MISCELLANEOUS APPEAL No.370 OF 2005
Manoj Ambastha son of Shri A. K. Sinha at present resident of
Mohalla- Anandpuri, P.S. S.K.Puri, Town and District Patna
..... Petitioner- Appellant
VERSUS
Smt. Lakshmy Rani Kapoor daughter of Prof. Brahma Deo Prasad,
resident of Sadar Gali, Khajekallan, P.,S. Khajekallan, Patnacity,
District Patna .... Respondent - Respondent
WITH
MISCELLANEOUS APPEAL No.179 OF 2006
Lakshmy Rani Kapoor D/o Brahmadeo Prasad, R/o Sadar Gali, Patna
city, P.S. Khajekala, Distt. Patna
.... Appellant - Respondent
VERSUS
Manoj Ambastha son of Awadhesh Kumar Sinha, R/o Manorama
Karkil Kunj Flat No.204 B, Boring Canal Road- 8, posted at Distt.
Mining Officer, New Secretariat, Patna
.... Respondent- Petitioner
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Against the common judgment and order dated 20.8.2005 passed in
Matrimonial Case No.28 of 1996 by the Principal Judge, Family
Court, Patna
———-
For the Appellant - : M/s Janardan Pd. Singh and
Respondent Upendra Kumar Singh, Advocates
For the Respondent - : Mrs Lakshmy Rani Kapoor, In- person
Appellant
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PRESENT
THE HON'BLE MR. JUSTICE SHIVA KIRTI SINGH
THE HON’BLE MR. JUSTICE HEMANT KUMAR SRIVASTAVA
Shiva Kirti Singh, J. Both the appeals under Section 19 of the Family
Court Act, 1984 (hereinafter referred to as ‘the Act’) arise out of a
common order dated 20.8.2005 passed in Matrimonial Case No.28 of
1996 by the Principal Judge, Family Court, Patna under Section 25 of
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the Act. By the order under appeal, the learned court below has not
accepted the claim of the appellant Lakshmy Rani Kappor ( for short
‘the wife’) for a lump sum permanent alimony of Rs.30 lakhs but has
granted alimony by way of monthly payment of Rs.10,000/-. The
wife has preferred Miscellaneous Appeal No.179 of 2006 for decree
of her claim of Rs.30 lakhs by way of permanent alimony in one
lump sum whereas Manoj Ambastha (for short ‘the husband’) has
preferred the other appeal on the ground that the award of Rs.10,000/-
per month by way of alimony is excessive.
2. For proper appreciation of the issue involved in these
appeals, a look at the background facts in brief appears to be relevant.
The husband brought about Matrimonial Suit No.28 of 1996 under
Section 13 of the Hindu Marriage Act, 1955 seeking a decree of
divorce against his wife on the grounds of cruelty, desertion and
adultery. The allegations were denied by his wife who alleged cruelty
on the part of the husband such as by demand of dowry, physical
assault etc. On these grounds she also prayed for a decree of divorce
which was granted by judgment and decree dated 28.9.2000.
However, on some technical ground such as lack of verification and
affidavit, the Family Court did not allow permanent alimony.
3. The wife challenged the denial of permanent alimony and
maintenance before this Court through Miscellaneous Appeal No.587
of 2000. By judgment and order dated 5.3.2003, this Court directed
the husband to pay maintenance at the rate of Rs.4,000/- per month till
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a final decision of her claim for alimony and maintenance under
Section 25 of the Hindu Marriage Act and remitted the matter to the
Family Court for a decision within four months.
4. It is further relevant to note that Miscellaneous Appeal
No.587 of 2000 preferred by the wife was also directed against
findings like desertion and cruelty which were made the ground for
grant of divorce. In that appeal an order was passed on 19.3.2001
which is Annexure-3 to Miscellaneous Appeal No.370 of 2005. By
that order while fixing interim maintenance of Rs.4000 per month, a
Division Bench of this Court held that only for technical reasons the
court below had examined the alleged grounds for divorce and held
them good for granting divorce along with a finding that the divorce
between the two had become a necessity. This Court held that the
discussions and findings regarding desertion and cruelty were
superfluous and in the facts of the case, could not be taken seriously
so as to affect the claim of the wife for permanent alimony under
Section 25 of the Act. By that order this court revised the interim
maintenance from Rs.1600 to Rs.4000/- per month till the court below
passed final orders under Section 25 of the Hindu Marriage Act and
disposed of the matrimonial suit. Against that order the husband
preferred Civil Review No.60 of 2001 which was heard with the main
Miscellaneous Appeal No.587 of 2000 leading to final disposal of the
Miscellaneous Appeal by order dated 5.3.2003 which is Annexure -4
to Miscellaneous Appeal No.370 of 2005.
