The High Court
Case Details
AFR IN THE HIGH COURT OF ORISSA AT CUTTACK MATA No. 3 of 2020 An Appeal under Section 19 of the Family Courts Act, 1984. -------------- Manjushree Gantait ..…. Appellant -versus- Suman Gantait …… Respondent ------------------------------------------------------------------------- For Appellant Mr. A.C. Panda, Advocate : For Respondent Mr. A.K. Sarangi, Advocate ------------------------------------------------------------------------- : CORAM: HONOURABLE MR. JUSTICE S. TALAPATRA HONOURABLE MISS JUSTICE SAVITRI RATHO JUDGMENT 23.06.2023 Savitri Ratho, J. This appeal has been filed by the Appellant-wife who is aggrieved by the quantum of permanent alimony awarded by the learned Judge, Family Court, Rourkela vide judgment dated 29.11.2019 and decree dated 13.12.2019 in Civil Proceeding No. 129 of 2015 . She has prayed for enhancement of the amount. The civil proceeding filed by the Appellant–wife under Section 27(1)(d) of the Special Marriage Act, seeking dissolution of her MATA No.3 of 2020 Page 1 of 38 marriage by a decree of divorce and for permanent alimony against the Respondent has been allowed, dissolving the marriage and awarding Rupees Ten lakh as permanent alimony. CASE OF THE APPELLANT-WIFE 2. On 07.03.2012 the parties solemnized their marriage before the Marriage Officer, Tumluk II Block, East Midnapur, West Bengal under the Special Marriage Act. After the solemnization of marriage, both the parties lived together as husband and wife initially at Haldia and then at Mumbai. There was no issue born out of their wedlock. During the time of marriage, the father of the Appellant had given cash and gold ornaments to the Appellant and Respondent. But during the social marriage function on 16.05.2012, the sister and mother of the Respondent demanded a car from the father of the Appellant. The father of the Appellant declined to satisfy such an unlawful demand, for which the in-laws of the Appellant started torturing her both physically and mentally. When her parents had come to visit her, they were humiliated by the Respondent and his family members for which they went back. She was not allowed to get to her parents house or talk to them over telephone. On 02.06.2012 MATA No.3 of 2020 Page 2 of 38 the Appellant, Respondent and sister of the Respondent left for Mumbai where brother and sister were working. When they went out, they kept the Appellant locked inside. When her parents came to Mumbai to visit her, torture and ill treatment on her increased in order to compel her to fulfill the demand for car. She was not given enough food nor taken for treatment when she fell ill. Instead of taking her to the doctor, they told her that it was better if she died. Her sister in law often threatened to send her to jail with false accusations. She had been made to sign some blank papers in her matrimonial house. When during Durga Puja of the year 2013, the Appellant had come to her parents house. The Respondent did not choose to take her back. When her father enquired from the Respondent on 29.05.2014, he stated that unless their demand for car is fulfilled, they will not take her back. The Appellant is staying with the parents since October 2013 and finding no way out, she lodged information before the Biramitrapur Police Station alleging commission of offence under Sections 498-A, 323, 294, 506, 406, 34 of the IPC read with Section 4 of the D.P. Act on basis of which, Biramitrapur P.S. Case No. 81 of 2014 was registered against the husband and his MATA No.3 of 2020 Page 3 of 38 family members. She further stated that the Respondent-husband was working as a Marketing Manager in TATA Housing Development Co. Ltd. and getting salary to the tune of Rs.1,50,000/- per month and leading a lavish life but was neglecting his statutory obligation to maintain her. She was also filed C.P. No. 226 of 2014 for maintenance under Section 18 of the Hindu Adoption & Maintenance Act which was subjudice. When the cruelty meted out to her by the Respondent and other family members became unbearable, she lost all hope for a conjugal life with the Respondent and approached the learned Judge, Family Court seeking dissolution of her marriage with the Respondent and for permanent alimony. CASE OF THE RESPONDENT -HUSBAND 3. On being served with notice the Respondent appeared before the learned Judge, Family Court, Rourkela and filed his written statement denying all the allegations. The contents of the written statement have not been discussed in the judgment in detail. Copy of the written statement is also not available in the scanned copy of the LCR sent to this Court but a copy of the
Legal Reasoning
case . MATA No. 3 of 2020 is not maintainable in this Court in facts and law as CMA No.11 of 2023 has been filed for restoration of C.P. No. 129 of 2015 and the Family Court has been approached for early disposal. G.R. Case No.1260 of 2014 filed before the S.D.J.M., Panposh is still pending and allegations of cruelty made against the Respondent are baseless. Though he had appeared and filed his written statement, but the learned Judge, Family Court has failed to discuss the material facts in the written statement. Section 27 of the Special Marriage Act is not attracted as cruelty has not been proved. As no other independent witness has been examined, the evidence of the appellant is not believable. Opportunity was not given to the respondent to file evidence. In spite of his best efforts to lead a happy conjugal life, the Appellant is not agreeing and hence there is no valid cause to dissolve the marriage. Sufficient evidence has not been adduced MATA No.3 of 2020 Page 19 of 38 for permanent alimony which has been observed