High Court · 2012

We have heard Mr. A.P. Lahiri, learned counsel for the appellant assisted by Ms. S.D. Choudhury, Advocate and Mr. G.P. Bhowmik, learned counsel for the cross-objector assisted by Ms. J. Purkayastha, Advocate.

03. Sans the inessential details having regard to the limited contou r of appraisal in the instant adjudicative pursuit, it is suffice to record that the cross-objector, contending that she was the married wife of the appellant, the ceremony having been solemnized on 15.04.2007 at Guwahati had sought for a d ecree for divorce under Section 13 of the Hindu Marriage Act, 1955 (hereinafter for short referred to as the Act), before the learned Principal Judge, Family Co urt, Kamrup at Guwahati. The petition registered as FC (Civil) Case No.396/2009 embodied assertions in support of the relief sought for imputing physical and m ental cruelty as the central ground therefor. She stated that in course of the n egotiation for the marriage broached by the parents of the appellant, it was rep resented that he was a businessman with monthly income of Rs.30,000/- to Rs.40,0 00/- and that in order to develop his new business, he was willing to marry the cross-objector considering her experience in the sales sector. According to he r, she at the relevant point of time was working as an Advisor in Bazaz Alliance Insurance Company at Guwahati with handsome income. The proposal eventually ma terialized and the marriage between the parties was ceremonised as per the Hindu rites and customs. She averred that as sought for by him, her parents paid an amount of Rs.1 lakh to expand his existing business. The cross-objector further averred that subsequent to the marriage she came to learn that the appellant did not have any permanent business and that though it was represented earlier that he had a monthly income of Rs.30,000/- to Rs.40,000/-, his family including his mother was dependent on the pension amount of his deceased father. She however in categorical terms stated that the appellant had sufficient landed property at Varanasi.

04. The narration pertaining to the allegation of cruelty not being relevant for the present exercise does not call for any dilation. As the appella nt initially failed to appear in the proceedings before the learned Court below and take timely steps, it was ordered to proceed ex parte against him. On his pr ayer however, he was allowed to file his written statement through his learned c ounsel. The appellant in his written statement denied the marriage between the parties and strongly refuted the imputations bearing on the accusation of cruelt y leveled against him. While admitting the receipt of Rs.1 lakh from the cross- objector towards contribution as capital in his business, he referred to her onl y as a new partner in the enterprise. He denied any physical relationship with the cross-objector citing his physical disability incurred from Polio and repudi ated her endeavour for a decree for divorce as one to reap wrongful gains. He d enied to own any landed property and also any income from business and instead a lleged that the cross-objector had taken away the total working capital along wi th the accounts of the concerned firm and the keys of the locker of the bank.

05. In course of the trial, the cross-objector examined herself and three other witnesses. The applicant did neither adduce any evidence nor cross- examined the witnesses of the cross-objector. The learned trial court by the im pugned judgment and order concluded that the parties were married as per the Hin du rites and customs, but dissolved the same on the ground of proved cruelty. Re ferring to the averments made by the cross-objector in her petition for divorce, the learned Court below awarded Rs.5 lakhs as permanent alimony. In arriving at this conclusion it also referred to the evidence on record to the effect that t he appellant was a businessman and had landed property at Varanasi and further t he (cid:28)Streedhan (cid:29) worth Rs.18 lakhs carried by the cross-objector to the matrimonia l home had not been returned to her. In computing the aforementioned quantum of permanent alimony, the learned Court below took note of the ’age’, the ’status o f living’, ’maintenance’ and ’shelter’ of the cross-objector and also the capabi lity of the appellant. Thereby, the cross-objector was also allowed to operate the bank locker No. 93 in Axis Bank, Sigra Branch, Varanasi in presence of the a ppellant to receive back the (cid:28)Streedhan (cid:29) articles, if any, deposited therein. The parties having been permitted, have exchanged in the instan 06. t proceedings, additional pleadings bringing on record essential facts and docum ents bearing on their respective stands on the issue of permanent alimony. Furt her, in compliance of the order dated 10.09.2012 of this Court, an amount of Rs. 40,000/- has been paid by the appellant as interim payment subject to final orde rs.

