The High Court
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THE HIGH COURT OF ORISSA AT CUTTACK MATA No.46 of 2016 An application under Section 19 of the Family Court Act, 1984. Smt. Sovedita Roy ……. Appellant -Versus- Sri Abani Kumar Baag ….….. Respondent ___________________________________________________________ For Appellant : Mr. Himanshu Bhusan Dash, Advocate. For Respondent ___________________________________________________________ : Mr. Amit Prasad Bose, Advocate. CORAM: THE HONOURABLE MR. JUSTICE S. TALAPATRA THE HONOURABLE MISS JUSTICE SAVITRI RATHO JUDGMENT 16th May, 2023 S. Talapatra, J. This is an appeal under Section 19 (1) of the Family Courts Act, 1984 from the Judgment dated 17.03.2016 delivered in Civil Proceeding No.34 of 2014 by the Judge, Family Court, Balasore. 2 2. By the said Judgment the marriage which was solemnized
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between the parties on 09.03.2003 has been dissolved. The respondent herein filed the petition under Section 13(1) (ia) of the Hindu Marriage Act on the ground of cruelty. Initially the finding on dissolution of marriage was challenged by the appellant. But on 10.02.2023, the appellant by filing an affidavit has categorically asserted as follows: “That this Hon’ble High Court was pleased to make an effort for conciliation between appellant and respondent in court but though in the beginning the respondent had shown interest to live together but later he had turned negative to continue as he was not interested for the same. On this circumstance there being no hope for reunion between them, the appellant at the time of hearing had abandoned her claim in the appeal against decree of Divorce but confined to contest the appeal on permanent alimony only.” 3. For the said abandonment, we would set out the fact minimally. 4. It would be apposite to note at the beginning that in the wedlock between the appellant and the respondent, one girl child is born and we are informed that she is presently studying law. The Judge, Family Court, Balasore at the time of passing the decree of divorce has observed as follows: “The salary slip produced by the petitioner vide Ext.7 shows that he is getting salary of Rs.1,50,000/- and 3 after deduction he is getting Rs.68,502/- per month. As per the evidence revealed through the cross examination of the respondent that the petitioner has opened four bank accounts in her name jointly with the petitioner and separate two accounts in SBI Delhi and Canara Bank Bhubaneswar individually in her name. It is admitted by her that he is regularly crediting monthly maintenance in the said account and in the year 2010, the petitioner has paid Rs.1, 50,000/- in cash to the respondent. He has also handed over the credit card for easy and free withdrawal of money from his account. Apart from that the petitioner is paying interim maintenance of Rs.15,000/- since 2013 along with the litigation expense of Rs.5000/- per hearing as per the order of the Hon’ble High Court. The respondent has not disclosed how much money she has obtained from the petitioner till today though the petitioner opened joint accounts standing in their names. The petitioner has not neglected the respondent or discharged his marital obligation. As a matter of fact being the legally married husband, he is obliged to discharge the marital obligation which cannot be easily obliterated. Even though a divorced wife is entitled for alimony unless she gets remarried. Reliance has been
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placed in a decision reported in Smt. Vanamala v. H.M. Raiyanathballa: 1995 (3) Crimes 524 (SC). Apart from that they are having a female child having bright future coupled with marriage prospect. The child has right to survival and development psychologically, physically and educationally. Her development cannot be retarded due to the latches of the parents. For her development some pecuniary help is essentially required which is to be shouldered by the petitioner. Taking into consideration of 4 the partial burden being discharged by the petitioner for defraying the expenses of the respondent and the legal necessities of the respondent and the child coupled with the financial condition of the petitioner, justice would be best served if an amount of Rs.25,00,000/- is awarded towards permanent alimony which would benefit the interest of the respondent and her minor child.” 5. Mr. A.P. Bose, learned counsel appearing for the respondent has submitted that the said amount of Rs.25,00,000/- has been deposited by the respondent. But Mr. H.B. Dash, learned counsel appearing for the appellant has stated that the appellant (Sovedita Roy) did not receive the said amount from the court, as she was hopeful of reconstruction of her marital life till recently. 6. It appears from the records of the Civil Proceeding No.34 of 2013 that on 26.04.2016, the respondent herein deposited a sum of Rs. 25,00,000/- in the court of Judge, Family Court, Balasore. Mr. Dash, learned counsel appearing for the appellant has submitted that the amount of permanent alimony as settled by the Judge, Family Court is inadequate for maintenance of a decent standard of life and to defray the expenses of the daughter’s educational and other expenses. 