ORISSA HIGH COURT
Vinod Prasad and S.K.Sahoo, JJ.
Ranjana Rani Panda & Anr. —Appellants
versus
Sanjay Kumar Panda & Anr. —Respondents
CVA No.17 of 1999 and RPFAM No.153 of 2014
Decided on 22.12.2015

IMPORTANT POINT
A wife can be entitled to permanent alimony under section 25 of H.M. Act despite a decree for restitution of congugal rights was granted against her and divorce was granted in favour of husband for non-compliance of congugal rights decree.

Headnote:Hindu Marriage Act, 1955 — Section 13(1)(1-a) and (ib) and 25 — Decree for dissolution of marriage by divorce passed by Family Court on ground that there was no restitution of conjugal rights for one year despite order for restitution of conjugal rights passed by Court — Appeal by wife — Decree for divorce was passed in 1999 and his pendence development occurred when respondent husband married for second time and was blessed with two sons appellant wife not seeking to challenge the divorce decree but claming permanent alimony — Now since respondent husband and appellant wife had been living separately for 16 years and were not interested to live with each other it would be in interest of parties to severe matromonial ties as marriage had broken irretrievably — Husband however could not avoid liability to pay permanent alimony merely on plea that wife did not join matrimonial union despite decree for restitution of conjugal rights passed against her — For determining quantum of permanent alimony factors relevant were like length of marriage, time since spouses were living separately, their age, relative income of both parties, financial prospects and health of parties — Respondent husband was state Government servant and his salary was Rs.42000 p.m. — Appellant wife was 41 years of age and their daughter was studying B.BA in an institute of managements studies — Rs.20 lakhs awarded as permanent alimony in favour of wife.

       Held: The impugned judgment and order of decree of divorce was passed by the Judge, Family Court, Rourkela on 27.04.1999. This Civil Appeal under section 19 of the Family Courts Act, 1984 was filed on 12.07.1999 by the appellant-wife challenging the impugned judgment and order passed by the Family Judge. Sub-section (3) of section 19 of the Family Courts Act, 1984 prescribes a time period of thirty days for preferring an appeal from the date of judgment or order of the Family Court. Though under sub-section (4) of section 28 of the Hindu Marriage Act, 1955, appeal against the decree passed in any proceeding under the Act or the orders passed under section 25 and 26 of the Act can be preferred within a period of ninety days but since the proceeding was dealt by the Family Court under the provisions of Family Courts Act, 1984, we are of the view that the appeal period in this case was thirty days from the date of judgment of the Family Court. After taking note of the copy period, the Stamp Reporter has rightly pointed out that there was no delay in presenting the appeal.

       Section 15 of the Hindu Marriage Act states that a person can re-marry after getting a divorce decree in his/her favour if there is no right of appeal against such decree or even if there is such a right of appeal, the time for appealing has expired and the appeal has either not been presented by the other side or the appeal preferred challenging such decree of divorce has been dismissed. In the present case when the appeal was preferred within time, we are of the view that the second marriage of the respondent-husband was not lawful. We could have taken a serious note of such conduct of the respondent- husband in marrying for the second time but we cannot forget that sixteen years have passed in the meantime since the date of decree of divorce and the respondent-husband is blessed with two children through his second wife and moreover in view of the sea change in the scenario, the appellant-wife is not interested to stay in the company of the respondent-husband and therefore we are not passing any adverse order for the conduct of the respondent-husband. Though the respondent-husband has pleaded in his reply affidavit that the appellant-wife had already re-married and settled at Kolkata but she has denied the same. No materials have also been brought forth by the respondent- husband in support of his contention and therefore we are not inclined to accept the bald allegation that the appellant-wife had re-married.

       Since the decree of divorce has been passed in the year 1999 and in view of lis pendence development particularly the conduct of the respondent-husband in marrying for the second time and being blessed with two sons, the appellant-wife is not challenging the decree of divorce but claiming only permanent alimony, we do not think it proper to analyse the evidence available on record in detail to scrutinize the impugned judgment as to whether in the facts and circumstances of the case, the learned Family Judge was justified or not to pass the impugned decree of divorce.

       However, we are of the view section 13 (1-A) of Hindu Marriage Act only enables either party to a marriage to file an application for dissolution of marriage by a decree of divorce on any of the grounds stated therein. The section does not provide that once the applicant makes an application alleging fulfilment of one of the conditions specified therein, the Court has no alternative but to grant a decree of divorce. In other words, the right conferred by sub-section (1-A) of section 13 is neither absolute nor unqualified. Whether the relief of dissolution of the marriage by a decree of divorce is to be granted or not depends on the facts and circumstances of the case.

