ONLY 32 lakhs to deserting 498a wife after husband & family arrested! Orissa HC !

“…wife lodged FIR against husband & in-laws family before Mahila Police Station, Bhubaneswar for commission of offences punishable under sections 498(A) / 323 / 294 / 506 / 34 IPC and section 4 of the D.P. Act in which charge sheet has been placed….”

“…The learned counsel further submitted that the wife has subjected the husband to physical and mental torture and deprived him of sex and put the husband along with his parents behind the bars on false allegations and since she has already received Rs. 7 lakhs…”

“…On 28.5.2009 in the absence of the husband at his house, the wife came to her in-laws house in a violent mood, abused her in-laws, broke her bangles and washed off her vermaillion from her forehead and behaved like an insane person. The father of the wife took away all the dress materials from the house of the husband and went away. This incident was reported by the father of the husband before Inspector-in-charge, Ghasipura Police Station and accordingly a station diary entry was made. On 27.6.2009 the husband received a legal notice from the wife wherein false allegation of demand of dowry and torture was made against the husband and the in-laws…”

* “..we find that the marriage between the parties has been irretrievably broken down and it had remained for name sake. ..”

* A marriage which is dead for all purposes cannot be revived by the court’s verdict

* So far as the order of divorce is concerned, none of the parties challenged the same before us.

* During subsequent stages of hearing also, the parties concentrated only on the quantum of permanent alimony.

* ….during treatment it was found that she was suffering from Polycystic Ovarian Syndrome (PCOS)…..

* During hearing of the matter, on 19.2.2014 the wife expressed that she is not interested for mediation for which the personal appearance of both the parties was dispensed with.

* The learned counsel for the husband Mr. Amit Prasad Bose, challenging the quantum of permanent alimony submitted that the wife is not only guilty of cruelty but also of desertion without any reasonable cause and therefore the award of permanent alimony in her favour is uncalled for and it is unreasonably high.

* a sum of Rs. 7,00000/- has already been paid to the wife.

* Considering the economic status of the parties, their respective needs, the capacity of the husband to pay and taking note of the fact that the amount of permanent alimony fixed for the wife should be such that she can live in reasonable comfort and simultaneously it should not be excessive and affect the living condition of the husband and considering the young age of the wife, we are of the view that in the facts and circumstances of the case, a direction to the husband to pay Rs. 25 lakhs (Rupees twenty five lakhs only) as one time alimony to the wife, would meet the ends of justice. …."

“….. Weighing the present cases with such and other significant factors, it becomes evident in the first place that the wife is suffering from a serious ailment Polycystic Ovarian Syndrome( PCOS) and was treated in Apollo hospital. It is the case of the husband that in spite of treatment, her anatomical condition did not improve and she was unable to attain motherhood…”

The above are ONLY excerpts. Please read the full judgement below IF you wish to have a complete picture !!

*****************************disclaimer**********************************

This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

******************************************************************

CASE FROM JUDIS / INDIAN KANOON WEB SITE

******************************************************************

IN THE HIGH COURT OF ORISSA: CUTTACK.

MATA NOs. 14 and 26 of 2013 and RPFAM Nos. 127 of 2011 and 97 of 2012

From the judgment and order dated 21.01.2013 passed by the learned Judge, Family Court, Bhubaneswar in Civil Proceeding No.436 of 2010 and the judgment and order dated 29.9.2011 passed by the learned Judge, Family Court, Bhubaneswar in Criminal Proceeding No.91 of 2010.

*********************************************

MATA NO.14 OF 2013

Dipak Bash ………. Appellant

Versus

Smitarani Bash ……….. Respondent

For Appellant – M/s. Amit Prasad Bose, R.K.Mahanta, N. Hota, V.Kar, D. Sahoo, S.S. Routray.

For Respondent – M/s. Dharanidhar Nayak, U.R.Jena, S.K. Dash, B. Nayak.

*********************************************

MATA NO.26 OF 2013

Smitarani Bash ………. Appellant

Versus

Dipak Bash ……….. Respondent

For Appellant – M/s. Balaram Nayak.

For Appellant – M/s. Amit Prasad Bose, R.K. Mahanta, N. Hota, V.Kar, D. J. Saha, S.S. Routray.