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5. In spite of direction to dispose of the application under
Section 25 of the Hindu Marriage Act within four months, the matter
remained pending because of non- cooperative attitude of the
husband. He had filed MJC No.932 of 2003 before this Court for
modification of the final judgment dated 5.3.2003 passed by this
Court in Miscellaneous Appeal No.587 of 2000. That matter was
finally disposed of by order dated 10.3.2005. A copy of that order is
Annexure- 1 to Miscellaneous Appeal No.179 of 2006. Therein this
Court noticed the non- cooperative attitude of the husband as he had
disregarded the order of the Family Court to give details of his
property and latest salary statement. The interim maintenance of
Rs.4000/- per month granted on the basis of salary of Rs.13,000/- at
the relevant time as decided on 19.3.2001 was not interfered with and
several directions were issued by this Court for expediting the
proceeding before the Family Court and for its disposal within a
period of four months. Thereafter, the order under appeal was passed
on 20.8.2005.
6. As per order of remand passed by this Court, the Family
Court reconsidered the entire matter relevant for deciding permanent
alimony and maintenance under Section 25 of the Hindu Marriage
Act. For this, it considered the conduct of the parties by discussing
the relevant materials on this issue in paragraphs 11, 12 and 13 of the
impugned order and came to a conclusion in paragraph 14 that both
sides had made allegations against each other but the beginning was
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made from the husband side and there is nothing in the conduct of the
wife to deprive her of alimony or for grant of reduced alimony.
7. On the issue of income of the parties, the court below
noticed that the husband was a Class II officer in Government of
Bihar for more than 16 years and his salary chart in Exhibit B series
was also noticed along with the fact that since sometime he was under
suspension. It was also noticed that the wife had no property in her
name and her father was free to dispose of his property any way he
liked. The husband had admitted in his evidence that he has some
ancestral lands along with some co-sharers but insisted that there is no
income from those properties. On behalf of the wife, sale deed dated
24.1.1970 (Exhibit 10) in the name of her husband and report
regarding 16 acres of ancestral properties was brought on record but
the court found that income from such properties could not be
established. The statement of the petitioner husband that he had
booked a flat in which he was residing but registration had not been
done till date was noticed by the court below. However, allotment
letter from the builder and developer in favour of the husband was
brought on record as Exhibit 7 in respect of a flat in Manorama Kokil
Kunj Apartment, Anandpuri, Patna. Application for electrical
connection in that flat by the husband and electric bill for the meter
installed therein were also exhibited. The court below also noticed
Exhibit 9, a telephone bill in the name of father of the husband
installed in Ram Krishna Villa, Mahesh Nagar, Patna but it found that
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the same was not sufficient to prove ownership of that house in favour
of the husband or his father.
8. After considering the various case laws cited by the
parties, the court below found her entitled for permanent alimony but
since it held that there was nothing on record that the husband
petitioner was in possession of huge cash, bank balance or more than
one residential house, the court below found it proper to award
monthly maintenance at the rate of Rs.10,000/- per month with effect
from 1.10.2000 i.e. after decree of divorce dated 28.9.2000.
9. In view of the fact that the husband was under suspension
at the relevant time the court below permitted him to continue
payment of maintenance at the rate of Rs.4000/- only per month and it
was directed that payment / recovery of arrears of remaining
Rs.6000/- per month shall remain in abeyance till decision of the
Department on his suspension or till he starts getting full pay. It was
further directed that in case suspension of the husband petitioner is
revoked, the concerned Department shall deduct balance of the
remaining maintenance amount from the arrears of salary and pay the
same to the wife respondent. But in case he is dismissed from service
on account of departmental proceeding pending against him, he will
continue paying monthly maintenance at the rate of Rs.4000/- per
month only. The immovable property of the husband was placed
under- charge for the payment/ recovery of the arrears of maintenance
amount.
