Uttarakhand High Court
Virendra Kumar vs Smt Poonam on 13 October, 2017
Bench: Rajiv Sharma, Sharad Kumar Sharma
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
First Appeal No. 25 of 2011
Virendra Kumar ......Appellant
Versus
Smt. Poonam ...... Respondent.
Present:
Mr. Pawan Mishra, Advocate for the appellant.
Mr. Sanjeev Singh, Advocate for the respondent.
Reserved Judgment
JUDGMENT
Coram: Hon'ble Rajiv Sharma, J.
Hon'ble Sharad Kumar Sharma, J.
Dated: 13th October, 2017 Per Hon'ble Sharad Kumar Sharma, J.
The appellant husband in the instant appeal questions part of the judgment dated 14th March, 2011, passed by the Additional Family Judge, Roorekee, District Haridwar, whereby, while deciding Case No. 14 of 2008, Smt. Poonam Vs. Virendra Kumar, wherein the wife has sought the relief of dissolution of marriage, has decreed the suit, but while doing so, the Court has simultaneously granted a permanent alimony under Section 25 of the Act, to the tune of Rs.2,50,000/- to be paid to plaintiff / respondent in two equal instalments. It is this part of the judgment, where the Court has granted an alimony of Rs. 2,50,000/- to plaintiff is a subject matter of challenge in the instant appeal. 2
On scrutiny of the grounds taken in the appeal, none of the grounds are of such a nature which could justify the challenge given by the appellant to the alimony under Section 25 except only ground No. 6 where the husband has taken a plea that since the proceedings under Section 9 has been decided in his favour and the application under Section 125 of the Cr.P.C. of wife has been dismissed, hence, it would simultaneously effect the grant of alimony under Section 25, thus, he questions the judgment impugned so far it relates on issue No. 3.
A short fact leading to the filing of the petition is that wife in her plaint contended that she was married with the defendant appellant on 24.02.2007, in accordance with the Hindu rites and rituals. She submitted that though she did her diploma in Office Management prior to the marriage but, even after the marriage, she discharged her matrimonial obligation and lived as an exclusive wife without being employed anywhere. She submitted that though she was permitted to undergo the training of IIT and with the consent of the husband she started residing in a tenanted accommodation, bearing Municipal No. 54 Civil Lines, Roorkee which carried a monthly rent of Rs.1,200/- p.m.. She in the plaint submitted that out of the consolidated amount which she used to receive, Rs.1,400/-, out of which, 3 Rs.1,200/- was remitted by her by way of rent to the accommodation and the remaining amount is too meagre to sustain herself. For the grant of permanent alimony, she submitted that as far as the defendant appellant is concerned, he is working as a Sub Inspection in Industrial Security Force 'CSPT' at Chandrapur Bokaro and she submitted that out of the salary, which is drawn by him, he is a recipient of Rs. 20,000/- p.m. She alleged that out of the left over income, which was too short to maintain herself in life, she used to sustain herself from the borrowing, which she made from her family members who often financially assisted her. Owing to the cruelty, she submitted that on 16.06.2007, she was beaten by the in-laws and thrown out of the house against which she has lodged a complaint to the SSP and thereafter she started residing with the parents.
It was her case also that thereafter she started residing with the parents, after the incident of 16th June, 2007, the defendant appellant visited the house of the plaintiff / respondent and entered into a compromise on 19th June, 2007, and brought her back to the matrimonial home but once again the atrocities of husband and her family members continued. The plaintiff respondent case is that she has lodged a complaint to the Mahila Helpline on 29th June, 2009, thus, she contended that looking to the circumstances under 4 which she has been kept by the husband, it is not possible for her to continue with the marriage and she claimed a decree of divorce alongwith a relief for the grant of permanent alimony of Rs. 5 lacs under Section 25 of the Hindu Marriage Act.
In response to the plaint allegations, the husband has filed his written statement. He admitted the fact that he is working as Sub Inspector at Bokaro and he admitted that the plaintiff respondent 's brother in law (jija), without the consent of the defendant /appellant had got the plaintiff respondent admitted in IIT Roorkee, wherein, she was working as an Apprentice in the office and was recipient of Rs. 1400/- p.m.. He contended that the amount received by her is sufficient because there is a future possibility of her being engaged in a better job. For the purposes of determination of maintenance under Section 25, a hypothetical possibility of an anticipation of a future employment cannot be a basis for considering the application under Section 25, because the same has to be decided on the basis of financial status prevailing at the time when Section 25 is under consideration.
