Gujarat High Court
Ninaben Gautambhai Patel vs Gautam Sagoonbhai Patel on 25 February, 2014
Author: M.R. Shah
Bench: M.R. Shah, R.P.Dholaria
C/FA/3590/2013 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 3590 of 2013
With
CIVIL APPLICATION NO. 13415 of 2013
In
FIRST APPEAL NO. 3590 of 2013
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NINABEN GAUTAMBHAI PATEL....Appellant(s)
Versus
GAUTAM SAGOONBHAI PATEL....Defendant(s)
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Appearance:
MR JIGAR P RAVAL, ADVOCATE for the Appellant(s) No. 1
MR KABIR A HATHI, ADVOCATE for the Defendant(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA
Date : 25/02/2014
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE M.R. SHAH) 1.00. Feeling aggrieved and dissatisfied with the impugned judgement and order passed by the learned Family Court, Vadodara in Hindu Marriage Petition No. 692 of 2010 by which the learned Family Court has allowed the said suit filed by the respondent husband - original petitioner and has dissolved the marriage solemnized between the appellant wife and respondent husband by decreeing the suit under section 13(1) of the Hindu Marriage Act and by directing the respondent - husband to pay Rs.15 Lacs to the appellant wife towards permanent alimony, appellant wife - original opponent has preferred the present First Page 1 of 12 C/FA/3590/2013 ORDER Appeal under section 19 of the Family Courts Act, 1984.
2.00. That the marriage of the appellant and the respondent was solemnized on 10/4/2004 as per Hindu rites and rituals. It is not in dispute that at the relevant time both were divorces. It is also not in dispute that both the parties are US citizens.
2.01. That the respondent - husband filed Hindu Marriage Petition No. 611 of 2007 for obtaining decree of divorce on the ground of cruelty under section 13 of the Hindu Marriage Act in the court of learned Civil Judge (Senior Division) at Vadodara. Thereafter on establishment of Family Court at Vadodara, the same was transferred to the Family Court, Vadodara and renumbered as Family (HMP) Suit No.692 of 2010. That both the parties stayed at Vadodara for sometime, however, there were differences between the two. It was the case on behalf of the respondent - husband that the appellant wife was harassing him and making demands and has made his life miserable and therefore, he instituted the aforesaid suit for dissolution of his marriage with the appellant herein.
2.02. The appellant herein - original respondent was served with the notice and appeared through an advocate and filed her objections / Written Statement at Ex.298 denying allegations made in the petition.
2.03. The learned Family Court framed the issues. The respondent husband - original applicant filed his examination-in- chief in the form of affidavit Ex.52. He was cross-examined. However, the appellant - original respondent did not step into the witness box to rebut the evidence of the original applicant. The Page 2 of 12 C/FA/3590/2013 ORDER husband led evidence documentary as well as oral. On appreciation of evidences on record, it is specifically held by the learned Family Court that due to adamant nature of the appellant wife, she has quarreled with the respondent husband several times; the respondent husband was cruelly treated by the appellant wife and due to the same cruel behaviour, the health as well as the work of the respondent husband suffered a lot and he had to remain outside the house for so many hours. It is further observed and held by the learned Family Court that despite the husband tried to pursued the appellant wife and even the parties were explained and counseling by the community people, but there was no change and the appellant wife was not listening a single advise of the husband and continued her abusive language and screaming which caused a reasonable apprehension in the mind of the husband that it would be harmful and injurious for him to live with the appellant wife under the same roof and to continue the marriage life and after holding so, the learned Family Court has specifically held that the respondent husband was subjected to physical and mental cruelty by the appellant wife and has held that cruelty to the husband is proved. Thereafter, after considering the financial and social status of the parties and on appreciation of evidence, the learned Family Court has awarded Rs.15 Lacs as permanent alimony to the appellant wife.
2.04. Feeling aggrieved and dissatisfied with the impugned judgement and decree passed by the learned Family Court, appellant herein - wife - original opponent has preferred the present First Appeal.
