Deepak Parthi vs Bhominder Kaur Pabla

M. Jeyapaul, J.

C.M. No. 17470-CII of 2012

The application is filed u/s 5 of the Indian Limitation Act praying for condonation of delay of 32 days in filing the appeal.

It has been contended by the applicant that he was not having sufficient funds to engage an Advocate to file the appeal. After arranging necessary fund he contacted his counsel and filed the appeal. Though, the above reason is found not convincing, considering the lesser period of delay and the object of delivering justice on merit without standing on technicalities, we are of the view that the application deserves to be allowed. Accordingly, the application is allowed.

C.M. No. 17472-CII of 2012

The petition praying for stay of the operation of the impugned judgment stands dismissed as infructuous as the main appeal has been heard and disposed of today.

C.M. No. 6274-CII of 2013

The petition is filed invoking Section 151 CPC seeking permission to place on record a photo copy of the appellant''s physical disability certificate dated 22.2.2013 issued by PGI, Chandigarh.

The learned counsel appearing for the applicant would submit that the above certificate was issued only during the pendency of this appeal. Therefore, the said certificate which was issued by PGI, Chandigarh may be permitted to be placed on record, it is submitted.

The reply filed by the respondent and his testimony before the trial court were thoroughly scanned by us. He had not set up a plea that he was a physically handicapped person and, therefore, he was not in a position to maintain his wife by paying maintenance. Therefore, the appellant husband cannot be permitted to place on record the physical disability certificate issued during the pendency of this appeal. Further, the applicant should have filed an application invoking order 41 Rule 27 of the CPC seeking permission to lead additional evidence but quite unfortunately the petition has been filed just to place on record a photo copy of the disability certificate invoking Section 151 CPC. At any rate we find that the above document does not have any bearing on the earning capacity of the appellant, inasmuch as he had not contended before the trial Court that he has incurred disability and, therefore, he was not able to maintain his wife. For all these reasons, we find that the application deserves dismissal. Accordingly, it stands dismissed.

FAO No. M-182 of 2012

The husband Deepak Parthi has preferred the appeal challenging the permanent alimony of Rs. 5000/- per month granted to his wife Bhominder Kaur Pabla u/s 25 of the Hindu Marriage Act, 1955 for fixing permanent alimony.

The respondent Bhominder Kaur Pabla has contended in her petition u/s 25 of the Hindu Marriage Act that she was the legal wedded wife of the appellant. She filed a petition for divorce and the same was granted on 19.8.2010. The said judgment has become final. The respondent is an unemployed woman. She is unable to maintain herself. Whereas, the appellant is earning more than Rs. 10 lacs per year from various groups of telecommunications. He also undertakes tours often to attend the work of telecommunication companies. He has purchased a house at Sector 20, Panchkula. He had the capacity to pay a sum of Rs. 38,000/- per month as installment towards the loan raised for purchasing house at Panchkula. Contending that the respondent was not remarried, she claimed permanent alimony invoking Section 25 of the Hindu Marriage Act.

The appellant filed his reply contending that the respondent has sufficient source of income and she is gainfully engaged in reliance retail company as an employee. She is MBA graduate. The appellant previously served in a telecommunication company but his income was not sufficient to meet the extravagant lifestyle of the respondent. The appellant was in depression and, therefore, he lost his job. Contending that he was not earning at present and was depending on the charities of his relatives and friends, he sought for dismissal of the petition.

On the side of the respondent, she was examined as PW1 and his father was examined as PW2 and on the side of the appellant, he was examined as RW1.

The trial Court having thoroughly adverted to the evidence on record come to the conclusion that the respondent was earlier serving in some company. Thereafter, she started her family business. She also stopped her business about four years ago and, therefore, she was entitled to get maintenance from the appellant who has got sufficient source to maintain the respondent.

The learned counsel appearing for the appellant drawing the attention of this Court to the testimony of PW1 submitted that she is carrying on family business and is earning more than Rs. 12 lacs per year. It is his further submission that the respondent is well qualified. She cannot simply seek maintenance from her husband without making an attempt to seek any job with the qualifications she possessed. Inasmuch as the respondent has the capacity to maintain herself, the question of paying maintenance by the appellant does not arise. He would also submit that the appellant is a physically handicapped person and, therefore, it is not possible for the appellant to maintain the respondent.

Per contra, the learned counsel appearing for the respondent would submit that there is evidence to show that the respondent did carry on her family business but four years ago the business was closed. Though, she was qualified, she was not in any job and, therefore, she is entitled to maintenance from the appellant who is proved to be earning sufficiently to maintain the respondent.

We thoroughly perused the entire evidence on record. The fact remains that the respondent has got a decree of divorce from the appellant. PW1 Bhominder Kaur, of course, has stated that she was working in some companies and was earning earlier. Subsequently she took upon the family business but the same also was closed about 4 years ago. Of course, she is found to be a qualified person but the fact remains that she had left the job long ago and the business she carried also was closed about 4 years ago.

