A spouse's entitlement to permanent alimony is upheld even in cases of cruelty and desertion, reflecting the court's discretion in considering financial dependency and circumstances.

JUDGMENT :
ARINDAM SINHA, J.

1. Appellant was wife in the marriage dissolved by impugned judgment dated 29th November, 2021 made by the Family Court. The dissolution was on ground of cruelty and desertion. Controversy between the parties before us is quantum of permanent alimony. Mr. Rath, learned senior advocate appears on behalf of appellant and Mr. Das, learned advocate, for respondent.

2. On 30th April, 2024 Mr. Rath had drawn our attention to impugned judgment to submit, ruling on issue no.5 is to be adjudicated in the appeal as erroneous. Though the Family Court correctly appreciated that even where the husband had made out a case for divorce the wife is entitled to permanent alimony for her sustenance, as declared by the Supreme Court in K. Srinivas Rao v. D.A. Deepa , reported in AIR 2013 SC 2176 and U. Shree v. U. Srinivas , reported in AIR 2013 SC 41, it is thereafter that said Court erred in saying there is no admitted evidence on record as to respondent-husband’s assets, besides his salary. Without prejudice he submits, the Supreme Court in Kalyan Dey Chowdhury v. Rita Dey Chowdhury , reported in (2017) 14 SCC 200 had approved permanent alimony calculated factoring in 25% of the salary. His client filed affidavit of assets in the interim maintenance proceeding, following direction of the Supreme Court in Rajnesh v. Neha , reported in AIR 2021 SC 569 . She disclosed to the Court, respondent’s income is Rs.1.5 lakh per month. He drew attention to order dated 26th October, 2021 made in the interim maintenance proceeding to demonstrate so. Respondent-husband did not and has not filed his affidavit.

3. Mr. Rath commented on aforesaid authorities beginning with Rajnesh v. Neha (supra). He drew attention to paragraph-72 and several supplementary paragraphs thereunder to submit, there were directions given, to be mandatorily followed, not complied with by respondent-husband at trial, resulting in impugned judgment. He also relied on Aditi Alias Mithi v. Jitesh Sharma , available at 2023 SCC Online SC 1451 paragraphs-9 and 15. He then relied upon view taken by a learned single Judge in the Calcutta High Court on order dated 8th February, 2023 in CO 138 of 2022 ( Nripendra Chandra Mahanta v. Smt. Pramila Mahanta ). He submitted, evidence laid before the Family Court was not considered. It is a fit case for remand. Impugned judgment be set aside in appeal with the direction.

4. Today Mr. Das submits, there should be no interference in appeal. Appellant did not stay with his client for any time longer than aggregate of four months, interrupted by her going away to her paternal house. The marriage was solemnized on 19th April, 2000. His client lost his youth. There was no issue from the marriage. Cruelty and desertion having had been proved, appellant should not be rewarded therefor. He submits further, aggregate sum in excess of Rs.6,50,000/- was paid by his client during pendency of the proceeding before the Family Court. Reasons given by the Family Court on issue no.5, to answer it by directing payment of Rs.12,00,000/- as permanent alimony, do not warrant interference in appeal. His client had deposited the amount by tender to this Court, on demand draft issued in favour of appellant.

5. Section 25 in HINDU MARRIAGE ACT , 1955 gives discretion to the Court exercising jurisdiction under the Act to, inter alia, at the time of passing any decree, order that either the wife or the husband shall pay for the other’s maintenance and support, such gross sum or such monthly or periodical sum for a term not exceeding life of the payee spouse. This order is to be made having regard to the payee’s own income and other prop