by the learned Family Judge. Without sufficient evidence, a false plea has been taken that the respondent earns monthly salary Rs 1.5 lakhs. Fake and false documents have been given regarding his income. Now the respondent has no source of income to pay permanent alimony. So the case is liable to be dismissed with heavy cost. CASE LAW 18. In the case of Guntamukkala Naga Venkata Kanaka Durga (supra) the Andra Pradesh High Court was dealing with two appeals against a common order of the Family Court. One appeal had been filed by the wife under Section 18 of the Hindu Adoption and Maintenance Act, 1956 for past and future maintenance while the other had been filed by the husband under Section 13(1)(ia) of the Hindu Marriage Act, 1955 for dissolving his marriage. The learned Judge, Family Court found that the wife was guilty of mental cruelty and of having left the matrimonial home and did not return inspite of the efforts made by the husband. As it found the wife to be responsible for breakdown of marriage, while decreeing the proceeding filed by the husband for divorce , it dismissed the proceeding filed by the wife for MATA No.3 of 2020 Page 20 of 38 maintenance. The High Court did not interfere with the findings and dismissed the two appeals holding as follows : “30. The legislative intendment of framing various provisions for granting maintenance to a wife or a husband or any of their relatives as enshrined definitely was to uphold the concept of marriage. 'Marriage' is the sacred union, legally permissible, of two healthy bodies of opposite sexes. It has to be mental, psychological and physical union. When two souls thus unite, a new soul comes into existence. That is how the life goes on and on this planet (see Mr. 'X' v. Hospital 'Z': AIR 1999 SC 945 : (1998) 9 Sup. 220). By marriage two souls are united following which they start living together. The purpose of life is to live happily which can be attained by maintaining peace and tranquility between two persons or among group of persons within the society at large whatever may come or intercept. To achieve that object one has to mould himself or herself while dealing with any eventuality which he or she may come across. When there is no adaptability differences are bound to arise which may lead to break down of relationship between two individuals or among different individuals as the case may be unless rectified by prudence and sensibility. The system of marriage have bearing not only upon two individuals i.e., spouses but also among their family members and the society because the family is a unit in the society. MATA No.3 of 2020 Page 21 of 38 According to Hindu philosophy the purpose of marriage is to serve mainly the other components of the society. That objectivity is not only for the purpose of serving the society at large but also maintaining love, peace and tranquility among the members of the society and contributing for its prosperity. 31. In the context of the observations made above awarding maintenance to a wife because of whose fault the marriage between her and her husband has been broken is against the concept of marriage. How can one of the spouses who got no respect for the marital bond be granted maintenance. The wife or husband will have the obligation of maintaining the other spouse when the other spouse is neglected by him or her without lawful excuse having got sufficient means while the other spouse got no means to maintain herself or himself having entered into the wedlock. Sanjay Bhardwaj (supra) was a case where the husband had filed an application under Section 482 of the Cr.P.C. challenging the order of interim maintenance under the Protection of Women from Domestic Violence Act, 2005 by the Magistrate and confirmed by the Addl. Sessions Judge. The marriage had been settled through matrimonial advertisement and the wife had claimed to be an MA and MBA and working in a multinational MATA No.3 of 2020 Page 22 of 38 company. After their marriage , the parties had stayed together for 10 days. The Delhi High Court set aside the order of the Magistrate who had directed the petitioner - husband, an NRI working in Angola to pay interim maintenance, from date of application. The husband had filed an application under section 12 of the Hindu Marriage act for declaring the marriage null and void on the ground of fraud after which FIR was lodged by the wife and the application under the PDV Act was filed. The Court held that a husband is supposed to maintain his non earning spouse out of the income from which he earns .The Court cannot tell him to beg borrow or steal more so when both husband and wife are almost equally qualified and equally capable of earning and both claimed to be employed before marriage .Without there being prima facie proof that the husband was gainfully employed in India especially when his passport has been seized , fixing of maintenance is contrary to law and was not warranted under the provisions of the Domestic Violent Act . An unemployed husband holding an MBA degree cannot be treated differently from a wife holding an MBA degree as both are on equal footing unless one of them is employed . It also observed that there cannot be a legal MATA No.3 of 2020 Page 23 of 38 presumption that behind every failed marriage there is either dowry demand or domestic violence. MAINTAINABILITY OF THE COUNTER APPEAL / CROSS OBJECTION 19. The MATA had been admitted on 12.02.2020. As notice returned unserved from the address of the Respondent in Mumbai, vide order dated 01.11.2022, I.A. No. 254 of 2022 filed under Order – 5, Rule – 20 of the C.P.C had been allowed. Notice had been published in the Kolkotta Edition of the Telegraph