Orissa High Court
Smt. Sandhyarani Satapathy Alias Rath vs Sachikanta Rath on 27 October, 2016
Author: K.R. Mohapatra
Bench: Vinod Prasad, K.R. Mohapatra
HIGH COURT OF ORISSA: CUTTACK.
MATA NO. 127 OF 2015
From the judgment and order dated 18.05.2015 passed by Miss.
Debajani Das, Judge, Family Court, Berhampur in C.P. No. 278 of
2013.
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Smt. Sandhyarani Satapathy @ Rath ...... Appellant
-Versus-
Sachikanta Rath ...... Respondent
For Appellant : Mrs. Jyotsna Rani Tripathy
For Respondent : Miss Kaberi Mohanty
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Date of Judgment : 27.10.2016
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PRESENT:
THE HONOURABLE SHRI JUSTICE VINOD PRASAD
AND
THE HONOURABLE SHRI JUSTICE K.R. MOHAPATRA
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K.R. Mohapatra, J.The wife-appellant (for short 'the wife') has filed this Matrimonial Appeal assailing the judgment and order dated 18.05.2015 passed by learned Judge, Family Court, Berhampur in C.P. No. 278 of 2013 allowing an application under Section 13 of the Hindu Marriage Act, 1955 and thereby dissolving the marriage between the parties to this appeal by a decree of divorce.
2. The husband-respondent (for short 'the husband') filed C.P. No. 278 of 2013 before learned Judge, Family Court, Berhampur under Section 13 (i-b) of the Hindu Marriage Act, 1955 (for short 'the Act, 1955') 2 for dissolution of marriage by a decree of divorce. The contention of the husband in the civil proceeding was that his marriage with the appellant was solemnized on 4.6.2009 as per Hindu rites and customs. After the marriage, both the spouses led a happy conjugal life at the matrimonial house at Digapahandi for a short period. After six months of their marriage, when the marital discord ensued between the parties, the wife left the matrimonial home to her father's house without any reasonable cause. In spite of repeated efforts and requests, she did not come back to resume her matrimonial life till 2010. However, at the request of the husband, she came back in the month of December, 2010 and continued to stay there till May, 2011. Again she voluntarily deserted the matrimonial home with all her belongings including valuable ornaments, cash and dowry articles and left for her parental home for good. In spite of intervention of gentlemen, friends and relatives and personal endeavour of the husband, she refused to join him (husband). She also lodged an F.I.R. against her in-laws alleging demand of dowry and torture. As such, the family members of the husband are facing trial under Section 498-A of the I.P.C. The husband, losing all hopes of leading a happy conjugal life, more particularly because of the attitude of the wife towards his (husband's) family members, filed the aforesaid civil proceeding.
3. The wife appeared pursuant to the summons issued and filed her written statement denying the assertion made in the petition under Section 13 of the Act, 1955. She contended that there was a demand of dowry at the time of marriage and accordingly, her father had paid a cash of Rs. 1.00 lakh and had given ten tolas of gold ornaments and other household articles to the husband at the time of her marriage. 3 Immediately after the marriage, there was further demand of money and due to non-fulfillment, she was subjected to mental and physical torture by her in-laws. When the behaviour of her in-laws became intolerable, the wife left the matrimonial home and stayed with her parents. She is depending on her old parents for her morsel and basic needs of day-to- day life. Due to intervention of the elderly persons of both families, she again joined her husband in the month of December, 2010. In stead of being kind to her, the family members including her husband continued their ill-treatment and torture. She was even physically assaulted by her husband in inebriated stage. Apprehending danger to her life and in order to get rid miseries, she left her matrimonial home in the month of May, 2011. Thereafter, she lodged a written report at Digapahandi P.S. on 15.5.2013, which was registered as Digapahandi P.S. Case No. 57 of 2013. Accordingly, G.R. Case No. 120 of 2013 was initiated on the board of the learned J.M.F.C., Digapahandi under Section 498-A, I.P.C. against her in-laws. She contended that she was forced to leave her matrimonial home which she never desired. Hence, she prayed for dismissal of the civil proceeding.
