurious.

On the issue of maintenance as permanent alimony, the following aspects i.e. the economic status of the parties, their age and potentialities, their respective needs, the capacity of the husband to pay and the amount of permanent alimony fixed for the wife should be such that she can live in reasonable comfort and simultaneously it should not be excessive and affect the living condition of the husband and also the age of the wife are to be taken into consideration. Considering the social and economic status of the parties, their income, age and education, present price index of all the essentials and their respective needs and other aspects quoted above, it would be just to fix the permanent alimony of the wife at Rs.8,00,000/- (Rupees Eight Lakhs only).

17. Mr. Sidharth Mishra, learned counsel while reiterating above to satisfy the wife's case for enhancement attempted to take support through the decisions vide 2015(5) SCC 705 and AIR 2022 Ori. 4 and claimed to fix permanent alimony at least at the rate of 25% of the whole income, while also taking into account the asset lying in favour of the husband and his family members. Mr. Debasis Panda, learned counsel while making an Page 21 of 44 // 22 // offer on behalf of the husband to pay at least a sum of Rs.5,00,000/- as lump sum to secure the future of the girl child in addition to the financial benefit already granted by the Family Judge, also referring to a decision of the Hon'ble apex Court in the case of Rajnesh Vrs. Neha and Anr. :

(2021) 2 SCC 324 and reading through several paragraphs therein, the Hon'ble apex Court for settling a clear position in this regard left the matter for justified direction of this Court.

18. For better appreciation on permanent alimony aspect, it is better this Court here takes down the final order passed by the Family Court herein, which runs as follows:-

" ORDER The proceeding U/s.13(1) of the Hindu Marriage Act as filed by the petitioner-husband seeking divorce against the respondent-wife is allowed on contest against the respondent. The marriage between the petitioner-Santosh Kumar Swain and the respondent-Tapaswini Das is hereby declared to be dissolved by a decree of divorce with effect from the date of decree with further direction U/s.25 of the Hindu Marriage Act, 1955 that the petitioner-husband Santosh Kumar Swain shall pay a lump sum amount of Rs.8, 00, 000/- (Rupees Eight Lakhs only) to the respondent-wife Tapaswini Das towards her permanent alimony within a period of three months form the date of this judgment. The petitioner shall pay Rs.5000/- (Rupees five thousand only) per month towards the maintenance of his minor child namely Priyanshi Priyadarshini by 10 th day of each succeeding calendar month from the date of this judgment/ order and to meet all her educational and medical expenses on showing authenticated bills thereof till she gets married/ able to maintain herself after attaining her majority whichever is earlier. In the event of non- compliance of the above, the respondent is also at liberty to realize the same from the petitioner-husband through due process of law.

In the circumstances, there is no order as to costs."

19. It is here keeping in view the income and property details of the husband and the requirements at the side of the wife along with a minor daughter, this Court finds, the provisions at Section, 20(2), 23(2) & 25 of Page 22 of 44 // 23 // the Hindu Adoption and Maintenance Act read with Section 17, 19(1) F of the Protection of Women from the Domestic Violence Act and Article 15(3) and 39 of the Constitution of India since applies to the case at hand, it is necessary to take down here all the above provisions which runs as follows:-

"THE HINDU ADOPTIONS AND MAINTENANCE ACT, 1956

23. Amount of maintenance.―(1) It shall be in the discretion of the court to determine whether any, and if so what, maintenance shall be awarded under the provisions of this Act, and in doing so the court shall have due regard to the considerations set out in sub-section (2) or sub-section (3), as the case may be, so far as they are applicable.

(2) In determining the amount of maintenance, if any, to be awarded to a wife, children or aged on infirm parents under this Act, regard shall be had to-

(a) the position and status of the parties;

(b) the reasonable wants of the claimant;

(c) if the claimant is living separately, whether the claimant is justified in doing so;

(d) the value of the claimant's property and any income derived from such property, or from the claimant's own earnings or from any other source;

(e) the number of persons entitled to maintenance under this Act. (3) In determining the amount of maintenance, if any, to be awarded to a dependent under this Act, regard shall be had to-(a) the net value of the estate of the deceased after providing for the payment of his debts;

(b) the provision, if any, made under a will of the deceased in respect of the dependant;

(c) the degree of relationship between the two;

(d) the reasonable wants of the dependant;

(e) the past relations between the dependant and the deceased;

(f) the value of the property of the dependant and any income derived from such property; or from his or her earnings or from any other source;

(g) the number of dependants entitled to maintenance under this Act.

