Author Archives: vinayak

About vinayak

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

Husband can sell his house when he wants!! DV can’t stop that. Kerala HC

Husband cannot be prohibited or restrained from alienating his property because it is his civil right!! Classic Kerala HC

* wife has filed DV on husband

* wife obtains maintenance order even though husband has tried to prove that he is incapacitated

* over and above that wife tries to stop husband from selling HIS ANCESTRAL (late mother’s) property

* court REFUSES wife’s plea and allows husbands revision petition

The Hon HC order as follows

"….she can continue in the shared household along with the husband so long as the shared house hold continues in the possession of the husband. The husband cannot be prohibited or restrained from alienating his property because it is his civil right. However, in case the husband proceeds to alienate the shared house hold, she can approach the court below for appropriate relief like alternative accommodation, and when such a claim comes, it will have to be decided by the trial court on merits. Subject to this, the second part of the order will have to be set aside……."

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT: THE HONOURABLE MR. JUSTICE P.UBAID

THURSDAY, THE 24TH DAY OF JULY 2014/2ND SRAVANA, 1936

Crl.Rev.Pet.No. 366 of 2014 ()

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AGAINST THE JUDGMENT IN Crl.A 454/2010 of ADDL.SESSIONS COURT, NOTH PARAVUR

AGAINST THE ORDER IN MC 103/2009 of JUDICIAL FIRST CLASS MAGISTRATE COURT, PERUMBAVOOR

REVISION PETITIONER(S)/REVISION PETITIONER/APPELLANT/ACCUSED:

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RAJAN, S/O.SUBRAMANIYAN, VILANGATTIL HOUSE, NEELESWARAM KARA

KALADY VILLAGE, ERNAKULAM DISTRICT.

BY ADV. SMT.SOUMINI JAMES

RESPONDENT(S)/RESPONDENTS/COMPLAINANTS:

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1. SIJI, AGED 38 YEARS

D/O.PADMANABHAN, KANNOTH HOUSE, CHENGARA KARA

PATTIMATTOM VILLAGE – 683 562.

2. AKHIL

S/O.RAJAN, KANNOTH HOUSE, CHENGARA KARA

PATTIMATTOM VILLAGE, REP.BY MOTHER SIJI.

3. STATE REPRESENTED BY PUBLIC PROSECUTOR

HIGH COURT OF KERALA.

R1 & R2 BY ADV. SRI.VIPIN NARAYAN

R3 BY PUBLIC PROSECUTOR SRI.GITHESH.R.

THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON

24-07-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

P.UBAID, J.

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Crl.R.P No.366 of 2014

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Dated this the 24th July, 2014

O R D E R

An order obtained by the wife against her husband under the provisions of the Protection of Women from Domestic Violence Act, 2006 (hereinafter referred to as ‘the Act’ for short) is under challenge in this revision. The wife, who has been residing separately from the husband filed M.C No.103 of 2009 before the Judicial First Class Magistrate, Perumbavoor claiming reliefs under the Act. She sought protection order, maintenance order, order for compensation, residence order etc. She also sought the value of 4 sovereigns of gold ornaments alleged to have been appropriated by her husband. http://evinayak.tumblr.com https://vinayak.wordpress.com http://fromvinayak.blogspot.com

2 The husband entered appearance and resisted the claim on the contention that the alleged shared household does not belong to him, and that the wife is not entitled to get maintenance or compensation because she had not suffered anything bad at his hands, and that she has her own income to maintain herself. Thus, he denied the alleged cruelty, and he contended that his wife has no right to claim right of residence in the house that belongs to his mother.

3. The learned Magistrate conducted enquiry in the proceedings and recorded evidence. The wife examined herself as PW1. Two witnesses including her mother-in-law were examined on the side of the wife, and two Doctors were examined on the side of the husband. Exts.P1 to P6 were marked on the side of the wife and Exts.D1 to D3 were marked on the side of the husband. These documents were marked, and the Doctors were examined to prove his case that he is physically disabled. However, on an appreciation of the evidence, the trial court found in favour of the wife, and granted the following reliefs against the husband.

(a) Restraining the husband from committing any act of domestic violence.

(b) Restraining the husband from alienating the shared household and the property wherein, the building is situated.

(c) Directing the husband to pay maintenance to the wife at the rate of 400 per Crl.R.P No.366 of 2014 month and 500/- per month to the minor son.

(d) Directing the husband to pay an amount of 21,000/- as compensation to the wife and also the value of 4 sovereigns of gold appropriated by him.

Those directions were made by order dated 14.07.2010 in M.C No.103/2009.

4. The aggrieved husband approached the Court of Session, Ernakulam with Crl.A No.454 of 2010. In appeal, the learned Additional Sessions Judge, North Paravur concurred with the findings of the trial court on all the points except the last direction to pay the value of gold ornaments. Accordingly, the appellate court reversed the direction to pay the value of 4 sovereigns of gold ornaments but, maintained the other parts of the order in all respects. The husband is still aggrieved. He challenges the other parts of the order in revision.

5. On hearing both sides and on a perusal of the case records, I find that the husband in fact deserves some orders in his favour in revision. Of course, as regards the maintenance order or the order against the domestic violence, I find no reason for interference. The wife has made out a case in her favour, and I find that she has some grievance of her own. Though not 100% acceptable she has given evidence proving her case against her husband that she had no peace in matrimony in the shared household. In the said factual situation, I also find the necessity of maintaining the first part of the order restraining the husband from committing any act of domestic violence. So also, I find the necessity of sustaining the maintenance order because it stands not proved that the wife has any definite source of income or job. Though she knows tailoring, it will not dis-entitle her to claim maintenance from her husband. What is ordered by the court below is only 400/- per month. The amount ordered to the child is only 500/- per month. It is true that the husband examined two Doctors to prove his disability. But this medical evidence will not prove that he is in fact physically disabled to do any work, or to earn for his livelihood. Within the limits and within his capacity, he will have to maintain his wife and child. What he is liable to pay a month is only 900/-. This amount can Crl.R.P No.366 of 2014 be paid by any husband who is able bodied. I find no scope for interference in the maintenance order passed by the court below. http://evinayak.tumblr.com https://vinayak.wordpress.com http://fromvinayak.blogspot.com

