Dinesh Kumar Rathore vs Smt Swarnalata Rathore

Hon''ble Mr. Abhay Manohar Sapre, J.—This is an appeal filed by plaintiff (husband) u/s 19(1) of the Family Courts Act, against judgement dated 03.01.2012 passed by the Family Court, Janjgir-Champa in Civil Suit No. 07A/11. By the impugned judgment, the learned Family Court Judge allowed the application made by the appellant (husband) u/s 13 of the Hindu Marriage Act and passed decree of divorce dissolving the marriage of the appellant with the respondent. The learned Family Court Judge, however while passing the decree for divorce also fixed a sum of Rs. 4 lakhs payable by the appellant (husband) to the wife in four equal instalments, as specified in clause 2 of the impugned judgment, by way of permanent alimony u/s 25 of the Hindu Marriage Act.

In this appeal, the appellant (husband) has only challenged that part of the decree, by which, the learned Family Judge has fixed a sum of Rs. 4 lakhs payable by the appellant to the respondent by way of permanent alimony.

So the short question that arises for consideration in this appeal is whether the Family Court was justified in fixing the total sum of Rs. 4 lakhs payable by the appellant to the respondent, by way of permanent alimony by taking recourse to the provisions of Section 25 of the Hindu Marriage Act.

Looking to the short controversy involved in the case and the submissions urged by learned counsel, it may not be necessary to burden our order by mentioning the entire facts in detail except those necessary for the disposal of this appeal.

The appellant is the husband and the respondent is his wife. They were married in the year 1993 and started living together for sometime. Thereafter, dispute erupted between them, which lead to their separation.

The appellant thereafter filed an application seeking divorce u/s 13 of the Hindu Marriage Act, against the respondent (wife) inter alia on the ground of cruelty. The respondent contested the application and parties adduced the evidence.

By the impugned judgment, the Family Judge allowed the petition filed by the appellant and accordingly granted decree of divorce to him against the respondent. While granting the divorce as stated supra, the learned Family Judge also fixed permanent alimony payable by the appellant to the respondent amounting to Rs. 4 lakhs in equal instalments.

Submission of the learned counsel for the appellant was essentially one. According to him, in the absence of any factual foundation in the pleadings, and further in absence of any evidence and issues framed by the learned Family Judge, on such controversy, the straight away direction to pay Rs. 4 lakhs given by the Family Judge towards permanent alimony was unjustified and is thus not sustainable in law. Learned counsel urged that in terms of Section 25 of the Hindu Marriage Act, it is necessary for the parties to plead and prove the conditions enumerated therein by leading cogent evidence and it is only then the Court can fix the permanent alimony/maintenance payable by the appellant to the respondent depending upon the pleadings and nature of evidence led. Learned counsel contends that since in this case, neither there was any factual pleadings and nor evidence adduced by the parties and hence this Court should set aside the impugned judgment to that extent and the matter be remanded to Family Court to determine the issue of permanent alimony payable u/s 25 of the Act afresh after parties amend their pleadings and adduce evidence.

In reply, learned counsel for the respondent supported the impugned judgment and submitted that no interference in the impugned judgment is called for.

We have heard learned counsel for the parties and also perused the record of the case and having so heard find force in the submission urged by learned counsel for the appellant and hence allow the appeal in part and while setting aside the condition No. 2 as contained in para 22 of the impugned judgment, remand the case to Family Judge to decide the issue with regard to payment of permanent alimony payable by the appellant (husband) to the respondent (wife) afresh u/s 25 of the Hindu Marriage Act.

Section 25 of the Hindu Marriage Act reads as under:-

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 immovable 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].

From mere perusal of Section 25 quoted above would go to show that in order to determine the permanent alimony or maintenance, the parties are required to plead and prove the income of the spouse, whether they own any property and if so any income earned out of it, its value etc. their conduct and all such other relevant circumstances. This can only be decided when the parties make necessary pleadings and adduce evidence in support of their respective contentions. The Court is also then required to frame issues and accordingly, fix permanent alimony/maintenance, depending upon the case made out by the parties.

Coming to the facts of the case, we find that this exercise was not done by the learned Family Judge and yet he proceeded to fix the permanent alimony of Rs. 4 lakhs payable by the appellant to the respondent in equal instalments and that too without assigning any reasons. We cannot therefore, concur with this view taken by the learned Judge and while respectfully disagreeing with the said view are constrained to set aside the impugned judgment to that extent.

We, therefore, consider it proper in such circumstances to remand the case to Family Judge for deciding the issue of fixing permanent alimony payable by the appellant to the respondent u/s 25 of the Act and grant liberty to the parties to amend their pleadings only in so far as it relates to the payment of permanent alimony as mentioned u/s 25 of the Hindu Marriage Act is concerned. The Family Judge shall frame issues and allow the parties to lead evidence in the light of requirements contained in Section 25 of the Act. The Family Judge will decide the case and pass appropriate orders accordingly depending upon the evidence adduced by the parties.

Let the proceedings be completed within six months from the date of appearance of the parties before the learned Family Judge. The parties shall appear before the learned Family Judge on 23rd July, 2012 and file a copy of this order for compliance of this order. Record of the case be sent back to Family Judge to enable him to complete the proceedings.

The appeal thus succeeds and is allowed in part. The impugned judgment and decree in so far as it relates to fixing of permanent alimony of Rs. 4 lakhs is concerned, it is set aside. No cost.