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10. It is not in dispute that the husband remained under
suspension from May 2003 till March 2007 and during this period, he
was getting only subsistence allowance and has already paid
maintenance at the rate of Rs.4,000/- per month.
11. After revocation of suspension on 1.4.2007, the wife
made a prayer before this Court in these appeals that the husband may
be directed to pay the arrears of maintenance at the rate of Rs.10,000/-
per month and to continue to pay future maintenance at that rate as per
direction in the order under appeal, till the disposal of these appeals.
That matter was considered and by order dated 4.8.2008 this Court
considered the Income tax salary statement pertaining to the husband,
then posted as Mineral Development Officer, for the financial year
2007-08 which showed salary in excess of Rs.22,000/- per month and
directed that from 1.4.2007 the husband shall pay permanent alimony
at the rate of Rs.10,000/- and the arrears for the period from 1.4.2007
till 31.7.2008 were also directed to be paid in installments.
Admittedly, those arrears have been paid as per direction of this
Court. Complaints have been made by the wife that the current
maintenance is being paid after delay and allegedly defaults have
taken place. In defence, it has been submitted that delay has been
caused on occasions due to wife not being available at the known
address.
12. On behalf of the appellant husband it has been submitted
that through a supplementary affidavit in Miscellaneous Appeal
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No.370 of 2005 the order of punishment in departmental proceeding
dated 3.4.2007 has been brought on record which shows that for the
suspension period he is not to get anything beyond the subsistence
allowance. It was also highlighted that on account of death of her
mother on 6.1.2000 and death of her father on 16.11.2005 the wife has
inherited movable and immovable property of her parents and has
substantial amount of Rs.4.45 lakhs in fixed deposits and even larger
amount in her bank accounts.
13. The pay slip of the husband for the month of March 2010
is available on record through a supplementary affidavit filed by him
in Miscellaneous Appeal No.370 of 2005 and it shows that after
deducting Rs.2000 on account of GPF, Rs.2000/- for income tax and
Rs.120 for group insurance, his net monthly salary is Rs.40813/-
(Forty thousand eight hundred and thirteen). The court below has
found that according to allegation made by the wife the husband had
relationship with another lady since 1995 and allegedly during the
pendency of the divorce proceeding, he entered into a second
marriage and has an issue. According to the husband, the said
marriage was subsequent to decree of divorce. But it appears that the
wife has not only succeeded in securing conviction of the husband in a
case under Section 498A of the IPC from the trial court but has also
lodged a criminal case under Section 494 and other Sections of the
IPC in which cognizance has been taken by Sub Divisional Judicial
Magistrate, Patna on 9.7.2007.
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14. An effort was made by this Court for making the parties
agree to part amicably by agreeing for a reasonable and proper lump
sum amount as alimony and not to pursue the criminal cases lodged
by the wife. The wife insisted for the entire claim amount of Rs.30
lakhs and the husband expressed inability in paying lump sum
alimony beyond Rs.18 lakhs. Since the gap could not be bridged, the
efforts for amicable settlement failed and hence, the matter now has to
be decided on merits.
15. Considering the fact that husband is a Gazetted officer
and drawing net salary around Rs.40,000/-, we find that the amount of
Rs.10,000/- per month cannot be reduced any further as pleaded on
behalf of the husband. In fact, if this Court decides in favour of
alimony by way of monthly payment then Rs.10,000 may need to be
revised to Rs.14,000.
16. However, it has further been submitted on behalf of the
husband that the direction to pay maintenance at the rate of
Rs.10,000/- per month since 1.10.2000 is excessive and without
considering that at that time, as per order of this Court his salary was
around Rs.13,000/- per month and, therefore, this Court had fixed
interim maintenance at the rate of Rs.4,000/- per month only. Further
submission is that the subsistence allowance was still lower between
the period of suspension i.e. May 2003 to March 2007 and, therefore,
while passing interim order on 4.8.2008, this Court directed, in the
interest of justice, to pay permanent alimony at the rate of Rs.10,000/-
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on or from 1.4.2007 i.e. only after revocation of suspension. Hence,
it has been submitted that this Court should modify the order under
appeal by reducing the maintenance amount from 1.10.2000 till
March 2007 at the rate of Rs.4000/- per month. On the other hand,
the wife has submitted that existence of immovable property
belonging to the husband was found by the court below and although
income from that property could not be proved but every property
must be deemed to have some notional income and hence, no
interference should be made with the amount of maintenance even for
the aforesaid period between 1/10/2000 and 31.3.2007, rather this
Court should direct for payment of arrears for that period within a
fixed period or else permit the execution proceeding in the court
below to proceed.