*********************************************

RPFAM NO.127 OF 2011

Smitarani Bash ………. Appellant

Versus

Dipak Bash ……….. Respondent

For Appellant – M/s. Dharanidhar Nayak, N.K.Mohanty, U.R. Jena, B.K.Das, T.P. Mohapatra, S.K.Dash &B. Nayak.

For Respondent – M/s. S.Mohanty,S Behera, S.C. Mohanty, B. Biswal.

http://evinayak.tumblr.com https://vinayak.wordpress.com http://fromvinayak.blogspot.com

*********************************************

RPFAM NO.97 OF 2013

Dipak Bash ………. Appellant

Versus

Smitarani Bash ……….. Respondent

For Appellant – M/s. B.K.Routray,K.C.Rath A.Routray, S.K.Nayak R.P. Mohapatra.

For Respondent – M/s. Dharanidhar Nayak, U.R.Jena, B.K. Das, B. Nayak.

*********************************************

P R E S E N T :-

THE HONOURABLE MR. JUSTICE VINOD PRASAD

AND

THE HONOURABLE MR. JUSTICE S.K. SAHOO

Date of hearing-12-12-2014 :

Date of Judgment- 16-03-2015

S.K.SAHOO, J.

The appellant-husband in MATA No.14 of 2013 namely Dipak Bash (hereafter for short "the husband") has challenged the quantum of permanent alimony of Rs.16 lakhs (Rupees sixteen lakhs) awarded in favour of the respondent-wife Smitarani Bash (hereafter for short "the wife") by the learned Judge, Family Court, Bhubaneswar vide impugned judgment and order dated 21.1.2013 in Civil Proceeding No.436 of 2010 while passing the decree of divorce and dissolving the marriage between the parties with effect from the date of decree.

In MATA No.26 of 2013 the wife has challenged the very same impugned judgment and order dated 21.1.2013 of the learned Judge, Family Court, Bhubaneswar in Civil Proceeding No.436 of 2010 and prayed for enhancement of the permanent alimony from Rs.16 lakhs to 55 lakhs (Rupees fifty five lakhs) and also for a direction to the husband to return the dowry articles, ornament and cash to her.

In RPFAM No.127 of 2011 the wife has challenged the quantum of maintenance fixed by the learned Judge, Family Court, Bhubaneswar passed in Criminal Proceeding No.91 of 2010 in an application under section 125 Cr.P.C. vide impugned judgment and order dated 29.9.2011 and prayed to enhance the monthly maintenance from Rs.10,000/- to Rs.75,000/-. She has also prayed for a direction for payment of cost of Rs.10,000/- to her by the husband as directed by the learned Judge, Family Court, Bhubaneswar in the said Criminal Proceeding No.91 of 2010 vide judgment and order dated 22.2.2011.

In RPFAM No.97 of 2012 the husband has also challenged the very same impugned judgment and order dated 29.9.2011 passed by the learned Judge, Family Court, Bhubaneswar in the said Criminal Proceeding No.91 of 2010 wherein he was directed to pay monthly maintenance of Rs.10,000/- to the wife.

Since in all these four matters the parties are common and the questions of law and facts involved are identical and the quantum of permanent alimony/maintenance fixed by the learned Judge, Family Court, Bhubaneswar is under challenge, all these matters were heard analogously and a common judgment is being passed.

2. The husband Dipak Bash filed a petition under Section 13(1) of Hindu Marriage Act, 1955 before the learned Civil Judge (Sr.Divn.),Bhubaneswar vide MAT Case No. 550 of 2009 against the wife Smt. Smitarani Bash praying for a decree of divorce and thereby dissolving the marriage between the parties solemnized on 1.6.2006. The matter was transferred to the learned Judge, Family Court, Bhubaneswar for disposal in accordance with law and accordingly Civil Proceeding No. 436 of 2010 was registered.