6. Now comes to the most objectionable part of the order contained in the second clause of the trial court order. The husband is restrained from alienating the shared house hold and the property wherein the building stands. Of course, the definite case of the husband is that the property was in fact purchased by his mother with her own funds and that the said direction will not bind the mother. Now, it is submitted that the mother is no more, and that the husband has inherited the property including the shared house hold, as the sole legal heir. Of course, it is true that the said direction was not in fact binding on the mother. Any way, now, the property has come in his hands as the legal heir. Once the property has come in his hand as the sole legal heir, he will have to obey the order. But the material question is whether the wife is entitled to get such an order. In fact, what she claims is merely a civil right over the property. Her case is that, the said property was in fact purchased by the mother-in-law by utilising her funds also. It appears that she claims right to continue there as a co- owner, on a claim of right, on the basis of what she contributed, and not simply as the wife having right to live in the shared household. There is reason to believe that the relationship between the parties is really strained. If what the wife claims is some civil right over of the property, she will have to approach the competent Civil Court for appropriate civil remedy. However, she can continue in the shared household along with the husband so long as the shared house hold continues in the possession of the husband. The husband cannot be prohibited or restrained from alienating his property because it is his civil right. However, in case the husband proceeds to alienate the shared house hold, she can approach the court below for appropriate relief like alternative accommodation, and when such a claim comes, it will have to be decided by the trial court on merits. Subject to this, the second part of the order will have to be set aside.

Crl.R.P No.366 of 2014 In the result, this revision petition is allowed in part. Accordingly, the second clause of the trial court order restraining alienation of property will stand set aside, subject to the observations made above regarding the wife’s right to approach the trial court for further relief of alternative accommodation in case of alienation. The other orders confirmed by the appellate court are maintained.

Sd/-

P.UBAID JUDGE

ma

/True copy/

P.S to Judge

PDF file uploaded to http://1drv.ms/19vFwaP

*****************************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.

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CASE FROM JUDIS / INDIAN KANOON WEB SITE

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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

498a wife also gets divorce case transferred to her place!

How Matrimonial feuds are filling up the courts and wasting precious time and energy of this country !!

Young couple of 24 and 28 fighting it out in courts

Marriage is becoming a gamble these days. If it works, it’s ok. If it does NOT, the MALE and his family are made to run around courts and spend time and money to get their basic rights validated. Many a time they fail, because the law takes a more lenient view of the woman’s requests

Here is the case of a woman who is alleged to have filed MULTIPLE police complaints against the husband in various jurisdictions, has also filed a DV case at a place of her work and is now getting the husband’s divorce case transferred from Ernakulam to Thiruvananthapuram a disctance of more than 200 KM !! The couple also have a six month old baby which aggravates the situation

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR.JUSTICE P.BHAVADASAN

THURSDAY, THE 8TH DAY OF JANUARY 2015/18TH POUSHA, 1936

Tr.P(C).No. 589 of 2014

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OP 1780/2014 OF FAMILY COURT, ERNAKULAM TO FAMILY COURT,

THIRUVANANTHAPURAM

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PETITIONER(S)/RESPONDENT:

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DIVYA SUSAN MATHEW, AGED 24 YEARS,

D/O.MATHEW ALEXANDER, JOY VILLA, T.C NO 36/291(1),

MANAVA NAGAR, PETTAH P.O., THIRUVANANTHAPURAM – 695 024.

BY ADVS.SRI.D.KISHORE, SMT.MINI GOPINATH

RESPONDENT(S)/PETITIONER:

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DEEPU JOHN JOHN, AGED 28 YEARS,

S/O. JOHN, KAIMANNIL HOUSE, FORT VALLEY THOWNSHIP,

KAKKANAD ATHANI, KUSUMAGIRI,COCHIN – 682 030.

BY ADV. SRI.MANU ROY

THIS TRANSFER PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON

08-01-2015, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

msv/

Tr.P.C.No. 589 of 2014

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APPENDIX

PETITIONER(S)’ ANNEXURES:

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ANNEXURE I : TRUE COPY OF M.C.5/2014 FILED BY THE PETITIONER AND HER INFANT DAUGHTER.

ANNEXURE II: TRUE COPY OF THE ORIGINAL PETITION IN O.P.1780/2014 OF FAMILY COURT, ERNAKULAM.

RESPONDENT(S)’ ANNEXURES:

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ANNEXURE R1: COPY OF NOTICE DATED 9.8.2014.

ANNEXURE R2: COPY OF THE ORDER IN CRL. M.C.1601/2014.

ANNEXURE R3: COPY OF THE ORDER B.A.NO.7169/2014.

ANNEXURE R4: COPY OF THE COMPLAINANT DATED 27.9.2014.

ANNEXURE R5: COPY OF THE PETITION DATED 11.11.2014.

//TRUE COPY//

P.S.TO JUDGE

Msv/

P.BHAVADASAN, J.

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Transfer Petition (Civil) No.589 OF 2014

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

Dated this the 8th day of January, 2015.

O R D E R

This is a petition filed under Section 24 of the Code of Civil Procedure seeking transfer of O.P.No.1780/2014 from Family Court, Ernakulam to Family Court, Thiruvananthapuram.

2. Suffice to say that, the marital relationship between the petitioner and the respondent ran into rough weather and litigations are in plenty. The petitioner has instituted M.C.No.5/2014 before the Additional Chief Judicial Magistrate Court, Thiruvananthapuram seeking relief under the Protection of Women from Domestic Violence Act, 2005. It is pointed out that the petitioner is currently employed at Thiruvananthapuram and she has a young child to look after. The respondent has instituted O.P.No.1780/2014 before the Family Court, Ernakulam seeking divorce.

3. According to the petitioner, she finds it extremely difficult to come over to Ernakulam frequently to attend the case on each posting date. Moreover, she claims that she has a child to look after. She also points out that there is nobody to accompany her to go to Ernakulam. On the basis of these pleas, she prays for transfer.

4. The petition is very vehemently opposed by the respondent. He points out that the petitioner has filed almost three complaints alleging offence under Section 498A IPC in three different places making the respondent and his family members run around and she is creating havoc. It is also pointed out that he is being threatened by the petitioner and her relatives and their attempt is to prevent the respondent from attending the case in the Family Court, Ernakulam. It is also contended that he was beaten up at Thiruvananthapuram by the parents of the petitioner. http://evinayak.tumblr.com https://vinayak.wordpress.com http://fromvinayak.blogspot.com

5. Relying on the decision in Anindita Das vs. Srijit Das (2006 KHC 1887), learned counsel appearing for the respondent contended that employment of petitioner-wife is not a sufficient ground for transfer and each case has to be considered on its merits and in the case on hand, except for saying that she is employed at Thiruvananthapuram and she has a child to look after, there is no other ground seeking transfer. It is also pointed out that it is not necessary for the petitioner to come over to Ernakulam on each posting date and she can seek exemption by appropriate means.