on 19.11.2022 fixing the date of appearance to be 21.12.2022. Mr. A.K. Sarangi learned counsel entered appearance on behalf of the Respondent on 20.12.2022. On 21.12.2022, when the matter was listed, he asked for and was served a copy of the memorandum of appeal and its annexures. The matter was listed on 30.01.2023, 07.02.2023, 09.03.2023, 16.03.2023. On 16.03.2023 it was adjourned to 17.04.2023 for disposal on merit and it was specifically observed that no further accommodation will be made on the next date. 20. The cross appeal / application has been filed on 12.04.2023. As per Section – 19 (3) of the Family Court Act MATA No.3 of 2020 Page 24 of 38 “Every appeal under this section shall be preferred within a period of thirty days from the date of judgment or order of a Family Court.” In view of the decision dated 16.05.2023 of this Court in MATA No. 54 of 2020 in the case of Bibhuti Bhusan Rout vs Sasmita Nayak (which has since been referred to a larger Bench ) it should be filed within 90 days. Whether the period of limitation is taken as 30 or 90 days, the appeal/ application is grossly barred by limitation. No application for condonation of delay has been filed. The reasons mentioned in the Appeal Memo not challenging the impugned judgment in time are vague and unconvincing. It is not a case where Respondent- husband had not received notice in the case in the Civil Proceeding. It is his own case that he had appeared and filed his written statement and thereafter could not appear. It is also an admitted fact that the Respondent- husband was contesting C.P. No. 266 of 2014 in the same Court. So non appearance in the case appears to be deliberate. 21. Even if we consider this appeal to be a cross objection under Order 41, Rule 22 of the C.P.C. it should have been filed “within one month from the date of service” on the Respondent MATA No.3 of 2020 Page 25 of 38 or his pleader of the notice of the day fixed for hearing the appeal or within such further time as the Appellate Court may see fit to allow. In the present case, the date indicated in the notice published in the newspaper was 21.12.2022. As noted earlier, the respondent entered appearance in the case through counsel on 20.12.2022. On 21.12.2022 he was served with copy of the appeal memo alongwith annexures. Although the case was listed six times before being finally adjourned to 17.04.2023 as last chance, neither the Respondent nor his counsel took leave of this Court to prefer the cross objection. (As the cases are being heard by virtual mode in this High Court , the Respondent could have appeared on virtual mode and addressed this Court even if his counsel failed to do so ). On 17.04.2023, this Court was informed that a cross objection has been filed. 22. This cross objection is barred by time as sufficient cause has not been shown for not filing it within the time specified in Order 41, Rule 22 of the C.P.C. Leave of the Court has also not been taken or sought for filing the same for which it is not maintainable. Filing of the cross objection / application after almost four months after receiving notice in the MATA seems to MATA No.3 of 2020 Page 26 of 38 be an afterthought and another attempt to delay the proceedings. We are therefore find no reason to admit the counter appeal/ cross objection. DISCUSSION, ANALYSIS AND CONCLUSION . 23. We have carefully gone through the plaint, written statement and deposition of the appellant P.W.1. We have gone through the ordersheet in C.P. No 129 of 2015 and perused the orders passed in CMA 45 of 2021. We have also gone through the judgment dated 13.07.2018 passed in C.P. No. 266 of 2014 which has been passed on contest; the counter appeal filed by the Respondent and the written note of submission filed by the learned counsel for the Respondent and the documents/ photographs annexed to it. 24. In her plaint as well as in her evidence in C.P. No. 129 of 2015, the appellant has stated about the manner in which she has been treated by the respondent and his family members on account of unfulfilled dowry demand. She has not been cross examined as the respondent had been set exparte. In his written statement filed in C.P. No. 129 of 2015, the Respondent has denied the allegations of cruelty and ill treatment. He has also MATA No.3 of 2020 Page 27 of 38 stated that he was always ready and willing to take the Appellant to his matrimonial home and resume conjugal relations with her, but she was not willing. This stand is belied by his conduct during the proceeding (C.P.No.129 of 2015) which has been described in detail earlier. He has remained absent on most dates for which he had been set ex parte once earlier. That order was set aside and, the case was posted for conciliation on various dates but he did not appear, for which fresh notice had to be issued to him . But inspite of receiving notice he did not appear in the case for which he was set exparte again and after exparte hearing the impugned judgment was passed. He had filed CMA No. 45 of 2021 under Order 9, Rule 13 of the C.P.C. to set aside the exparte decree, but did not pursue it for which it was dismissed on 26.07.2022, which is long before the date on which the Respondent- husband entered appearance through his counsel in this Court but this was not intimated to this Court and this was revealed much later when the counsel for the Appellant- wife filed the order sheet in CMA 45 of 2021. That CMA No. 11 of 2023 has been filed under Order – 9, Rule 4 C.P.C. for restoration of C.P. No.129 of 2015, has been stated for the first MATA No.3 of 2020 Page 28 of 38 time in his counter appeal / cross objection and written note of argument. 