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Judgment
Aggrieved by the order of grant of permanent alimony dated 31.03.2016 in M.C.No.234/2011 passed by the Principal Judge, Family Court, Mangaluru, the appellant/husband has preferred the above appeal. The respondent filed M.C.No.234/2011 under Section 10(1)(x) of Indian Divorce Act before the Family Court, Mangalore seeking dissolution of her marriage with the appellant on the ground of cruelty and claimed permanent alimony of Rs.36,00,000/- or @ Rs.2,00,000/- per annum till her death. The appellant contested the petition denying the allegations of cruelty. For the purpose of convenience, the parties will be referred to hereafter with their ranks before the trial Court.
To substantiate their respective pleas the petitioner got examined herself as PW1 and got marked Ex.P.1 to P.31 and the respondent got examined himself as RW1 and got marked Ex.R.1 to R.27. The trial Court after hearing the parties by the impugned judgment allowed the petition granting decree of dissolution of marriage. The trial Court granted permanent alimony of Rs.16,00,000/- and litigation expenses of Rs.25,000/- to the petitioner.
The respondent has not filed any appeal challenging the decree of divorce. In the above appeal, the appellant-husband restricts his challenge only to the extent of the grant of permanent alimony.
On service of notice, the petitioner/wife came up with the above Cross Objections on the ground that the alimony granted is inadequate. Thus, by acceptance of both the parties, the decree of dissolution of marriage has attained finality. Under the above circumstances, this Court is called upon to decide only on the sustainability of the finding as to the grant of permanent alimony.
The respondent-wife claimed permanent alimony of Rs.36,00,000/- or in the alternative a sum of Rs.2,00,000/- per annum till her lifetime alleging that she has no means of livelihood and the husband is earning salary of Rs.3,00,000/- per month as Project Manager in Infosys and he has a very stable, prospering and ascending career graph.
The appellant though admitted his qualification and employment as engineer in Infosys, denied the other contentions regarding the quantum of his income and means of the livelihood. On the application of the wife, the trial Court summoned the salary certificate and the income tax returns of the appellant from his employer and the department, which are marked at Ex.P.11 and Ex.P.12. On appreciating the oral and documentary evidence, the trial Court by the impugned judgment holds that the husband''s average monthly income is Rs.1,25,000/- and awards global permanent alimony of Rs.16,00,000/- to the wife.
The appellant challenges the award of alimony as exorbitant and without basis. Whereas, by way of Cross Objection, wife challenges the award as inadequate and seeks for enhancement of the same up to her claim.
Section 37 of the Indian Divorce Act governs the grant of permanent alimony while granting a decree of dissolution of marriage on the petition of the wife. While granting such permanent alimony Section 37 of the Indian Divorce Act, requires the Court to grant the same not exceeding the wife''s own lifetime and to have regard to her fortune (if any), to the ability of the husband, and to the conduct of the parties.
So far as the Cross Objections, it is to be noted that wife claimed permanent alimony of Rs.36,00,000/- on the ground that the husband''s income per month is Rs.3,00,000/-. At her own instance, the salary certificate/particulars and the income tax returns of the husband were summoned, which are marked at Exs.P.11 and 12. As per Ex.P.11, the gross salary of the husband for the month ending 31.07.2013 was Rs.1,43,708/- and his take home salary was Rs.1,11,700/-. As per the income tax returns, the husband''s annual income for the year 2011-112 was proved to Rs.10,91,401/-. Taking into consideration Exs.P.11 and 12 and the employment status of the husband as the Senior Project Manager and his career graph, the trial Court computed the husband''s average monthly income as on the date of judgment i.e., on 31.03.2016, at Rs.1,25,000/-.
There cannot be any dispute that the alimony shall be in commensurate with the income of the husband. Calculating the income @ Rs.3,00,000/- per month, the wife claimed alimony of Rs.36,00,000/-. When she could prove the average monthly income of the husband at Rs.1,25,000/- automatically, her entitlement reduces proportionately.