6. Learned counsel appearing for the petitioner placed reliance on the decisions in Sithara vs. Rajesh (2009 (4) KHC 269) and in Anjali Ashok Sadhwani vs. Ashok Kishinchand Sadhwani (AIR 2009 SC 1374) and contended that the consistent stand taken by courts is that the petition by the wife would be viewed with leniency since in all the posting dates wife cannot seek exemption from appearance. In the case on hand, the situation is such that the wife is employed at Thiruvananthapuram and she has to take leave for attending the case which will affect her employment.

7. It is very sad to know that the relationship has become so bitter which is evident from the accusation levelled against each parties and as revealed from the records produced before the court. The petitioner has instituted proceedings before the Additional Chief Judicial Magistrate Court, Thiruvananthapuram under the Protection of Women from Domestic Violence Act, 2005 and that is pending. The respondent, on the other hand, has a grievance that as vengeance, the petitioner is filing complaints after complaints in various Police Stations making the respondent and his family members on hooks. It is pointed out that the intention is only to harass the respondent and there is no real grievance for the petitioner for having the case transferred to Family Court, Thiruvananthapuram.

8. After having gone through the decisions cited by the counsel on both sides, it becomes evident that each case has to be decided on the facts of each case. As a general rule, it can be said that the petition filed by the wife has to be viewed with leniency. But that is not an invariable rule. In the case on hand, it is not in dispute that the petitioner is employed at Thiruvananthapuram. It is not proper for this Court to ascertain whether the allegations levelled against each parties are true or not. As pointed out by the learned counsel for the respondent, it is not necessary for the petitioner to appear before the Family Court, Ernakulam on each posting date. She can seek exemption from personal appearance.

9. It needs to be noticed that the petitioner is employed at Thiruvananthapuram and she has a baby child now aged approximately 6 months and she has to take care of her child. Even though it may be possible to say that it is not necessary for the petitioner to come over to Ernakulam in all the posting dates and she can seek exemption, it is a fact that she cannot always seek exemption. Whenever she comes over to Ernakulam to attend the case, she has to bring her child also. http://evinayak.tumblr.com https://vinayak.wordpress.com http://fromvinayak.blogspot.com

10. Considering the fact that the petitioner is employed at Thiruvananthapuram and she has a young child to look after, it is felt that some leniency can be shown in the matter.

For the above reasons, this petition is allowed and O.P.No.1780/2014 pending before the Family Court, Ernakulam shall stand transferred to Family Court, Thiruvananthapuram. The apprehension expressed by the respondent regarding assault at the hands of the petitioner and her family members will be brought to the notice of the Family Court, Thiruvananthapuram and the said court may pass appropriate orders.

Sd/-

P.BHAVADASAN JUDGE

smp

PDF File uploaded to http://1drv.ms/19uIwnW

*****************************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.

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CASE FROM JUDIS / INDIAN KANOON WEB SITE

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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

Gulf based NRI earning 65K to pay 6 K to wife : Kerala DV case

Gulf based NRI supposed 2 b earning 65K asked to pay 6 K to wife under DV case !

HC refuses to interfere in the case of a gulf based NRI asked to pay 6 k to wife. Husband supposed to be earning 65K p.m. in gulf!!

But the moot question is how will such an order be enforced IF the husband refuses to pay?? Obviously they can’t attach the husband’s salary, can they?

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT: THE HONOURABLE MR. JUSTICE B.KEMAL PASHA

WEDNESDAY, THE 7TH DAY OF JANUARY 2015/17TH POUSHA, 1936

Crl.Rev.Pet.No. 22 of 2015 ()

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(AGAINST THE JUDGMENT IN CRL.A.NO. 45/2014 OF II ADDL.SESSIONS COURT, KOLLAM DATED 22-11-2014)

MC.NO.2/2013 OF JUDICIAL FIRST CLASS MAGISTRATE COURT,KOLLAM

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REVISION PETITIONER/APPELLANT/ACCUSED NO.1 :

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NADIRSHA A.M, S/O.ABDUL MAJEED,

RESIDING AT IMAM MANZIL, PALACHIRA.P.O.,

VARKALA, TRIVANDRUM.

BY ADV. SRI.C.K.SREEJITH

RESPONDENT(S)/COMPLAINANT & STATE :

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1. SMT. SABEENA, AGED 30 YEARS,

D/O. MUHAMMED KUNJU, RESIDING AT FABIYA,

HOUSE NO.40, KADAPPAKADA NAGAR, KOLLAM TALUK-691 008,

NOW RESIDING AT SHAHANAZ, KULANGARA BHAGAM MURI,

CHAVARA, KOLLAM.PIN-691 021

2. STATE OF KERALA,

REPRESENTED BY THE PUBLIC PROSECUTOR,

HIGH COURT OF KERALA, ERNAKULAM-682 031

R2 BY PUBLIC PROSECUTOR SRI.JIBU P. THOMAS

THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 07-01-2015, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

B.KEMAL PASHA, J

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Crl.R.P. No.22 of 2015

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Dated this the 7th day of January , 2015

O R D E R

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Petitioner herein is the husband of one Smt. Sabeena, aged 30 years who is the petitioner in C.M.P. No.248 of 2013 in M.C. No.2 of 2013 of the Chief Judicial Magistrate’s Court, Kollam. She had approached the Court below under Sec.12 of the Protection of Women from Domestic Violence Act (for short, ‘the Act’) through the M.C. In the M.C. , she has preferred an application under Sec.23(2) of the said Act seeking interim relief by way of maintenance. It seems that the learned Chief Judicial Magistrate has taken the view that the petitioner herein is gainfully employed in gulf and has been earning .65000/- (Rupees sixty five thousand only) per month. It has come out that the petitioner in the M.C. is not being looked after and maintained by the petitioner herein and she has been abandoned. The learned Chief Judicial Magistrate has directed the petitioner herein to pay an amount of .6000/- (Rupees six thousand only) per month for her livelihood, as maintenance.

2. It seems that the petitioner has challenged the said order before the 2nd Additional Sessions Court, Kollam through Criminal Appeal No.45 of 2014. The learned 2nd Additional Sessions Judge, has concurred with the findings entered by the learned Chief Judicial Magistrate and has dismissed the appeal through the impugned order.