25. Apart from the fact that the counter appeal / cross objection is grossly barred by time , from the conduct of the Respondent after he was set ex-parte for the first time in C.P. No.129 of 2015, we are satisfied that he had no intentions whatsoever of contesting the matter on merit or restoring marital relations with the Appellant but wanted to linger the proceedings. In order to avoid paying any maintenance or permanent alimony to the Appellant, he has been filing various applications and petitions. He has participated and contested in C.P. No.266 of 2014 filed by the Appellant wife for maintenance but chose to remain absent in C.P. No.129 of 2015, for which he was set ex-parte and CMA No. 45 of 2021 filed by him to set aside the ex parte decree has been dismissed for non prosecution and CMA No.11 of 2023 purportedly filed by him has been filed at a grossly belated stage. We are therefore of the considered view that even assuming that CMA No.11 of 2023 is pending in the Court of the learned Family Judge, Rourkela it would neither be in the interest of justice to wait till its disposal nor to set aside MATA No.3 of 2020 Page 29 of 38 the judgment impugned in this Appeal and remit the matter for fresh disposal in view of the conduct of the Respondent – husband. So we do not find any reason to interfere with the impugned judgment and decree granting dissolution of marriage. 26. The decision in Guntamukkala Naga Venkata Kanaka Durga (supra) cannot come to the aid of the Respondent, as he has not contested the case to prove that the appellant is responsible for breakdown of the marriage or that she has sufficient means to maintain herself and he has not neglected to maintain her. That apart, it is no longer res integra that a wife is entitled to permanent alimony in case of dissolution of marriage even if the reason for dissolution of marriage is attributed to her. 27. The decision in Sanjay Bharadwaj (supra) has no application to this case as in the present case the Respondent has not contested the case to prove that he has no job or that the Appellant has left the matrimonial house without sufficient cause and disentitled herself for payment of alimony and that she has sufficient means to maintain herself. That apart, since the Respondent has the qualification to be employed, his plea of MATA No.3 of 2020 Page 30 of 38 being unemployed ( even if proved ) cannot be a valid plea for non payment of maintenance or permanent alimony. 28. Section 37 of the Special Marriage Act, provides for grant of permanent alimony at the time of passing of the decree, or thereafter. Instead of directing for payment of maintenance every month, a Court can award a gross sum as permanent alimony after taking note of the property and resources of the parties. The Court has also been given the power to rescind or modify the order directing for payment on account of change in circumstances. The provision is as follows : “Section . 37. Permanent alimony and maintenance.— (1) Any court exercising jurisdiction under Chapter V or Chapter VI may, at the time of passing any decree or at any time subsequent to the decree, on application made to it for the purpose, order that the husband shall secure to the wife for her maintenance and support if necessary, by a charge on the husband’s property such gross sum or such monthly or periodical payment of money for a term not exceeding her life, as, having regard to her own property, if any, her husband’s property and ability, the conduct of the parties and other circumstances of the case, as it may seem to the court to be just. MATA No.3 of 2020 Page 31 of 38 (2) If the district court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under sub-Section (1), it may, at the instance of either party, vary, modify or rescind any such order in such manner as it may seem to the court to be just. (3) If the district court is satisfied that the wife in whose favour an order has been made under this Section has remarried or is not leading a chaste life, it may, at the instance of the husband, vary, modify or rescind any such order and in such manner as the court may deem just.” 29. The Supreme Court in the case of Rajnesh vs. Neha reported in ( 2021) 2 SCC 324 has interalia held that the “parties may lead oral and documentary evidence with respect to income, expenditure, standard of living, etc. before the concerned Court, for fixing the permanent alimony payable to the spouse”, and has specified that status of the parties , reasonable needs of the wife and dependant children, qualification of the applicant, if she has any independent source of income and whether it is sufficient to maintain the same standard of living as she was accustomed to in her matrimonial home, capacity of the spouse to pay to be MATA No.3 of 2020 Page 32 of 38 some of the relevant considerations for fixing the amount of maintenance. It has also emphasized that maintenance is dependent upon factual situations and the Court should mould the claim for maintenance based on various factors brought before it to arrive at the appropriate quantum of maintenance to be paid and that “ the plea of the husband that he does not possess any source of income ipso facto does not absolve him of his moral duty to maintain his wife if he is able bodied and has educational qualifications” 30. It has been stated in the written note of argument filed on behalf of Respondent – husband on 19.04.2023 that the Appellant -wife has married in the meantime for which she is not entitled to any maintenance. Re-marriage is a ground under Section 37 (2) and ( 3) of the Special Marriage Act for modifying the order granting maintenance . This averment of the Respondent - husband should normally