Miss Moumita Roychoudhury vs Abhijit Chattarjee

B.R. Sarangi, J.—Against the Judgment & decree dated 24.03.2012 passed by the Learned Judge, Family Court, Cuttack in Civil Proceeding No. 815 of 2007 annulling the marriage by decree of nullity subject to payment of permanent alimony of Rs. 5,00,000 against the Respondent-husband & directing to pay the said amount within three months, the present appeal has been filed by the Appellant-wife. The wife-Appellant filed an application u/s 12 of the Hindu Marriage Act, 1955 admitting the marriage with the Respondent-husband on 20.06.2007 as per the Hindu rites & customs at Cuttack. At the time of marriage, it is stated that her parents have, gifted to her as well as the Respondent-husband articles as per Scheduled-A of the petition. The Appellant-wife also admitted that both the Appellant & Respondent were highly qualified at the time of marriage & she was serving as a Nursery Teacher at D.A.V. Public School, Shree Vihar Colony, Tulasipur, Cuttack & was getting a consolidated salary of Rs. 5000 & for the marriage, she left that job. The Respondent has passed M.Sc. in Mathematics from IIT, Kanpur & has also done Post Graduate degree in Computer Science from Birla Institute of Technology & Science, Pilani, Rajasthan. After completion of his study, he served as a software engineer for some time & thereafter opened his own software business at Delhi in the name & style of "Towards Vision Technology Private Limited" & from his business he is getting more than rupees one lakh per month. She further alleged that there has been no sexual cohabitation among them & therefore their marriage dated 20.6.2007 is voidable & is liable to be annulled by a decree of nullity. She has prayed that keeping in view her mental agony, life & future, the Respondent-husband is liable to pay her a consolidated compensation of Rs. 10,00,000 & also liable to return all her articles as mentioned in scheduled-A of the petition.

The Respondent-husband filed his written statement stating that after the marriage he never expressed his inability to perform sexual act with the Appellant-wife. He alleged that the Appellant-wife intentionally avoided to have sexual intercourse with him & always disliked him & humiliated him also. He further urged that no dowry had been given to him at the time of marriage & the description of articles mentioned in the scheduled-A of the petition is imaginary one, thereby her request to return the articles cannot be allowed. He further vehemently urged that under the matrimonial law there is no payment of compensation & as such, the Appellant is not entitled to get such relief. According to him, the Appellant-wife being a working lady having sufficient means, the prayer for decree of nullity annulling the marriage dated 20.6.2007 has to be unconditional.

In order to substantiate the contention, the Appellant-wife has examined two witnesses, namely, P.W. 1, she herself & P.W. 2, her mother, Krishna Roychoudhury, whereas the Respondent-husband has examined one witness, namely, O.P.W. 1, he himself. The Appellant, has relied upon the document, marked as Exts. 1 to 7 & 7 la, whereas the Respondent relied upon the documents, marked as Exts. A to E.

From the materials available on record, it is found that after the marriage was solemnized, both the Appellant & Respondent went to the house of the Respondent at Hazaribag, Jharkhand but in the fourth night their marriage could not be consummated as Respondent-husband did not establish physical relationship with the Appellant-wife on that night. They stayed at Hazaribag from 22.6.2007 to 11.7.2007 in the house of the Respondent-husband along with other family members & during the said period there was no physical relationship among them. However, the Appellant-wife came to know from his family members that the Respondent-husband is very shy & due to such shyness he was hesitant to keep physical relationship with her. On 11.7.2007, the Appellant wife came to the house of her parents for appearing in her 1st Year M.Sc. Examination. On 16.8.2007 while she was in the house of her parents, she heard the news of the death of her father-in-law & on 17.8.2007 she went to Hazaribag. After funeral ceremony was over, she came back on 28.8.2007 but during the period from 17.8.2007 to 28.8.2007 there was no physical relationship among them. For business purpose, the Respondent-husband was staying at New Delhi in a rented house & after the examination was over the Appellant-wife went to the house of the Respondent-husband at Arjun Nagar near. Safdarjung on 18.10.2007 & stayed with him till 1.11.2007. The Appellant-wife felt that the Respondent-husband was trying to dominate her & was not interested to keep any marital relationship including sexual relationship with her. This inflicted mental agony & shock on her & she suspected that the Respondent-husband was impotent. At the same time, the Respondent-husband was showing indifferent attitude towards sex & told that he has no sexual appetite or desire. In one occasion the Appellant-wife forced him for cohabitation but the Respondent-husband expressed his inability for the same thereby she became definite that the Respondent-husband was lacking in capability for sex. Due to such conduct of the Respondent-husband, the Appellant-wife became harassed & she lost her mental balance & therefore, the marriage has not been consummated at all. Due to the illness of the grandmother of the Appellant, she came to Cuttack immediately where she disclosed before her friends & close relations about the impotency of her husband & thereafter her parents also came to know about the same. On being contacted, the family of the Respondent-husband reluctantly admitted about his impotency & requested her to tolerate it for the sake of their family prestige & also stated that impotency could be cured through treatment.