       Having dispassionately considered the materials before us and the fact that the respondent-husband and the appellant-wife had been living separately for 16 years as of now after the decree of divorce and they are not interested to live with each other, it would be in the interest of both the parties to sever the matrimonial ties since the marriage has broken down irretrievably. Court grants a decree of divorce only in those situations in which the Court is convinced beyond doubt that there is absolutely no chance of the marriage surviving and it is broken down beyond repair. Since both the parties are not willing to stay with each other and the marriage between the parties is dead for all purposes and one of the party i.e. the respondent-husband has already married for the second time and is blessed with two sons through the second marriage, even if we set aside the impugned decree of divorce, there are hardly any chances for both of them staying together to lead a happy conjugal life and therefore, it is a fit case where the decree of divorce passed by the learned Family Judge should be upheld. Accordingly we uphold the decree of divorce.

       So far as permanent alimony is concerned, no order has been passed by the learned Family Judge in that respect while passing the decree of divorce. Even though the decree of divorce was passed on the ground that there has been no restitution of conjugal rights as between the appellant-wife and the respondent-husband for a period of one year or upwards after the passing of a decree for restitution of conjugal rights but no reason whatsoever has been assigned by the Family Judge for not passing any order of permanent alimony in terms of section 25 of the Hindu Marriage Act. We are not inclined to accept the contention raised by the learned counsel for the respondent- husband that if a wife does not join the company of her husband in spite of the direction of restitution of conjugal rights, at the time of passing decree of divorce in favour of the husband, no permanent alimony can be granted to the wife.

       In case of U.Sree v. U.Srinivas reported in AIR 2013 SC 415 and K.Srinivas Rao v. D.A.Deepa reported in AIR 2013 SC 2176, the Hon’ble Supreme Court in spite of arriving at a conclusion that the husband has made out a case for divorce proving mental cruelty, held that the wife is entitled to permanent alimony for her sustenance.

       Determination of quantum of permanent 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. 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 are some of the factors which can be kept in mind while fixing the permanent alimony.

       We have considered the respective submissions on the quantum of permanent alimony. There is no dispute which is also the statement of the respondent-husband that he is serving in Rourkela Steel Plant as a Senior Operator and his salary is Rs. 42,000/- (Rupees Forty Two Thousand) as per his statement given before this Court on 29.07.2015. Taking into account the income of the respondent-husband, the need of the respective families of the parties, age of the appellant-wife which is now 41 years and that she has to meet any kind of man-made misfortune in future and the fact that Pritirani Panda @ Pinki who is the daughter of the parties and staying with the appellant-wife is prosecuting her studies in B. BA in Rourkela Institute of Management Studies and taking note of her fees structure which has been produced before us by the appellant-wife by way of an affidavit with documents and the fact that in future, the appellant-wife has to bear the marriage expenses of her daughter, we are of the view that in the facts and circumstances of the case, it would be just, quite reasonable and expedient in the ends of justice to fix the quantum of permanent alimony under Section 25 of the Hindu Marriage Act, 1955 payable to the appellant-wife at Rs. 20 lakhs in addition to what the respondent-husband has already paid in different proceedings to the appellant-wife. The amount that has already been paid to the appellant-wife or her daughter towards maintenance 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 petitioner-wife has sustained herself and her daughter without spending the said money.

       Accordingly, the appeal is allowed in part. The impugned judgment and order passed by the learned Judge, Family Court, Rourkela in passing the decree of divorce and dissolving the marriage between appellant-wife Ranjana Rani Panda and respondent-husband Sanjay Kumar Panda is upheld. We direct under Section 25 of the Hindu Marriage Act, 1955 to the respondent-husband to pay Rs. 20 lakhs to the appellant- wife towards permanent alimony. The said amount of Rs. 20 lakhs (rupees twenty lakhs only) shall be deposited by the appellant-husband by way of bank draft before the Family Court, Rourkela within a period of six months from today in the event of which the same shall be handed over to the appellant-wife by the Family Court on proper identification failing which the appellant-wife shall be at liberty to realize the same from the husband with due process of law. In case any application is made by the respondent-husband for release of money from his Provident Fund to comply the order of payment of permanent alimony, the authorities dealing with Provident Fund shall consider such application and release the amount and the Rules of Provident Fund shall not be impediment for compliance of the order. (Paras 10 to 12)

       Result: Appeal disposed of accordingly.