07. Mr. Lahiri, has insistently argued that there being no basis wha tsoever for quantification of the permanent alimony at Rs.5 lakhs, the direction to that effect contained in the impugned judgment and order is patently erroneo us and is liable to be adjudged non est in law. Referring to paragraph 12 of th e petition for divorce, in particular, the learned counsel has urged that a plai n reading thereof having demolished entirely the case of the cross-objector for permanent alimony, the learned Court below in absence of any semblance of eviden ce on the income and the other resources of the appellant fell in gross error in computing Rs.5 lakhs as such. According to Mr. Lahiri, the cross-objector havi ng totally failed to discharge her burden to prove the income of the appellant a s well as his other assets to establish his financial capability as contemplated in Section 25 of the Act. The computation of Rs.5 lakhs as permanent alimony b y the learned Court below in absence of any discussion or reason is wholly falla cious and is liable to be interfered with in the interest of justice, he urged. Adverting to the pre-requisites mandated by the aforementioned legal provision, Mr. Lahiri not only repudiated the quantum of permanent alimony fixed by the le arned trial Court to be wholly illogical, he criticized the same to be incurably illegal being devoid of any reason in support thereof as envisaged in Section 1 7 of the Family Court’s Act, 1984. Adverting exhaustively to the pleadings of t he appellant before this Court, the learned counsel insisted that not only he as a victim of Polio is physically incapable of pooling the necessary efforts and industry to earn a handsome living, he has no landed property anywhere and prese ntly has a income of Rs.3,000/- per month through private tuitions. The learne d counsel to reinforce this plea has relied amongst others on a certificate issu ed by the Tehsildar Sadar, District- Varanasi and also the acknowledgement slips of the returns submitted by him for the assessment year 2011-12 and 2012-13. T hat presently the mother of the appellant is seriously ill has been underlined a s well. On being queried by this Court, however Mr. Lahiri very fairly observed that if deemed fit the cross-objector may be allowed permanent alimony of Rs.1. 5 lakhs in addition to Rs.40,000/- already deposited but payable in easy install ments. He referred to two judgments of the Hon’ble Calcutta and Rajasthan High Courts to buttress his contentions.

08. Mr. Bhowmik, per contra, has argued with reference to Section 25 of the Act to highlight that the abstinence of the appellant from the proceedin gs before the learned trial Court to contest it on merits and the limited challe nge against the grant of permanent alimony before this Court unmistakably exhibi ts a conduct lacking in bona fide. While contending that his pleaded stand of de nial of marriage is shockingly unconscientious, the learned counsel has urged th at the documents furnished by him in support of his monthly income of Rs.3,000/- are of no probative value whatsoever. According to Mr. Bhowmik, not only there is lack of denial on his part qua ownership of any immovable property, as the m inimum earnings through teaching as a full time avocation in the present day con text would be anywhere around Rs.20,000/- to Rs.22,000/-, his plea of monthly in come of Rs.3,000/- is a myth and a deliberate attempt to mislead this Court. Ne gating the assailment of want of basis for computation of the permanent alimony made by the learned Court below, Mr. Bhowmik referred to the petition for divorc e as well as the application filed by the cross-objector under Section 25 of the Act and the evidence to that effect. While relying on the documents annexed to the affidavit of the cross-objector in the proceedings before this Court to dem onstrate the financial soundness of the appellant, the learned counsel has conte nded that having regard to the lavish lifestyle led by him(appellant), the amou nt of permanent alimony in the attendant facts and circumstances ought to be ade quately enhanced. That the cross-objector is only a graduate and that in the fa ce of her family obligations to nurse and look after her aged and ailing parents on whom she is otherwise fully dependent, she is rendered unable to take up any employment has been underlined to endorse her claim for enhanced amount of per manent alimony.

