I do not know whether this recent judgement by Patna High court is posted or not in relation to permanent alimony and some other related issues which the readers may like to get educated on. If it is already posted, please ignore this post.
MISCELLANEOUS APPEAL No.370 OF 2005
Manoj Ambastha son of Shri A. K. Sinha at present resident of Mohalla- Anandpuri, P.S. S.K.Puri, Town and District Patna .. Petitioner- Appellant
VERSUS
Smt. Lakshmy Rani Kapoor daughter of Prof. Brahma Deo Prasad, resident of Sadar Gali, Khajekallan, P.,S. Khajekallan, Patnacity, District Patna . Respondent - Respondent WITH
MISCELLANEOUS APPEAL No.179 OF 2006
Lakshmy Rani Kapoor D/o Brahmadeo Prasad, R/o Sadar Gali, Patna city, P.S. Khajekala, Distt. Patna
. Appellant Respondent
VERSUS
Manoj Ambastha son of Awadhesh Kumar Sinha, R/o Manorama Karkil Kunj Flat No.204 B, Boring Canal Road- 8, posted at Distt. Mining Officer, New Secretariat, Patna
. Respondent- Petitioner
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Against the common judgment and order dated 20.8.2005 passed in Matrimonial Case No.28 of 1996 by the Principal Judge, Family Court, Patna
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For the Appellant - : M/s Janardan Pd. Singh and Respondent Upendra Kumar Singh, Advocates For the Respondent - : Mrs Lakshmy Rani Kapoor, In- person Appellant
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PRESENT
THE HON'BLE MR. JUSTICE SHIVA KIRTI SINGH
THE HON'BLE MR. JUSTICE HEMANT KUMAR SRIVASTAVA Shiva Kirti Singh, J. Both the appeals under Section 19 of the Family Court Act, 1984 (hereinafter referred to as 'the Act') arise out of a common order dated 20.8.2005 passed in Matrimonial Case No.28 of 1996 by the Principal Judge, Family Court, Patna under Section 25 of 2
the Act. By the order under appeal, the learned court below has not accepted the claim of the appellant Lakshmy Rani Kappor ( for short 'the wife') for a lump sum permanent alimony of Rs.30 lakhs but has granted alimony by way of monthly payment of Rs.10,000/-. The wife has preferred Miscellaneous Appeal No.179 of 2006 for decree of her claim of Rs.30 lakhs by way of permanent alimony in one lump sum whereas Manoj Ambastha (for short 'the husband') has preferred the other appeal on the ground that the award of Rs.10,000/- per month by way of alimony is excessive.
2. For proper appreciation of the issue involved in these appeals, a look at the background facts in brief appears to be relevant. The husband brought about Matrimonial Suit No.28 of 1996 under Section 13 of the Hindu Marriage Act, 1955 seeking a decree of divorce against his wife on the grounds of cruelty, desertion and adultery. The allegations were denied by his wife who alleged cruelty on the part of the husband such as by demand of dowry, physical assault etc. On these grounds she also prayed for a decree of divorce which was granted by judgment and decree dated 28.9.2000. However, on some technical ground such as lack of verification and affidavit, the Family Court did not allow permanent alimony.
3. The wife challenged the denial of permanent alimony and maintenance before this Court through Miscellaneous Appeal No.587 of 2000. By judgment and order dated 5.3.2003, this Court directed the husband to pay maintenance at the rate of Rs.4,000/- per month till 3
a final decision of her claim for alimony and maintenance under Section 25 of the Hindu Marriage Act and remitted the matter to the Family Court for a decision within four months.
4. It is further relevant to note that Miscellaneous Appeal No.587 of 2000 preferred by the wife was also directed against findings like desertion and cruelty which were made the ground for grant of divorce. In that appeal an order was passed on 19.3.2001 which is Annexure-3 to Miscellaneous Appeal No.370 of 2005. By that order while fixing interim maintenance of Rs.4000 per month, a Division Bench of this Court held that only for technical reasons the court below had examined the alleged grounds for divorce and held them good for granting divorce along with a finding that the divorce between the two had become a necessity. This Court held that the discussions and findings regarding desertion and cruelty were superfluous and in the facts of the case, could not be taken seriously so as to affect the claim of the wife for permanent alimony under Section 25 of the Act. By that order this court revised the interim maintenance from Rs.1600 to Rs.4000/- per month till the court below passed final orders under Section 25 of the Hindu Marriage Act and disposed of the matrimonial suit. Against that order the husband preferred Civil Review No.60 of 2001 which was heard with the main Miscellaneous Appeal No.587 of 2000 leading to final disposal of the Miscellaneous Appeal by order dated 5.3.2003 which is Annexure -4 to Miscellaneous Appeal No.370 of 2005.
