Neetu vs Brajesh Sen

Heard.

The appellant has filed this appeal against the judgment dt.26.6.2009 passed in Civil Suit No. 41A/2008.

The respondent-husband filed a suit for divorce under Section 13(1)(a) and 13(1)(b) of Hindu Marriage Act 1955 (hereinafter referred to as "Act of 1955"). The trial court decreed the suit.

Learned counsel for the appellant has contended that he does not want to press the appeal on merits in regard to grant of divorce, however, it is submitted by the learned counsel for the appellant that the permanent alimony be fixed in favour of the appellant. He further submits that if the court fix a permanent alimony, then the appellant shall withdraw the criminal cases registered against the respondent.

Learned counsel appearing on behalf of the respondent has submitted that the court has granted divorce on the ground of cruelty, hence, permanent alimony could not be fixed. He further contended that the respondent is a poor person and the appellant is also getting maintenance under Section 125 of Cr.P.C., hence, it would not be proper to fix permanent alimony.

Section 25 of the Act of 1955 prescribes power to the court to grant permanent alimony. Aforesaid section 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 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 the perusal of the aforesaid section it is clear that the court has power to fix permanent alimony at any stage of the proceeding either in favour of the wife or in favour of the husband.

Hon''ble Supreme Court in U. Sree Vs. U. Srinivas, has held that even if the divorce is granted on the ground of cruelty, the court can grant permanent alimony. The court has further held that following factors shall be considered by the court while granting permanent alimony :-

"While granting permanent alimony, no arithmetic formula can be adopted as there cannot be mathematical exactitude. It shall depend upon the status of the parties, their respective social needs, the financial capacity of the husband and other obligations. The duty of the court is to see that the wife lives with dignity and comfort and 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."

From the perusal of the judgment of the Hon''ble Supreme Court, it is clear that the court has to consider the social needs, financial capacity of the husband while fixing the permanent alimony, so that the wife can live with simple life.

In the present case, it is admitted by the respondent himself that he was earning Rs.2000/- per month. The appellant in her evidence and in other evidence deposed that income of the respondent was Rs.6000/- p.m. The appellant is getting maintenance of Rs.2000/- per month. Appellant has to maintain herself and a daughter. It is pleaded in the evidence that some dowry was also given at the time of marriage.

Looking to the aforesaid facts of the case and the fact that the appellant has been living in a town and she has no means for her livelihood, in our opinion, it would be just and proper to grant a permanent alimony of Rs.3,00,000/- (Rupees Three Lac) in favour of the respondent. In the event of getting permanent alimony, the appellant shall not be eligible to get maintenance under Section 125 of Cr.P.C. as fixed by the trial court. Apart from this, as per the undertaking given by the learned counsel for the appellant, she will also withdraw the criminal case or will not press the criminal case registered on her complaint against the respondent.

Consequently, the appeal is disposed of with the following directions :-

(1) That the decree of divorce granted by the trial court is affirmed, however, the appellant shall be eligible to get a permanent alimony of Rs.3,00,000/- (Rupees Three Lac). It shall be paid by the respondent in three installments of Rs.One lac each in an interval of three months. This would include the maintenance which was granted by the trial court under Section 125 of Cr.P.C., however, the rights of the daughter would not be affected due to grant of permanent alimony.

(2) Impugned judgment and decree is modified to the extent indicated above.

Parties shall bear their own costs.