have been accepted after formal proof giving opportunity of hearing to the Appellant – wife . Instead of relegating the Respondent – husband to the Family Court for modification of the order granting permanent alimony after formal proof of such an averment, we have MATA No.3 of 2020 Page 33 of 38 thought it fit to accept this averment to be true and deal with the same in order shorten the litigation and do complete justice , by relying on the decision of the Calcutta High Court in the case of Harendra Nath Burman vs. Suprova Burman : AIR 1989 (Cal) 120, where it has been inter alia been held as follows: “While ordinarily a lis is to be determined on the cause of action accruing on the date of the initiation of the lis, It is nevertheless well-settled that it is open to a Court, including a Court of appeal, to take notice of events which have happened after the institution of the suit and afford relief to the parties where it is necessary to do in order to shorten litigation or to do complete justice between the parties. If any authority is needed in support of this proposition, reference may be made to the decision of the Supreme Court in Shikharchand v. Digambar Jain, , where the leading decision of this Court on the point of Sir Ashuthosh in Rai Charan v. Biswanath, (AIR 1915 Cal 103) has been referred to with approval It should be so done all the more in matrimonial proceedings where multiplicity of proceedings should always be discouraged
Arguments
same has been filed by learned counsel for the respondent along MATA No.3 of 2020 Page 4 of 38 with his written submission. Perusal of the same reveals that it has been interalia averred therein that that there was no need for scope or intention to demand of dowry by the Respondent’s family members from the petitioner’s family and there was no mental and physical torture to the appellant. The parents of the Appellant were never misbehaved or humiliated by the Respondent and his family members during their visits to his house. He has denied that the Appellant was not allowed to go to her parental house or talk to her parents over phone. The allegation that the appellant was confined to the house by locking the exit door is also denied and he has stated that he had never severed conjugal relation with the appellant when she was staying in the matrimonial house and that he was desirous of spending a conjugal life with the Appellant so that they can live together. The allegations that the Appellant was not given proper food or medical treatment has also been denied. The allegation that the Appellant was not allowed to carry her documents, certificates and ornaments when she was giving her parents house has been stated to be false and denied. He has stated that the averment that he is an employee of TATA Housing Development Co. Ltd. and MATA No.3 of 2020 Page 5 of 38 is getting a monthly salary to the tune of Rs. 1.5 lakh is false and fictitious. It was stated that the Respondent is unemployed and had no source of earning and the Appellant was provided all comfort and was happy in her matrimonial house She was well looked after in her matrimonial home, and the Respondent and his family made all attempts to keep her happy and comfortable and on account of her desertion from the association of the Respondent and her subsequent action on the direction of her father has caused irreparable loss and injury to the Respondent for which he is in extreme distress and the he is earnestly looking forward to return of the Appellant to his association by breaking free from the clutches of her father who is bent upon to wreck her life. 4. The scanned copy of the LCR in C.P. No. 129 of 2015 has been called for and received by this Court. Perusal of the order sheet reveals that the Respondent- husband had been set ex-parte on 16.12.2015 and the case was posted to 25.01.2016 for ex parte hearing. He has remained absent when the case was posted for conciliation. On 11.04.2016, the Respondent – husband appeared and filed an application under Order–9, Rule 6 of the C.P.C .This MATA No.3 of 2020 Page 6 of 38 application was rejected on 24.08.2016 as not moved and the case was posted for ex parte hearing. On 03.01.2017 the Respondent filed an application under Order 9, Rule- 7 of the C.P.C which was registered as I.A. No. 1 of 2017. This application was allowed by order dated 17.07.2017 and order dated 24.08.2016 (setting him ex parte) was set aside. Thereafter, when the C.P. No. 129 of 2015 was posted for conciliation on different dates, the Respondent – husband remained absent. So on 25.07.2018 notice was again issued to him in C.P. No. 129 of 2015. On 20.08.2018 though notice was back after service, the Respondent – husband did not appear. On 27.08.2018, he was set exparte. On 27.11.2019, the Appellant - wife was examined as P.W 1 and Ext.1 marked on her behalf. Argument was heard later that day and the impugned judgment was pronounced on 28.11.2019. IMPUGNED JUDGMENT 5. The learned Court below found that the wife had proved that cruelty was shown to her which entitled her to a decree of divorce. It also found that the parties were living separately for more than five years and there appeared to be irretrievable MATA No.3 of 2020 Page 7 of 38 breakdown of marriage and severance of marital ties. As the husband did not contest, conciliation could not be done. The Court concluded that the marriage was dead for all purposes. The sentiments and emotions of the wife were completely dried up and it would be wise to dissolve the marriage by a decree of divorce. Referring to the evidence of the wife that the husband was earning Rs.1,50,000/- per month, leading a lavish life and neglecting to maintain