Section 20(2) of Hindu Adoption And Maintenance Act, 1956 (2) A legitimate or illegitimate child may claim maintenance from his or her father or mother so long as the child is a minor.

Section 25 of Hindu Adoption And Maintenance Act, 1956

25. Amount of maintenance may be altered on change of circumstances.―The amount of maintenance, whether fixed by a decree of court or by agreement, either before or after the commencement of this Act, may be altered subsequently if there is a material change in the circumstances justifying such alteration.

Page 23 of 44

// 24 // THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005

17. Right to reside in a shared household.--(1) Notwithstanding anything contained in any other law for the time being in force, every woman in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same.

19. Residence orders.-(1) While disposing of an application under sub- section (1) of section12, the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order-

(a) restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, whether or not the respondent has a legal or equitable interest in the shared household;

(b) directing the respondent to remove himself from the shared household;

(c) restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides;

(d) restraining the respondent from alienating or disposing off the shared household or encumbering the same;

(e) restraining the respondent from renouncing his rights in the shared household except with the leave of the Magistrate; or

(f) directing the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, if the circumstances so require:

Provided that no order under clause (b) shall be passed against any person who is a woman.

Constitution Of India

15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.

(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. (2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to--

(a) access to shops, public restaurants, hotels and places of public entertainment; or

(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.

(3) Nothing in this article shall prevent the State from making any special provision for women and children.

1 [(4) Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.] 2 [(5) Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of Page 24 of 44 // 25 // citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30.]

39. Certain principles of policy to be followed by the State The State shall, in particular, direct its policy towards securing--

(a) that the citizens, men and women equally, have the right to an adequate means of livelihood;

(b) that the ownership and control of the material resources of the community are so distributed as best to subserve the common good;

(c) that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment;

(d) that there is equal pay for equal work for both men and women;

(e) that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength; 1 [(f) that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.

20. Coming to the legal position as settled by the Courts of Law on this aspect through the Hon'ble apex Court judgment in the case of Jasbir Kaur Sehgal Vrs. District Judge, Dehradun and Ors. reported in (1997) 7 SCC 7, this Court finds, the Hon'ble apex Court held as follows:-

"The Court has to consider the status of the parties, their respective needs, the capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and of these he is obliged under law and statutory but in voluntary payments and deductions. The amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and mode of life she was used to when she lived with her husband and also she does not feel handicapped in the prosecution of her case. At the same time the amount so fixed cannot be exercised or extortionate."

Page 25 of 44

// 26 // The latest decision of the Hon'ble apex Court on consideration of such issue appears to be; Rajnesh Vrs. Neha and Anr. : (2021) 2 SCC 324

21. From the above decision this Court finds, at the cost of repetition the following components must be considered while considering the permanent alimony aspect:-

Duration of marriage

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.

Marriage expenses of children

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.

Trust fund if any,

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. There should be a careful balance must be drawn between all relevant facts.

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; Page 26 of 44

// 27 // 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

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. [Chaturbhuj v. Sita Bai, (2008) 2 SCC 316 : (2008) 1 SCC (Civ) 547 : (2008) 1 SCC (Cri) 356] 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.

82. Section 23 of the HAMA provides statutory guidance with respect to the criteria for determining the quantum of maintenance. Sub-section (2) of Section 23 of the HAMA provides the following factors which may be taken into consideration : (i) position and status of the parties, (ii) reasonable wants of the claimant, (iii) if the petitioner/claimant is living separately, the justification for the same, (iv) value of the claimant's Page 27 of 44 // 28 // property and any income derived from such property, (v) income from claimant's own earning or from any other source.