3. Heard the learned counsel for the petitioner and perused the records.

4. On a thread bear scrutiny of the order passed by the learned Chief Judicial Magistrate and the subsequent judgment passed by the learned 2nd Additional Sessions Judge on it, it seems that the concurrent findings rendered by both the Courts below do not call for any interference at all, as those findings do not suffer from any illegality, irregularity or impropriety. This Crl. R.P. is devoid of merits and is only to be dismissed, and I do so.

In the result, this Crl. R.P. is dismissed.

Sd/-

B.KEMAL PASHA,

JUDGE

/ True Copy /

NS

P.A. To Judge

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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

Qualified, well earning, suspecting Doctor wife DENIED alimony

NO alimony JUST because husband earns more!! Conduct of parties important. Classic Andhra HC judgement

Qualified doctors fighting matrimonial cases since 1997 (17 years !!). Wife is also a doctor and seeks Rs 1 crore as permanent alimony. Family court orders Rs.15Lakhs. Wife appeals, seeks Rs1 Crore. HC completely rejects her alimony.

Hon HC Says "…

“…In this regard, we are of the view that the Family Court has lost sight of various other aspects as contemplated under Section 25 of the Hindu Marriage Act, 1955, while considering the O.P., filed under Section 25 of the Act. From a plain reading of the said provision, it is clear that Courts are obligated to take note of the conduct of the parties and other circumstances of the case, while granting permanent alimony. The mere fact, that respondent is in a better position and is earning more compared to that of the petitioner, by itself, is not a ground for grant of permanent alimony…..”

….

20. Having regard to the aforesaid aspects, it is to be held in this case that the conduct of the petitioner-wife is abominable and, therefore, she is not entitled to claim any amount towards permanent alimony from the respondent-husband. A spouse claiming permanent alimony must come forward by disclosing all necessary facts, with regard to her income, properties etc., in the petition filed. In this case, petitioner-wife has suppressed material facts with regard to her investments in shares and mutual funds. When the same was confronted to her in the cross-examination, she categorically admitted the same. In addition to her disentitlement having regard to her conduct, further, it is to be noted that the petitioner-wife is having sufficient income as a medical practitioner, working as freelance consultant and in view of shares and debentures held by her apart from LIC policies and other assets, we are of the view that she is not entitled for any amount towards permanent alimony from the respondent-husband.

21. For the aforesaid reasons, we are of the view that the impugned order of the Family Court granting Rs.15 lakhs as permanent alimony to the petitioner-wife is fit to be set aside, by allowing the cross-objections preferred by the respondent-husband….."

*****************************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.

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CASE FROM JUDIS / INDIAN KANOON WEB SITE

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Andhra High Court

05-09-2014

Dr.Aneel Kaur…APPELLANT

Vs

Dr.Jaya Chandra…RESPONDENT

Counsel for appellant: Ms. S. Vani

Counsel for respondent.: Sri M.R. Harsha

Case referred: 1997 (2) APLJ 103

HONBLE SRI JUSTICE R. SUBHASH REDDY AND HONBLE SRI JUSTICE A. SHANKAR NARAYANA

FAMILY COURT APPEAL No.152 of 2007 and CROSS-OBJECTIONS (Sr.) No.29318 of 2008

COMMON JUDGMENT: (Per Justice R. Subhash Reddy)

The Civil Miscellaneous Appeal, in F.C.A.No.152 of 2007 is filed under Section 19 of the Family Courts Act, 1984 by the petitioner in I.A.No.664 of 2006 in F.C.O.P.No.260 of 1997, aggrieved by the order dated 07.09.2007 passed by the Family Court, Hyderabad.

2. For the purpose of disposal, we refer to the parties as arrayed before the Family Court.

3. By the aforesaid order, the Family Court allowed the petition filed by the petitioner under Section 25 of the Hindu Marriage Act, 1955, seeking permanent alimony of Rs.1 crore, in part, and directed the respondent to pay an amount of Rs.15 lakhs within a period of six months from the date of the order, with 9% interest thereafter. This appeal is filed by the petitioner seeking enhancement of the permanent alimony from Rs.15 lakhs to Rs.1 crore and cross-objections are filed by the respondent questioning the order of the Family Court, granting Rs.15 lakhs towards permanent alimony.

4. Earlier, there was dispute between the parties on the application filed by the respondent for grant of divorce. Ultimately, in Civil Appeal Nos.7763 and 7764 of 2004, the Honble Supreme Court, by order dated 02.12.2004, ordered for dissolution of marriage between the petitioner and the respondent and for grant of decree of divorce, in favour of the respondent. In the year 1997, respondent herein filed O.P.No.260 of 1997 on the file of the Family Court, Hyderabad, seeking divorce. The said O.P. was disposed of on 19.02.2001, granting judicial separation. As against the same, the respondent filed C.M.A.No.2366 of 2001 and the petitioner filed C.M.A.No.2124 of 2001 before this Court and by common order dated 27.09.2002, this Court allowed the C.M.A., filed by the petitioner and dismissed the C.M.A., filed by the respondent. As against the common order in both the C.M.As., appeals were filed before the Honble Supreme Court and the Honble Supreme Court has ordered for dissolution of marriage and for grant of decree of divorce as sought by the respondent. http://evinayak.tumblr.com https://vinayak.wordpress.com http://fromvinayak.blogspot.com

5. Subsequent to disposal of the appeals by the Honble Supreme Court, I.A.No.664 of 2006 is filed by the petitioner before the Family Court, Hyderabad under Section 25 of the Act seeking permanent alimony of Rs.1 crore.

6. The petitioner is a Doctor by profession. She initially joined on salary basis in the hospital owned by the father of the respondent. It is her case that after her joining the hospital, herself and the respondent started A.K.J. Medical Services as partnership firm and developed the same. It is alleged that, now, the respondent is encashing on the reputation of the said clinic by styling the same as A.K.J. Chest Clinic, and the petitioner is deprived of her income and financial security. It is further alleged that though the said firm is dissolved, accounts have not been settled. It is also alleged that she had spent the best of her life for the family and family concern, but she is deprived of fruits of her hardwork. Further, pleading that respondent owns properties worth Rs.5 crores, whereas the properties owned by her are worth about Rs.55.00 lakhs and the annual income of the respondent is Rs.25.00 lakhs, whereas her annual income is about Rs.4.00 to 5.00 lakhs, she prayed for grant of permanent alimony of Rs.1 crore.