4. Learned Judge, Family Court, Berhampur taking into consideration the rival pleadings of the parties framed as many as five issues as follows:
1. Is the suit maintainable?
2. If the petitioner is entitled to a decree of divorce?
3. If the respondent has deserted the petitioner without any reasonable cause and thereby caused cruelty to him?4
4. If the respondent was subjected to physical and mental torture by the petitioner and his family members on demand of dowry compelling her to stay away from the petitioner?
5. To what other relief the petitioner is entitled?
5. In order to substantiate their respective cases, the husband examined two witnesses including himself as P.W. 1 and his father as P.W. 2. He also relied upon several documents in support of his case marked as Exts. 1 to 3/c. The wife examined herself as D.W.1.
6. Learned Judge, Family Court, Berhampur taking into consideration the oral as well as documentary evidence decreed the civil proceeding on contest and dissolved the marriage between the parties by a decree of divorce and passed the following order:
"The suit is decreed on contest against the respondent without cost. The petitioner is entitled to a decree of divorce. The marriage between the parties is declared to be dissolved with effect from the date of decree. Neither party would have any marital obligation for the other."
7. During pendency of this Matrimonial Appeal, the husband moved the Hon'ble Supreme Court of India against order dated 6.5.2016 passed in this Matrimonial Appeal in SLP(C) No. 15684 of 2016. Hon'ble Apex Court upon hearing learned counsel for the husband vide order dated 17.6.2016 disposed of the said SLP directing that order dated 6.5.2016 shall not be given effect to till the parties are heard and a final order is passed. In course of argument, learned counsel for the husband made a statement before Hon'ble Apex Court that till the matter is finally 5 decided by the High Court, the husband would pay a sum of Rs. 3000/- per month with effect from 1.6.2016, towards interim maintenance subject to further orders of this Court. Learned counsel for the parties submitted that the husband is regularly paying the said amount to the wife.
8. Mrs. Tripathy, learned counsel for the wife (appellant) though raised several grounds in the memorandum of appeal challenging the legality and propriety of the impugned judgment, she at the time of hearing confined her argument to permanent alimony only. She contended that relationship between the husband and wife has broken down irretrievably, which is beyond repair. Hence, no purpose will be served by challenging the decree of divorce. She also drew our attention to the order dated 18.2.2016 passed in this appeal. For better appreciation, the order dated 18.2.2016 is reproduced below:
"Both the spouses are present along with their counsel. We had a long deliberations in the open Court. Learned counsel for the husband wants time to consult with the parents of the husband for fixing up the permanent alimony to the wife as the chance of re-conciliation is impossibility and the marriage seems to have broken down. As prayed, two weeks' time is allowed for the said purpose. List this appeal on 3.3.2016. Both spouses are directed to be present on the next date along with their counsel."
In furtherance of her contention, she submitted that the learned Judge, Family Court, Berhampur while passing the decree of divorce did not grant any permanent alimony. It was her contention that no specific finding to that effect was also recorded by learned Judge, 6 Family Court. No finding was also rendered in respect of Issue No. 5. She contended that the wife is unemployed and is depending upon her old father for a morsel of the day and other basic needs. The husband at the time of marriage was serving as a Vocational Teacher. In order to avoid payment of maintenance to the wife, he left the job and joined LL.B. Course. Such conduct of the husband is deplorable. Hence, she prayed for a direction to pay permanent alimony of Rs. 15.00 lakh to the wife to lead a decent life.
9. Miss Mohanty, learned counsel for the respondent, on the other hand, submitted that the husband has no means to earn his livelihood and he is completely depending upon his parents. In such a situation, he should not be compelled to pay permanent alimony to the wife. Reiterating the contention made in the petition for divorce, she submitted that the husband was constrained to file the civil proceeding for a decree of divorce to get peace of life. The entire family has been falsely implicated in a criminal proceeding initiated at the instance of his wife and is facing trial under Section 498-A I.P.C. The wife has spoiled the peace and stability of his family and the husband is not in a position to pay a single pie towards permanent alimony. Though learned Judge, Family Court, Berhampur has not spelt out in so many words the reasons for not granting the relief of permanent alimony, it can be well assumed from a close reading of the impugned judgment that the wife is not entitled to the relief of permanent alimony. Rightly, the said relief was not granted to her. Thus, she prayed for dismissal of the appeal and to confirm the impugned judgment and order.