It is the case of the husband that the marriage between the parties was solemnized on 1.6.2006 as per Hindu rites and customs at Magurugadia in the district of Keonjhar in presence of the parents, relatives and well-wishers. It is the further case of the husband that he is a handicapped person working in private Software Company at Gurgaon and managing his entire family. It is his further case that at the time of marriage there was no demand of dowry and from the next day of the marriage the wife displayed cruel attitude towards him and his family members and criticized her in-laws. She did not perform the household works and used abusive language against her in-laws causing mental agony and torture to them. She also threatened to commit suicide and in spite of advice of her in-laws, she did not change her attitude. After two weeks of marriage, she accompanied her husband to his service place at Gurgaon but there also she repeated similar behavior with her husband. She fell ill while staying at Gurgaon and taken to Apollo Hospital, New Delhi where during treatment it was found that she was suffering from Polycystic Ovarian Syndrome (PCOS). She insisted her husband not to keep any kind of contact with his parents rather demanded rich gifts for her sister for which there was serious misunderstanding between the couple. When the husband visited USA, he left the wife in the company of his parents but the wife only stayed for three to four days and then went away to her parents’ house where she stayed about five months till the husband returned from USA. After returning from USA, the husband took the wife to his service place in the mid of December 2006 and they stayed together till April 2009. During her stay with her husband, most of the time she used to spend her time with the neighbours and blaming her husband and her in-laws before them. Most of the time the husband even cooked food for the wife. Being misguided by her parents and brother, she was exhibiting cruel behaviour to her husband and made his life miserable. In spite of treatment provided to her by the husband, there was no improvement and she lost all hope of having a child and sometimes contemplating to commit suicide. Due to suffering from such disease, she was avoiding sexual cohabitation with her husband. Due to abnormal and cruel behavior of the wife towards the husband, on frequent occasions there used to be meeting between the family members of both the parties to sort out the dispute and she used to promise not to repeat such behavior in future but in vain. The couple came to Bhubaneswar to the father’s place of the wife on 24.5.2009 and on 25.5.2009 leaving the wife at her father’s place, the husband came back. On 28.5.2009 in the absence of the husband at his house, the wife came to her in-laws house in a violent mood, abused her in-laws, broke her bangles and washed off her vermaillion from her forehead and behaved like an insane person. The father of the wife took away all the dress materials from the house of the husband and went away. This incident was reported by the father of the husband before Inspector-in-charge, Ghasipura Police Station and accordingly a station diary entry was made. On 27.6.2009 the husband received a legal notice from the wife wherein false allegation of demand of dowry and torture was made against the husband and the in-laws. http://evinayak.tumblr.com https://vinayak.wordpress.com http://fromvinayak.blogspot.com

3. The wife filed her written statement denying the allegations made by the husband in the petition for divorce. She stated that the income her husband is Rs.1,50,000/- (Rupees One lakh fifty thousand) per month and there was demand of dowry at the time of marriage and accordingly cash of Rs. 2 lakhs, gold ornaments, household articles, electronics items etc. were given as per the demand of her husband and her family members. It is further stated that after marriage there was further demand of more money and a Santro Car and as the demand was not fulfilled, she was subjected to physical and mental torture by her in-laws. She has further stated that her father is a School teacher and financially weak person and she has also no source of income. She expressed her willingness to go back to her husband.

4. During course of trial, the husband examined himself as P.W.1 and his father Chakradhar Bash was examined as P.W. 2, he also proved the letter written by the wife to him vide Ext. 1, letter written by the wife addressed to her father vide Ext. 2, diary note of the wife vide Ext. 3, complaint written by his mother to State Women Commission vide Ext. 4, written undertaking furnished by the family members of the husband vide Ext. 5, receipt of the father of the husband in respect of dress, ornaments and certificates, prescription showing the treatment of the wife vide Ext. 7, discharge report of the wife from Apollo Hospital vide Ext. 8, prescription of illness of the wife vide Ext. 9, Ultra sound report of the wife vide Ext. 10.

From the side of the wife, she examined herself as R.W.1. No document was proved on her behalf.

5. The learned Judge, Family Court vide impugned judgment and order dated order 21.1.2013 framed the following issues for adjudication:-

(I) Whether the respondent is the legally married wife of the petitioner?

(II) Whether the respondent treated the petitioner with cruelty?

(III) Whether the petitioner is entitled to the relief of dissolution of marriage as sought for in the plaint?

(IV) Whether the respondent is entitled to permanent alimony and if so, what would be the quantum?

6. So far as issue no.1 is concerned, the learned Judge held that the respondent is the legally married wife of the petitioner.

So far as issue no. 2 is concerned, the learned Judge held that the documents Exts. 1 to 4 and Exts. 7 to 10 taken together established that the petitioner was taking utmost care of the respondent but the later was treating him and his family members with cruelty. It is further held that the petitioner had established that the respondent treated him with cruelty frequently and the issue was answered in favour of the petitioner and against the respondent.