17. On considering the earlier orders and the salary as well as
subsistence allowance which the husband received prior to April
2007, we find merit in the aforesaid submission advanced on behalf of
the husband. Hence, for the purpose of arrears of maintenance only,
the maintenance amount of Rs.10,000/- per month is ordered to be
reduced to Rs.4,000/- per month for the period 1.10.2000 to
31.3.2007. If on the basis of Rs.4,000/- per month payable for that
period any arrear is found due as per materials on record, the same
should be paid by the husband to the wife within a period of three
months from the date of this judgment failing which the same will be
realizable through execution proceeding as per law.
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18. Coming to the claim of the wife, it is to be decided
whether the alimony and maintenance should be left at Rs.10000/- per
month or should be enhanced by way of monthly payment only or the
claim of the wife for grant of a proper lump sum alimony be accepted.
In that event, it would be necessary for this Court to find out what
should be a reasonable and proper lump sum permanent alimony. In
case, monthly alimony and maintenance is to be awarded then in our
view, it should be Rs.14,000/- per month for the present.
19. The learned court below has fixed Rs.10000/- per month
as alimony and maintenance in preference to one time lump sum
payment on the ground that there is nothing on record to show that
the husband is in possession of huge cash, bank balance or more than
one residential house so as to arrange for one time payment. On the
other hand, it has been submitted by wife that in paragraph 17 of the
judgment under appeal the court below has taken note of existence of
ancestral lands as well as sale deed in the name of the husband, a
report of the Circle Officer to show at least 16 acres of land in the
name of grandfather of the husband. According to her, the father of
the husband also has a house and separate income as retired Labour
Commissioner and there are enough exhibits to show that the husband
has acquired a flat in the town of Patna. Thus, it has been submitted
that from the materials available on record and from the offer of Rs.18
lakhs made for compromise of all cases it is clear that the husband has
necessary means to pay one time lump sum alimony. According to
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the wife, the relations between the two parties have deteriorated so
much that she will never get regular payment of monthly maintenance
and she will always be forced to approach the court through execution
proceeding and this shall adversely affect her entire future life. It has
been submitted on her behalf that she is no doubt a Post graduate but
is unemployed and now when her parents are no more, she needs
financial security for the rest of her life so as to meet eventuality like
illness, accident etc.
20. Having considered the entire facts and circumstances of
the case and the submissions of the rival parties, we feel persuaded to
accept the submission on behalf of the wife that in order to avoid
further trauma to her and difficulties in getting monthly maintenance
regularly in view of persisting bad relationship it will be in the interest
of justice to award one time lump sum alimony. While the real value
of a fixed amount of money payable is bound to decrease with passage
of time, the salary of the husband is likely to increase in the coming
years. Considering his salary income as well as materials to show his
immovable property, in our view, a lump sum amount of Rs.14 lakhs
would be just, appropriate and reasonable by way of lump sum
permanent alimony. This amount shall be payable by the husband to
the wife either in installments or in a lump sum within a period of nine
months from today. However, 50 per cent of the said amount must be
paid within a period of four months from today. The rest amount shall
be payable within remaining period of five months. The liability to
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pay interim maintenance at the rate of Rs.10000/- per month shall
continue till the entire amount of Rs.14 lakhs is paid to the wife.
21. Although the effort for amicable settlement has failed but
before parting with this judgment we wish and hope for the wife to
agree for amicable settlement of all the pending litigations on the
terms offered and if that happens within a reasonable time, we grant
liberty to the parties to file a joint application for modification of this
order and for incorporating the terms of compromise in larger interest
of both the parties.
22. Both the appeals are disposed of accordingly. There shall
be no order as to costs.
(Shiva Kirti Singh, J.)
I agree.
Hemant Kumar Srivastava, J.
(Hemant Kumar Srivastava, J.)
Patna High Court
The 3rd September, 2010
S.Kumar
NAFR