2017 Supreme(Ori) 1375
IN THE HIGH COURT OF ORISSA
I.MAHANTY AND K.R.MOHAPATRA, JJ.
(Date of Judgment : 01.09.2017)
From the judgment and order dated 16.03.2015 passed by learned Judge, Family Court, Bhubaneswar in C.P. No. 295 of 2010 under Section 19(1) of the Family Court Act, 1984.
MATA No. 73 of 2015
Santosh Kumar Senapati ... Appellant
Versus
Aradhana Tripathy … Respondent
MATA No. 75 of 2015
Aradhana Tripathy … Appellant
Versus
Santosh Kumar Senapati … Respondent
For Appellant : M/s. Kali Pr. Mishra, S. Mohapatra, T.P. Tripathy, L.P. Dwivedy & S.Das
For Respondent: M/s. Shantanu Kumar Sarangi, Aditi Hota
For Appellant : M/s. Shantanu Kumar Sarangi, Aditi Hota
For Respondent: M/s. Kali Pr. Mishra, S. Mohapatra, T.P. Tripathy, L.P. Dwivedy & S.Das
Headnote:HINDU MARRIAGE ACT, 1955 - Sec. 25 - Permanent alimony - Grant of - Alimony is no alms - It is the entitlement of a wife for a decent living - All relevant factors affecting fiscal expenses have to be considered, while assessing quantum of permanent alimony - It is not only the take home salary of the husband, which is of significance, but also the capacity to earn and actual earning of the wife has also to be reckoned with, while assessing/computing the permanent alimony - Further stated.
At the same time, it is to be kept in mind that the wife does not only require two morsels a day, but also requires a reasonable amount to meet all her basic needs of life, which she would have enjoyed if the marital tie would have continued. Similarly, the responsibility, which the wife would have borne, had the relationship continued, is also a relevant aspect to be kept in mind. While granting permanent alimony, no arithmetic formula can be adopted as there cannot be any mathematical exactitude. It depends upon various factors including social status of the parties, respective social needs, the mode of living of the spouse, the financial capacity of the husband and other obligations of the husband etc., which play a vital role in determining the permanent alimony. The Court has to act with pragmatic sincerity to such an issue so that the wife does not meet any kind of man made misfortune. The amount of permanent alimony should be such as the wife 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 should not be excessive or affect the living condition of the other party, namely, husband. (Para - 11)
JUDGMENT
K.R. MOHAPATRA, J. - These two Matrimonial Appeals have been filed assailing the judgment and order dated 16.03.2015 passed by learned Judge, Family Court, Bhubaneswar in C.P. No. 295 of 2010. Learned Judge, Family Court, Bhubaneswar, disposed of C.P. No. 295 of 2010, with the following orders:
“The petition of the petitioner is allowed on contest. A decree of divorce is passed and the marriage between the petitioner and the respondent is hereby declared dissolved with effect from the date of decree subject to payment of Rs. 60,00,000/- (Rupees sixty lakhs) only to the respondent towards permanent alimony. The parties are directed to exchange the goods given to each of them and while taking steps for exchanging of goods, parties to show their honesty and sincerity to that effect. “
2. MATA No. 73 of 2015 has been filed by one Sri Santosh Kumar Senapati (for short ‘the husband’) assailing the quantum of permanent alimony directed to be paid to Smt. Aradhana Tripathy (for short ‘the wife’). Matrimonial Appeal bearing MATA No. 75 of 2015 has been filed by the wife assailing part of the decree granting prayer for dissolution of marriage between the parties by a decree of divorce.
As both the appeals arise out of the same judgment and order, the same are taken up together for disposal for convenience.
3. Facts in nut shell relevant for proper adjudication of these appeals are that marriage between the parties to these appeals was solemnized on 03.05.2009 at Puri as per the Hindu customs and rites. Due to dissension between the parties, they are living separately since 23.08.2010. They are not blessed with any child. As would reveals from the rival pleadings of the parties before learned Judge, Family Court, Bhubaneswar that there arose difference of opinion between the parties after few days of their marriage and they had never led a happy conjugal life. Lot of allegations and counter allegations had been made in their respective pleadings. Fact remains that, at the time of marriage, the husband was Assistant Professor of Veterinary Medicines in OUAT. Before marriage, the wife was working in a private firm and had an independent source of income. As there was no hope for leading a happy conjugal life, the husband filed a petition under Section 13 (1) (i-a) of Hindu Marriage Act, 1955 (for short ‘the Act, 1955’) praying for a decree of dissolution of marriage between the parties by a decree of divorce in Civil Proceeding No. 295 of 2010. The wife contested the proceeding by filing her written statement. Learned Judge, Family Court, Bhubaneswar, holding the husband being treated with cruelty, granted the relief of dissolution of marriage by a decree of divorce and further directed that the husband would pay a sum of Rs. 60.00 lakh to the wife towards permanent alimony. Accordingly, both the parties being aggrieved by the judgment and order dated 16.03.2015 passed in Civil Proceeding No. 295 of 2010 have filed separate appeals, as aforesaid.
4. In course of argument, learned counsel, Mr. Santunu Kumar Sarangi along with Ms. Aditi Hota appearing for the wife, submitted that they would not press the appeal in MATA No. 75 of 2015 filed by the wife against the part of the decree granting relief of dissolution of marriage by a decree of divorce. As such, the dissolution of marriage by a decree of divorce granted by learned Judge, Family Court, Bhubaneswar is confirmed. Thus, the only question that remains to be decided is with regard to the quantum of permanent alimony.
5. Mr. K.P. Mishra, learned counsel for the husband strenuously argued that learned Judge, Family Court, Bhubaneswar, while assessing the quantum of compensation, did not at all take into consideration the essential factors like educational qualification of the wife, family pension entitled to be received by the wife, inheritance of ancestral property by the wife as well as the ability of the wife to earn etc. It is his submission that the wife is a highly edu