7. According to Mr. Dash, learned counsel, the monthly earning of the respondent at present would be around Rs.3,00,000/- per month. When the permanent alimony was settled, the Judge, Family 5 Court considered the monthly income at Rs.1,50,000/-. Mr. Das, learned counsel for the appellant has urged this court to settle the permanent alimony on appreciation of the income of the respondent, so that the appellant can maintain a decent standard of life with her daughter. 8. Mr. Dash, learned counsel has submitted that in Rubi @ Pritipadma Pradhan Vrs. Debasish Pradhan; OLR 2014 (II) 691, this court having appreciated the apex court decisions has laid down the following principles: “17. Thus, after considering the above position of law, it is evident that the following principles emerge from the judgments available in the field:- (a) Maintenance depends upon the summation of all the facts of the situation involved in the particular case. (b) For granting maintenance, the scale and mode of living, the age, habits, wants and class of the life of the parties has to be regarded. (c) Maintenance being such that the wife could live in a reasonable comfort; considering her status and mode of life which she was used to while living with her husband. (d) During the pendency of the suit for maintenance, which may take a considerable time to attain finality, the wife cannot be forced to face starvation till she is subsequently granted maintenance from the date of the filing of the suit. (e) Maintenance must necessarily encompass a provision for residence. Maintenance is given so that the lady can live in the manner, more or less, to which she was accustomed. (f) Maintenance, necessarily must encompass a provision for residence. Maintenance is given so that the lady can live in the manner, more or less, to which she was accustomed. The concept of maintenance must, therefore, include provision for food and clothing and the like and take into account the basic need of a roof over the head. 6 (g) Maintenance must vary according to the position and status of a person. It does not only mean food and raiment. (h) It is to be seen that the amount fixed cannot be excessive of affecting the living condition of the other party.” 9. Mr. Dash, learned counsel has also referred to a decision of the Apex Court in Vinny Parmvir Parmar v. Parmvir Parmar: AIR 2011 SC 2748. In Vinny Parmvir Parmar (supra) it has been observed by the apex court as follows: x x x x x x x x x x x x x x x x x 19. 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 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 have to be kept in mind while determining maintenance or permanent alimony. 20. In Vishwanath Sitaram Agrawal v. Sau. Sarla Vishwanath Agrawal, reported in AIR 2012 SC 2586 the apex Court while granting permanent alimony has observed that the amount that has already been paid to the respondent-wife towards alimony is to be ignored as the same had been paid by virtue of the interim orders passed by the courts. It is not expected that the respondent-wife has sustained herself without spending the said money. 7 21. In U. Sree v. U. Srinivas, AIR 2013 SC 415, the apex Court while dealing with Section 25 of the Act has observed as follows:- "........ While granting permanent alimony, no arithmetic formula can be adopted as there cannot be mathematical exactitude. It shall depend upon the status of the parties their respective social needs, the financial capacity of the husband and other obligations." 10. In Bandita Mishra Vs. Ramakrishna: 2019 (I) ILR CUT – 86, a division bench of this court had occasion to observe that having regards to the age, income and status of the parties and their child etc., the permanent alimony be decided. The said determination can be tuned with special circumstances of the case. 11. Mr. Dash, learned counsel has insisted that having considered the monthly income of the respondent at Rs.3,00,000/-, the permanent alimony be determined. Mr. Bose, learned counsel for the respondent has vehemently opposed the said contention, stating that the appellant is a practising lawyer, but she has not disclosed anything about her income anywhere. She has come to this court with unclean hands. The appellant was present in person in the proceeding and she has fairly admitted that she had been practising for sometime but her practice was disrupted by the matrimonial tumult. 12. Hence, she has not given any specific figure relating to her earning. She has also stated that the future life of her daughter is 8 required to be considered and the permanent alimony be adequately enhanced. Mr. Bose, learned counsel has submitted that within 4 to 5 years, the income of the respondent will drastically dwindle, as he will retire from his service. Hence, the changing pattern of financial resources and its impact cannot be oblivious. 13. In respect of defraying the expenses of the daughter, Mr. Bose, learned counsel has submitted that the respondent has been paying the maintenance allowance per month at Rs.5,000/- and the said amount is being paid without any disruption. He has fairly admitted that at one point of time, the respondent had been paying a sum of Rs.10,000/- for his daughter but when he opened a life insurance policy for benefit of his daughter, the said amount was reduced to Rs.5,000/-. The differential is being paid as the premium for the said insurance policy. 