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5. In spite of direction to dispose of the application under Section 25 of the Hindu Marriage Act within four months, the matter remained pending because of non- cooperative attitude of the husband. He had filed MJC No.932 of 2003 before this Court for modification of the final judgment dated 5.3.2003 passed by this Court in Miscellaneous Appeal No.587 of 2000. That matter was finally disposed of by order dated 10.3.2005. A copy of that order is Annexure- 1 to Miscellaneous Appeal No.179 of 2006. Therein this Court noticed the non- cooperative attitude of the husband as he had disregarded the order of the Family Court to give details of his property and latest salary statement. The interim maintenance of Rs.4000/- per month granted on the basis of salary of Rs.13,000/- at the relevant time as decided on 19.3.2001 was not interfered with and several directions were issued by this Court for expediting the proceeding before the Family Court and for its disposal within a period of four months. Thereafter, the order under appeal was passed on 20.8.2005.
6. As per order of remand passed by this Court, the Family Court reconsidered the entire matter relevant for deciding permanent alimony and maintenance under Section 25 of the Hindu Marriage Act. For this, it considered the conduct of the parties by discussing the relevant materials on this issue in paragraphs 11, 12 and 13 of the impugned order and came to a conclusion in paragraph 14 that both sides had made allegations against each other but the beginning was 5
made from the husband side and there is nothing in the conduct of the wife to deprive her of alimony or for grant of reduced alimony.
7. On the issue of income of the parties, the court below noticed that the husband was a Class II officer in Government of Bihar for more than 16 years and his salary chart in Exhibit B series was also noticed along with the fact that since sometime he was under suspension. It was also noticed that the wife had no property in her name and her father was free to dispose of his property any way he liked. The husband had admitted in his evidence that he has some ancestral lands along with some co-sharers but insisted that there is no income from those properties. On behalf of the wife, sale deed dated 24.1.1970 (Exhibit 10) in the name of her husband and report regarding 16 acres of ancestral properties was brought on record but the court found that income from such properties could not be established. The statement of the petitioner husband that he had booked a flat in which he was residing but registration had not been done till date was noticed by the court below. However, allotment letter from the builder and developer in favour of the husband was brought on record as Exhibit 7 in respect of a flat in Manorama Kokil Kunj Apartment, Anandpuri, Patna. Application for electrical connection in that flat by the husband and electric bill for the meter installed therein were also exhibited. The court below also noticed Exhibit 9, a telephone bill in the name of father of the husband installed in Ram Krishna Villa, Mahesh Nagar, Patna but it found that 6
the same was not sufficient to prove ownership of that house in favour of the husband or his father.
8. After considering the various case laws cited by the parties, the court below found her entitled for permanent alimony but since it held that there was nothing on record that the husband petitioner was in possession of huge cash, bank balance or more than one residential house, the court below found it proper to award monthly maintenance at the rate of Rs.10,000/- per month with effect from 1.10.2000 i.e. after decree of divorce dated 28.9.2000.
9. In view of the fact that the husband was under suspension at the relevant time the court below permitted him to continue payment of maintenance at the rate of Rs.4000/- only per month and it was directed that payment / recovery of arrears of remaining Rs.6000/- per month shall remain in abeyance till decision of the Department on his suspension or till he starts getting full pay. It was further directed that in case suspension of the husband petitioner is revoked, the concerned Department shall deduct balance of the remaining maintenance amount from the arrears of salary and pay the same to the wife respondent. But in case he is dismissed from service on account of departmental proceeding pending against him, he will continue paying monthly maintenance at the rate of Rs.4000/- per month only. The immovable property of the husband was placed under- charge for the payment/ recovery of the arrears of maintenance amount.
