IN THE HIGH COURT OF CHATTISGARH AT BILASPUR
FAM No 10 of 2007
Shekhar Chouhan
...Petitioner
VERSUS
Geeta Devi
...Respondent
! Shri Pankaj Shrivastava counsel for the appellant
^ No one appears for the respondent
Honble Shri Justice Dilip Raosaheb Deshmukh
Dated: 17/08/2007
: Order
Appeal under section 28 of the Hindu Marriage Act, 1955
O R D E R
(Passed on this 17th day of August 2007)
This appeal is directed against an order dated
30.12.2006 passed by the 2nd Additional District Judge,
Manendragarh, Distt. Korea in Civil Suit No.17-A of
2006 whereby permanent alimony of Rs.2000/- was granted
to the respondent/plaintiff under Section 25 of the
Hindu Marriage Act, 1955 (hereinafter referred to as
the Act, 1955)
2. Admittedly, the appellant was married to the
respondent in the year 1977 and had four children from
the marital wedlock. It is also not in dispute that
the appellant married Sita Devi during the subsistence
of the marriage with the respondent and has two
children from her. Civil Suit No.2-A of 89 instituted
by the appellant for restitution of conjugal rights was
dismissed by the Additional District Judge,
Manendragarh vide judgment dated 25.09.1990. The
appellant has the custody of the children. The
respondent lives at her maternal home. The gross
salary of the appellant was Rs.9985.97 in the month of
November, 2006.
3. The respondent/plaintiff had, in her application
under Section 25 of the Act, 1955 stated that she was
living in her maternal home at Jhagrakhand and was
unable to maintain herself. The appellant did not even
pay to her the meager maintenance of Rs.150/- per month
granted in proceedings under Section 125 of Cr.P.C. A
permanent alimony of Rs.6,000/- per month was claimed.
4. The appellant denied the claim and pleaded that
the respondent had sufficient income from knitting and
tailoring as also from poultry. Since he had a large
family to support, the application under Section 25 of
the Act was liable to be dismissed.
5. The learned 2nd Additional District Judge,
Manendragarh, on appreciation of evidence, granted
permanent alimony of Rs.2,000/- per month from the date
of application till lifetime of the respondent herein.
6. Shri Pankaj Shrivastava, learned counsel for the
appellant has impugned the order dated 30.12.2006 on
the sole ground that the permanent alimony awarded by
the 2nd Additional District Judge, Manendragarh being
excessive should be reduced to atleast Rs.1250/- per
month. No other ground was urged.
7. No one appeared for the respondent at the time of
final hearing.
8. Having considered the submissions of learned
counsel for the appellant, the only point which
requires consideration is whether the permanent alimony
awarded by the 2nd Additional District Judge is liable
to be reduced.
9. Section 25 of the Act, 1955 reads as under:
“25. Permanent alimony and maintenance.–
– (1) Any court exercising jurisdiction under
this Act may, at the time of passing any
decree or at any time subsequent thereto, on
application made to it for the purpose by
either the wife or the husband, as the case
may be, order that the respondent shall pay to
the applicant for her or his maintenance and
support such gross sum or such monthly or
periodical sum for a term not exceeding the
life of the applicant as, having regard to the
respondent’s own income and other property, if
any, the income and other property of the
applicant, the conduct of the parties and
other circumstances of the case, it may seem
to the court to be just, and any such payment
may be secured, if necessary, by a charge on
the immoveable property of the respondent.
(2) If the court is satisfied that there
is a change in the circumstances of either
party at any time after it has made an order
under sub-section (1), it may at the instance
of either party, vary, modify or rescind any
such order in such manner as the court may
deem just.
(3) If the court is satisfied that the
party in whose favour an order has been made
under this section has re-married or, if such
party is the wife, that she has not remained
chaste, or, if such party is the husband, that
he has had sexual intercourse with any woman
outside wedlock, it may at the instance of the
other party vary, modify or rescind any such
order in such manner as the court may deem
just.”
A perusal of the above provision makes it clear that
any court exercising jurisdiction under the Hindu
Marriage Act, before granting permanent alimony under
Section 25 of the Act, 1955 is required to consider the
following:
a) that the order granting permanent alimony is
made at the time of passing any decree under
the Act, 1955 or at any time subsequent
thereto,
b) the income and other property of the
applicant,
c) the respondent’s own income and other
property,
d) the conduct of the parties and
e) other circumstances of the case.
10. In the present case, admittedly, Civil Suit No. 2-
A of 89 instituted by the appellant for restitution of
conjugal rights was dismissed by the Additional
District Judge, Manendragarh vide judgment dated
25.09.1990. It is seen that the appellant has, despite
the fact that he had four children from the first
marriage with the respondent, shamelessly married
another lady namely Sita Devi during the subsistence of
the first marriage and has two children from her. It
also appears that since the respondent/plaintiff was
unable to maintain herself, she did not oppose the
custody of her children being given to the applicant.
It is also pertinent to note the conduct of the
appellant. On being asked about the maintenance of
his children from the marital wedlock with the
respondent/plaintiff deposed that “lqaoj dqRrs ds cPpsa
ikys tkrs gS rks ;g Hkh iy tk;saxs”. It is also not in
dispute that despite the fact that the
respondent/plaintiff is living at her maternal home
since more than 15 years, the appellant has not even
paid the niggardly amount of maintenance awarded to the
respondent/plaintiff in proceedings under Section 125
of Cr.P.C.
11. The appellant did admit in his testimony that his
monthly gross salary in the month of November, 2006 was
Rs.9985.97. His net monthly salary is proved to be
Rs.7009/- from the pay slip Ex.D.2. As regards the
appellant’s pleadings that the respondent/plaintiff was
able to maintain herself from the income derived from
tailoring, knitting and also from the poultry business,
there is no evidence to substantiate the same. Not
only this, the appellant did not depose about the
amount earned by the respondent from the alleged
poultry business. Dhruv Pal N.A.W.2, witness for the
appellant, also admitted in paragraph 19 that he had
not seen poultry farm in village Jhagrakhand. Gita
Devi A.W.1, mother of the respondent/plaintiff also
deposed that the work of poultry was closed because the
chickens died. She has specifically denied that the
respondent was having any income from poultry farm.
12. Considering the facts and circumstances which
compelled the respondent/plaintiff to live separately
from her husband, the conduct of the appellant and the
undisputed net salary of the appellant as also the fact
that the respondent was unable to maintain herself and
did not have any income from the occupations alleged by
the appellant, I am of the considered opinion that
monthly permanent alimony of Rs.2,000/- awarded by the
2nd Additional District Judge, Manendragarh, to the
respondent/plaintiff being the bare minimum for
survival, no interference is called for.
13. In the result, the appeal fails and is dismissed.
Judge