So far as issue no. III is concerned, the learned Judge held that the marriage between the parties has been broken down irretrievably and there is remote chance of their reunion and if the parties live together, it would be injurious and harmful for both of them and accordingly held that the petitioner is entitled to the relief of dissolution of marriage as sought for in the plaint.

So far as the issue No. IV is concerned, the learned Judge held that considering the social status of the parties, their income and present price index, permanent alimony of the respondent would be fixed and accordingly directed the husband to pay a sum of Rs.16 lakhs to the wife towards her permanent alimony.

7. During hearing of the matter, on 19.2.2014 the wife expressed that she is not interested for mediation for which the personal appearance of both the parties was dispensed with. During subsequent stages of hearing also, the parties concentrated only on the quantum of permanent alimony.

So far as the order of divorce is concerned, none of the parties challenged the same before us. However the learned counsel for the wife challenged the findings of Judge, Family Court on issue no.2 and submitted that the evidence on record have not been properly assessed to come to a conclusion that wife was treating the husband with cruelty frequently. He placed the evidence affidavit of the respondent-wife in C.P. No.436 of 2010 which indicates that even after fulfillment of all the dowry demands raised at the time of marriage, she was physically and mentally tortured after marriage for further demand of money and a Santro Car. There was also attempt to kill her on two occasions. The wife lodged an FIR against her husband and in-laws family members before Mahila Police Station, Bhubaneswar for commission of offences punishable under sections 498(A)/323/294/506/34 IPC and section 4 of the D.P. Act in which charge sheet has been placed. The evidence given by the wife has not at all been shaken in the cross-examination. We have also gone through Exts. 1 to 4 and Exts.7 to 10 relied upon by the Family Court but we find these documents no way falsify the evidence of the respondent-wife. Ext.1 is stated to be a letter written by the respondent-wife to the petitioner-husband. No date is mentioned in Ext.1. The envelope through which Ext.1 has been sent has not been proved. Exts.2 and 3 are stated to be the diary noting of the respondent-wife but the concerned diary has not been proved. All these documents have not been confronted to wife at the time of her examination. Ext.4 is the letter/complaint written by the mother of the petitioner-husband to State Women Commission. Exts.7 to 10 are stated to be the medical papers of the wife. The wife has challenged the medical prescriptions and reports. In view of such evidence, we are not inclined to accept the observations of the learned Judge, Family Court that the petitioner-husband was taking utmost care of the respondent but the respondent was treating the petitioner and his family members with cruelty frequently.

8. We have also gone through the evidence on record and the findings of the learned Judge, Family Court and we find that the marriage between the parties has been irretrievably broken down and it had remained for name sake. A marriage which is dead for all purposes cannot be revived by the court’s verdict, if the parties are not willing. This is because marriage involves human sentiments and emotions and if they are dried-up, there is hardly any chance of their springing back to life on account of artificial reunion created by the Court’s decree. Therefore we find no infirmity in the order of divorce.

9. So far as the order of permanent alimony is concerned, the learned Family Court has held that the contention of the husband that the wife has floated an advertisement in social network sites showing her income to be Rs. 2 lakhs to Rs.3 lakhs per annum is not acceptable in as much as anybody might float an advertisement in the name of another. The learned Family Court has further held that the husband has not produced the salary certificate of the wife and that considering the social status of the parties, their income and present price index, the permanent alimony of the wife is to be fixed.

10. The learned counsel for the husband Mr. Amit Prasad Bose, challenging the quantum of permanent alimony submitted that the wife is not only guilty of cruelty but also of desertion without any reasonable cause and therefore the award of permanent alimony in her favour is uncalled for and it is unreasonably high. He further submitted that the home take salary of the husband is Rs. 28,474/- (Rupees twenty eight thousand four hundred seventy four) and the husband has already paid Rs. 2,90,000/- in the 125 Cr.P.C. proceeding filed by the wife vide Criminal Proceeding No. 91 of 2010. He further submitted that the wife’s appeal for enhancement is based on no grounds and she wants to take the permanent alimony in order to get married again. He further submitted that the wife has already received Rs. 3,50,000/- (Rupees Three lakhs fifty thousand) during pendency of appeals and also got Rs. 3,50,000/- during pendency of proceeding in the Family Court and hence a sum of Rs. 7,00000/- has already been paid to the wife. The learned counsel further argued that Ext. 6 would indicate that the wife has already taken the ornaments along with her clothes. The learned counsel further submitted that the wife has subjected the husband to physical and mental torture and deprived him of sex and put the husband along with his parents behind the bars on false allegations and since she has already received Rs. 7 lakhs, the permanent alimony fixed by the learned Judge, Family Court should be reduced to Rs.7 lakhs which she has already taken and therefore, the appeal filed by the wife for enhancement of the permanent alimony should be dismissed.