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10. It is not in dispute that the husband remained under suspension from May 2003 till March 2007 and during this period, he was getting only subsistence allowance and has already paid maintenance at the rate of Rs.4,000/- per month.
11. After revocation of suspension on 1.4.2007, the wife made a prayer before this Court in these appeals that the husband may be directed to pay the arrears of maintenance at the rate of Rs.10,000/- per month and to continue to pay future maintenance at that rate as per direction in the order under appeal, till the disposal of these appeals. That matter was considered and by order dated 4.8.2008 this Court considered the Income tax salary statement pertaining to the husband, then posted as Mineral Development Officer, for the financial year 2007-08 which showed salary in excess of Rs.22,000/- per month and directed that from 1.4.2007 the husband shall pay permanent alimony at the rate of Rs.10,000/- and the arrears for the period from 1.4.2007 till 31.7.2008 were also directed to be paid in installments. Admittedly, those arrears have been paid as per direction of this Court. Complaints have been made by the wife that the current maintenance is being paid after delay and allegedly defaults have taken place. In defence, it has been submitted that delay has been caused on occasions due to wife not being available at the known address.
12. On behalf of the appellant husband it has been submitted that through a supplementary affidavit in Miscellaneous Appeal 8
No.370 of 2005 the order of punishment in departmental proceeding dated 3.4.2007 has been brought on record which shows that for the suspension period he is not to get anything beyond the subsistence allowance. It was also highlighted that on account of death of her mother on 6.1.2000 and death of her father on 16.11.2005 the wife has inherited movable and immovable property of her parents and has substantial amount of Rs.4.45 lakhs in fixed deposits and even larger amount in her bank accounts.
13. The pay slip of the husband for the month of March 2010 is available on record through a supplementary affidavit filed by him in Miscellaneous Appeal No.370 of 2005 and it shows that after deducting Rs.2000 on account of GPF, Rs.2000/- for income tax and Rs.120 for group insurance, his net monthly salary is Rs.40813/- (Forty thousand eight hundred and thirteen). The court below has found that according to allegation made by the wife the husband had relationship with another lady since 1995 and allegedly during the pendency of the divorce proceeding, he entered into a second marriage and has an issue. According to the husband, the said marriage was subsequent to decree of divorce. But it appears that the wife has not only succeeded in securing conviction of the husband in a case under Section 498A of the IPC from the trial court but has also lodged a criminal case under Section 494 and other Sections of the IPC in which cognizance has been taken by Sub Divisional Judicial Magistrate, Patna on 9.7.2007.
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14. An effort was made by this Court for making the parties agree to part amicably by agreeing for a reasonable and proper lump sum amount as alimony and not to pursue the criminal cases lodged by the wife. The wife insisted for the entire claim amount of Rs.30 lakhs and the husband expressed inability in paying lump sum alimony beyond Rs.18 lakhs. Since the gap could not be bridged, the efforts for amicable settlement failed and hence, the matter now has to be decided on merits.
15. Considering the fact that husband is a Gazetted officer and drawing net salary around Rs.40,000/-, we find that the amount of Rs.10,000/- per month cannot be reduced any further as pleaded on behalf of the husband. In fact, if this Court decides in favour of alimony by way of monthly payment then Rs.10,000 may need to be revised to Rs.14,000.
16. However, it has further been submitted on behalf of the husband that the direction to pay maintenance at the rate of Rs.10,000/- per month since 1.10.2000 is excessive and without considering that at that time, as per order of this Court his salary was around Rs.13,000/- per month and, therefore, this Court had fixed interim maintenance at the rate of Rs.4,000/- per month only. Further submission is that the subsistence allowance was still lower between the period of suspension i.e. May 2003 to March 2007 and, therefore, while passing interim order on 4.8.2008, this Court directed, in the interest of justice, to pay permanent alimony at the rate of Rs.10,000/- 10
on or from 1.4.2007 i.e. only after revocation of suspension. Hence, it has been submitted that this Court should modify the order under appeal by reducing the maintenance amount from 1.10.2000 till March 2007 at the rate of Rs.4000/- per month. On the other hand, the wife has submitted that existence of immovable property belonging to the husband was found by the court below and although income from that property could not be proved but every property must be deemed to have some notional income and hence, no interference should be made with the amount of maintenance even for the aforesaid period between 1/10/2000 and 31.3.2007, rather this Court should direct for payment of arrears for that period within a fixed period or else permit the execution proceeding in the court below to proceed.
