Rajiv Kumar v. Babita @ Kavita Kumari

Patna High Court MA No.313 of 2010 (11) dt.19-08-2013 2 Act). A decree of divorce was passed on 23.06.2001 and permanent alimony of Rs.300/- per month was granted. It was not questioned by the respondent. On 13.02.2002, the respondent filed an application for enhancement of permanent alimony under Section 25 (2) of the Act claiming permanent alimony of Rs. 1500/- per month. The Principal Judge has enhanced it to Rs. 500/- per month. Learned counsel for the appellant submitted that there was no justification for the enhancement as the respondent cannot be said to be without any income or source of livelihood. She is a legal practitioner since the year 2002 and is possessed of a Lawyer’s Chambers allotted by the local Bar Association at Muzaffarpur. She owns a Scooty bearing registration no. BR-06B-7498 and also possessed a Mobile Phone, the number of which was also furnished. She lives with her mother in a three storied house in the town of Muzaffarpur. The appellant was a Medical Representative at the time of marriage but presently was as a Research Scholar. The appellant has remarried and has a daughter and son also. The respondent cannot be permitted to seek enhancement merely for augmentation of her income more particularly when the appellant has additional responsibilities of a wife and two children from the subsequent wedlock. Learned counsel for the respondent opposed the Patna High Court MA No.313 of 2010 (11) dt.19-08-2013 3 application submitting that she barely had any income from the legal profession and has not been allotted any chamber by the local Bar Association. The enhancement by a sum of Rs. 200/- is very reasonable. The appellant has a primary responsibility to look after the respondent considering that they had been lawfully married. Section 25(2) provides that if there is a change in the circumstances of either party after an order had been made under Sub section-1, at the instance of other party the order passed under Sub-section-1 may be varied, modified or rescinded. No guidelines have been provided in the Section for the manner of its exercise. It is therefore a discretionary power. But, it is not absolutely discretion. The exercise of discretion will have to be tempered with the law after examining the change in circumstances which can be both beneficial and pre- judicial. What may be beneficial for one, may be prejudicial for another and vice versa. The respondent joined the legal profession in the year 2002. Though, she has denied that she has been allotted any Chambers by the Bar Association or she possessed a two wheeler, the learned Principal Judge has noticed that her own witness AW-1 has admitted that she possessed a Scooty and Mobile Phone. No affidavit has been filed before us that the order under appeal contained any error of record much less that any such application was filed before the Principal Judge Patna High Court MA No.313 of 2010 (11) dt.19-08-2013 4 himself for any erroneous recording in the order-sheet. We therefore must give finality to the finding of her possessing a Scooty along with a Mobile Phone. Having spent approximately 11 years in the legal profession, we asked the counsel for the respondent to inform us whether she files an income tax return and has a PAN number. Learned counsel for the respondent submitted that she does not file any income tax return and does not have a PAN number. We would not like to say anything further on this aspect except noticed that she is alleged to have been allotted a Lawyer’s Chamber, had purchased a Scooty and Mobile Phone all of which require funds. We are satisfied that 11 years into the legal profession given the ups and downs of the profession also, surely the respondent had done reasonably well for herself to acquire a two wheeler and a Mobile Phone. She is living with her mother and does not need to incur extra expenditure for her residential purposes. It was not her stand before the learned court below and there is no such discussion in the order that she was unable to maintain herself on the same standard of living as at the time of marriage, but for these Rs. 200/-. If the respondent has reasonable income which allows her to maintain a normal standard of living that she may have been availing at the time of marriage, Section 25 (2) cannot be a shortcut method for additional income or an additional Patna High Court MA No.313 of 2010 (11) dt.19-08-2013 5 financial bonanja. While the respondent seeks enhancement of alimony for herself alone, the claim has to be balanced by the financial obligations of the appellant to his wife after remarriage and the two children born from the wedlock. The respondent has not even quantified the present income of the appellant to bear the additional burden when it is not disputed that he is only a research scholar. In (2011) 13 SCC 112 (Vinny Parmvir Parmar Vrs. Parmvir Parmar) it has been observed at paragraph-12 as follows:- the claim relevant materials “12. As per Section 25, while considering for permanent alimony and maintenance of either spouse, the respondent’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 determine the amount which is to be just for living standard. No fixed formula can 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 expenses reasonable maintenance and others whom he 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. to pay, having for his regard fixing Patna High Court MA No.313 of 2010 (11) dt.19-08-2013 6 At the same time, the amount so fixed cannot be excessive or affect the living condition of the other party. These all are the broad principles courts have to be kept (sic keep) in mind while determining maintenance or permanent alimony.” In the facts and circumstance of the present case and for reasons discussed by us , applying the principle laid down by the Supreme Court, we find it difficult to uphold the order under appeal which is accordingly set aside. The appeal is allowed. P.K./- (Navin Sinha, J) (Vikash Jain, J)