7. The respondent filed counter before the Family Court. In the counter, while admitting grant of divorce by the Honble Supreme Court, the following averments are made:

Petitioner is attached to various hospitals like Sai Vani and Care Hospital and as she is in possession of several properties, she is not entitled for any permanent alimony. Petitioner is earning well. Her properties are worth about Rs.3 crores. She purchased a brand new car and has got lot of savings. She gave 40 lilies on his 40th birthday. Lilies are given on the death of a person, more so on a sad demise, while roses are given as a sign of happiness. She also purchased Getz car and both her cars cost about Rs.4.00 and 6.00 lakhs each and further she purchased lab equipment. In the application seeking maintenance, she claimed Rs.18,000/- per month by producing fictitious accounts. In the earlier proceedings, she admitted that since 1997, she has been receiving money as consultant and she is in a position to manage herself independently. He and the petitioner are blessed with a son and a daughter. The entire cost of education, maintenance and day-to-day expenses of the children are being taken care by him right from their birth till date. Petitioner owns a plot which is worth about Rs.3 crores, situated in Jubilee Hills, which, in fact, is purchased by him in the name of the petitioner. It is further pleaded that, petitioner is having D-Mat account and suppressed her investments in mutual funds.

8. With the aforesaid averments, respondent prayed for dismissal of the application filed by the petitioner.

9. Before the Family Court, petitioner got herself examined as P.W.1 and on her behalf Exs.P.1 to P.29 were marked. Respondent got himself examined as R.W.1 and on his behalf, Exs.R.1 to R.10 were marked.

10. The Family Court, having considered the oral and documentary evidence on record, has recorded a finding that both the petitioner as well as the respondent are earning and are having their own source of income as they are Doctors by profession. By recording a finding that the respondent, who is the former husband of the petitioner-P.W.1, is placed in a better position and his income is more than that of the income of the petitioner, the Family court awarded Rs.15 lakhs as permanent alimony.

11. Heard Sri D. Prakash Reddy, learned senior counsel, assisted by Smt.S.Vani, for the petitioner-wife and Sri M.R. Harsha, learned counsel for the respondent-husband.

12. The following submissions are made by the learned counsel for the petitioner:

The Family Court restricted permanent alimony to Rs.15 lakhs as against the claim of Rs.1 crore, without assigning valid reasons. Petitioner started her practice as Doctor at Dr. Rama Murthy hospital initially on salary basis and in the year 1981-82, Dr. Rama Murthy, who is the father-in-law of the petitioner and father of the respondent, handed over the hospital to the petitioner and the respondent and they have entered into partnership and started running the same as a Partnership Firm in the name and style of A.K.J. Medical Services. Petitioner worked tirelessly for development of the hospital and during subsistence of partnership, petitioner, along with the respondent, expanded the hospital and opened in-patient block by adding rooms and equipped the hospital with labour room, operation theatre, etc. Petitioner is responsible for development and reputation of the hospital, but now the respondent enchased the same by styling the hospital as A.K.J. Chest Clinic and has not settled the share of the petitioner in the assets. Though the petitioner has filed I.T. returns under Exs.P.23, 24 and 25, respondent has not filed I.T. returns showing his income. The income of the petitioner is not more than Rs.5 lakhs per annum, whereas the respondent, who is having the benefit of the hospital, is earning more than Rs.25 lakhs per annum and as much as their marriage was already dissolved pursuant to the orders of the Honble Supreme Court, petitioner is entitled for permanent alimony at least not less than Rs.50 lakhs. http://evinayak.tumblr.com https://vinayak.wordpress.com http://fromvinayak.blogspot.com

13. On the other hand, it is submitted by Sri M.R. Harsha, learned counsel for the respondent-husband as under:

Petitioner is well-off and is a consulting physician in number of hospitals and is having her own income which is self-sufficient to maintain herself and, further, having regard to the conduct of the petitioner, she is not entitled for any alimony. In view of Section 25 of the Family Courts Act, 1955, all the factors, viz., conduct etc., are to be taken into consideration, while considering a petition for grant of permanent alimony. Petitioner has ill-treated the respondent, who is her husband and made several allegations affecting his reputation, character and the same amounts to cruelty as held by the Honble Supreme Court. Respondent has taken care of entire expenses of the children and the petitioner has approached the Family Court by suppressing material facts with regard to her savings and the investments made by her in stocks etc., and that itself is sufficient to set aside the order of the Family Court, granting maintenance of Rs.15 lakhs towards permanent alimony. As the petitioner has not come with clean hands and, further, in view of her conduct, which is held to be cruel and also in view of suppression of material facts in the petition filed by her before the Family Court, the appeal filed by her is to be dismissed, by setting aside the order of the Family Court granting Rs.15 lakhs towards permanent alimony and by allowing the cross-objections filed by the respondent.

14. Having heard the learned counsel parties at length, we have carefully perused the material on record.

15. Under Section 25 of the Hindu Marriage Act, 1955, any Court exercising jurisdiction under the Act, at the time of passing of the decree or at any time subsequent thereto, is empowered to order maintenance to the applicant having regard to the applicants income and other property, further having regard to the income and other property of the respondent and also conduct of the parties and other circumstances of the case.

16. The petitioner and the respondent were married on 10.10.1978 and were blessed with two children who are now majors. They belong to different religions. The petitioner-wife is a Sikh, whereas the respondent-husband is a Telugu Brahmin. As evident from the orders passed by the Honble Supreme Court, they were working in the hospital established by the father of the respondent Dr. A. Rama Murthy. The respondent-husband initially filed petition for decree of divorce on the ground that petitioner-wife ill-treated him not only at home but also in the hospital and caused mental agony and as a result he suffered personally and professionally. He alleged that the petitioner made serious allegations against his character. In the O.P., filed by the respondent-husband seeking decree of divorce, the Family court has granted decree for judicial separation. As against the same, appeals were filed before this Court. The appeal filed by the wife was allowed, while the appeal filed by the husband, was dismissed. As against the common order in the appeals, matters were carried before the Honble Supreme Court vide Civil Appeal Nos.7763 and 7764 of 2004. The Honble Supreme Court directed for grant of decree of divorce by judgment dated 02.12.2004, in which it is held as under:

The evidence as led and which is practically undisputed is that the respondent had asked the husband to do certain things which cannot be termed to be a simple advice for proper behaviour. For example in her evidence respondent clearly accepted that she had said five things to be followed by him. Surprisingly, most of them related to ladies working in the hospital. Though respondent tried to show that they were simple and harmless advice, yet on a bare reading thereof it is clear that there were clear manifestations of her suspecting the husbands fidelity, character and reputation. By way of illustration, it may be indicated that the first so called advice was not to ask certain female staff members to come and work on off-duty hours when nobody else was available in the hospital. Second was not to work behind the closed doors with certain members of the staff. Contrary to what she had stated about having full faith in her husband, the so called advices were nothing but casting doubt on the reputation, character and fidelity of her husband. Constant nagging on those aspects, certainly amounted to causing indelible mental agony and amounts to cruelty. The respondent was not an ordinary woman. She was a doctor in the hospital and knew the importance of the nature of duty and the necessity of members of the staff working even during off-hours and the working conditions. There was another instance which was specifically dealt with by the trial Court. Same related to the alleged extra-marital relationships of the appellant with another married lady who was wife of his friend. Though the respondent tried to explain that she was not responsible for making any such aspersions, the inevitable conclusion is to the contrary.