09. Apart from the rival projections in the pleadings of the parties before the learned Court below, the cross-objector in her application under Sec tion 25 of the Act before it had elaborated that the appellant deals as investor and trader in share market having trading account in (cid:28)Stock Holding Corporation of India Ltd. (cid:29), (cid:28)Kotak Securities (cid:29) and various other financial agencies besides being a share holder in Bharat Heavy Electricals Ltd. , Glaxo Pharma, Hero Hon da, Infosys, ITC, Jay Prakash Associates, Mahindra & Mahindra, NVarties, Satyam , TCS, Micront etc. She stated further that he has sufficient investments by way of fixed deposits in banks, KVP, NSC and in post office and that his average mo nthly income is more than Rs.30,000/- and his total assets in share trading and investments is Rs.50 lakhs, apart from his share in the paternal landed property in Varanasi. According to her, his father was a retired Chief Engineer of Irri gation Department and on his death his mother is receiving family pension. She s tated further that the appellant’s own brother and his wife are both doctors by profession and that he therefore is free from any family obligation to maintain any member thereof. She averred as well that she is fully dependent on her pare nts who are retired and have been suffering from various ailments so much so, th at a substantial amount of their pension is being spent for their treatment. Ac cording to her, there being no other family member, she has to remain wholly eng aged to look after her parents, for which she is rendered unable to seek any emp loyment for income of her own. She had by this application sought for an amount of Rs.15 lakhs as permanent alimony. While the affidavit evidence of the cross-objector is almost a r 10. eplica of her petition for divorce, that of her witnesses however do not refer m uch to the income and other properties of the appellant qua the issue of permane nt alimony. In her additional affidavit evidence, the cross-objector valued her (cid:28)Streedhan (cid:29) receipts to be Rs.18 lakhs. Though she admitted of a slight deformi ty in his right leg, she denied any physical disability of his.

11. In his affidavit in the instant proceedings, the appellant has r eiterated that he is affected by Polio since boyhood for which he is rendered un able to move without clutches and one attendant. According to him, he has to sp end Rs.600/- to Rs.800/- per month for his medical expenses. He has affirmed on oath that his small share business has since been closed due to heavy loss suff ered by him and that he has presently a monthly income of Rs.3,000/- through pri vate tuitions at his mother’s residence. He has categorically stated that he ha s neither any additional income nor is he possessed any property within the terr itory of India. He has averred that he, in fact is dependent on his mother and has no residence or vehicle of his own as alleged. That the cross-objector is a cademically qualified and competent to earn her living and that considering her age, she has prospects of re-marriage have been highlighted as well to plead aga inst the claim of permanent alimony to her.

12. The cross-objector while reiterating her averments before the le arned court below has clarified in her affidavit that the appellant is the owner of a flat being the entire ground floor of a three storied building in a busy a rea in Varanasi city which is his paternal property where he and his mother resi de. Citing the present market value thereof to be Rs.50 lakhs, she has further pleaded that the appellant has an investment by way of fixed deposit in KVP, NSC etc. of Rs.24 lakhs approximately, a fact disclosed to her by him on 24.04.2007 . On the aspects of the affluent lifestyle of the appellant, the cross-objector in paragraph 3.6 of her affidavit stated as hereunder: (cid:28)3.6 That the deponent / petitioner states that the financial position of the opposite party / appellant can also be ascertained from his affluent and lavish lifestyle and monthly expenditure of the opposite party for keeping two maid se rvants and one gardener, maintaining two high breed dogs, viz one Alsatian dog a nd one Russian Breed Bullmastiff, a huge aquarium with costly fishes, 4 A/C fu rnished rooms, one scooter, one mature car, expensive food habits etc; and for a ll these recurring monthly expenditure of 20 to 25 thousand, which the petitione r experienced during her stay in the matrimonial home during 2007-2008. (cid:28) While reiterating that he is free from any obligation to maintai 13. n any family member, she has averred that his father is a patient of blood sugar , impaired hearing, thyroid, lungs problems etc, and that her mother is sufferin g from critical cardiac ailments warranting surgical intervention. She has reit erated that in absence of any other family member and her consequential sole re sponsibility to look after her old and ailing parents, she is not in a position to engage herself in any income yielding avocation. We have extended our anxious consideration to the rival pleading 14. s, the documents on record and the arguments advanced. As alluded hereinabove, the debate centers around the issue of permanent alimony alone. Having regard t o the materials on record, and in absence of any challenge thereto, the findings recorded by the learned trial Court vis-à-vis the marriage between the parties and the dissolution thereof do not warrant any deliberation or interference. Noticeably, the appellant had initially denied the marriage and had acknowledge d the cross-objector to be only a partner in his business. He for all practical purposes abandoned the proceedings before the learned Court below after a certai n stage and did neither adduce any evidence on his behalf nor cross-examine th e cross-objector and her witnesses. In the face of the proved marriage between the parties and in absence of any challenge thereto by him, the plea of want of bona fide in his conduct cannot thus be readily discarded. It was wholly unexpe cted of the appellant by any standard to have denied his marriage with the cross -objector, a fact otherwise overwhelmingly proved by the evidence on record. His selective assailment of the amount of permanent alimony g ranted by the learned Court below also does not augur well qua his overall approach to the matrimonia l alliance as well as the lis and is demonstrative of his endeavour to shirk his responsibilities vis-à-vis the cross-objector.