Calculated at that rate, she is entitled to the permanent alimony of Rs.15,00,000/- (Rs.36,00,000/3,00,000 x 1,25,000= 15,00,000/-). Further, the trial Court took into consideration the conduct of the husband in granting alimony and awarded Rs.16,00,000/-. Therefore, there is no merit in the contention of the wife that the alimony granted is inadequate and consequently, the cross objection of the wife is liable to be dismissed.
Sri Sanath Kumar Shetty, the learned counsel for the appellant reiterating the grounds of appeal argued that the trial Court''s finding that the average monthly income of the husband is Rs.1,25,000/- is baseless. He further contended that the trial Court has failed to appreciate that the salary income of the appellant is variable and the trial Court has not taken into consideration that the husband has to pay income tax on the salary. He contends that the trial Court ought to have seen that the wife was employed prior to the marriage and her earning capacity should have been taken into consideration.
As already pointed out the guiding factors in granting alimony under Section 37 of the Indian Divorce Act are the fortune of the wife, if any, the ability of the husband and the conduct of the parties. It is an admitted fact that wife is only a B.A. graduate and she gave up her job at Bengaluru even before her marriage with the respondent. Thus, she has no source of her own income. It is not even the case of the husband that she owns any property much less a property which generates any income.
The trial Court while assessing the income of the husband relied upon Ex.P.11 - the salary slip of the husband produced by the employer and the Income Tax Returns - Ex.P.12 and the husband does not dispute the said documents. He does not dispute the statement in Ex.P.11 that he is employed as Senior Project Manager and his gross salary as on 31.7.2013 was Rs.1,43,708/- and take home salary was Rs.1,11,700/-.
He also does not dispute that after deduction of PF contribution, VPF, Income Tax, Infosys Welfare Trust, Gym facility his take home salary in that month was Rs.1,11,700/-. In that compulsory deduction are only PF contribution and Income Tax. Therefore, there is no merit in the contention that the trial Court has failed to take into consideration the income tax deductions while assessing the income of the husband for the purpose of determining the alimony.
There is no dispute that in his income tax returns for the year 2011-12 the husband has shown his annual income from salary as Rs.10,91,401/-. There is no dispute that the income tax returns referred to the interest gained from bank deposits also. The trial Court based on records and admission of RW1 himself holds that initially the husband was employed as Project Manager and he has worked in 20 projects and presently working 5 years project for US based publication.
It is not the case of the respondent/husband that there is any recession in his employment. Having regard to such career background of the husband and the evidence on record, certainly there is legitimate expectation of the progress of the career of the respondent. Therefore, the trial Court has assessed the average monthly income of the husband at Rs.1,25,000/-. Thus, there is no merit in the contention that the assessment of the income of the husband is baseless and on surmises.
Since there are no issues, the husband has to share 50% of his income as alimony to the wife. When the wife filed petition she was hardly 27 years old and the appellant was 31 years old. As per the data published by the World Health Organisation in 2015 the average life expectancy of Indian male is 66.9 years and female is 69.9 years. The husband is bound to maintain the wife till the end of her life unless he dies before her.
The proviso to Section 37 of the Indian Divorce Act provides for the husband seeking for modification of the order of permanent alimony, if at all, he becomes unable to make payment afterwards. Therefore, if there is any variance in the income of the husband, he can seek modification of the order resorting to the said proviso.
The Trial Court holds that the husband prolonged the matter when his salary particulars were summoned to avoid production of the evidence and thereby put the wife to the hardship without paying any interim maintenance. In addition to that the trial Court has held the husband to be guilty of cruelty. That finding he has accepted. Though the trial Court did not specify how it arrived at Rs.16,00,000/-, having regard to all these facts and the claim made by the wife, this Court does not find any error in the impugned order of permanent alimony.
Moreover, as submitted by the counsel for the parties, the appellant has already deposited the said sum of Rs.16,00,000/- before the Executing Court in the Execution Petition filed by the wife. Therefore, appeal does not deserve any merit. For the aforesaid reasons, the appeal is dismissed with costs and the Cross Objection is also dismissed.