17. The Honble Supreme Court has also taken note of the events which are subsequent to filing of the petition seeking divorce. Subsequent to filing of the petition for divorce, petitioner-wife has filed a suit for injunction in which she went to the extent of seeking detention of the respondent-husband, alleging that he has violated the orders of injunction. Thus, ultimately, on the ground of cruelty, marriage between the petitioner and the respondent was dissolved.

18. From the evidence on record, it is clear that petitioner, P.W.1, is a gynaecologist and respondent, R.W.1 is a chest-specialist. Both are earning from their profession and their children have become majors. Admittedly, daughter is independent and earning and son is with the respondent-husband. It is also not in dispute that all the expenditure relating to children was borne by the respondent-husband. It is the case of the petitioner-wife that respondent owns properties worth Rs.5 crore, whereas she owns properties worth Rs.5 lakhs. It is also alleged that annual income of the respondent-husband is Rs.25 lakhs and her annual income is Rs.4-5 lakhs. She was cross-examined at length and in the cross-examination, petitioner as P.W.1 admitted that from the last 18 years she has been an income tax assessee and she was visiting Sai Vani and Care hospitals, as freelance consultant and whenever she visited those hospitals, she used to charge consulting fee and if she attended to any operation or delivery, she used to charge separate fee and she was also attached to CDR hospital as a consultant. In the cross-examination, she specifically admitted that she is holding some shares and debentures and the same are not disclosed in the petition filed by her seeking maintenance. As per Ex.R.1 statement, it is clear that petitioner-wife invested in shares in Karvy Consultants Ltd. worth Rs.13,64,000/- in the year 2004 and as per R.2 statement, she is having deposits in Kotak Securities worth Rs.6.06 lakhs. She has got D-MAT accounts which are evident from Exs.R.1 and R.2. She has also admitted that she has invested in mutual funds and also holds LIC policies worth Rs.5 lakhs. Apart from the same, it is the specific case of the respondent-husband that the plot which is in possession of the petitioner-wife in Jubilee Hills is worth about Rs.4 crores now and though she pleaded that some portion of the said plot is in dispute, there is no dispute with regard to major extent of the plot. In the Land Grabbing Case filed by her with regard to the said plot, she herself has shown the value of the same as more than Rs.48 lakhs. There is no explanation at all for suppression of material facts with regard to investments made by her in shares, mutual funds etc. It is also the specific case of the respondent- husband that petitioner is absolutely cruel both in heart and mind and she has no human values. In his deposition as R.W.1, respondent- husband has categorically stated that the petitioner has filed O.S.No.89 of 1997 for perpetual injunction on 26.06.1997 and filed application for interim injunction vide I.A.No.530 of 1997 and the suit was disposed of, on undertaking given by him that he will not interfere with the petitioner to her practice as Doctor since she was then still his wife. In spite of the same, she filed E.P.No.31 of 1998 therein, seeking his detention. In his deposition, respondent-husband, while denying various allegations made by the petitioner-wife with regard to her contribution in the development of the hospital, further while attributing cruelty on the part of the petitioner, specifically pleaded that petitioner gave 40 lilies on his 40th birthday. It is specifically pleaded that lilies are given on the death of a person or to mourn a sad demise. Though respondent-husband was cross- examined at length, nothing adverse was elicited with regard to the aforesaid allegations. From a perusal of the order of the Family Court, it appears that Rs.15 lakhs is awarded as permanent alimony to the petitioner-wife only on the ground that the respondent-husband is placed in a better position and his income is more than that of the petitioner-wife. In this regard, we are of the view that the Family Court has lost sight of various other aspects as contemplated under Section 25 of the Hindu Marriage Act, 1955, while considering the O.P., filed under Section 25 of the Act. From a plain reading of the said provision, it is clear that Courts are obligated to take note of the conduct of the parties and other circumstances of the case, while granting permanent alimony. The mere fact, that respondent is in a better position and is earning more compared to that of the petitioner, by itself, is not a ground for grant of permanent alimony.

19. In the case of N. Varalakshmi v. N.V. Hanumantha Rao , the Honble Supreme Court has held that, even after decree of divorce, permanent alimony can be granted to the spouse, who applies for it unless conduct of the spouse is abominable. Whether the conduct of the spouse is abominable or not is a matter which depends on the facts of each case. While considering, whether the conduct of the petitioner-wife is abominable or not, it is necessary to examine the allegations of cruelty and inhuman conduct on the part of the petitioner-wife, as alleged by the respondent-husband. In the judgment in Civil Appeal Nos.7763 and 7764 of 2004, the Honble Supreme Court has observed certain advices made by the petitioner-wife to the respondent and held that they relate to ladies working in the hospital. It was further held that though the petitioner-wife tried to show that they were simple and harmless advices, yet on a bare reading thereof it is clear that there were clear manifestations of her suspecting the husbands fidelity, character and reputation. It was also held that there was an allegation of extra-martial relation of the respondent with another married lady who was the wife of his friend. Such allegations were held to be cruel and ultimately the Honble Supreme Court has passed orders for grant of decree of divorce in favour of the respondent-husband. It is also not in dispute that after filing of the suit, petitioner-wife went to the extent of filing petition to detain the respondent-husband in civil prison. Further, the specific allegation of the respondent-husband that petitioner-wife presented 40 lilies on his 40th birthday, requires serious consideration. It is the specific case of the respondent-husband that presentation of lilies is made only on the death of a person, more so on a sad demise. It is specifically pleaded by the respondent-husband that the petitioner is absolutely cruel both in heart and mind and has no human values. As the same was not denied and nothing adverse was elicited in the cross-examination of the respondent as P.W.1, even such instances need to be taken note of, while assessing, whether the conduct of the petitioner-wife is abominable or not. A perusal of the evidence also makes it clear that petitioner-wife has no other expenses except for her maintenance. At the same time, she is also working as consultant Doctor in several hospitals and making her own income which is self-sufficient. The Family Court has not recorded any valid reasons for awarding a sum of Rs.15 lakhs as permanent alimony to the petitioner-wife. http://evinayak.tumblr.com https://vinayak.wordpress.com http://fromvinayak.blogspot.com