14. We find from the records that at the time of deposing before the court, the appellant has given details of spending. In the examination-in-chief, filed by the affidavit under Order 18, Rule 4, CPC the respondent has stated that the appellant herein had agreed for a mutual divorce on payment of a sum of Rs.20 lakhs towards permanent alimony. When the appellant had failed to file a petition for divorce on 9 mutual consent, he filed the petition under Section 13 (1) (ia) of the Hindu Marriage Act. But in the cross examination, the appellant did not challenge the veracity of the said statement regarding settlement of the permanent alimony for purpose of mutual divorce. In the cross examination, the respondent has categorically admitted that he had sent Rs.10,000/- only for 3 to 4 months. In the examination-in-chief filed by the appellant in the Civil Proceeding No.34 of 2013, she has stated that the petitioner has been working as the Deputy General Manager, NTPC, a Central Government Undertaking at Bilaspur and earning more than Rs.2 lakhs (Rupees Two Lakhs) per month. He has refused to maintain her and their daughter. As she has no income the respondent is under obligation to maintain them. Except them, he has no other dependents. 15. The said statement was confronted by the respondent, but the appellant stood firmly by her statement made in the examination-in- chief. Mr. Bose, learned counsel appearing for the respondent has further submitted that no reliable documents could be placed by the appellant in support of her contention. When the salary of a person is the matter of record, such oral statement can hardly be relied on, by any court. Mr. Bose, learned counsel has stated that there is no necessity of more money for the appellant and as such, she did not receive the money that had been deposited in the year 2016, she is litigating 10 mindlessly to make his life hell. The respondent did not find peace in his married life, for her matrimonial misconduct. 16. We have interacted with the counsel for the parties on the guidelines as set out by the Apex Court in Rajnesh v. Neha: 2021 (2) SCC 324. In this appeal, the parties have not filed the affidavits on resources and liabilities and for that reason we have delved deep in the lower court records. 17. We understand that finally we have to make some guess- work having regard to the financial status of the parties. The daughter, of the appellant and the respondent, has become major and she is living with the appellant. As such, the appellant has to shoulder the additional responsibility of defraying her expenses. 18. The appellant is a law graduate and enrolled with Bar Council of Orissa. She has the skill and competence to become a good lawyer and thus, we are hopeful that she can build up the profession for earning. This aspect is pertinent for our decision. If we consider the salary of the petitioner is around Rs.2.25 lakhs per month, the net salary may come around Rs.1.50 lakhs after all deductions. The respondent is aged about 47 years. 25% of the income of the respondent would be Rs.37,500/-. Thus, the annual sum would be Rs.4,50,000/-. Considering the age of the appellant, the multiplicand is chosen at 12. Thus, the total 11 sum would come to Rs.54,00,000/-. On account of the potential income of the appellant, we would deduct Rs.14,00,000/- from the said sum. Annual contribution of the appellant has been measured at Rs.1,16,000/-. This is a bare minimal income. 19. Having observed thus, we determine the permanent alimony at Rs.40,00,000/- which shall be paid by the respondent. Rs.25,00,000/- has already been paid. The balance of Rs.15,00,000/- shall be paid by the respondent within a period of 3 (three months) from the date of decree. 20. We assume that the bank draft that was deposited in the Family Court has become invalid by efflux of time. The respondent shall validate the bank draft and hand over the same to the appellant along with the draft of Rs.15,00,000/- within a period of 3 months from the date of decree. If the said amount is not paid within the stipulated time, the entire amount of the permanent alimony will carry interest at the rate of 6% per annum till the payment is actually made. In that event of failure of payment, as directed, the decree, as will be passed by this court, shall be treated as a money decree for purpose of realization of the money through the court process. 12 21. Having observed thus, we affirm the decree of divorce and direct payment of permanent alimony to the extent and in the manner as indicated above. 22. 23. The appeal stands partly allowed. The Registry is directed to draw the decree accordingly. …….......................... (S. Talapatra, J.) Savitri Ratho, J. I agree. ……........................... (Savitri Ratho, J.) Orissa High Court, Cuttack. The 16th May, 2023/ R.R. Nayak, Jr. Steno. Signature Not Verified Digitally Signed Signed by: RATI RANJAN NAYAK Designation: Jr. Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 22-Aug-2023 11:18:42