her, it held that she is entitled to permanent alimony. He allowed the Civil Proceeding ex-parte by judgment dated 28.11.2019, dissolving the marriage solemnized on 07.03.2012 between the Appellant and Respondent under the Special Marriage Act by a decree of divorce and directed the Respondent to pay a sum of Rs. 10,00,000/- (Rupees Ten Lakhs only) as permanent alimony within three months, granting liberty to the wife to realize the same under due process of law. SUBMISSIONS ON BEHALF OF THE APPELLANT 6. Mr. A.C. Panda, learned counsel for the Appellant – wife has submitted that the amount of permanent alimony awarded by the learned Judge, Family Court is grossly low and needs to be enhanced. He has submitted that it is the basic requirement under MATA No.3 of 2020 Page 8 of 38 law to consider the status of the parties, their social needs and the financial capacity of the husband but this has not been considered by the learned trial court. The learned Judge, Family Court has failed to consider that that the monthly salary of the Respondent is Rupees One Lakh Fifty Thousand per month and awarded a meager amount as permanent alimony which is liable to be enhanced. He only took note of those documents filed by the Appellant to establish the service status of the Respondent- husband but did not consider the same. 7. He further submitted that the Respondent- husband. has tried his best to avoid his legal, social and moral duties to maintain her. He entered appearance in the Civil Proceeding, filed his written statement but thereafter did not choose to contest the proceeding for which the pleadings and evidence led by the Appellant- wife went unrebutted and correctly so. He relies on the decision of the Supreme Court in the case of U. Sree Vs. U. Srinivas repoted in 2013 (I) OLR (SC) 905 where it has been categorically held that “it is the duty of the court to see that the wife lives with dignity and comfort and not in penury. The living need not be luxurious but simultaneously she should not be left to MATA No.3 of 2020 Page 9 of 38 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”. 8. He has also submitted that it is settled in law that alimony is not alms and is the entitlement of a wife for a decent living. Apart from the take home salary, relevant factors affecting fiscal expenses have to be considered. Capacity to earn and actual earning and savings of the husband for securing his future life is also significant and has to be counted while determining the amount of alimony. 9. His further submission is that C.P. No. 266 of 2014 filed by the Appellant has been decreed on contest since 13.07.2018 by the very same Court granting Rs.20,000/- per month from the date of the petition i.e. 17.10.2014 towards maintenance. But till date she has not been paid a single pie nor to the knowledge of this Appellant, has the decree passed in C.P. No. 266 of 2014 been challenged by the husband till date. As per the decree passed in C.P. No. 266 of 2014 the arrear comes to Rs. 12,40,000/- as on 17.12.2019. But the learned court while awarding permanent alimony in the proceeding for divorce has MATA No.3 of 2020 Page 10 of 38 erroneously observed that C.P. No. 266 of 2014 is still pending and awarded a low amount towards permanent alimony. Hence such meager amount of permanent alimony is not sustainable in the eye of law and is liable to be enhanced. 10. He further submits that it is settled in law that there is no fixed arithmetic formula to assess the quantum of permanent alimony. Besides the status of the parties, their social needs, financial capacity and another important issue, i.e. the life expectancy of a female has to be considered. Relying on the decision of this Court in the case of Smt. Pratima Mohapatra @ Napak Vs. Dibakar Mohapatra reported in 120 (2015) CLT 401 and in the case of Ritanjali Patra vs. Bhabani Shankar Patra reported in 1 (2018) DMC 232 (ORI), he submits that the life expectancy of a female is 70 years and as Appellant was 34 years when she approached the learned Family Court, her life expectancy was 36 years and she was entitled to get 34 x 12 x 20,000/- (maintenance granted in C.P. No. 266 of 2014) = Rs. 82,60,000/-. 11. He has finally submitted that as per the decision of the Supreme Court, the wife is entitled to 25% of the net salary of the MATA No.3 of 2020 Page 11 of 38 husband towards her maintenance. The Appellant-wife is therefore entitled to more than Rs.67 lakhs. The future economic condition should also be considered for which the amount of permanent alimony granted in the impugned judgment should be appropriately enhanced. SUBMISSIONS ON BEHALF OF THE RESPONDENT 12. Mr. A.C. Sarangi, learned counsel for the Respondent- husband without filing a copy of the order, had vehemently urged that C.M.A. No. 45 of 2021 had been filed by the Respondent - husband in the Court of the learned Judge , Family Court challenging the ex parte decree of divorce, so this Appeal should not be entertained . When the order sheet in C.M.A 45 of 2021 was produced, it was found that for non removal of defects , the case had been dismissed for default on 26.07.2022. Mr. Sarangi’s further submissions are that Appellant- wife is not eligible to get any alimony and the matter should be remanded for fresh adjudication after allowing him a chance to adduce evidence. In support of his submissions, he relied on the following decisions: (i) Guntamukkala Naga Venkata Kanaka Durga v. Guntamukkala Eswar Sudhakar and Others : AIR 2013 AP 58. MATA No.3 of 2020 Page 12 of 38 (ii) Sanjay Bhardwaj & Others v. The State & Another reported in 2010 SCC OnLine Del 2912 COUNTER APPEAL / CROSS OBJECTION 13. On 12.04.2023 titled as, “an