3.00. At the outset, it is required to be noted that Mr.Raval, learned advocate appearing on behalf of the appellant - wife has Page 3 of 12 C/FA/3590/2013 ORDER stated at the bar that he is not seriously challenging the judgement and decree passed by the learned Family Court dissolving the marriage between the parties, more particularly when the appellant wife has not stepped into the witness box and led any rebuttal evidence qua against the allegation of cruelty made by the respondent husband, however, has stated that in the facts and circumstances of the case, the learned Family Court has materially erred in awarding permanent alimony of Rs.15 Lacs only which is on lower side. Therefore, as such basically the appellant wife has challenged the impugned judgement and decree passed by the learned Family Court in so far as awarding Rs.15 Lacs towards permanent alimony.
3.01. Mr.Raval, learned advocate appearing on behalf of the appellant wife has submitted that while awarding permanent alimony the learned Family Court has not awarded and/or passed any order with respect to accommodation / house. It is submitted that while awarding and/or passing order awarding permanent alimony, Court is required to pass appropriate order with respect to accommodation / house. It is submitted that maintenance includes provision for food, clothing, residence, education and medical attendance. It is submitted that even permanent alimony is required to be awarded considering the status of the husband. It is submitted that in the facts and circumstances of the case and looking to the status of the husband, the learned Family Court has materially erred in awarding Rs.15 Lacs only towards permanent alimony.
3.02. Mr.Raval, learned advocate appearing on behalf of the appellant wife has heavily relied upon the decision of the Hon'ble Supreme Court in the case of Komalam Amma Versus Kumara Page 4 of 12 C/FA/3590/2013 ORDER Pillai Raghavan & Ors., reported in 2009 (1) GLH 311 in support of his above submissions and in support of his submission and request to enhance the amount of permanent alimony.
4.00. Present appeal is opposed by Mr.Kabir Hathi, learned advocate appearing on behalf of the respondent - husband. It is submitted that as such the learned Family Court has rightly passed the impugned judgement and decree dissolving the marriage between the appellant and the respondent under section 13(1) of the Hindu Marriage Act. it is submitted that the cruelty by the appellant wife upon the respondent husband has been proved by leading evidence. It is submitted that as the learned advocate appearing on behalf of the appellant wife is not seriously challenging the impugned judgement and decree of divorce / dissolution of marriage, passed by the learned Family Court, and the appellant wife has mainly challenged the impugned judgement and decree passed by the learned Family Court in so far as awarding Rs.15 Lacs towards permanent alimony, he is not making any further submissions on the merits. It is submitted that in the facts and circumstances of the case as such the learned Family Court has not committed any error in awarding a sum of Rs.15 Lacs towards permanent alimony while passing the decree of divorce and/or passing decree of dissolution of marriage between the appellant and the respondent. It is submitted that a wife is entitled to a reasonable amount towards permanent alimony and not an exorbitant amount. It is submitted that wife is entitled to permanent alimony for her own maintenance and to live her life with respect and dignity. It is submitted that however, wife is not entitled to exorbitant amount and/or fancy amount towards permanent alimony.
Page 5 of 12 C/FA/3590/2013 ORDER4.01. Mr.Hathi, learned advocate appearing on behalf of the respondent husband has submitted that in the present case it has come on record that the appellant wife is hiving a residential property in which she is residing and the same is worth Rs.1.5 Crores. It is submitted that it has also come on record that she has received total sum of 1,89,114.45 US $ as permanent alimony from her earlier husband Mr.Narendrabhai Patel of U.S.A. It is further submitted that the aforesaid permanent alimony has been awarded to the appellant wife pursuant to the order passed by the Court at USA. It is submitted that the said alimony has been granted for her permanent maintenance as per U.S. standard lifestyle. It is submitted that the said amount has been invested and out of which she is likely to receive Rs.60 to 65 Lacs in the year 2014 itself. It is submitted that at present she is above 60 years of age. It is submitted that she will get a handsome amount towards Personal Social Security by the year 2017 at her retirement age and will get some amount every month towards Personal Social Security from the government of USA. It is further submitted that she would receive Social Security to the tune of Rs.1100 US $ per month from the government of USA as divorced spouse. It is submitted that she has 1/3rd share in the property known as "Ranjitbhuvan Haveli", situated at Nadiad, which is at present vacant and the said property is worth Rs.75 Lacs.