The learned counsel for the wife Mr. Dharanidhar Nayak, Senior Advocate submitted that the husband has not disclosed his salary correctly and taken contradictory stands from time to time. In the show cause of the maintenance proceeding, he has stated that he has left the job and passing in miserable conditions but in the very same maintenance proceeding, in his evidence affidavit the husband has stated that his monthly income is about Rs. 12,000/- but subsequently he filed the salary certificate which shows that he had never left his job and getting Rs. 46,304/-. The learned counsel further submitted that the wife was subjected to torture severely for which she lodged an F.I.R. against her husband and in-laws which was registered as Bhubaneswar Mahila P.S. Case No. 75 of 2009 corresponding to G.R. Case No. 1769 of 2009 pending before the learned S.D.J.M., Bhubaneswar for commission of offence under Sections 498(A)/294/506/406/109/34 of IPC read with Section 4 of D.P. Act. The learned counsel further submitted that the learned Judge, Family Court, Bhubaneswar in its judgment dated 22.2.2011 in Crl. P. No. 91 of 2010 directed the husband to pay a monthly maintenance of Rs. 20,000/- to the wife from the date of the petition so also the cost of the proceeding was assessed at Rs.10,000/-. The matter was challenged by the appellant-husband before this Court in RPFAM No. 23 of 2011 and while setting aside the judgment of the learned Judge, Family Court, it was directed to pay interim maintenance to the wife @ Rs. 20,000/- per month starting from the month of March 2011 till the end of the proceeding. The husband filed a petition for modification of the order dated 25.3.2011 which was dismissed. The learned Judge, Family Court vide judgment and order dated 29.10.2011 in Crl.P. No. 91 of 2010 directed for payment of maintenance to the wife at the rate of Rs. 10,000/- per month which was challenged by the wife in RPFAM No. 127 of 2011. According to the learned counsel for the wife, the husband is holding the post of Senior Engineering Project Manager and he is getting more than Rs. 1,50,000/- per month though he has filed salary certificate showing that he is getting Rs. 67,612/- only per month. The learned counsel submitted that the quantum of permanent alimony should be enhanced from Rs. 16 lakhs to Rs. 55 lakhs. http://evinayak.tumblr.com https://vinayak.wordpress.com http://fromvinayak.blogspot.com

11. The learned counsel for the wife placed reliance on a decision of the Hon’ble Supreme Court in case of U. Sree -Vrs.- U. Srinivas reported in AIR 2013 SC 415 wherein it was held that it is 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 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. Regard being to status of the husband, the social strata to which the parties belong, the Hon’ble Court fixed the permanent alimony at Rs. 50 lakhs.

The learned counsel for the wife further relied upon the decision in case of Biswajit Dash -Vrs.- Smt. Milan Dash reported in 2014 (Vol.2) Current Legal Reports 319 wherein it was directed to pay sum of RS. 17 lakhs towards permanent alimony to the wife.

The learned counsel for the wife further relied upon the decision of Hon’ble Supreme Court in case of V.K.Vasantha Kumari -Vrs.- R.Sudhakar reported in 2014 (Vol.2) Current Legal Reports 726 wherein the Hon’ble Court directed the husband to pay a sum of Rs.15 lakhs to the appellant-wife towards permanent alimony in addition to Rs. 40 lakhs which was directed to be paid by the Family Court.