The appellant who was examined as RW1 has categorically admitted that in the face book he has been shown as consultant-quality and training-scoreline India, Chandigarh. He had never raised any objections with scoreline India to the inclusion of his name in the internet as consultant to the said company in Ex. P1/A. He had purchased a house for Rs. 18,20,000/-. Admittedly he repaid the said amount within one year time.

We do not give much importance to the submission made by the learned counsel appearing for the appellant that the appellant is a handicapped person and, therefore, he has lost his earning capacity, inasmuch as such a plea was never raised before the trial Court and the application filed to place on record the disability certificate was also dismissed by us.

As it is shown that the respondent is presently jobless and is eking out her livelihood depending on her father, the appellant is bound to maintain her.

The status of the parties, their respective social needs, the financial capacity, the other obligations of the spouse to maintain under law his/her other dependents will have to be seen before arriving at the quantum of permanent alimony. In the instant case not only the husband but also the wife had acquired the status in the society on account of their educational qualification and the placement they got in reputed companies. The wife, of course, after resignation of her job had started the family business but unfortunately the same had to be closed about 4 years ago. The evidence on record would go to show that the husband has got the financial capacity to maintain his wife. There is no evidence that he has to maintain any other dependent under law.

It is not out of place to refer to the decision of the Hon''ble Supreme Court in Vinny Parmvir Parmar Vs. Parmvir Parmar, it has been held as follows:-

"12. As per Section 25, while considering, the claim for permanent alimony and maintenance of either spouse, the respondent''s own income and other property, and the income and other property of the applicant are all relevant material in addition to the conduct of the parties and other circumstances of the case. It is further seen that the court considering such claim has to consider all the above relevant materials and determine the amount which is to be just for living standard. No fixed formula can be laid for fixing the amount of maintenance. It has to be in the nature of things which depend on various facts and circumstances of each case. The court has to consider the status of the parties, their respective needs, the capacity of the husband to pay, having regard to reasonable expenses for his own maintenance and others whom he is obliged to maintain under the law and statute. The courts also have to take note of the fact that the amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and mode of life she was used to live when she lived with her husband. At the same time, the amount so fixed cannot be excessive or affect the living condition of the other party. These are all the broad principles courts have to be kept in mind while determining maintenance or permanent alimony.

It is not in dispute that before their marriage, the appellant-wife working as Air Hostess with Cathay Pacific Airlines and getting sizeable income. It is also brought to our notice that after marriage, at the instance of the respondent, she resigned from her job. The particulars furnished also show that at present she is living with her sister at Mumbai and she does not possess any immovable property at Mumbai."

In the above case cited it was found that the wife was found in fact serving as Air Hostess before her marriage. At the instance of the husband she gave up her assignment but the fact remains that she was well qualified woman. Despite that the Hon''ble Supreme Court considering the fact that the wife was jobless chose to award permanent alimony.

The learned counsel appearing for the appellant cited the decision of Rajasthan High Court in Govind Singh Vs. Smt. Vidya, and the judgment of the Madras High Court in Ramesh versus Ambigeswari in C.R.P. PD. No. 1909 of 2010 dated 22.3.2013. In those two cases the husband had claimed maintenance from his wife. The husband who was capable of earning had appropriately stopped his avocation he was carrying on and then started claiming maintenance from his wife. Such an attitude was deprecated by the High Court of Rajasthan and the High Court of Madras in those two decisions but in the instant case the wife who earlier served in some companies and, thereafter, started her business which was also stopped about 4 years ago has sought maintenance from her husband. Therefore, the above decisions would not apply to the facts and circumstances of this case.

The learned counsel appearing for the appellant cited a decision of Delhi High Court in Damanreet Kaur versus Indermeet Juneja and another CRL. REV. P. 344 of 2011 dated 14.5.2012. That was a case where interim monetary relief was sought by the wife as against the husband. It is not a case of permanent alimony sought u/s 25 of the Hindu Marriage Act. Further, the Court observed in the said decision that whether the wife was forced to resign or resigned the job herself was a question to be decided during the course of trial.

There is nothing on record in the instant case that the respondent gave up her assignment in the company and stopped business in order to seek permanent alimony from the appellant.

The respondent was employed earlier in some company. She had to resign those jobs just to take up the family business but the family business also was stopped about 4 years ago. The respondent who is now depending on the resources of her father is entitled to permanent alimony from the appellant whose earning capacity and the resources to maintain the respondent have been established before the Court.

The trial Court has rightly evaluated the evidence on record and come to a conclusion that the respondent is entitled to permanent alimony of Rs. 5000/- per month and litigation expenses of Rs. 10,000/-. There is no merit in the appeal. Therefore, the appeal stands dismissed.