Learned Counsel appearing for the Respondent-husband stated that on perusing the application filed u/s 12 of the Act by the Appellant-wife, it would be seen that neither there is any pleading nor any prayer for claiming permanent alimony. On the other hand, Appellant-wife has claimed compensation of Rs. 10 lakhs, on consideration of which the Learned Judge, Family Court has granted Rs. 5 lakhs as permanent alimony, which is beyond the pleading. Therefore, he vehemently urged that the Appellant is not entitled to get any permanent alimony, save & except the compensation claimed in her application u/s 12 of the Act. He further urged that by granting such permanent alimony Learned Judge, Family Court has exceeded his jurisdiction & therefore the impugned Judgment to that effect cannot be sustained.

To the above contention, Learned Counsel for the Appellant-wife states that though no relief has been sought in the application filed u/s 12 of the Hindu Marriage Act, 1955, hereinafter referred to as "the Act" though claim of compensation has been made but in effect the same amounts to relief for grant of permanent alimony & rightly the Learned Judge, Family Court has passed the order granting permanent alimony of Rs. 5 lakhs. However, he disputes with regard to the quantum of Rs. 5 lakhs as permanent alimony keeping in view the status of the Appellant-wife at par with the status of the Respondent-husband. He has relied upon the Judgments of the Apex Court Vinny Parmvir Parmar Vs. Parmvir Parmar, Vishwanath Agrawal Vs. Sau. Sarla Vishwanath Agrawal, & U. Sree Vs. U. Srinivas,

In view of the aforesaid background of the case, the following questions arise for consideration in this case.

(i) Whether the marriage has been consummated between the Appellant & the Respondent?

(ii) Whether the decree of nullity annulling the marriage can be granted to the Appellant?

(iii) Whether the compensation claimed by the Appellant can be equated with the claim of permanent alimony or not?

(iv) Whether the Appellant is entitled to get any permanent alimony?

(v) To what order?

Marriage between the Appellant & the Respondent is not disputed. The Appellant in her application u/s 12 of the Act, prays for a decree of nullity annulling the marriage dated 20.6.2007 on the ground that the Respondent is impotent & their marriage has not been consummated since the date of their marriage. To such assertion, the Respondent has neither denied specifically in his written statement nor has stated with regard to consummation of their marriage by sexual intercourse. On the other hand, in paragraph-17 of the written statement filed by the Respondent-husband it is stated that the Appellant-wife on each & every occasion has avoided to have sexual intercourse with him. At the same time, Respondent-husband has also admitted that he has no objection if a decree of nullity by annulling the marriage is passed.

The Appellant-wife has proved by convincing evidence available on record that the Respondent-husband by his conduct has subjected her to cruelty. That apart, the Appellant-wife has not produced any document to prove the impotency of the husband-Respondent. Because of that reason the marriage has not been consummated; The Respondent has not taken any step to have him medically examined by a competent medical officer to prove that he is not impotent. Even from the oral evidence adduced by P.W. 1 nothing has been elucidated to discard her testimony about the impotency of the Respondent. In view of such position, since the marriage has not been consummated due to impotency, of the Respondent-husband, Learned Judge, Family Court is justified in annulling the marriage by passing a decree of nullity on the application filed u/s 12 of the Act.

