Need guidance on alimony, child custody & child support

Are you conceding the petition for divorce. Grant of alimony and maintainance is at the discretion of the court based on the facts and circumstances pleaded and proved. Generally, court does not grant any financial support to the wife who well-employed esp. one whose allegations are proved to be baseless. She also have no right or share in the property.

However, the child is entitled for maintainance. In exceptional circumstances, the father can seek custody of the child.

I respecfully disagree with experts.

Working wife is entitled for alimony as per standard of living at her matrimonial home as decided by Hon'ble Supreme Court.

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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5369 OF 2017
(Arising out of SLP(C) No. 34653 of 2016)
KALYAN DEY CHOWDHURY .....Appellant
Versus
RITA DEY CHOWDHURY NEE NANDY .....Respondent
J U D G M E N T
R. BANUMATHI, J.
Leave granted.
2. Challenge in this appeal is to the order dated 15.09.2016 passed
by the High Court at Calcutta in RVW No.85 of 2016 in C.O. No.4228
of 2012, reviewing an order dated 02.02.2015 passed earlier in an
application filed under Section 25(2) of the Hindu Marriage Act, 1955,
thereby enhancing the amount of maintenance from Rs.16,000/- per
month to Rs.23,000/- per month.
3. Parties are entangled in several rounds of litigation. Background
facts in a nutshell are as follows: The marriage of the appellant and
the respondent was solemnized on 10.08.1995 as per Hindu rites and
customs at the appellant’s residence at Kalna. A male child was born
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on 04.10.1996 at Chandannagore who is now a major pursuing his
college education. After the birth of child, it is alleged that the
respondent continued in her parent’s house. The appellant-husband
requested the respondent to return to the matrimonial home at Kalna
alongwith the child. It is alleged that instead of acceding to the
request of the appellant-husband and returning back to the
matrimonial home, the respondent-wife insisted that the
appellant-husband shifts to her father’s place at Chandannagore.
4. Appellant filed an application under Section 9 of the Hindu
Marriage Act, 1955 for restitution of conjugal rights against the
respondent-wife in Matrimonial Suit No.370 of 1997 before the District
Judge, Burdwan on 23.12.1997. On receipt of summons in the above
matrimonial suit on 9.02.1998, the respondent-wife lodged an FIR
bearing P.S. Case No.25 dated 13.02.1998 under Sections 498A and
406 IPC against the appellant and his parents at P.S.
Chandannagore. The appellant and his parents were granted
anticipatory bail by the Sessions Judge, Burdwan on 20.05.1998 in
the FIR filed by the respondent-wife. The respondent-wife also filed a
maintenance case being Misc. Case No.24/98 under Section 125
Cr.P.C. against the appellant-husband claiming maintenance for
herself and the minor son.
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5. On 10.08.2000, the Additional District Judge, Burdwan passed
decree of restitution of conjugal rights in favour of the
appellant-husband. However, the respondent did not reconcile and
preferred an appeal against the said decree of restitution of conjugal
rights before the High Court being F.A. No.198 of 2001. In the High
Court, by an order dated 24.05.2001 an interim arrangement was
made directing the appellant herein to go to the parental home of the
respondent-wife at Chandannagore and take back the wife and the
child to his residence at Kalna and make necessary arrangement for
living with his wife and child separately from the parents of the
husband in the first floor of the matrimonial home. Subsequently, the
interim arrangement was recalled. The interim arrangement did not
work and the appeal filed by the respondent-wife was allowed on
13.08.2003.
6. In the year 2003, respondent-wife filed a Matrimonial Suit
No.533 of 2003 before the District Judge Hooghly against the
appellant-husband under Section 10 of the Act for judicial separation.
According to the appellant, though he filed written objections denying
allegations made against him, he could not attend the hearing and it is
alleged that he was manhandled in the court premises by some men
of the respondent-wife. Ex parte decree for judicial separation was
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ordered on 19.05.2006, as a consequence of which decree for
permanent alimony was also ordered under Section 25 of the Hindu
Marriage Act to the respondent-wife amounting to Rs.2,500/- per
month and Rs. 2,000/- per month to the minor son.
7. In the meanwhile, the appellant-husband and his parents were
acquitted of all the charges by the Additional District and Sessions
Judge, 2nd Fast Track Court, Serempore on 20.07.2006 in the case
filed alleging dowry harassment. Being aggrieved by the order
hereinabove, the respondent-wife filed a revision petition being CRR
No. 3087 of 2006 before the High Court at Calcutta which came to be
dismissed on 21.03.2011.
8. The appellant-husband filed a divorce petition being Matrimonial
Suit No.71 of 2007 which was renumbered as Suit No.193 of 2010
under Section 13(1)(ia) of the Hindu Marriage Act for dissolution of
marriage. In the said divorce petition, the respondent-wife filed an
application for permanent alimony under Section 25 of the Act. By an
order dated 19.05.2006, passed by the Additional District Judge, 1st
Court, Hooghly in Matrimonial Suit No.533 of 2003, enhanced the
amount of maintenance to Rs. 8,000/- per month in F.A. No. 193 of
2008.
9. On 10.10.2010, the respondent filed an amendment application
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before the Court being Misc. Case No.2 of 2010 in Matrimonial Suit
No.533 of 2003 under Section 25(2) of the Act praying for
enhancement of maintenance amounting to Rs.10,000/- per month for
herself and Rs. 6,000/- for her minor son. Vide order dated
10.10.2012, the said application was allowed and maintenance at the
rate of Rs.6000/- each was ordered for the respondent and her minor
son.
10. Aggrieved by this order, respondent-wife preferred a revision
petition under Article 227 of the Constitution of India before the High
Court being C.O. No.4228 of 2012. During its pendency, the
Matrimonial Suit No.193 of 2010 was decreed and the marriage
between the parties came to be dissolved by the order of the
Additional District Judge, 1st Fast Track Court, Serampore on
30.11.2012. Post-divorce, the appellant herein re-married and has a
male child born out of the second wedlock.
11. By an order dated 02.02.2015, the High Court disposed of the
above revision petition by directing the appellant-husband to pay a
sum of Rs.16,000/- towards the maintenance of the respondent-wife
as well as her minor son. Aggrieved by this order, the