20. Having regard to the aforesaid aspects, it is to be held in this case that the conduct of the petitioner-wife is abominable and, therefore, she is not entitled to claim any amount towards permanent alimony from the respondent-husband. A spouse claiming permanent alimony must come forward by disclosing all necessary facts, with regard to her income, properties etc., in the petition filed. In this case, petitioner-wife has suppressed material facts with regard to her investments in shares and mutual funds. When the same was confronted to her in the cross-examination, she categorically admitted the same. In addition to her disentitlement having regard to her conduct, further, it is to be noted that the petitioner-wife is having sufficient income as a medical practitioner, working as freelance consultant and in view of shares and debentures held by her apart from LIC policies and other assets, we are of the view that she is not entitled for any amount towards permanent alimony from the respondent-husband.

21. For the aforesaid reasons, we are of the view that the impugned order of the Family Court granting Rs.15 lakhs as permanent alimony to the petitioner-wife is fit to be set aside, by allowing the cross-objections preferred by the respondent-husband.

22. Accordingly, F.C.A.No.152 of 2007 is dismissed and Cross-Objections (Sr.) No.29318 of 2008 are allowed, setting aside the order dated 07.09.2007 passed by the Family Court, Hyderabad in I.A.No.664 of 2006 in F.C.O.P.No.260 of 1997. As a sequel, miscellaneous petitions if any pending stand disposed of. No order as to costs.

R. SUBHASH REDDY, J

A. SHANKAR NARAYANA, J

September, 2014

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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

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 !!

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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.

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CASE FROM JUDIS / INDIAN KANOON WEB SITE

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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.

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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.

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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.

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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

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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.

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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)

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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

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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

1,900 police personnel guard courts & TN Judges !!

1,900 police personnel guard judicial officers in TN

TNN | Mar 25, 2015, 04.16AM IST

MADURAI: A total of 1,900 police personnel had been deployed on security duty for various courts and judicial officers in the state, Tamil Nadu police told the Madras high court bench here on Tuesday.

In a report filed on behalf of the director general of police in response to a court directive, inspector general of police (welfare) H M Jayaram said 213 officers had been provided for the high court.

Filing the affidavit, the IG said adequate security has been provided to all the courts in Tamil Nadu and to the residences of judicial officers based on the threat perception.

Additional security and armed personal security officers are also provided to judicial officers/judges including their residences who are dealing with sensitive cases.

Besides, 207 police personnel, including 68 personal security officers (PSOs) had been deployed at the residences of the judges.

The court had issued the directive while treating as a suo motu public interest litigation a news report on stone-pelting by some miscreants at the house of a district judge in Ramanathapuram on February 18.

A division bench, comprising justices S Tamilvanan and V S Ravi, had ordered the home secretary as well as the DGP to provide adequate security to all judicial officers, especially to those dealing with sensitive cases, in the state.

It had also directed the home secretary, the DGP and the Ramanathapuram superintendent of police to file a detailed report on the security aspect.

The report said 79 police personnel had been deployed for security in the Madurai bench complex and 87 personnel for the judges.

Further, 15 policemen were on bandobust duty. A total of 1,083 police personnel had been deployed for providing security to courts in the state.

Regarding the stone-pelting incident, the DGP report said a 12-year old boy had seen a frog on the compound wall of the house and threw stone at it.

But it had missed the target and hit the window pane accidentally.

The judge, who suffered a simple injury below his right eye when a splinter hit him, did not want to pursue action as the boy and his parents tendered an apology and considering the education of the boy, his future and the tender age.

On a written request by the judge, the case had been withdrawn, the report added.

source

Times of India !!

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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

DV filing Ablaa gets 12.5 Lakhs & divorce after very short married life!!

DV filing Ablaa gets 12.5 Lakhs & divorce after very few months married life!! The Hon HC kindly enhances maintenance!!

* "…The marriage took place in the year 2009…"

* "… It is alleged that the wife had lack of respect towards the family members of the in-law’s and did not agree to complete any rituals …"

* "… While the matter stood thus, on 11.6.2009 the father of the wife had taken her to his house and avoided to receive any telephonic calls/mobile calls. Several attempts were made to settle the dispute. However, due to above attitude of the wife, there was no possibility of settlement of the dispute …"

So…..

* "… In view of the above position of law and taking into consideration the facts and circumstances of the case and the price index, it will be just and proper to enhance the permanent alimony from Rs.10,00,000/- to Rs.12.50,000/- (rupees twelve lakhs fifty thousand)…."

*****************************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.

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CASE FROM JUDIS / INDIAN KANOON WEB SITE

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ORISSA HIGH COURT

CUTTACK

MATA No.108 of 2012

From the order dated 15.5.2012 passed by the learned Judge, Family Court, Jajpur in Civil Proceeding No.16 of 2011

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In MATA No.108 of 2012

Asish Mohapatra ……. Appellant

versus-

Priyadarsini Barik ……. Respondent

For Appellant : M/s. Bibhu Pr.Mohanty

For Respondent : M/s. Susanta Kumar Dash, Anang Kumar Otta, & Mrs.Arunima Dhalsamant

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In MATA No.64 of 2012

Smt. Priyadarshini Barik @ Priyadarsini Barik ……. Appellant

versus-

Ashish Mohapatra ……. Respondent

For Appellant : M/s. Susanta Kumar Dash, Anang Kumar Otta, & Mrs.Arunima Dhalsamant

For Respondent : M/s. Bibhu Pr.Mohanty

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Date of Judgment: 31.07.2013

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P R E S E N T:

THE HONOURABLE KUMARI JUSTICE SANJU PANDA

AND

THE HONOURABLE DR. JUSTICE B.R.SARANGI

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S. Panda, J.

MATA No.64 of 2012 has been filed by the wife challenging the order dated 15.5.2012 passed by the learned Judge, Family Court, Jajpur in C.P No.16 of 2011 for enhancement of the permanent alimony and MATA No.108 of 2012 has been filed by the husband for reducing the quantum of permanent alimony.

However, decree of divorce passed by the learned Judge, Family Court, Jajpur in C.P No.16 of 2011 is said to have not been challenged.

Since both the appeals arise out of common judgment and decree, they were heard together and are being disposed of by this common judgment.