12. In case of Rameshchandra Rampratapji Daga -Vrs. Rameshwari Rameshchandra Daga reported in AIR 2005 SC 422, it is held as follows:-

"18……the expression used in the opening part of Section 25 of Hindu Marriage Act enabling the ‘Court exercising jurisdiction under the Act’ ‘at the time of passing any decree or at any time subsequent thereto’ to grant alimony or maintenance cannot be restricted only to, as contended, decree of judicial separation under Section 10 or divorce under Section 13. When the legislature has used such wide expression as ‘at the time of passing of any decree,’ it encompasses within the expression all kinds of decrees such as restitution of conjugal rights under Section 9, judicial separation under Section 10, declaring marriage as null and void under Section 11, annulment of marriage as voidable under Section 12 and Divorce under Section 13.

In case of Vinny Parmvir Parmar Vrs.Parmvir Parmar reported in AIR 2011 SC 2748, it is held as follows:-

"12. As per Section 25 of Hindu Marriage Act, while considering the claim for permanent alimony and maintenance of either spouse, the Respondent’s own income and other property, and the income and other property of the applicant are all relevant material in addition to the conduct of the parties and other circumstances of the case. 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 considering her status and mode of life she 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."

13. During hearing of the case, the learned counsel for the husband filed an affidavit of the husband and his income certificate wherein it is indicated that the husband is serving in Aricent Group, Gurgaon since 28.8.2000 and the salary certificate indicates that for the month of July 2014, his total salary was Rs.67,612/- and after deduction his home take salary is Rs.26,897/-. The income tax return of the husband for the assessment year 2014-15 indicates that the gross income of the husband is Rs.7,56,583/-. The learned counsel for the wife seriously disputed the documents filed by the husband and submitted that the husband being in a position of senior Engineering Project Manager is getting more than Rs.1,50,000/- per month.

Considering the economic status of the parties, their respective needs, the capacity of the husband to pay and taking note of the fact that the amount of permanent alimony fixed for the wife should be such that she can live in reasonable comfort and simultaneously it should not be excessive and affect the living condition of the husband and considering the young age of the wife, we are of the view that in the facts and circumstances of the case, a direction to the husband to pay Rs. 25 lakhs (Rupees twenty five lakhs only) as one time alimony to the wife, would meet the ends of justice. Though in MATA No.26 of 2013, the wife prayed for return of the dowry articles, ornaments and cash to her but we find that in Ext.6, the father of the wife has received the dress, ornaments and certificates and therefore we are not inclined to pass any order in that respect.

14. Accordingly, we dispose of all the four cases affirming the decree of divorce granted by the Judge, Family Court, Bhubaneswar in Civil Proceeding No. 436 of 2010 dissolving the marriage between the parties namely Dipak Bash and Smitarani Bash, with further direction under Section 25 of the Hindu Marriage Act, 1955 that the husband Dipak Bash shall pay to the wife Smitarani Bash Rs. 25 lakhs (Rupees twenty five lakhs only) as a lump sum amount of permanent alimony in addition to what he has already paid in different proceedings to the wife, within a period of six months from the date of this judgment failing which the wife shall be at liberty to realize the same from the husband through due process of law. The amount that has already been paid to the wife towards alimony is to be ignored as the same had been paid by virtue of the interim orders passed by the Courts and it is not expected that the wife has sustained herself without spending the said money. In the event of payment of the aforesaid amount of Rs. 25 lakhs, the criminal proceeding initiated by the wife or any other proceedings between the parties in connection therewith shall be dropped. http://evinayak.tumblr.com https://vinayak.wordpress.com http://fromvinayak.blogspot.com

15. With the aforesaid observation and direction, all the four cases are disposed of. No order as to costs.

(S.K. Sahoo,J)

**********************************

VINOD PRASAD, J.

16. I have the occasion and benefit of having the opinion of my esteemed brother Hon’ble Sahoo J. and am albeit in full agreement with His lordship’s view, I would like to add and say a few words on the core issue concerning alimony to be paid to the wife. In a lis, where marriage has been broken down irretrievably with extinct possibility of any reconciliation and both the spouses hanker final snapping of marital relationships, the only maiden and most viciously contested issue is the amount of alimony to be paid to the wife while not challenging the decree of divorce. Every single aspect of life is touched with most vociferously hankered contentions to deny each penny by the husband who is duty bound to pay alimony whereas the wife resorts, with the same vigour, to all submissions for a bullish amount. This, in nut shell, is the synopsis of this cluster of cases being adjudicated now.