In course of hearing on a query being made by the Court to the Counsel appearing for both the parties, it reveals that there is no possibility of reunion by the parties. Therefore, the order passed by the Judge, Family Court annulling the marriage by a decree of nullity is not required to be interfered with, thus, questions No. (i) & (ii) are answered accordingly.

So far as the question No. (iii) is concerned, in order to answer this question, it would be profitable to deal with the dictionary meaning of ''compensation'' & "permanent alimony".

(1) The word "compensation" should be taken to mean the sum remaining after setting-off the gains from the amount of loss through the non-fulfilment of the contract. AIR 1943 34 (Privy Council)

(2) The expression "compensation" ordinarily used as an equivalent to damages, although compensation may often have to be measured by the same rule as damage in an action for the breach. The term "compensation" as pointed out in Oxford Dictionary, signifies that which is given recompense, an equivalent rendered damages, on the other hand, constitute the sum of money claimed or adjudged to be paid in compensation for loss or injury sustained, the value estimated in money, of something lost or withheld. The term "Compensation" etymologically suggests the image of balancing one thing against another. Its primary signification is equivalent, & the secondary & more common meaning is something given or obtained as an equivalent. Mahamed Mozaharal Ahad Vs. Mahamed Azimaddin Bhuinya

(3) According to dictionary it means, "compensating or being compensated; thing given as recompense". In legal sense it may constitute actual loss or expected loss & may extend to physical, mental or even emotional suffering, insult or injury or loss. Lucknow Development Authority Vs. M.K. Gupta,

(4) Though the word "compensation" is not defined in the Act or in the rules it is the giving of an equivalent or substitute of equivalent value. It means when you pay the compensation in terms of money it must represent, on the date of ordering such payment, the equivalent value, (Para 24).

Rathi Menon Vs. Union of India,

(5) The dictionary meaning of the word under "compensation is as Black''s Law Dictionary

"money given to compensate loss or injury."

Webster''s Third New International Dictionary

"the act or action of making up, making good or counterbalancing rendering equal:"

P. Ramanatha Aiyar: Law Lexicon

"something given or obtained as an equivalent;... an equivalent given for property taken or for any injury done to another;

The meaning of "permanent alimony reads as follows:--

Alimony, signifies that allowance which a married woman sues for on separation from her husband.

As to construction & force of covenants in a Separation Deed. [See F. Stroud''s Judicial Dictionary]

(Alimonia), the allowance which is made to a woman for her support out of her husband''s estate when she is under the necessity of living apart from him. This provision is allowed to the wife during the pendency of a suit for divorce or judicial separation as well to provide the wife with the means to obtain justice as for/her ordinary subsistence (Matrimonial Causes Act, 1950. Section 19 & 20). When there has been a decree of judicial separation, alimony becomes a permanent allowance, & is continued during the whole period of separation (Section 20). Upon a decree of divorce, the relief granted to a wife is called maintenance (q.v.). Upon an application for alimony, the Court requires on the part of the husband a statement both of his casual & of his certain income to be set forth (Matrimonial Causes Rules, 1957, Rule 48). The wife, although the guilty party, is sometimes allowed alimony, Or a provision by way of alimony subject to conditions, but alimony pendente lite is normally refused where the wife has been guilty of adultery. As a rule, maintenance is fixed at about one-third of the joint incomes of husband & wife if there are not & a larger amount if there are children to be supported by the wife; in the case of alimony pendente lite, the usual rate is one-fifth. See also, the Matrimonial Causes (Property & Maintenance) Act, 1958. [See Earl Jowitt''s The Dictionary of English Law, 2nd Ed, At 98-99].

