Nirmala Kumar Nanda vs Sarojini Nanda

B.K. Patel, J.—This appeal filed at the instance of husband-Appellant against wife-Respondent is directed against common Judgment & Order Dated 5.3.2007 passed by Learned Judge, Family Court, Cuttack in Criminal Proceeding No. 226 of 2001, Civil Proceeding No. 148 of 2002 & Misc. Case No. 195 of 2002 arising out of Civil Proceeding No. 148 of 2002.

Respondent instituted Criminal Proceeding No. 226 of 2001 claming maintenance from the Appellant u/s 125 of the Cr.P.C. Civil Proceeding No. 148 of 2002 was instituted by the Appellant u/s 13 of the Hindu Marriage Act (for short ''the Act'') seeking divorce against Respondent. Respondent filed Misc. Case No. 195 of 2002 claiming return of dowry/articles presented at the time of marriage u/s 27 of the Act.

It appears that during pendency of the proceedings Appellant & Respondent filed joint application for divorce subject to determination of quantum of one time maintenance to be paid by the Appellant to Respondent. The prayer was allowed & parties we''re permitted to adduce further evidence in the matter of claim for permanent alimony. In Civil Proceeding No. 148 of 2002 Appellant examined three witnesses including himself as P.W.1 whereas Respondent examined herself only as O.P.W.1. Documents marked Exts.1 & 2 were exhibited on behalf of the Appellant & marked Exts. ''A'' to ''J'' were exhibited on behalf of Respondent. In Misc. Case No. 195 of 2002 two witnesses P.Ws. 1 & 2 were examined on behalf of Respondent & Appellant examined himself only as O.P.W.1. In Criminal Proceeding No. 226 of 2001 Respondent examined herself only as P.W.1 & relied upon documents marked Exts.1 to 4 whereas no evidence was adduced on behalf of the Appellant. By the impugned common Judgment, while allowing the Appellant''s prayer for divorce, the Learned Judge, Family. Court, Cuttack directed the Appellant to pay to the Respondent Rs. 75,000 towards permanent alimony in Civil Proceeding No. 148 of 2002. In Misc. Case No. 195 of 2002 Appellant was directed to pay Rs. 50,000 towards refund of cash presented to him on account of marriage. In view of grant of permanent alimony, no direction for payment of monthly maintenance was made in Criminal Proceeding No. 226 of 2001.

Learned Counsel for the Appellant argued that while directing the Appellant to pay Rs. 75,000 towards one time maintenance to the Respondent Learned Judge, Family. Court, Cuttack has not taken into account the income of the Appellant & the Appellant''s financial liabilities towards his family members. It was further contended that the Learned Judge, Family Court, Cuttack should not have accepted the allegation that Rs. 50,000 was paid to him on account of marriage by the Respondent''s family.

Learned Counsel appearing for the Respondent, in reply, contended that Learned Judge, Family Court, Cuttack has assigned cogent reasons in support of the direction for payment of Rs. 75,000 towards permanent alimony & Rs. 50,000 towards refund of money presented at the time of marriage to the parties. It was argued that though, apart from Rs. 50,000 deposited in Appellant''s Bank account, Rs. 20,000 also was paid in shape of Kissan Vikas Patras, Learned Judge, Family Court, Cutack was of the view that evidence adduced by the Respondent in that regard was deficient.

We have heard the rival contentions upon reference to materials on record. Marriage between the parties was dissolved on consent in response to joint application filed by them. Controversy in the appeal is confined to the quantum of permanent alimony & the amount directed to be refunded to the Respondent by the Appellant.

Appellant himself testified that he is serving in Saraswati Sishumandir, Baramunda & his monthly salary was Rs. 1,600. It is in his evidence that his salary is being paid through a bank account opened in his name by Saraswati Sishumandir. Ext. ''J'', Bank statement supported Appellant''s assertions. Appellant''s mother P.W.3 deposed In Civil Proceeding No. 148 of 2002 that her family pension is Rs. 1,800 & that they have 16'' gunths of land. Record of rights filed by the Respondent reveals that Appellant has approximately 17 gunths of land in his share. Appellant asserted in his evidence that Respondent is earning Rs. 3,000 per month by imparting private tuition to students which assertion is being denied by the Respondent. Also, there is no averment in this regard by the Appellant in his pleadings. Therefore, there is no scope to come to a finding that Respondent has any income of her own. On the contrary, it is established that apart from owning about 17 gunths of land, the Appellant has monthly income from his employment with Saraswati Sishumandir. Learned Judge, Family Court, Cuttack has conservatively assessed Appellant''s annual income at Rs. 20,000 in the year 2002. Considering Appellant''s age, total income from his salary during the entire service period as well as income from agricultural source, Appellant''s income till retirement was assessed at Rs. 5.00 lakhs. In such circumstances, we are of the considered view that direction to pay permanent alimony of Rs. 75,000 to the Respondent is not at all unreasonable & is rather on the lower side.

In her application u/s 27 of the Act filed in Misc. Case No. 195 of 2002 the Respondent appears to have claimed that Appellant was presented cash of Rs. 70,000. It was averred that Rs. 50,000 was paid by way of deposit in the Appellant''s postal saving account No. 89022 & Rs. 20,000 was paid in the shape of two Kisan Vikas Patras each for Rs. 10,000 bearing Nos. 56 CC 1397/96 & 56 CC 1397/97. Respondent also averred that articles under Schedule-A & gold ornaments under Schedule-B to the application were presented in connection with the marriage. In view of positive evidence on record indicating that in the criminal case instituted by the Respondent as many as 96 items of articles were seized from the Appellant''s house, Learned Judge, Family Court, Cuttack was not inclined to direct return of any article. Respondent''s brother examined as P.W.1 in Misc. Case No. 195 of 2002 testified that he himself had deposited Rs. 50,000 in the postal saving bank account of Appellant in Salipur Post Office on 24.2.1999 & also had given two Kisan Vikas Patras worth Rs. 10,000 each on 24.3.1999 to the Appellant. Ext. ''A'', postal counter foil of the deposit slip for Rs. 50,000 against Appellant''s bank account substantiated the assertion of deposit in the Post Office. However, no document was filed to support the assertion of payment of Rs. 20,000 in the shape of Kisan Vikas Patras. Moreover, Respondent deposed that Kisan Vikas Patras were purchased on 24.3.1999 though the marriage was solemnized on 9.3.1999. In view of nature of evidence available on record it was held by the Learned Trial Court that the Respondent has failed to establish that gold ornaments were given to either the Respondent or the Appellant before or at the time of marriage. There is no cogent proof of payment of Rs. 20,000 in the shape of Kisan Vikas Patras also. However, Appellant''s assertion regarding payment of Rs. 50,000 by way of deposit in Appellant''s saving bank account stood proved by the counter foil of the deposit slip. Therefore, the Appellant has rightly directed to refund the marriage presentation of Rs. 50,000 retained by him in his bank account.

In view of the above discussion, we do not find any merit in the appeal. Therefore, the appeal is dismissed.

L. Mohapatra, J.

I agree.