application for counter appeal filed by the respondent under Chapter – VI , Rule-27(a) of Orissa High Court Rules read with Section 19 of the Family Court Act” has been filed by the Respondent annexing copy of CMA No. 11 of 2023 (Annexure 1) and copy of the written statement in CP.No. 129 of 2015 (Annexure 2) .The copy of the judgment dated 28.11.2019 challenged has not been annexed to the counter appeal / application. The following prayers have been made in the counter appeal / application : “i) accept the counter claim and set aside the order dt. 28.11.2019 passed by the learned Judge Family Court, Rourkela in C.P.No. 129 of 2015 . ii) Direct the parties to adduce additional evidence or in alternative remand the case to learned family judge Rourkela to reopen the case. MATA No.3 of 2020 Page 13 of 38 iii) Pass any such other order(s) which would deem fit and proper in the ends of justice.” 14. There is also no provision under Chapter –VI , Rule -27 ( a ) of Orissa High Court Rules for filing an appeal or “counter appeal” . This “counter appeal ” is barred by time. But as it has been styled as a “counter” appeal , there is no stamp report . 15. We have however examined the averments in the counter appeal / cross objection and find that the Respondent- husband has challenged the judgment primarily on the following grounds : i) The MATA is not maintainable on facts and law . As “the petitioner “ has filed CMA No 11 of 2023 under Order -9 Rule - 4 for restoration of C.P.No. 129 of 2015. The appeal is vexatious , misconceived and not maintainable and has been filed to linger the matter and harass the “opp. parties.” ii) The marriage was solemnized without any dowry and the statement and evidence regarding dowry are all false and fabricated and concocted story. iii) The appellant has given her evidence as P.W.1 and not examined any independent witness and there is no cross examination as respondent was set exparte. There is no MATA No.3 of 2020 Page 14 of 38 proof of income or cruelty, it is illegal to impose financial burden on him iv) Findings regarding dowry demand are completely false and not proved. v) GR case No 1260 of 2014 filed by the appellant before the SDJM Panposh is still pending and he is on bail. The allegations of cruelty is not proved. The findings in paragraphs 1 and 2 of the judgments are therefore not admissible and contrary to law. vi) The Respondent had appeared and filed his written statement. But the material facts in the written statement have not been considered for which the judgment is liable to be set aside. vii) Section 27 of the Special Marriage Act is not attracted as cruelty has not been proved by examining any independent witness or adducing documentary evidence. viii) Opportunity was not given to the respondent to file his evidence and he has always been trying to bring the appellant / wife to his society to maintain a happy conjugal life but she has not agreed. MATA No.3 of 2020 Page 15 of 38 ix) Dissolution of marriage without any valid cause is illegal, arbitrary and violates the principles of natural justice. x) Sufficient evidence has not been adduced for award of permanent alimony which has been observed by the learned Family Judge. Hence question of payment of permanent alimony does not arise. xi) A false plea has been taken that the respondent earns monthly salary Rs 1.5 lakhs. Fake and false documents have been given regarding his income. xii) The respondent has no source of income now to pay permanent alimony as he is now in distress condition which has been mentioned in paragraph 14 of the written statement but has not been discussed by the learned Judge , Family Court. He is unemployed while the appellant is earning Rs 1 lakh per month from her teaching and tailoring business. xiii) The Respondent is always ready and willing to take back the Appellant to his matrimonial house and lead a happy conjugal life with her. MATA No.3 of 2020 Page 16 of 38 WRITTEN NOTE OF SUBMISSION BY THE RESPONDENT. 16. Mr. Sarangi, learned counsel for the Respondent – husband has filed written arguments alongwith the following documents -, i) Copy of case status of MATA 133 of 2018, ii) Order dated 11.11.2020 passed in MATA No.133 of 2018 iii) Case Status of CMAPL No. 105 of 2021, iv) Copy of faculty details of Tagore Public School with name of Manjushree Kundu Teacher Sl. No 15 highlighted. v) Certificate of merit awarded to Mrs. Manjushree Gantait in Rabindra Sangeet, vi) photograph of a married couple vii) a group photograph, viii) petition in CMA No 11 of 2023 filed under Order – 4, Rule 4 CPC, in the Court of the learned Judge Family Court, Rourkela ix) written statement filed by the Respondent in C.P. No. 129 of 2015. MATA No.3 of 2020 Page 17 of 38 New documents cannot be introduced in a case after hearing is closed by filing them alongwith the written arguments. In the interest of justice, we have gone through the written note as well as the documents. 17. It has been stated in the written note of submission , that in C.P. No. 266 of 204, the respondent husband has been directed to pay Rs. 20,000/- per month to the appellant as maintenance from date of the application i.e. 17.04.2014 and the arrears to be paid within first week of October 2018 and current maintenance to be paid by first week of each succeeding month .That decree was challenged in MATA No. 133 of 2018 but it was listed on 11.11.2020 and the counsel could not appear due to Covid 19 and it was dismissed. CMAPL No. 104 of 2021 filed for restoration is pending. So the ratio of C.P. No. 266 of 2014 cannot be considered in this case. The Appellant is a Teacher in Tagore Public school and a Grade 1 Rabindra Sangeet Singer and earns Rs 2 lakhs per month .She should not be paid any maintenance as she has voluntarily left the matrimonial house . She has married one Pramod Agarawal in the meanwhile and is blessed with one son and their marriage photo is enclosed. From the ex parte MATA No.3 of 2020 Page 18 of 38 judgment in C.P. No. 264 of 2014 and letter of TATA Housing Development Corporation dated 08.01.2014, it is apparent that the Respondent husband has no job and source of income and is mentally depressed and is in a pathetic condition for which he could not properly advise his conducting Advocate to contest the