Even though in the application filed u/s 12 of the Act, the Appellant claims for compensation, in view of the analogy made in the foregoing paragraphs, the said ''compensation'' can be construed as ''alimony''. Therefore, we do not have any hesitation to state that mentioning of compensation in the application u/s 12 of the Act amounts to claim of alimony by the Appellant-wife. Thus, question No. (iii) is answered in favour of the Appellant wife.

Since there is no possibility of any reunion, what should be the just & proper permanent alimony that can be granted to the Appellant to meet the situation. During pendency of this appeal, the Appellant has filed Misc. Case No. 85 of 2013 under Order 41, Rule 27 read with Section 151 of the Code of Civil Procedure, 1908 by furnishing documents to be treated as additional evidence for determination of alimony. Apart from the same. Misc. Case No. 100 of 2013 has been filed under Order 6, Rule 17 of the Code of Civil Procedure, 1908 seeking amendment of the appeal memo where she has given enhanced figure claiming higher amount towards permanent alimony. To the said petitions, objection has been filed by the Respondent-husband denying the contentions raised in both the misc. cases. However, both the misc. cases are taken into consideration for determination of alimony in favour of the Appellant.

Learned Counsel for the Respondent-husband relied upon the Judgment passed in D. Balakrishnan Vs. Pavalamani, , Bhausaheb @ Sandu Vs. Leelabai Magar, & unreported Judgment of the Apex Court in Poonam v. Mahendra Kumar (CRLMP 18899 of 2009 disposed of on 16.11.2009, arising out of the Judgment & Order Dated 19.03.2009 in CRM No. 24684 of 2008 of the High Court of Punjab & Haryana at Chandigarh). So far as the Judgments of the Bombay & Madras High Courts are concerned, the Courts have held that permanent alimony can be granted on making an application furnishing all details regarding his/her own income or other property whereas the Apex Court in Poonam (supra) has held that no alimony can be granted to the women who deserted the husband. The Judgment of the Apex Court is not applicable in the present context in view of the fact that the question of deserting by the Appellant to the Respondent does not arise in the case in hand, rather it is otherwise.

From the materials available on record, it is found that in paragraph-19 of the evidence adduced by the Appellant, she herself admitted that she is working in D.A.V. Public School, Tulasipur, Cuttack as a primary teacher from 19.6.2008 & stated that her monthly salary is Rs. 3500, but she being an employee, cannot be deprived of getting permanent alimony. In paragraph-17 she has stated that she has not filed any documents to show the business of the Respondent in the name & style of "Towards Vision Technology" rather she has only filed, a document showing payment of income tax by the Respondent. However, vide Ext.1 she has proved that the Respondent is the Director of "Towards Vision Technology" but referring to Exts.1 & 2 neither the Appellant nor her mother during course of examination have stated that they have no knowledge about the information contained in Ext.1. Therefore, no importance can be attached to Ext.1. However, referring to Ext.7, the income tax return for the assessment year 2011-2012 of the Respondent, the Appellant has stated that the gross income of the Respondent is Rs. 13,72,750 & he was paying tax of Rs. 2,42,899 whereas the Respondent in paragraph-26 of his evidence during course of examination stated that his earning is Rs. 30,000 per month from "Towards Vision Technology" & he is working as a consultant of some other firms. In paragraph-25 of his evidence he has stated that he gets remuneration at times for his other jobs & he also pays money to those firms. In paragraph-3 of the evidence, the Appellant has stated that the Respondent has completed his. M.Sc. examination in Mathematics from NT, Kanpur & he has also completed his Post Graduate Degree in Computer Science from Birla Institute of Technology & Science, Pilani, Rajasthan, & being a qualified person, it cannot be said that he has no income.

Apart from the evidence available on record during pendency of the appeal, Misc. Case No. 85 of 2013 has been filed by producing additional evidence providing income tax return & share valuation certificate of the Respondent''s company prepared by the Chattered Account. The same has been taken into consideration for determination of permanent alimony to be granted, in favour of the Appellant-wife.