130. For determining the quantum of maintenance payable to an applicant, the court shall take into account the criteria enumerated in Part B -- III of the judgment. The aforesaid factors are however not exhaustive, and the court concerned may exercise its discretion to consider any other factor(s) which may be necessary or of relevance in the facts and circumstances of a case."

Reasonable costs of litigation for a non-working wife should also be confidential :

79. In Manish Jain v. Akanksha Jain [Manish Jain v. Akanksha Jain, (2017) 15 SCC 801 : (2018) 2 SCC (Civ) 712] 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.

83. Section 20(2) of the DV Act provides that the monetary relief granted to the aggrieved woman and/or the children must be adequate, fair, reasonable, and consistent with the standard of living to which the aggrieved woman was accustomed to in her matrimonial home." Right to residence - At least to secure same level of alternate accommodation for the aggrieved workman as enjoyed by herein the shared house held :

87. Section 17 of the DV Act grants an aggrieved woman the right to live in the "shared household". Section 2(s) defines "shared household" to include the household where the aggrieved woman lived at any stage of the domestic relationship; or the household owned and rented jointly or singly by both, or singly by either of the spouses; or a joint family house, of which the respondent is a member.

88. The right of a woman to reside in a "shared household" defined under Section 2(s) entitles the aggrieved woman for right of residence in the shared Page 28 of 44 // 29 // household, irrespective of her having any legal interest in the same. This Court in Satish Chander Ahuja v. Sneha Ahuja [Satish Chander Ahuja v. Sneha Ahuja, (2021) 1 SCC 414, by a Bench comprising of Hon'ble Ashok Bhushan, R. Subhash Reddy and M.R. Shah, JJ.] held that "shared household" referred to in Section 2(s) is the shared household of the aggrieved person where she was living at the time when the application was filed, or at any stage lived in a domestic relationship. The living of the aggrieved woman in the shared household must have a degree of permanence. A mere fleeting or casual living at different places would not constitute a "shared household". It is important to consider the intention of the parties, nature of living, and nature of the household, to determine whether the premises is a "shared household". Section 2(s) read with Sections 17 and 19 of the DV Act entitles a woman to the right of residence in a shared household, irrespective of her having any legal interest in the same. There is no requirement of law that the husband should be a member of the joint family, or that the household must belong to the joint family, in which he or the aggrieved woman has any right, title or interest. The shared household may not necessarily be owned or tenanted by the husband singly or jointly.

89. Section 19(1)(f) of the DV Act provides that the Magistrate may pass a residence order inter alia directing the respondent to secure the same level of alternate accommodation for the aggrieved woman as enjoyed by her in the shared household. While passing such an order, the Magistrate may direct the respondent to pay the rent and other payments, having regard to the financial needs and resources of the parties."

Maintenance of minor children

91. The living expenses of the child would include expenses for food, clothing, residence, medical expenses, education of children. Extra coaching classes or any other vocational training courses to complement the basic education must be factored in, while awarding child support. Albeit, it should be a reasonable amount to be awarded for extracurricular/coaching classes, and not an overly extravagant amount which may be claimed.

Educational expenses of children

92. Education expenses of the children must be normally borne by the father. If the wife is working and earning sufficiently, the expenses may be shared proportionately between the parties.

Serious disability or ill health:

93. Serious disability or ill health of a spouse, child/ children from the marriage/ dependent relative who require constant care and recurrent expenditure, would also be a relevant consideration while quantifying maintenance.

Page 29 of 44

// 30 // In the aforesaid judgment the Hon'ble apex Court in specific terms observed on heading of "what is not relevant" that financial position of parents of wife is not material for considering quantum of maintenance:-

"77. The objective of granting interim/permanent alimony is to ensure that the dependent 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 [Manish Jain v. Akanksha Jain, (2017) 15 SCC 801 : (2018) 2 SCC (Civ) 712] 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 dependent 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 Page 30 of 44 // 31 // 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.

82. Section 23 of the HAMA provides statutory guidance with respect to the criteria for determining the quantum of maintenance. Sub-section (2) of Section 23 of the HAMA provides the following factors which may be taken into consideration : (i) position and status of the parties, (ii) reasonable wants of the claimant, (iii) if the petitioner/claimant is living separately, the justification for the same, (iv) value of the claimant's property and any income derived from such property, (v) income from claimant's own earning or from any other source.