respondent-wife preferred a Special Leave Petition (C) No.12968 of
2015 which was disposed of as withdrawn with liberty to approach the
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High Court by way of review. Pursuant to the above order,
respondent-wife filed a review application being RVW No.85 of 2016
arising out of CO NO.4228 of 2012. Upon hearing both the parties, by
order dated 15.09.2016, the learned Single Judge of the High Court
modified the order under review and enhanced the amount of
maintenance from Rs.16,000/- to Rs.23,000/- which is the subject
matter of challenge in this appeal.
12. Learned counsel for the appellant Mr. Pijush K. Roy submitted
that in exercise of review jurisdiction, the High Court ought not to have
enhanced the maintenance amount from Rs.16,000/- to Rs.23,000/-.
It was further submitted that the appellant-husband is posted at Malda
Medical College, Malda, West Bengal and gets a net salary of
Rs.87,500/- per month and while so, the appellant would find it
difficult to pay enhanced maintenance amount of Rs.23,000/- per
month to the respondent-wife. It is also submitted that the respondent
is a qualified beautician and Montessori teacher and earns
Rs.30,000/- per month and the son has also attained eighteen years
of age and hence the enhanced maintenance amount of Rs.23,000/-
per month is on the higher side and prayed for restoring the original
order of Rs.16,000/- per month.
13. Per contra, learned counsel for the respondent-wife Ms.
Supriya Juneja submitted that the High Court on perusal of the pay
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slip and the expenditure of appellant-husband has arrived at the right
conclusion of granting Rs.23,000/- as maintenance to the respondent.
The learned counsel has also further submitted that even though the
son has attained majority and since the son is aged only eighteen
years and is presently studying in a college and for meeting the
expenses of higher education and other requirements, enhanced
maintenance amount of Rs.23,000/- per month is a reasonable one
and the impugned order warrants no interference.
14. We have considered the rival contentions and perused the
impugned judgment and other materials on record.
15. Section 25 of the Hindu Marriage Act, 1955 confers power upon
the court to grant a permanent alimony to either spouse who claims
the same by making an application. Sub-section (2) of Section 25 of
Hindu Marriage Act confers ample power on the court to vary, modify
or discharge any order for permanent alimony or permanent
maintenance that may have been made in any proceeding under the
Act under the provisions contained in sub-section (1) of Section 25.
In exercising the power under Section 25 (2), the court would have
regard to the “change in the circumstances of the parties”. There
must be some change in the circumstances of either party which may
have to be taken into account when an application is made under
sub-section (2) of Section 25 for variation, modification or rescission
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of the order as the court may deem just.
16. The review petition under Order XLVII Rule 1 CPC came to be
filed by the respondent-wife pursuant to the liberty granted by this
Court when the earlier order dated 02.02.2015 awarding a
maintenance of Rs.16,000/- to the respondent-wife as well as to her
minor son was under challenge before this Court. As pointed out by
the High Court, in February 2015, the appellant-husband was getting
a net salary of Rs.63,842/- after deduction of Rs.24,000/- on account
of GPF and Rs.12,000/- towards income-tax. In February, 2016, the
net salary of the appellant is stated to be Rs.95,527/-. Following Dr.
Kulbhushan Kumar vs. Raj Kumari and Anr. (1970) 3 SCC 129, in
this case, it was held that 25% of the husband’s net salary would be
just and proper to be awarded as maintenance to the
respondent-wife. The amount of permanent alimony awarded to the
wife must be befitting the status of the parties and the capacity of the
spouse to pay maintenance. Maintenance is always dependant on
the factual situation of the case and the court would be justified in
moulding the claim for maintenance passed on various factors. Since
in February, 2016, the net salary of the husband was Rs. 95,000/- per
month, the High Court was justified in enhancing the maintenance
amount. However, since the appellant has also got married second
time and has a child from the second marriage, in the interest of
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justice, we think it proper to reduce the amount of maintenance of
Rs.23,000/- to Rs.20,000/- per month as maintenance to the
respondent-wife and son.
17. In the result, the maintenance amount of Rs.23,000/- awarded to
the respondent-wife is reduced to Rs.20,000/- per month and the
impugned judgment is modified and this appeal is partly allowed. The
maintenance of Rs.20,000/- per month is payable to the
respondent-wife on or before 10th of every succeeding english
calendar month. No costs.
..….…...........……………………….J.
[R. BANUMATHI]
……...............………………………..J.
[MOHAN M. SHANTANAGOUDAR]
New Delhi;
April 19, 2017
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ITEM NO.1A COURT NO.7 SECTION XVI
(For judgment)
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
CIVIL APPEAL NO.5369/2017 @
Petition(s) for Special Leave to Appeal (C) No(s). 34653/2016
(Arising out of impugned final judgment and order dated 15/09/2016
in CO No. 4228/2012 15/09/2016 in RVW No. 85/2016 passed by the
High Court Of Calcutta)
KALYAN DEY CHOWDHURY Petitioner(s)
VERSUS
RITA DEY CHOWDHURY NEE NANDY Respondent(s)
Date : 19/04/2017 This matter was called on for pronouncement of
judgment today.
For Petitioner(s) Mr. Rajan K. Chourasia,Adv.
For Respondent(s) Mrs Sarla Chandra,Adv.
Ms.Supriya Juneja,Adv.
Ms. Mehaak Jaggi, Adv.
Hon'ble Mrs. Justice R. Banumathi pronounced the
reportable judgment of the Bench comprising Her Lordship
and Hon'ble Mr. Justice Mohan M. Shantanagoudar.
Leave granted.
The appeal is partly allowed. The maintenance of
Rs.20,000/- p.m. is payable to the respondent-wife on or
before 10th of every succeeding English Calendar Month.
No costs.
Application, if any, also stands disposed of.
(USHA BHARDWAJ) (RENU DIWAN)
AR-CUM-PS ASSISTANT REGISTRAR
Signed reportable judgment is placed on the file.
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Thank you Dr. Vashista sir for a detailed explanation. My wife and I hail from lower middle class families and our parents don't have any moveable or immovable assets. My father is a retired govt. employee whose only source of income is monthly pension and my wife's father is a retired employee but currently working in small pvt. company to meet his ends. My wife currently earns 1.2 lakhs per month take home salary and supports her father with monthly expenses to some extent.