4.02. Mr.Kabir Hathi, learned advocate appearing on behalf of the respondent husband has further submitted that the respondent husband has liability of his two daughters born from his first wedlock. It is further submitted that the respondent husband has outstanding loan to be paid to the tune of 1,81,610 US $.
Page 6 of 12 C/FA/3590/2013 ORDER4.03. Mr.Kabir Hathi, learned advocate appearing on behalf of the respondent husband has further submitted that the son of the appellant named Parag Patel born out of her first wedlock is B.E. Mechanical Engineer and he has done his Masters in Biochemical from the University of California, Los Angeles and presently he is well established and working as International Marketing Executive and is earning about 1,50,000/- US $ per annum.
By making above submissions it is submitted that considering the facts and circumstances of the case, it cannot be said that the learned Family Court has committed any error and/or illegality in awarding Rs.15 Lacs towards permanent alimony and the said amount cannot be said to be a meager amount or on lower-side.
4.03. Mr.Kabir Hathi, learned advocate appearing on behalf of the respondent husband has stated at the bar that if the appellant is ready and willing to settle the entire dispute and to put an end the entire litigations and to buy peace, the respondent husband is ready and willing to pay a fuhrer amount of Rs.5 Lacs towards permanent alimony.
By making above submissions, it is requested to dismiss the present appeal.
5.00. Heard Mr.Jigar Raval, learned advocate appearing on behalf of the appellant wife and Mr.Kabir Hathi, learned advocate appearing on behalf of the respondent husband at length.
5.01. We have gone through the impugned judgement and decree passed by the learned Family Court as well as the entire Page 7 of 12 C/FA/3590/2013 ORDER evidence on record from the Paper-book produced on record.
5.02. At the outset, it is required to be noted that present being a matrimonial dispute and looking to the status of the parties and their age and being senior citizens, this court tried its best to resolve the dispute amicably and so as to see that the litigation between the parties is put to an end. However, Mr.Jigar Raval, learned advocate appearing on behalf of the appellant wife has stated at the bar, under the instructions from his client, that the appellant wife is not ready for any settlement and invites the order on merits.
5.03. At the outset, it is required to be noted that the respondent husband had instituted Family Suit being Hindu Marriage Petition No. 692 (Old 611 of 2007) in the court of learned Family Court for getting divorce / dissolution of marriage between the appellant and the respondent under section 13(1) of the Hindu Marriage Act alleging cruelty by the appellant wife upon the respondent husband. It is required to be noted that as such before the learned Family Court, the appellant wife has not entered into the Witness Box to rebut the evidence against the allegations made by the husband with respect to cruelty.
5.04. On appreciation of evidence on record, the learned Family Court has held that the allegation of mental torture and cruelty meted out by the appellant wife upon the respondent husband has been established and proved. The learned Family Court has also held on appreciation of evidence that due to adamant nature of the wife, she has quarelled with the husband several times. The learned Family Court has also held that the respondent husband was cruelly treated by the appellant wife and Page 8 of 12 C/FA/3590/2013 ORDER due to the cruel behaviour of the appellant wife, health as well as work of the respondent husband has suffered a lot and he was required to remain outside the house for so many hours. It is also held that the number of efforts were made by the relatives and community people, but nothing change between them as the appellant wife was not listening to a single advise of the husband and continued her abusive language, throwing vessels and plates and screaming. As observed hereinabove, as such the learned advocate appearing on behalf of the appellant wife is not seriously challenging the judgement and decree passed by the learned Family Court in so far as passing decree of dissolution of the marriage between the appellant and the respondent, passed under section 13(1) of the Hindu Marriage Act. However, the appellant is challenging the impugned judgement and decree passed by the learned Family Court awarding Rs.15 Lacs to the appellant wife towards permanent alimony.
5.05. Therefore, as such what is required to be considered by this Court in the present appeal is whether in the facts and circumstances of the case the learned Family Court has committed any error in awarding Rs.15 Lacs towards permanent alimony to the appellant and/or in the facts and circumstances of the case, can it be said that amount of Rs.15 Lacs awarded to the appellant wife as permanent alimony, is a meager amount and/or on lower side?