Decision
and the dispute should be disposed of as early as possible in the interest of the parties as well as in the interest of the society at large. In fact such courses appear to have been MATA No.3 of 2020 Page 34 of 38 adopted in a series of decisions to which our attention has been drawn by Mr. Dutta and reference inter alia may be made to the decisions of the Delhi High Court in Savitri v. Mulchand, , in Ashok v. Santosh, and in a Bombay decision in Jaishree v. Mohan, AIR 1987 Bom 220.” 31. The challenge of the respondent- husband to award of permanent alimony should normally not have been considered as we have not admitted his counter appeal / cross objection. His contention that the Appellant has not adduced enough documentary evidence to prove his income and he is unemployed and not in a position to pay permanent alimony, is not acceptable as he has not led any evidence to that effect. After going through his written statement, counter appeal / cross objection and written note of submission, we feel that the contention that the Appellant – wife is not entitled to permanent alimony is otherwise liable to be rejected in view of his admission that he was once employed with TATA Housing Development Company. 32. Normally the permanent alimony is calculated by keeping in mind the age of the wife and taking ¼ of the monthly salary of the husband. In the present case when the proceeding MATA No.3 of 2020 Page 35 of 38 was filed in the year 2015, the appellant was 34 years of age. So if the monthly salary of the Respondent – husband is taken to be Rs 1, 00,000/- instead of Rs 1,50,000/- , ¼ of the same will be Rs 25, 000/- . Without taking into account the cost of litigation , the yearly maintenance amount would be Rs 3 lakhs. The amount of Rs 10 lakhs awarded by the learned Judge Family Court towards permanent alimony is therefore grossly low and we would have enhanced the same had it not been for the development which has taken place in the meanwhile – i.e. remarriage of the Appellant – wife. 33. The Respondent – husband has stated in his written note of submission that the Appellant has married in the meanwhile annexing some photographs. The impugned judgment granting dissolution of marriage by a decree of divorce has been passed on 28.11.2019 and the decree has been signed 13.12.2019. The Appellant wife has not challenged the decree of divorce and she has filed this MATA with a prayer for enhancement of the quantum of permanent alimony. The Respondent has not challenged the judgment and decree of divorce for all these years. So there was absolutely no bar on the Appellant to get MATA No.3 of 2020 Page 36 of 38 married for the second time after decree of divorce and remarriage will not be an absolute bar for receipt of maintenance or permanent alimony. She is entitled to receive maintenance, but till her re-marriage. Rs Three lakhs is the amount, she should have been paid towards her annual maintenance. Accepting the submission of the Respondent (without formal proof) regarding remarriage of the Appellant, she would be entitled to an amount of Rupees 12 lakhs for four years. The amount of Rupees Ten lakhs having been awarded towards permanent alimony, we do not think it necessary to interfere with this amount. 34. As regards the challenge of the Respondent- husband to the judgment dated 13.07.2018 passed in C.P. No.266 of 2014 awarding Rs 20,000/- per month from the date of application , we cannot decide the same in this MATA. MATA No. 133 of 2018 has admittedly been dismissed for default on 11.11.2020 (more than two years back ). Even though CMAPL No. 105 of 2021 has been filed for its restoration, no attempt has been made to restore MATA No. 133 of 2018 for all these years. Had this been brought to our notice by the counsel for the Respondent ( who is the counsel for the husband in MATA No 133 of 2018 ) when he MATA No.3 of 2020 Page 37 of 38 appeared in this appeal (MATA 3 of 2020) and sought for adjournment it could have been tagged and heard with the present Appeal and heard and disposed of. 35. In view of the aforesaid facts and discussion, we find no infirmity or illegality in the judgment passed in C.P. No. 129 of 2015 by the learned Judge, Family Court , Rourkela and therefore no reason to interfere with it. 36. The Matrimonial Appeal and the counter appeal /cross objection are accordingly dismissed, but without any cost. The Respondent shall pay the permanent alimony of Rupees Ten lakhs to the Respondent within a period of two months from today, failing which it will carry interest at the rate of 6% per annum from date of the judgment (i.e. 29.11.2019) passed in C.P.No. 129 of 2015. Decree be drawn up accordingly. …………………………. (Savitri Ratho, J) [ …………………………. (S. Talapatra, J) S. Talapatra, J. I agree. Signature Not Verified Digitally Signed Signed by: SUKANTA KUMAR BEHERA Designation: Senior Stenographer Reason: Authentication Location: Orissa High Court, Cuttack Date: 19-Jul-2023 19:12:05 Orissa High Court, Cuttack. The 23rd day of June, 2023. S.K. Behera, Senior Stenographer. MATA No.3 of 2020 Page 38 of 38