84. The Delhi High Court in Bharat Hegde v. Saroj Hegde laid down the following factors to be considered for determining maintenance : (SCC OnLine Del para 8) "1. Status of the parties.

2. Reasonable wants of the claimant.

3. The independent income and property of the claimant.

4. The number of persons, the non-applicant has to maintain.

5. The amount should aid the applicant to live in a similar lifestyle as he/she enjoyed in the matrimonial home.

6. Non-applicant's liabilities, if any.

7. Provisions for food, clothing, shelter, education, medical attendance and treatment, etc. of the applicant.

8. Payment capacity of the non-applicant.

9. Some guesswork is not ruled out while estimating the income of the non-applicant when all the sources or correct sources are not disclosed.

10. The non-applicant to defray the cost of litigation.

11. The amount awarded under Section 125 CrPC is adjustable against the amount awarded under Section 24 of the Act."

85. Apart from the aforesaid factors enumerated hereinabove, certain additional factors would also be relevant for determining the quantum of maintenance payable.

(a) Age and employment of parties

86. In a marriage of long duration, where parties have endured the relationship for several years, it would be a relevant factor to be taken into consideration. On termination of the relationship, if the wife is educated and professionally qualified, but had to give up her employment opportunities to look after the needs of the family being the primary caregiver to the minor children, and the elder Page 31 of 44 // 32 // members of the family, this factor would be required to be given due importance. This is of particular relevance in contemporary society, given the highly competitive industry standards, the separated wife would be required to undergo fresh training to acquire marketable skills and retrain herself to secure a job in the paid workforce to rehabilitate herself. With advancement of age, it would be difficult for a dependent wife to get an easy entry into the workforce after a break of several years.

(b) Right to residence

87. Section 17 of the DV Act grants an aggrieved woman the right to live in the "shared household". Section 2(s) defines "shared household" to include the household where the aggrieved woman lived at any stage of the domestic relationship; or the household owned and rented jointly or singly by both, or singly by either of the spouses; or a joint family house, of which the respondent is a member.

88. The right of a woman to reside in a "shared household" defined under Section 2(s) entitles the aggrieved woman for right of residence in the shared household, irrespective of her having any legal interest in the same. This Court in Satish Chander Ahuja v. Sneha Ahuja held that "shared household" referred to in Section 2(s) is the shared household of the aggrieved person where she was living at the time when the application was filed, or at any stage lived in a domestic relationship. The living of the aggrieved woman in the shared household must have a degree of permanence. A mere fleeting or casual living at different places would not constitute a "shared household". It is important to consider the intention of the parties, nature of living, and nature of the household, to determine whether the premises is a "shared household". Section 2(s) read with Sections 17 and 19 of the DV Act entitles a woman to the right of residence in a shared household, irrespective of her having any legal interest in the same. There is no requirement of law that the husband should be a member of the joint family, or that the household must belong to the joint family, in which he or the aggrieved woman has any right, title or interest. The shared household may not necessarily be owned or tenanted by the husband singly or jointly.

89. Section 19(1)(f) of the DV Act provides that the Magistrate may pass a residence order inter alia directing the respondent to secure the same level of alternate accommodation for the aggrieved woman as enjoyed by her in the shared household. While passing such an order, the Magistrate may direct the respondent to pay the rent and other payments, having regard to the financial needs and resources of the parties.