The husband submitted that she is not entitled for any financial assistance by invoking Section 25 because she on her own violation is residing away from her matrimonial 5 home without discharging her matrimonial obligation. He further submitted that despite of his best effort to retrieve her back to the matrimonial home had failed, she was not entitled for any alimony under Section 25 since there as a refusal by her to join back the matrimonial home.
In the written statement, the husband submitted that he is still willing to live with the plaintiff/respondent and discharge his duties as a husband so that the matrimonial relationship may be revived. He submitted that he has filed proceedings under Section 25 of the Hindu Marriage Act on 6th August, 2007, and in support of his bona fide, he submitted that he has paid Rs. 6,000/- to the plaintiff respondent by the Core banking process and paid Rs. 5,000/- in cash. The husband's case was further that in Case No. 96 of 2007, Smt. Poonam Vs. Virendra filed under Section 125 Cr.P.C., the same stood rejected on 21st March, 2009. Consequent to its rejection, she would not be entitled for any alimony under Section 25 of the Hindu Marriage Act.
The argument of the appellant is that as a consequence of rejection of 125 Cr.P.C. proceedings, it would disentitle wife for the benefit under Section 25 of the Hindu Marriage Act, is unsustainable, the reason being, the intention of Legislature for providing independent provisions under Section 125 Cr.P.C. as well as under Section 25 of the Hindu 6 Marriage Act, had altogether a different intention. Section 125 Cr.P.C. deals with the situation where either of the spouse is not having sufficient means and is neglected or refused to be maintained and that is why Section 125 has been incorporated with a penal action under sub-section 3 of Section 125. Whereas, on the other hand, Section 25 denotes the word permanent alimony and maintenance whereby a power has been granted to Court exercising the jurisdiction under the Hindu Marriage Act which is the independent provisions where the Court may grant a gross sum having regard to the income and other property and making it as a part of the decree by its final adjudication.
Hence, the order of 21st March, 2009, will not create any embargo so far as it relates to the passing of order under Section 25 as it contemplates an independent action.
On perusal of the record it shows that the source of earning of wife being Rs. 1400/-, this is a fact which has been admitted by the defendant appellant. This Court too feels that in this era of price escalation, the sum of Rs. 1400/- out of which, major part of income goes for payment of rent, is too meagre to meet day-to-day expenses.
The plaintiff respondent, by virtue of an amendment, sought a relief of permanent alimony to the tune of Rs. 5 lacs by invoking Section 25 of the Hindu Marriage Act. In 7 defence, the husband contended that the plaintiff respondent, after completing her apprentice, she is working. He further submitted that because of the order of 125 Cr.P.C. rejecting her application has been put to challenge before the High Court, she is not entitled for any alimony under Section 25 of the Hindu Marriage Act. The husband too denied the relief claimed under Section 25 and submitted that though he admits the fact that he is working with the CISF. He admits that he has got a salary of Rs. 45,000/- p.m. but tries to deny his liability to maintain his wife on the pretext, that he got two spinster sisters and a brother whose expenses are to be borne by him. He submitted that as a matter of fact after meeting all the expenses, his income comes to Rs. 25,000/- out of which he has to meet the loan liability. Merely because the husband has to meet the other domestic liabilities will not mean that he can taken these liabilities as to be a ground of defence for denying his responsibilities to remit the alimony to the wife.
With regard to all the pleadings in defence to the relief under Section 25, there was no evidence adduced by the defendant appellant showing that he had to meet the loan liability. Thus, the Court taking into consideration the financial liabilities has rightly remitted the amount of Rs. 2,50,000/-.
8
Thus, this Court feels that the evidence and findings do support the findings recorded by the Family Court justifying the ground for granting permanent alimony to the sum of Rs.2,50,000/- to the wife as permanent alimony.
Thus, the judgment do not call for any interference. The appeal is dismissed.
No order as to costs.
\ (Sharad Kumar Sharma, J.) (Rajiv Sharma, J.) 13.10.2017 13.10.2017 Shiv