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2019 Supreme(Ori) 117
IN THE HIGH COURT OF ORISSA, CUTTACK
S.K. Mishra, A.K. Mishra, JJ.
Arpita Mohanty - Appellant
Vs.
Sabyasachi Das - Respondent
M.A.T.A. No. 101 of 2013, 111 of 2013
Decided On : 31-07-2019
Prasan Kr Sahu, Adv., A.K. Swain, Adv., A.C. Mohapatra, Adv., A.K. Panda, Adv., S.C. Mohanty, Adv., A.A. Lenka, Adv., Sidheswar Mohanty, Adv., S.K. Routray, Adv., L. Mohapatra, Adv., S. Pattnaik, Adv., A. Das, Adv., Ajaya Kumar Swain, Adv., A.S. Mohapatra, Adv., S.S. Mohanty, Adv., A.K. Paul, Adv.
The court emphasized that the amount of permanent alimony should depend upon the status of the parties, their respective social needs, the financial capacity of the husband, and other obligations, as laid down in U. Sree Vs. U.Srinivas.
Headnote:
Divorce - Permanent Alimony - Hindu Marriage Act - Section 13, Section 13(B), Section 25 - The court discussed the validity of an agreement for settlement of marital dispute, the entitlement of the wife to claim permanent alimony, and the principles to fix the amount of permanent alimony. The court held that the agreement executed by the respective fathers of the parties did not bind the spouses, and the amount paid as per the agreement was not towards permanent alimony. The court referred to the principles laid down in U. Sree Vs. U.Srinivas and enhanced the quantum of permanent alimony to rupees eight lakhs.
Fact of the Case:
The appellant wife deserted the respondent husband and filed for divorce. The Family Court dissolved the marriage and ordered the husband to pay permanent alimony of Rs.5,00,000. Both parties appealed, disputing the quantum of permanent alimony.
Finding of the Court:
The court confirmed the decree of divorce and enhanced the permanent alimony to Rs.8,00,000 to be paid by the husband to the wife within four months, failing which it would carry interest at the rate of 9% per annum.
Issues: Validity of the agreement for settlement of marital dispute, entitlement of the wife to claim permanent alimony, and the quantum of permanent alimony.
Ratio Decidendi: The agreement executed by the respective fathers of the parties did not bind the spouses, and the amount paid as per the agreement was not towards permanent alimony. The court referred to the principles laid down in U. Sree Vs. U.Srinivas and enhanced the quantum of permanent alimony to rupees eight lakhs.
Final Decision: The decree of divorce was confirmed, and the amount of permanent alimony was enhanced to Rs.8,00,000 to be paid by the husband to the wife within four months, failing which it would carry interest at the rate of 9% per annum.
JUDGMENT :
A.K. Mishra, J.
Decree of divorce subject to payment of permanent alimony of Rs.5,00,000/-(Rupees five lakhs) passed vide order dated 21.09.2013 in C.P. No. 806 of 2009 by the learned Judge, Family Court, Cuttack is challenged in these two appeals, hence, this common judgment.
2. For party position, notwithstanding the appeal memos, the wife shall be referred to as appellant while husband shall be referred to as respondent hereinafter.
3. Appellant married the respondent as per the Hindu rites and customs on 27.06.2007. After some days, the wife deserted alleging cruelty against the husband and stayed in the house of her parents. Both of them were of highly educated. There was a Panchayat Faisala Nama on 26.12.2008 to settle their dispute amicably. As per settlement, the father of the appellant wife received Rs.4,80,000/-(Rupees four lakhs eighty thousand) towards presentation and ornaments given during the marriage. It was also settled to go for mutual divorce. Accordingly, a mutual divorce case under Section 13(B) of the Hindu Marriage Act, bearing C.P. No. 538 of 2009 was filed. But the appellant wife having not cooperated, the case was dismissed. Thereafter, the husband filed this divorce proceeding under Section 13 of the Hindu Marriage Act on 15.09.2009 bearing C.T. No. 806 of 2009 before the learned Judge, Family Court, Cuttack. The allegation of cruelty and desertion were challenged by the wife. Both the parties adduced their evidence. Husband and an independent witness to the agreement are examined as P.Ws 1 and 2. The certified copy of Panchayat Faisala Nama and other document were executed as Exhibits-1 and 2. On behalf of the wife, she herself and her father were examined as P.Ws. 1 and 2. Certified copy of the R.O.R. showing the landed properties in favour of the husband is marked vide Exhibit-A/1 series. Learned Judge, Family Court has recorded the finding that both the couples had reached the point of no return. The allegation of cruelty and desertion were not proved. The payment of Rs.4,80,000/- as per the agreement Exhibit1 was not towards the permanent alimony. Considering the landed properties and income of the husband, the learned Judge, Family Court while dissolving the marriage between them solemnised on 27.06.2007 by a decree of divorce, allowed permanent alimony of Rs.5,00,000/-to be paid by the husband to the wife within three months.
3.1 The wife filed MATA No. 101 of 2013 challenging the said decree. The husband has also filed MATA No. 111 of 2013 assailing the quantum of permanent alimony in specific.
4. Learned Advocate of both parties, in course of hearing, did not dispute the decree of divorce but assiduously advanced a disputation on the amount granted as permanent alimony.
5. Learned counsel for respondent submits that as the wife appellant agreed for divorce on receipt of Rs.4,80,000/- vide Panchayat Faisala Nama (Ext.1) and gave consent in mutual divorce petition after receipt of said amount, she is not entitled to permanent alimony.
6. Secondly, the husband appellant has no source of income being unemployed and thus has no capacity to pay any amount towards permanent alimony.
7. Per contra, learned counsel for wife appellant submits that the amount of Rs.4,80,000/- was paid towards the gift received by husband from wife's family during marriage and Ext.1 agreement cannot be read to bind the wife for relinquishment of her claim to permanent alimony.
7.1. Further, it is countered that there is evidence adduced to show that the husband has income from his properties amounting rupees one lakh per month and has sufficient landed properties to spare a good amount for her sustenance.
8. Following two points have emerged contentious for us.
(i) Whether agreement (Ext.1) bars the wife to claim permanent alimony U/s.25 of Hindu Marriage Act; and
(ii) If the wife is found entitled to permanent alimony, whether the amount granted by learned Judge, Family Court needs to be interfered with?
Answer to point n