90. The courts have held that if the wife is earning, it cannot operate as a bar from being awarded maintenance by the husband. The courts have provided guidance on this issue in the following judgments:

90.1. In Shailja v. Khobbanna [Shailja v. Khobbanna, (2018) 12 SCC 199 :

(2018) 5 SCC (Civ) 308; See also the decision of the Karnataka High Court in P. Suresh v. S. Deepa, 2016 SCC OnLine Kar 8848 : 2016 Cri LJ 4794 (Kar)] , this Court held that merely because the wife is capable of earning, it would not be a sufficient ground to reduce the maintenance awarded by the Family Court. The court has to determine whether the income of the wife is sufficient to enable her Page 32 of 44 // 33 // to maintain herself, in accordance with the lifestyle of her husband in the matrimonial home 90.2. In Sunita Kachwaha v. Anil Kachwaha [Sunita Kachwaha v. Anil Kachwaha, (2014) 16 SCC 715 : (2015) 3 SCC (Civ) 753 : (2015) 3 SCC (Cri) 589] the wife had a postgraduate degree, and was employed as a teacher in Jabalpur. The husband raised a contention that since the wife had sufficient income, she would not require financial assistance from the husband. The Supreme Court repelled this contention, and held that merely because the wife was earning some income, it could not be a ground to reject her claim for maintenance.

90.3. The Bombay High Court in Sanjay Damodar Kale v. Kalyani Sanjay Kale [Sanjay Damodar Kale v. Kalyani Sanjay Kale, 2020 SCC OnLine Bom 694] while relying upon the judgment in Sunita Kachwaha [Sunita Kachwaha v. Anil Kachwaha, (2014) 16 SCC 715 : (2015) 3 SCC (Civ) 753 :

(2015) 3 SCC (Cri) 589] , held that neither the mere potential to earn, nor the actual earning of the wife, howsoever meagre, is sufficient to deny the claim of maintenance.

90.4. An able-bodied husband must be presumed to be capable of earning sufficient money to maintain his wife and children, and cannot contend that he is not in a position to earn sufficiently to maintain his family, as held by the Delhi High Court in Chander Parkash v. Shila Rani [Chander Parkash v. Shila Rani, 1968 SCC OnLine Del 52 : AIR 1968 Del 174] . The onus is on the husband to establish with necessary material that there are sufficient grounds to show that he is unable to maintain the family, and discharge his legal obligations for reasons beyond his control. If the husband does not disclose the exact amount of his income, an adverse inference may be drawn by the court. 90.5. This Court in Shamima Farooqui v. Shahid Khan cited the judgment in Chander Parkash with approval, and held that the obligation of the husband to provide maintenance stands on a higher pedestal than the wife.

(d) Maintenance of minor children

92. Education expenses of the children must be normally borne by the father. If the wife is working and earning sufficiently, the expenses may be shared proportionately between the parties.

(e) Serious disability or ill health

93. Serious disability or ill health of a spouse, child/children from the marriage/dependent relative who require constant care and recurrent expenditure, would also be a relevant consideration while quantifying maintenance.

// 34 //

22. Through the judgment in Rajnesh Vrs. Neha and Anr. (supra) the Hon'ble Apex Court ultimately summing of the case gave its final direction in paragraph-VI. Relevant direction applying to the case at hand appears to be the direction VI (c) Criteria for determining the quantum of maintenance. Paragraph-130 therein speaks as follows:

"(c) Criteria for determining the quantum of maintenance:

130. For determining the quantum of maintenance payable to an applicant, the court shall take into account the criteria enumerated in Part B-

III of the judgment. The aforesaid factors are however not exhaustive, and he court concerned may exercise its direction to consider any other factor(s) which may be necessary or of relevance in the facts and circumstances of a case."

It is here also relevant to take note of the decision of the Hon'ble Apex Court under the heading Part-B (III). While determining the maintenance/ alimony herein, it is apt to mention here that this Court in paragraph-21 hereinabove, has already enumerated the components required to be taken into account considering the permanent alimony.

23. This Court here at this stage records the volunteering of Mr.Panda, learned counsel for the husband/respondent in course of submission stating that husband herein is ready and willing to pay a further sum of Rs.5,00,000/- (Rupees five lakhs) towards future prospect of the girl child apart from going on with the payment of maintenance @ Rs.5,000/- in favour of the girl child, as directed by the Family Court. Mr. Panda, learned counsel also volunteers that monthly maintenance for the minor girl child from the date of judgment and order though is being deposited Page 34 of 44 // 35 // in the Family Court, the same is not withdrawn as of now and the whole amount on this head is pending with the Family Judge and the respondent has no objection, if there is withdrawal of this amount by the wife for utilizing the same for the girl child.