5.06. While answering the aforesaid question with respect to permanent alimony of Rs.15 Lacs awarded to the appellant wife, it is required to be noted that the marriage of both the appellant and the respondent was the second marriage. The respondent husband has two daughters from his first wedlock and the appellant wife Page 9 of 12 C/FA/3590/2013 ORDER has a son from her first wedlock. After getting divorce from her first marriage from US Court, the appellant wife remarried with the respondent husband at the age of 60 years of the respondent husband. It is not in dispute and it has come on record that pursuant to the order passed by the US Court, appellant wife has received 1,89,114.45 US $ as permanent alimony from her earlier husband and the said amount is invested. It has also come on record that she will get Social Security amount from US government in the year 2017. It has also come on record that the house in which she is residing is worth Rs.1.5 Crores. Thus, as such she is having her own residence. It has also come on record that she is having 1/3rd share in the property situated at Nadiad known as "Ranjitbhuvan Haveli", which is worth Rs.75 Lacs. It has also come on record that the son of the appellant is B.E. Mechanical Engineer and he has done his Masters in Biochemical from the University of California, Los Angeles and is well established and at present he is well established as International Marketing Executive and is earning about 1,50,000/- US $ per annum. It has also come on record that the respondent husband has liability of two daughters born out of the first wedlock. From the document Ex.48 it has also come on record that the respondent husband has outstanding loan to be paid to the tune of 1,81,610 US $. It appears from the Examination-in-chief and the deposition of the husband that after taking divorce from his first wife, as the respondent husband was feeling loneliness and to share his feelings, he was in search of a good life-partner and therefore, he got remarried with the appellant wife to live happy retirement life, but all his wish and desire has failed. In any way, considering the aforesaid facts and circumstances of the case and the financial position and status of the parties and the amount which is available in the credit of the appellant wife and Page 10 of 12 C/FA/3590/2013 ORDER considering overall facts and circumstances of the case, it cannot be said that amount of Rs.15 Lacs awarded by the learned Family Court to the appellant wife towards permanent alimony is unreasonable and/or meager amount and/or on lower side. In the facts and circumstances of the case narrated hereinabove, it can very well be said that the awarding Rs.15 Lacs towards permanent alimony would be a just amount. With Rs.15 Lacs awarded by the learned Family Court towards permanent alimony, the appellant wife would be in a position to live life respectfully and with comfort, particularly when she is residing in her own house worth Rs.1.5 Crores. As stated hereinabove to put an end the entire litigation and to buy the peace, even the respondent husband was ready and willing to pay a further sum of Rupees five lacs, if the entire matter is settled and other proceedings are withdrawn. However, the appellant has refused for any settlement, which shows the adamant attitude on the part of the appellant. In any case, we are of the opinion that the learned Judge has not committed any error in awarding Rs.15 Lacs to the appellant by way of permanent alimony. In view of the aforesaid facts and circumstances of the case, we see no reason to interfere with the impugned judgement and decree passed by the learned Family Court.
5.07. So far as the decision relied upon by the learned advocate appearing on behalf of the appellant in the case of Kumara Pillai Raghavan & Ors. (supra) is concerned, in the facts and circumstances of the case and considering the amount available in the credit of the appellant wife and considering the fact that the appellant wife has residence where she is residing and the said house is worth Rs.1.5 Crores, she has received total sum of 1,89,114.45 US $ as permanent alimony from her earlier Page 11 of 12 C/FA/3590/2013 ORDER husband Mr.Narendrabhai Patel of U.S.A. which is invested and the appellant wife would get Rs.60 to 65 Lacs in the year 2014 itself and son of the appellant is well-settled, the decision relied upon by the learned advocate appearing on behalf of the appellant wife is not applicable to the facts and circumstances of the case.
6. In view of the above and for the reasons stated above, present appeal fails and the same deserves to be dismissed and is accordingly dismissed.
In view of dismissal of the main First Appeal, Civil Application No. 13415 of 2013 deserves to be dismissed and is accordingly dismissed.
In the facts and circumstances of the case, there shall be no order as to costs.
Sd/-
(M.R.SHAH, J.) Sd/-
(R.P.DHOLARIA,J.) Rafik.
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