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10. Section 25 of the Hindu Marriage Act, 1955 makes the provision for permanent alimony and maintenance. It provides that the Court while exercising its jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose, order that the husband shall pay to the wife for her maintenance and support such gross sum or such monthly or periodical sum of a term not exceeding the life of the wife. Section 25 further makes it clear that while passing an order for permanent alimony and maintenance, the Court shall have due regard to the husband's own income and the income, if any, from other property. The income of the wife, the conduct of the parties and other circumstances of the case, as it may seem to the Court to be just should be taken into consideration. The Court may also secure said payment, if necessary, by a charge on the immovable property of the husband. The Court while making an order of dissolution of marriage is obliged to consider entitlement of permanent alimony. Hon'ble Apex Court and other High Courts including this Court on many occasions have interpreted the scope and ambit of Section 25 of the Act, 1955. We do not think it prudent to burden this judgment with case laws of the Hon'ble Apex Court and different other Courts including ours which is set at rest.
11. On perusal of the impugned judgment, it evinces that learned Judge, Family Court, Berhampur has not recorded any finding with regard to grant of permanent alimony to the wife although he has granted the relief of divorce. Grant of permanent alimony is a rule while passing a decree of divorce, while refusal is an exception. The Court has to record reasons for not making an order for permanent alimony. The Court has 8 to record finding on the permanent alimony although no application is filed or no prayer is made to that effect. Thus, in our opinion, learned Judge, Family Court, Berhampur has committed gross error in not recording any finding on 'permanent alimony'. Hence, instead of remitting the matter back for the said purpose, we, taking into consideration the rival pleadings of the parties, materials available on record and submissions made at the Bar, proceed to address the said issue.
12. It is not disputed at Bar that the husband was a Vocational Teacher at the time of his marriage. Subsequently, for some reason or other, he left the job and joined LL.B. Course, which cannot absolve a husband from payment of maintenance and/or permanent alimony to the wife. If the husband is able bodied and mentally sound, he cannot take a lame excuse of loosing his job or prosecuting LL.B. Course to avoid payment of maintenance and/or permanent alimony to his wife, who is a destitute and unemployed.
13. Mrs. Tripathy, learned counsel for the appellant claimed a permanent alimony of Rs. 15.00 lakhs to be just and proper for the wife to lead a decent life. However, she did not produce any material with regard to the income of her husband either from service or from immovable properties or from any other source. The husband at the time of hearing of SLP(C) No. 15684 of 2016 filed by him before Hon'ble Apex Court volunteered to pay a sum of Rs. 3000/- per month to his wife with effect from 1.6.2016 towards interim maintenance and is also paying the same regularly till date. While addressing the issue of permanent alimony, it is the duty of the Court to see that amount of permanent alimony should be such, that the wife lives with dignity and comfort and not in penury. The 9 living need not be luxurious but simultaneously she should not be left to live in discomfort. The Court has to act with pragmatic sensibility to such an issue so that the wife does not meet any kind of man-made misfortune. The amount of maintenance/permanent alimony fixed for the wife should be such, that she can live in reasonable comfort considering her status and mode of life she was used to live when she lived with her husband. At the same time, the amount so fixed cannot be excessive or affect the living condition of the other party. The income, dependency as well as reasonable needs of the husband has to be taken into consideration to determine the quantum of permanent alimony. While granting permanent alimony, no arithmetic formula can be adopted as there cannot be mathematical exactitude. Hon'ble Supreme Court in the case of Vinny Parmvir Parmar -v- Paramvir Parmar, reported in AIR 2011 SC 2748, at paragraph-12 held as follows:
"12. As per Section 25, while considering the claim for permanent alimony and maintenance of either spouse, the husband's own income and other property, and the income and other property of the applicant are all relevant material in addition to the conduct of the parties and other circumstances of the case. It is further seen that the court considering such claim has to consider all the above relevant materials and determine the amount which is to be just for living standard. No fixed formula can be laid for fixing the amount of maintenance. It has to be in the nature of things which depend on various facts and circumstances of each case. The court has to consider the status of the parties, their respective needs, the capacity of the husband to pay, having regard to reasonable expenses for his own maintenance and others whom he is obliged to maintain under the law and statute. The courts also have to take note of the fact that 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 live when she lived with her husband. At the same time, the amount so fixed cannot be excessive or affect the living condition of the other party. These are all the broad principles courts 10 have to be kept in mind while determining maintenance or permanent alimony."