Since we have been married for 11+ years and she being self-suistaining given her job with a MNC and post graduate qualification with 14 years work experience, will I be expected to pay any alimony. We both have done our masters degree in the same field during same year but she is earning slightly lesser salary given a break in her employment service for an year. Also, it would be great if you can provide some insight into how much monthly or lumpsum alimony I might have to pay. I currently don't have any savings apart from the monthly I salary which I get whereas my wife was able to save some money since last 2 years as I was handling 80% of the expenses from my family like House rent, utility bill, my kids school fees and other expenses. I have put my life saving on the residential plot which we purchased 2 years back and 50% of the amount has been sourced thru mortage loan which is on my name. 

At the time of counselling or mediation proceeding of mutual consent divorce in the Family Court, you are required to bargain, convience and settle the amount of alimony with your wife. There is no set formula for calculation of alimony for wife and nothing can be predicted / guessed. 

I may be permitted to point out that the respondent-wife in the decision cited by learned expert Dr. Vashista, as far as I could make out, had not been working and she did not have a source of sustenance of her own, As such, in my considered opinion, the instant matter could be distinguished from the facts and considerations in the Supreme Court decision.

To my knowledge, following are the spects that the Court may take into consideration while deciding the grant of alimony:

 - The financial position, status, and earnings of the husband.

- Necessary and reasonable needs of the wife for sustaining in the current times.

- The income and earnings from any other sources that the wife may have.

- The number of persons that are entitled to the alimony such as minor children.

 - Whether the wife living separately is justified. 

The following are among the grounds on which the alimony could be sought to be avoided/reduced>

1. If it is proven that the merit of filing the divorce is infidelity on the wife's part the alimony can be avoided.
2. If the wife has a sustainable source of income through her job and other means of earnings such as property etc., the alimony can be avoided if the court deems just.
3. If the husband can prove that he has no source of income, alimony can be avoided.
4. If the husband is remarried and has a new wife to take care of, alimony can be avoided.
5. If the wife remarries, she will not be entitled to alimony but the dependent and or minor children if any continue to get the allowance.

​Incidentally, there could be exceptional cases where the husband is entitled for alimony if circumstances so warrant.

In the instant case,not only is the wife  working,  her earning is more than sufficient to sustain herself and adequate to maintain the current standard of living, even after divorce.