The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK MATA No.91 of 2024 Subhashree Nayak Bhagat Chandra Sahu -Versus- …. …. Appellant Respondent Advocate(s) appear in this case: For Appellant : Ms. Mamata Mishra, Advocate For Respondent : None CORAM:
Legal Reasoning
THE HON’BLE MR. JUSTICE ARINDAM SINHA THE HON’BLE MR. JUSTICE M.S. SAHOO AND J U D G M E N T --------------------------------------------------------------------------- Date of hearing and judgment: 12th July, 2024. -------------------------------------------------------------------------------- ARINDAM SINHA, J. 1. Ms. Mishra, learned advocate appears on behalf of appellant, who was wife in the marriage dissolved by order dated 26th December, 2023 of the Family Court, at her instance. She submits, her client is aggrieved because permanent alimony was not directed. Page 1 of 7 2. Respondent goes unrepresented. The appeal has been listed under heading ‘For Orders’ because Ms. Mishra had obtained adjournment, for compliance with our request made in order dated 1st July, 2024. We by said order dated 1st July, 2024 had recorded good service of notice of appeal. We had also requested Ms. Mishra to communicate website copy of said order to learned advocate, who had initially appeared for respondent in the Family Court. She files memo of date, contents of which are reproduced below. “The lower Court Advocate Mr. Sandip Samal for the present Appellant-Petitioner informed me on dated 05.07.2024 that the Opposite Party’s Advocate Mr. S.K. Panda refused to accept the copy of the order dated 01.07.2024 in this case passed by this Hon’ble Court.” We have tried our best to secure participation of respondent at hearing of the appeal, keeping in mind impugned order was made ex-parte against him. However, he goes unrepresented. The appeal is, therefore, taken up for hearing. MATA no.91 of 2024 Page 2 of 7 3. The Family Court dealt with claim for maintenance by direction for permanent alimony in paragraph-14 of impugned order. We reproduce below the paragraph and direction made. “14. Considering all the facts and circumstances, I deem it just and proper to dissolve the marriage of the petitioner from her husband hoping for better life for her. Regarding maintenance and permanent alimony the petitioner has not specifically pleaded in her pleading. In her evidence she mentions that to allow the decree of divorce with maintenance and permanent alimony of Rs.20,00,000/- is the beyond the scope of her pleading and thus such evidence becomes meaningless and therefore, she is not entitled to maintenance and permanent alimony. Hence it is ordered:
Decision
O R D E R The petition in the facts and circumstances, therefore, stands allowed ex-parte, but in the circumstances without cost. Free copies of the order be supplied to the parties.” (emphasis supplied) MATA no.91 of 2024 Page 3 of 7 4. Ms. Mishra submits, her client pleaded and also deposed by her evidence on affidavit regarding her claim for maintenance. 5. Perused the petition of appellant and her evidence on affidavit from the lower Court record. We reproduce below paragraph 7 in the petition. “7. That the petitioner being a house wife has no source of income and she is leading miserable life. The petitioner has no means to spend money towards her medical expenses and treatment whereas the O.P. is working as a Technician at Bharat Heavy Electricals Limited (BHEL) from which he earns Rs.60,000/- per month. Besides this income the O.P. has got immovable assets in the form of lands from which he also earns Rs.2,00,000/- per annum and he is maintaining luxurious life. The O.P. is under legal obligation to maintain the petitioner but he has refused to do so without any reasonable cause and has neglected to maintain the petitioner.” Paragraphs 7 and 8 in her evidence on affidavit dated 18th November, 2023 are also reproduced below. MATA no.91 of 2024 Page 4 of 7 “7. The OPP. PARTY is working as a Technician at Bharat Heavy Electricals Limited (BHEL) from which he earns Rs.60,000/- per month. Besides this income the OPP. PARTY has got immovable assets in the form of lands from which he also earns Rs.2,00,000/- per annum and even though the OPP. PARTY has sufficient means, he has refused and neglected to maintain me. Thereafter I have also filed one Cr.P. no- 24/2021 against this O.P. for Maintenance . After due service of notice the Present O.P. did not appear before this Court. For which an ex-parte Judgement/order was passed against this O.P. on 21.07.2022 directing the O.P. to pay Rs.9,000/- per month to the petitioner for her maintenance from the date of filing i.e. from 22.01.2021. After filing Execution case Vide M-93/2022 I am getting monthly maintenance from the O.P. but on the other hand after paying monthly maintenance money, the O.P. never tried for settlement and due to his adamant and rowdy attitude deserted me from 14.10.2019. 8. In view of the above facts, the decree of divorce between us and alimony @ Rs. 25,000/- per month or lump sum maintenance of Rs.25,00,000/- for her life time alimony, if not MATA no.91 of 2024 Page 5 of 7 passed I will suffer irreparable loss and injury, which cannot be compensated by any monetary means.” 6. The Family Court accepted pleadings and evidence of appellant regarding cruelty because same went uncontroverted by respondent husband. It appears from paragraph-7 of her petition, she pleaded about income of her husband and her requirement for being maintained. She had said that he works in Bharat Heavy Electricals Limited (BHEL) and earns Rs.60,000/- per month. Besides, he has got immovable assets in form of lands, from which he also earns Rs.2,00,000/- per annum and is maintaining luxurious life. He refused to maintain her. Appellant followed up by reiterating same in her evidence on affidavit and by paragraph-8 therein she gave particulars regarding her claim for permanent alimony at Rs.25,00,000/-. 7. At trial, where respondent had not participated, appellant’s evidence regarding income of respondent and ownership of immovable properties could not have been disregarded because she, being wife in the marriage dissolved, is presumed to know. On strength of her allegation of cruelty, MATA no.91 of 2024 Page 6 of 7 accepted by the Family Court because it went uncontroverted, her pleading and evidence regarding income of respondent and he also having immovable properties, ought to have been accepted as well. It appears the Family Court overlooked her pleading. 8. On query Ms. Mishra submits, her client is a young woman. We think she can attempt to become independent. In the circumstances and considering materials on record we direct she is to get for her maintenance and support, monthly periodical sum of Rs.20,000/- (Rupees twenty thousand) from date of impugned order. The sum will be no longer be payable to her if she remarries, on and from date of re-marriage. 9. Impugned order is modified accordingly and the appeal disposed of. The decree be drawn up expeditiously. (Arindam Sinha) Judge (M.S. Sahoo) Judge RKS Signature Not Verified Digitally Signed Signed by: RANJAN KUMAR SETHI Designation: Assistant Registrar-Cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT Date: 16-Jul-2024 11:12:29 MATA no.91 of 2024 Page 7 of 7