15. On the aspect of his income, the documents relied upon by him be fore this Court do not inspire confidence. It is apparent from the certificate o f the Tehshildar Sadar, District- Varanasi dated 30.07.2012 that it is based on his affidavit. This document, therefore, cannot be accepted to be an unimpeachab le piece of evidence of the contents thereof. The acknowledgement slips accompa nying the income tax returns of the appellant for the assessment year 2011-12 to 2012-13 also do not clinch the issue for him in this regard. Though, the docum ents appended to the affidavit filed by the cross-objector before this Court als o are of no decisive significance applying the principle of preponderance of pr obabilities, the rival assertions contained in the pleadings of the parties have been analysed in juxtaposition to resolve the issue. The affidavit evidence of the cross-objector, which as aforestated is in reiter ation of the contents of the petition for divorce refers to the appellant’s busi ness in connection with which he amongst others used to visit places outside Var anasi. In reiteration of her version in the petition for divorce, in her affida vit before this Court, she has detailed the particulars of his investments and t ransactions in connection therewith. She has furnished as well facts pertaining to the family property also in his possession. Details of his lifestyle and th e logistics therefor have also been provided in the affidavit affirmed to be tru e to her knowledge. Noticeably, the appellant has not denied the assertions rel ating to the family property of which he is in possession along with his mother. The elaborations provided by the cross-objector in her pleadings before the fo rums, therefore, are not wholly incompatible to discard the same as untruthful. To decide the issue of permanent alimony, the materials on record as a whole ha ve to be construed and any isolated approach would be inexpedient. The cross-obj ector till the dissolution of the marriage between the parties was an integral p art of the family of the appellant and can by no means be alienated therefrom as a stranger. Being a part of the family and also the life of the appellant it i s quite likely that she was a privy to informations amongst others relatable to the appellant’s of income, investments, and lifestyle. The plea that the cross- objector by her admissions in the petition for divorce had demolished her case f or permanent alimony, therefore, does not appeal to us. Her pleadings in full n eed be traversed to separate the grain from the chaff.

16. Significantly, the appellant has no dependent member of his fami ly to sustain. Though his plea of monthly income of Rs.3,000/- from private tuit ion is wholly unconvincing even assuming it to be so, he admittedly has a month ly expenditure of Rs.6,00/- to Rs.8,00/- for medical treatment. In contra disti nction, admittedly the cross-objector though a graduate is unemployed. She has to nurse and care her aged ailing parents on whom she is otherwise fully depende nt. Their family is sustained by the pension of her parents. That they are ail ing for which recurring expenditure is warranted is also evident from her affida vit as well as the accompanying medical documents. Her plea of being rendered u nable to take up an employment for independent income in this factual setting co mmends for acceptance. Her prospects of remarriage as pleaded on behalf of the appellant are presently uncertain.

17. In the overall view of the matter, we are of the unhesitant opin ion that the cross-objector is entitled to permanent alimony as contemplated in section 25 of the Act. Even assuming that the appellant has a monthly income of Rs.3,000/-, even after accommodating his medical expenses in our estimate at le ast Rs.1,000/- per month ought to be available towards the maintenance/ alimony of the cross-objector. Having regard to the fact that she is presently aged abo ut 34 years and the average life span of an Indian lady i.e. 65 years, an amount of Rs.3,72,000/- (1000 x 31 x 12) is payable as permanent alimony. From a very modest estimate of the investments and the family property of the appellant, in our comprehension having regard to the factors envisaged in section 25 of the A ct, a further amount of Rs.3,50,000/- in the minimum can be assimilated in the quantum of permanent alimony. As it is, having regard to the attendant ponderabl es on the exercise undertaken a rough and ready measure on singular facts and ci rcumstances has to be adopted. However with due regard to the materials on reco rd, in our view the cross-objector in lump sum is entitled to an amount of Rs.7 lakhs by way of permanent alimony payable by the appellant to her. Needless to say, the amount of Rs.40,000/- already deposited by him would stand deducted fro m this amount. The appellant would pay the balance amount in 3 equal monthly in stallments, commencing from 1st October,2012. In the result, the appeal is dismissed and the cross-objection i s partly allowed. The rival pleas of the parties are answered accordingly. No costs.