24. It is, keeping all the above in view, this Court now coming to assess as to what should be the just permanent alimony, while also keeping in view the offer of the husband taken note hereinabove, this Court finds, a direction for a sum of Rs.8,00,000/- (Rupees eight lakhs) towards permanent alimony is already granted by the Family Court.

As discussed hereinabove through the pay slip of the husband/respondent for the month of June, 2023 produced herein by the husband, the husband/respondent is earning just above Rs,40,000/- per month as his gross pay. It appears, husband is an able body with good financial support and in the joint mess with the parents. Husband herein is residing in his father's house at IRC Village in the multistoried building. He has three sisters already married and he is the only son of his parents. Husband here also has earned some money by selling out his own land in the district of Cuttack recently and in enjoyment of all such money. Husband has also future prospect for increase in his salary as he has hardly 10 years service to his pocket by this time being an employee in the District Court at Bhubaneswar.

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// 36 // The father of the husband/respondent herein being a retired employee is earning a sum of Rs.32,000/- (Rupees thirty two thousand) per month presently towards monthly pension. This apart, the father of the husband owning a multistoried building at IRC Village of the Capital City, Bhubaneswar. Record discloses the father is also in the earning of a sum of Rs.30,000/- (Rupees thirty thousand) per month towards rent from the rest portion of the house. It is here coming to take into account the status of the wife, this Court finds wife is undisputedly unemployed and is hardly 32 years presently. Wife though resides presently in her parents house, she has also two brothers to her and she being the only sister. Wife is also residing with a 6 years old girl child. For the disclosures of the wife in the Court proceeding, the wife apart from spending towards her fooding and clothing etc., with normal wear and tears, she is also spending at least a sum of Rs.3,465/- per month towards tuition fee of her only girl child, who is prosecuting her education in St.Xavier High School, Khandagiri. This apart, the wife is also meeting with a sum of Rs.1,800/- per month towards bus fare for the movement of the girl child from her residence to School. Besides this the girl child is also in need of proper food, dress for school as well as for residence and outside visit and some miscellaneous expenses in the minimum.

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// 37 // The undisputed fact remains herein that the Family Court while granting a sum of Rs.8,00,000/- as permanent alimony has granted maintenance to the minor child @ Rs.5,000/- to be paid by the husband to the girl child till she gets married/able to maintain herself after attaining her majority whichever is earlier. This Court here looking to the judgment of the Hon'ble Apex Court, the standard of parties, the settled position of law requiring and looking to the standard of husband, wife is also entitled to live in same standard. It is keeping in view the above analogy and the components requires to be considered taking into financial benefit in such matters, as enumerated in paragraph-20 hereinabove, this Court finds duration of marriage also by the time completing 8 years, finding a girl child there through both the wife and husband here, there must be sufficient protection of the present as well as future of the girl child. Looking to the pattern of society presently, for the clear disclosure of the wife, it appears, there is expenditure on the heading of education for the minor girl and others like food, dress materials and transportation etc., which almost comes to nearly Rs.9,000/- per month. It is also to be kept in mind the monthly expenditure goes on increasing depending on the girl child entering into higher classes. Here, this Court finds the Family Court has directed to pay a sum of Rs.5,000/- by the husband towards maintenance of the minor girl child to be paid by 10th day of each Page 37 of 44 // 38 // succeeding calendar month. Keeping in view that the whole expenditure is touching to Rs.9,000/- per month and there is likelihood of increase in the same every year to the pattern of teaching fee and to meet the mobility expenditure, here also keeping in view the husband's undertaking to give a deposit of Rs.5,00,000/- to strengthen the future of girl child, this Court feels to direct the husband to forthwith deposit a draft for a sum of Rs.5,00,000/- (Rupees five lakhs) drawn in the name of the girl child, namely, Priyanshi Priyadarshini and on deposit of the same, the same shall be released in favour of the mother/appellant on proper application by the Family Court. On release of this amount, the wife is directed to keep such amount in fixed deposit scheme for at least 15 years. Mother being the custodian of such fixed deposit with minor having the right to use and utilize such fund only for the purpose of her marriage, this Court looking to the educational expenses and maintenance of the girl child taken together, there should be payment of at least a sum of Rs.9,000/- (Rupees nine thousand) and accordingly, while enhancing the grant of maintenance being granted by the Family Court, this Court enhances the same to Rs.9,000/- in the minimum per month and directs the husband-respondent to go on depositing this amount in every month positively by 10th day of each succeeding month, to be released in the account to be opened in favour of the girl child to be operated by the Page 38 of 44 // 39 // mother, the Bank details being furnished by the mother, the wife here at least within a period of seven days of this judgment. The husband will go on depositing the monthly maintenance in favour of the minor daughter by way of RTGS in the account of the daughter directly till the girl child is sufficient enough to earn for her or at least till her marriage. This apart, this Court further also keeping in view the growth of the girl child presently in the society, makes it clear that if the girl child becomes eligible to undertake Engineering course or Medical course or any other Technical course and or Non-Technical course and there is requirement of further money, a demand can be made by the girl child intimating the father on the amount required to be spent and the father/respondent here shall also make arrangement by bringing such deposit in favour of the daughter at least within a period of fifteen days from the date the father is put to such demand/notice. This apart, this Court from the submission of Mr. Panda, learned counsel appearing for the husband finds, wife/appellant since is contesting also the divorce direction of the Family Court and did not withdraw the deposit under the heading of maintenance of the girl, as directed by the Family Court and there has been accumulation of some money on the head of maintenance of the child as on date to be handed over to the mother of the girl child in shape of bank draft of any Nationalized Bank prepared in favour of the girl child, such Page 39 of 44 // 40 // amount be also kept in deposit in the account directed to be opened in favour of the girl child and such deposit will only be utilized for the girl child here.