17. On considering the earlier orders and the salary as well as subsistence allowance which the husband received prior to April 2007, we find merit in the aforesaid submission advanced on behalf of the husband. Hence, for the purpose of arrears of maintenance only, the maintenance amount of Rs.10,000/- per month is ordered to be reduced to Rs.4,000/- per month for the period 1.10.2000 to 31.3.2007. If on the basis of Rs.4,000/- per month payable for that period any arrear is found due as per materials on record, the same should be paid by the husband to the wife within a period of three months from the date of this judgment failing which the same will be realizable through execution proceeding as per law. 11
18. Coming to the claim of the wife, it is to be decided whether the alimony and maintenance should be left at Rs.10000/- per month or should be enhanced by way of monthly payment only or the claim of the wife for grant of a proper lump sum alimony be accepted. In that event, it would be necessary for this Court to find out what should be a reasonable and proper lump sum permanent alimony. In case, monthly alimony and maintenance is to be awarded then in our view, it should be Rs.14,000/- per month for the present.
19. The learned court below has fixed Rs.10000/- per month as alimony and maintenance in preference to one time lump sum payment on the ground that there is nothing on record to show that the husband is in possession of huge cash, bank balance or more than one residential house so as to arrange for one time payment. On the other hand, it has been submitted by wife that in paragraph 17 of the judgment under appeal the court below has taken note of existence of ancestral lands as well as sale deed in the name of the husband, a report of the Circle Officer to show at least 16 acres of land in the name of grandfather of the husband. According to her, the father of the husband also has a house and separate income as retired Labour Commissioner and there are enough exhibits to show that the husband has acquired a flat in the town of Patna. Thus, it has been submitted that from the materials available on record and from the offer of Rs.18 lakhs made for compromise of all cases it is clear that the husband has necessary means to pay one time lump sum alimony. According to 12
the wife, the relations between the two parties have deteriorated so much that she will never get regular payment of monthly maintenance and she will always be forced to approach the court through execution proceeding and this shall adversely affect her entire future life. It has been submitted on her behalf that she is no doubt a Post graduate but is unemployed and now when her parents are no more, she needs financial security for the rest of her life so as to meet eventuality like illness, accident etc.
20. Having considered the entire facts and circumstances of the case and the submissions of the rival parties, we feel persuaded to accept the submission on behalf of the wife that in order to avoid further trauma to her and difficulties in getting monthly maintenance regularly in view of persisting bad relationship it will be in the interest of justice to award one time lump sum alimony. While the real value of a fixed amount of money payable is bound to decrease with passage of time, the salary of the husband is likely to increase in the coming years. Considering his salary income as well as materials to show his immovable property, in our view, a lump sum amount of Rs.14 lakhs would be just, appropriate and reasonable by way of lump sum permanent alimony. This amount shall be payable by the husband to the wife either in installments or in a lump sum within a period of nine months from today. However, 50 per cent of the said amount must be paid within a period of four months from today. The rest amount shall be payable within remaining period of five months. The liability to 13
pay interim maintenance at the rate of Rs.10000/- per month shall continue till the entire amount of Rs.14 lakhs is paid to the wife.
21. Although the effort for amicable settlement has failed but before parting with this judgment we wish and hope for the wife to agree for amicable settlement of all the pending litigations on the terms offered and if that happens within a reasonable time, we grant liberty to the parties to file a joint application for modification of this order and for incorporating the terms of compromise in larger interest of both the parties.
22. Both the appeals are disposed of accordingly. There shall be no order as to costs.
(Shiva Kirti Singh, J.)
I agree.
Hemant Kumar Srivastava, J.
(Hemant Kumar Srivastava, J.)
Patna High Court
The 3rd September, 2010
S.Kumar
NAFR