17. Life is not a straight jacket formula of incidents to be calculable through mathematical precisions. It is too complex and collection of unthinkable innumerable unforeseen circumstances. What is destined and what will be future life is impossible to predict and therefore to determine amount of alimony to be paid so that the entitled spouse lives a dignified life according to the standard of the other side is an upheaval and arduous task left with the courts to decide more especially because there is no written Law on the subject and this makes the decision making process even more complex since the balancing act consists of unperceivable circumstances. Therefore the wisdom lies in deciding each case on it’s peculiar facts and surrounding circumstances without even attempting to fix any formula of universal application and I propose to follow the same course.

18. Alimony having its roots and imprint in Ecclesiastical decisions is designed primarily for maintenance and is based upon continuing duty to support and can be of various types such as temporary alimony, rehabilitative alimony, permanent alimony, reimbursement alimony, etc, but, at present, I am concerned only with permanent alimony and in this respect since decades the courts have evolved some factors having bearing on the same. To register some of them, it includes length of marriage, time since the spouses are living separately, age of the parties, relative income of both the spouses, financial prospects of the parties, health of the parties, and fault in breaking down of the marriage. Weighing the present cases with such and other significant factors, it becomes evident in the first place that the wife is suffering from a serious ailment Polycystic Ovarian Syndrome( PCOS) and was treated in Apollo hospital. It is the case of the husband that in spite of treatment, her anatomical condition did not improve and she was unable to attain motherhood. It is also evident that she is unemployed and having no fixed source of income to forester herself and meet her medical expenses and her father is also a school teacher having a meager income. It also surfaces that the husband is gainfully employed and is a Soft ware engineer in a private Firm, and in fact, is the head of a project. Wife was subjected to torture by the husband for which she had even registered FIR with Mahila Police Station, Bhubaneshwar wherein husband has been charge sheeted also. At this stage, I am also of the opinion that the learned trial Judge committed manifest error is disbelieving wife’s evidence and has wrongly concluded that she was at fault and has done cruelty to her husband. The documentary evidences relied upon by him in no way supports his conclusions. It will but be appropriate to register here that during course of argument learned counsel for the wife has also assailed that finding by the learned Family Court to articulate the submission that just to fix lesser amount that learned Family Court has slated those findings. I also note here that it is only for purposes of determining the quantum of amount of alimony that I have scrutinized those findings and for no other purposes and have found it to be incongruent vis-a-vis evidence on record. Viewed in proper perspective and scanned deeply, it becomes apparent that it was only after the ailment of the wife surfaced that their nuptial relationships ran in turbulent weather and all hopes of reunion was lost for all times to come. With such background facts how much should be the amount of alimony keeping in consideration the income of the husband? http://evinayak.tumblr.com https://vinayak.wordpress.com http://fromvinayak.blogspot.com

19. Alimony is no alms. It is entitlement of a wife for a decent living. All relevant factors affecting fiscal expenses have to be considered. It is not the home take salary alone which is of significance. Capacity to earn and actual earning has also to be reckoned with. Savings made by the husband for securing his future life is also significant and has to be counted while determining the amount of alimony. Wife does not require only two morsels a day but she requires a reasonable amount to meet all her basic needs for a life which she would have enjoyed had the marital tie would have continued. The amount of money received at the time of marriage has also to be counted. While fixing alimony, all essential future expenses of all kinds have to be considered. The contention that take home salary of the husband is the only relevant criterion is illogical and faulty. Wife’s capacity to earn after separation is also a relevant factor to be kept in mind. Similarly the responsibility which the wife would have bourne had the relationship continued is also a relevant aspect to be kept in mind. Residence, future possibility of maintaining oneself alone, clothing, fooding, biological requirements of a female and many further aspects are other significant points which have to be kept in mind. In considering all these aspects and also bearing in mind that probably, providentially, she will be a caste away soul to look after herself for everything in her future life, I concur with escalation of the amount of alimony as is mentioned in the order of my esteemed brother.

(Vinod Prasad, J)

Orissa High Court, Cuttack

The 16th March,2015

Nayak

PDF file uploaded to http://1drv.ms/1HLZSs2

*****************

FOLLOW http://twitter.com/ATMwithDick on twitter or https://vinayak.wordpress.com/ on wordpress or http://evinayak.tumblr.com/ FOR 100s of high court and supreme court cases

regards

Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s