25. Now coming to take a decision on the permanent alimony in favour of the wife, this Court here finds, there is already grant of a sum of Rs.8,00,000/- in favour of the appellant /wife as permanent alimony and this deposit is still lying in the Family Court account. Looking to the social status of the husband and wife also required to maintain, if not parallel status, at least a nearly status in comparison to the status of the husband, this Court, here observes, the wife resides in the Smart City at Bhubaneswar, may be for the time being with her father but future residential aspect of such wife should also be kept into account, while also keeping in view her day-to-day maintenance /running expenditure towards clothing, fooding and day-to-day requirements, this Court here assesses the expenses of such woman residing in a Smart City like Bhubaneswar at the minimum of Rs.7,500/- per month. This takes annual requirement at least to a sum of Rs.90,000/- with the present rate of interest and if she deposits the sum of Rs.8,00,000/- already deposited in the Family Court, she may maximum get interest @ 7% per annum presently which comes to Rs.56,000/- per annum, which may not be sufficient enough to maintain her minimum standard of life, to which here Page 40 of 44 // 41 // she requires a minimum sum of Rs.7,500/- per month to match this expenditure and while also keeping in view increase in the future, the wife to have at least get a sum of Rs.8,000/- per month and there is a possibility, if she is able to get annual interest of at least Rs.96,000/-, for which there may be minimum deposit of a sum of Rs.13,50,000/- (rupees thirteen lakhs fifty thousand) in favour of the wife. Since there is already release of a sum of Rs.8,00,000/- in favour of the wife already lying with the Family Court, the Family Court while permitting the wife to withdraw the deposited amount along with interest, if any, in the meantime, the husband/respondent is directed to provide a further sum of Rs.5,50,000/- (Rupees five lakhs fifty thousand) to the wife and this Court, accordingly, increases the permanent alimony against the wife from Rs.8,00,000/- to Rs.13,50,000/- (rupees thirteen lakhs fifty thousand). This Court, therefore, directs the husband /respondent here to pay a further sum of Rs.5,50,000/- (Rupees five lakhs fifty thousand) by way of bank draft drawn in favour of the wife-appellant by depositing the same in the Family Court, Bhubaneswar within a period of fifteen days and the wife is permitted to receive this draft and invest whole amount of Rs.13,50,000/- in a fixed deposit scheme in order to ensure, she gets whole interest of Rs.96,000/- per annum in best securing her future. A copy of the Fixed Deposit certificate on the whole amount of Page 41 of 44 // 42 // Rs.13,50,000/- (Rupees thirteen lakhs fifty thousand only) along with copy of the Fixed Deposit certificate for the sum of Rs.5,00,000/- in the name of the girl child be also submitted to the High Court by way of an affidavit at least within a period of six weeks from today for record purpose of the High Court. It is also made clear that in the event the wife is in urgent requirement of spending any amount from out of this Fixed Deposit at least within a period of 12 years, she can also apply for relaxation of condition through appropriate application in this Court only.