2. The facts leading to the present appeals are as follows:

An application under Section 13 of the Hindu Marriage Act (hereinafter referred to as "the Act") was filed by the husband for decree of divorce. The marriage took place in the year 2009. The husband is an Engineer having B.Tech and Telecommunication qualification. Though there was no demand of dowry, Rs.3 lakhs were transferred to the account of the father-in-law of the husband for purchase of articles to be used in day-to- day living. The dispute started immediately on the next date of marriage due to indifferent attitude of the family members of the wife who did not take care of the Barat party. It is alleged that the wife had lack of respect towards the family members of the in-law’s and did not agree to complete any rituals as per the social and cultural background of the society. She neither dried her clothes nor performed Puja. Sometimes thereafter the husband left to join his service. During his absence, the wife misbehaved and created disturbances in the in-laws’ house making false allegations and also threatened to file criminal cases through his uncle, who is a police officer. While the matter stood thus, on 11.6.2009 the father of the wife had taken her to his house and avoided to receive any telephonic calls/mobile calls. Several attempts were made to settle the dispute. However, due to above attitude of the wife, there was no possibility of settlement of the dispute as the relationship between two were not congenial and she treated the family members and the husband with cruelty. Finding no other way, the husband filed the application with the aforesaid prayer which was registered as C.P No.852 of 2009 before the Family Court, Cuttack. After the functioning of the Family Court at Jajpur, the said case was transferred. The wife filed her written statement with counter claim traversing the allegations made by the husband. She further pleaded that the marriage was an arranged marriage and there was a demand of motor cycle, LCD colour television, fridge, furniture, gold and silver ornaments, household articles from the side of the petitioner which was beyond the capacity of the father of the wife. The father of the wife had also given Rs.3 lakhs to the father of the husband to purchase furniture and other house hold articles. She was harassed and misbehaved for non-fulfilment of the dowry. Her father tried his best to fulfil the dowry demand. However, the in-laws tortured her and did not allow her to meet her parents. Thereafter, they approached the police and as such she returned to her parents house with mental shock and trauma and hopeful for amicable settlement. She was subjected to severe mental and physical torture for which she filed an application under the Domestic Violence Act. Accordingly, the husband was responsible for irreparable damage in the marital relationship. Since the husband made an allegation about the character of the wife, she had to stay in her parents’ house and file a counter claim demanding the return of the Stridhan property which had been given at the time of marriage and to pay permanent alimony. http://evinayak.tumblr.com https://vinayak.wordpress.com http://fromvinayak.blogspot.com

3. In support of their respective pleas, the husband examined himself as P.W. 1 and examined another witness. The wife examined herself as O.P.W.5 and also examined four other witnesses. Xerox copy of pay particulars of the husband and some other documents were produced which were marked as Exts.A to C. Taking into consideration the materials available on record, the court below recorded the finding that it had become difficult on the part of the wife to stay in her marital home till the end of her life. Therefore, she is entitled for a decree of divorce and the court below directed the husband to pay a lump sum of Rs.10 lakhs, inclusive of Rs.3 lakhs, as permanent alimony.

4. Learned counsel for the appellant-wife submitted that the said amount is at a lower side taking into consideration the status of the parties and the salary received by the husband. The husband is deducting the amount from his salary and he will get the benefit of such deduction in future. However, ignoring those facts, the Family Court has fixed the permanent alimony at a lower side. Therefore, the quantum of maintenance is to be enhanced.

5. Learned counsel for the respondent-husband, however, submitted that the wife created an unhealthy atmosphere in the in-laws’ house and she did not perform her duties towards in-laws as per the social custom which amounts to mental cruelty towards the in-laws. Therefore, the wife is not entitled to get any compensation and she has filed many criminal cases against the husband and his family members falsely. Since the quantum of permanent alimony is at a higher side, the same may be reduced.

6. This Court has taken into consideration all the above and the fact that both the parties have agreed for dissolution of marriage by decree of divorce. Admittedly, the husband is an Engineer working in a Company in Pune and from the salary slip, it appears that the salary of the husband is more than Rs.1,00,000/- per month.

7. The apex Court in the case of K.Srinivas Rao v. D.A Deepa reported in (2013) 5 SCC 226 while parting with the case discussed the issues which need to be dealt with in the interest of the victim of the matrimonial dispute and observed that while purely a civil matrimonial dispute can be amicably settled by a Family Court either by itself or by directing the parties to explore the possibility of settlement through mediation, a complaint under Section 498-A IPC presents difficulty because the said offence is not compoundable. The Court has always adopted a positive approach and encouraged settlement of matrimonial disputes and discouraged their escalation. Taking into consideration the decisions of G.V. Rao v. L.H.V Prasad, (2000) 3 SCC 693, B.S. Joshi v. State of Haryana, (2003) 4 SCC 675 and (2012) 10 SCC 303, Gian Singh v. State of Punjab, the apex court held that certain offences which overwhelmingly and predominantly bear civil flavour like those arising out of matrimony, particularly relating to dowry, etc. or the family dispute and directed that though offence punishable under Section 498-A IPC is not compoundable, in appropriate cases if the parties are willing and if it appears to the criminal court that there exist elements of settlement, it should direct the parties to explore the possibility of settlement through mediation and where the offender and the victim had settled all disputes between them amicably, irrespective of the fact that such offences have not been made compoundable, the High Court may quash the criminal proceedings if it feels that by not quashing the same, the ends of justice shall be defeated. http://evinayak.tumblr.com https://vinayak.wordpress.com http://fromvinayak.blogspot.com

8. Law is well settled that the quantum of alimony should be fixed taking into consideration the status of the parties. In view of the above we feel that the quantum of permanent alimony is at a lower side.

9. In view of the above position of law and taking into consideration the facts and circumstances of the case and the price index, it will be just and proper to enhance the permanent alimony from Rs.10,00,000/- to Rs.12.50,000/- (rupees twelve lakhs fifty thousand).

10. Accordingly, we enhance the permanent alimony from Rs.10,00,000/- to Rs.12.50,000/- (rupees twelve lakhs fifty thousand). The said amount shall be paid to the wife within two months from today. As the decree of divorce has been passed, all the criminal cases which are pending shall be dropped on filing of an application by both the parties on payment of the permanent alimony.

With the above direction, the appeals along with Misc. Case Nos.108 of 2012 and 50 of 2013 arising out of MATA No.64 of 2012 stands disposed of.

SANJU PANDA, J.

Dr.B.R.Sarangi, J : I agree.

Dr.B.R.Sarangi,J

High Court of Orissa, Cuttack

Dated 31st July, 2013

Pradeep

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