In view of the materials available On record, since there is no possibility of any reunion between the parties, this Court has to grant permanent alimony to settle the dispute for all times to come. As it transpires from the record even, in this proceeding the Appellant has not filed any separate application seeking permanent alimony & maintenance. Even if no separate application has been filed, the Court can take into consideration the contention raised by the Appellant at the time of hearing. Therefore, in order to consider this aspect for grant of permanent alimony, reference is made to Section 25 of the Act, which reads as follows:--

Section 25. Permanent alimony & maintenance:--(1) Any Court exercising jurisdiction under this Act, may at the time of passing any decree or at time subsequent thereto, an application made to it far the purpose by either the wife or the husband, as the case may be, order that the Respondent shall pay to the Appellant far her or his maintenance & support such grass sum or such monthly or periodical sum far a term not exceeding the life of the applicant as, having regard to the Respondent''s awn income & other property, if any, the income & other property of the applicant (the conduct of the parties & other circumstances of the case), it may seem to the Court to be just & 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 remarried 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 u/s 25 of the Act, 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 & other property, Of the applicant,

(c) the Respondent''s awn income & other property,

(d) the conduct of the parties, &

(e) other circumstances of the case.

In the light of the language used in Section 25 of the Act, there is no dispute that it would be open to either party to claim permanent alimony & maintenance even before this Court. The powers of the Appellate Court are also indicated in Section 107 of the CPC which provides that the Appellate Court shall have the same powers as are conferred on the original Court. This too was based on the principle that the power which was available to the original Court could be exercised by the Appellate Court also. It is clear from Section 107 of the CPC as well as the language used in Section 25 of the Act, the Appellate Court viz, this Court has same powers as are conferred on the original Court.

The Apex Court in Vinny Parmvir Parmar Vs. Parmvir Parmar, held as follows:--

It is further seen that the Court considering such claim has to consider all the above relevant materials & 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 & 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 & others whom he is obliged to maintain under the law & 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 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.

In Vishwanath Agrawal Vs. Sau. Sarla Vishwanath Agrawal, the Apex Court while granting permanent alimony has observed that the amount that has already been paid to the Respondent-wife towards alimony is to be ignored as the same had been paid by virtue of the interim orders passed by the Courts. It is not expected that the Respondent-wife has sustained herself without spending the said money.

In U. Sree Vs. U. Srinivas, , the Apex Court while dealing with Section 25 of the Act has observed as follows:--

while granting permanent alimony, no arithmetic, formula can be adopted as there can not be mathematical exactitude. It shall depend upon the status of the parties their respective social needs, the financial capacity of the husband & other obligations." In the said Judgment the Apex Court has also observed that "it is the duty of the Court to see that the wife lives with dignity & comfort & not in penury. The living need not be luxurious but simultaneously she should not be left to live in discomfort. The Court has to act with pragmatic sensibility to such an issue so that the wife does not meet any kind of man made misfortune.

During pendency of this appeal, admittedly the Appellant filed Misc. Case No. 63 of 2013 u/s 24 of the Hindu Marriage, Act, 1955 for payment of interim maintenance & litigation expenses but no order has been passed in the said Misc. Case.

In view of the fact & law discussed above, this Court has the power u/s 25 of the Act to award permanent alimony just like the original Court. The Respondent being the Director of a company, taking his social status & income on the basis of income tax return, share valuation certificate & the balance sheet of the company into consideration, it would be just & proper to award a sum of Rs. 15 lakhs towards the permanent alimony In favour of the Appellant-wife, though she has claimed compensation of Rs. 10 lakhs & also return of her articles as mentioned in Schedule-A of the petition. Accordingly, we direct the Respondent to pay a sum of Rs. 15 lakhs within a period of two months.

At the same time, we do hereby hold that since'' the marriage has not, been consummated due to impotency of the Respondent-husband Learned Judge, Family Court is justified in annulling the marriage by passing a decree of nullity on the application filed u/s 12 of the Act. With the above observation & direction, the appeal is disposed of.

Sanju Panda, J.

I agree.