26. Now coming to the direction of the Hon'ble Apex Court so far also to keep in mind the prospective of disability or ill health in the party/parties are suffering more particularly in the case the wife and the daughter herein, this Court also feels it appropriate to give a direction to the husband to shop a health card in the joint name of mother and child herein at least to the tune of Rs.6,00,000/- (rupees six lakhs) benefitting to both the wife and minor child herein and deposit of annual premium for the continuance of such card is the responsibility of the husband. Let such a health card be obtained at least within a period of one month hence and handed over to the wife/appellant. This Court directs the wife- appellant also to cooperate the husband/respondent in this transaction in providing any material support like Pan card, Adhar card and address etc. and a health card be handed over to the wife at least within a period of Page 42 of 44 // 43 // one month from the date of this judgment. In the case of default in the continuance of health card or mismanage by the husband in the continuance of the health card in future, it shall be open to the wife and or the girl child to bring appropriate application in this appeal itself for consideration of the High Court.

27. Considering the experience of this Court in the matter of deposit of permanent alimony made in many cases by the husband in the Family Court, this Court finds it has become a normal practice in keeping such amount in current account of the Court as a result the amount so deposited does not fetch any interest. There is great loss in this way to the party in benefit. Considering that this is a normal feature taking place every now and then, this Court here likes to give a direction to all the Family Courts and the Subordinate Courts undertaking the matrimonial exercise in all the District Courts and on service of copy of this judgment by the Registrar (Judicial) of this Court on each of the District Courts and the Family Courts, the District Courts are directed to circulate it to all such Courts undertaking exercise under the Family Court Act and or the proceeding under Section 125 of the Code of Criminal Procedure for at least taking care in keeping such deposits in Fixed Deposits after a waiting period of one month of such deposit to enable the wife to withdraw the same and or the party to benefit of such amount, failure of Page 43 of 44 // 44 // which to utilize such deposit in fixed deposit in any Nationalized Bank with renewal of the F.D under highest interest rate. Registrar (Judicial) of the Court is directed to communicate the copy of this judgment to all District Judges and Family Courts for their again communication of such judgment to all such Courts under their jurisdiction undertaking the above exercise.

28. While concluding, keeping in view that the wife is forced to fight such a litigation while being unemployed and in the maintenance of a minor girl child, this Court feels it appropriate to award the litigation cost as against the husband-respondent and the husband-respondent is directed to pay a sum of Rs.15,000/- to the wife by way of Bank draft drawn in her favour and by submitting the same also before the concerned Family Court for its handing over the same to the wife at least within a period of fifteen days of this judgment. It be clarified here that on full compliance of the direction herein by the husband, proceeding, if any, between the parties here shall be deemed to be automatically closed.

29. The Matrimonial Appeal succeeds with direction enumerated in paragraph nos.24, 25, 26 & 28 hereinabove.

                                    (M.S.Sahoo)                             (Biswanath Rath)
Signature Not Verified Judge                                                     Judge
Digitally Signed
Signed by: AYASKANTA JENA
Designation: Senior Stenographer
                         Orissa High Court, Cuttack.
Reason: Authentication
                         The 18th day of August, 2023//
Location: High Court of Orissa
Date: 22-Aug-2023 13:01:32
                         Ayaskanta Jena, Sr. Stenographer
                                                                                          Page 44 of 44

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Orissa High Court

Tapaswini Das vs Santosh Kumar Swain on 18 August, 2023

Bench: Biswanath Rath, M.S.Sahoo