In the case of U. Sree -v- U. Srinivas, reported in AIR 2013 SC 415, the Hon'ble Supreme Court has also taken a similar view. Although there is no mathematical formula to determine the quantum of maintenance/permanent alimony, this Court in the case of Ruby @ Pritipadma Pradhan -v- Debasis Pradhan, reported in 2014 (II) ILR CUT 709, has brought out a broad guideline to assess the permanent alimony, which reads as follows:
"19. From the perusal of the number of decisions by the Hon'ble Apex Court, shown at the Bar, each of the decisions makes it clear that the paramount consideration for granting permanent alimony a court has to consider the status of the parties, their respective needs, the capacity of the husband to pay, having regard to the reasonable expenses for his own maintenance and others whom, he is obliged to maintain under law and statute. Further, taking note of the fact that the amount for maintenance fixed for wife should be such, as she can live in reasonable comfort considering her status and mode of life when she was used to live with her husband. It is also the duty of the court to see that the amount so fixed, cannot be excessive or affect the living condition of other parties. Apart from the wife maintaining herself, she has also to bear all her future medical expenses besides attending to the requirements at her family end considering the fact that there is no chance of re-union, the fact that on record the husband's salary is Rs.52,000/- inn all and looking to the age of the wife which is hardly 29 years at the time of filing of MATA Case and the life expectancy of a female being 70 at the minimum, we feel it appropriate to enhance the monthly permanent alimony to Rs. 11,500/- (rupees eleven thousand five hundred) per month and taking into consideration, compounding the same for 15 years, the whole permanent alimony we make it round at Rs.20,00,000/- (rupees twenty lakhs) without deduction of any amount which has already been paid to the wife under the direction of different courts in the meanwhile, which will forfeit all her claims. This amount of permanent alimony will be paid to the wife within three months in two equal installments, 1st 11 installment falling on 15th of September, 2014 and the 2nd installment on 15th of November, 2014. On failure of payment of installments in time, the amount shall carry interest @ 10% per annum and the wife will be free to take recourse to law for its realization."
14. In the instant case, the wife was aged about 30 years at the time of initiation of C.P. No. 278 of 2013 before the learned Judge, Family Court, Berhampur. Pursuant to the direction, both the spouses appeared before this Court on several occasions, but on each occasion, the husband refused to pay permanent alimony to his wife on the plea that he is unemployed and prosecuting LL.B. Course and he has no means to earn his livelihood and is depending upon his parents for square meal and his day-to-day needs. It is a lame excuse and is not acceptable. There is no material on record with regard to his income and needs. Be that as it may, he voluntarily agreed to pay a sum of Rs. 3000/- per month to the wife towards interim maintenance before Hon'ble Apex Court and is regularly paying the same. Moreover, he has his old parents and being a son, has the responsibility to maintain and look after them and he has also onerous duty to look after the entire family. In that view of the matter more particularly taking into consideration the guidelines in the case of Ruby @ Pritipadma Pradhan (supra), we feel it appropriate to assess the maintenance to the wife at Rs.4,000/- (Rupees four thousand) per month to be just and proper in the facts and circumstances of this case and compounding the same for 15 years, the permanent alimony we make it round at Rs.7,50,000/- (Rupees seven lakh fifty thousand) without deduction of any amount which has already been paid to the wife 12 either by direction of any court or voluntarily, which will certainly forfeit her claims.
Accordingly, we direct that permanent alimony of Rs. 7,50,000/- (Rupees seven lakh fifty thousand) shall be paid by the husband to the wife within a period of four months in two equal installments. On failure of payment of installments in time, the amount shall carry interest @ 10% per annum and the wife will be free to take recourse to law for its realization.
15. With the aforesaid observation, direction and modification of the impugned judgment, this Matrimonial Appeal is allowed in part, but in the circumstances, there shall be no order as to costs.
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K.R. Mohapatra, J.
Vinod Prasad, J. I agree.
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Vinod Prasad, J.
Orissa High Court, Cuttack.
Dated the 27th October, 2016/bks