Smt. Vishan Devi W/o Tarachand vs Tarachand S/o Shri Harisingh

This D.B. Civil Miscellaneous Appeal under Section 19 of the

Family Court Act instituted against the order dt.18.10.2016 passed

by learned Judge, Family Court, Bharatpur, in Civil Misc. (Hindu

Marriage Act ) case No.81/2016. By this order learned Judge

Family Court granted Rs.2,00,000/- as permanent alimony in

favour of appellant-wife Smt. Vishan Devi under Section 25 of

Hindu Marriage Act.

Heard learned for the appellant.

No one put appearance on behalf of the respondent despite

service peruse the material available on record.

During arguments, learned counsel appearing on behalf of

appellant-Smt. Vishan Devi submits that amount of permanent

alimony Rs.2,00,000/- granted by learned Family Court is too less

in present situation. He argued that everyday price index of every

essential items is rapidly increasing day by day and in this

situation it is not possible for appellant to carry her life

satisfactorily. He further submits in argument that in this situation

amount of permanent alimony must be at least Rs.6,00,000/-. He

also submits that respondent-husband is working as Physical

Instructor and is earning Rs.42,147/- per month as gross salary at

the time of submission of this application before learned Family

Court in the year 1999. He also submits that appellant-wife Smt.

Vishan Devi is purely illiterate and woman of rural background.

She is physically very weak and she is unable to perform any work

for earning.

Learned counsel for the appellant also submits that learned

Family Court while granting permanent alimony not considered the

price index at the time of passing of the impugned order. He also

submits that learned Family Court has erred in granting

permanent alimony on the basis of salary of the respondent at the

time of passing impugned order.

Learned counsel for the appellant also submits that the

impugned order is contrary to the well established principles of

law.

On the basis of all above contentions, learned counsel for the

appellant prayed for increasing amount of permanent alimony

from Rs.2,00,000/- to Rs.6,00,000/-.

We have perused the evidence and other material available

on record and considered the arguments submitted by learned

counsel for the appellant.

Provision for availing permanent alimony and maintenance

under Section 25 of the Hindu Marriage Act, 1955, is as follows:-

"(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]."

It is clear from the provisions of Section 25 of the Hindu

Marriage Act that while granting amount of permanent alimony

income of the husband and the income of the wife must kept in

mind. In this case, respondent admitted in reply that he is working

as physical teacher. He also admits before learned Family Court in

his reply that he have agricultural land with his own ownership.

The statement of appellant Smt. Vishan Devi was also

recorded before learned Family Court, Bharatpur.

During her statement she stated that her husband is earning

Rs.46,000/- per month as his salary and he has no loan on him.

Smt. Vishan Devi also stated in her statement that her husband

have agricultural land and from agricultural land he is earning

Rs.50,000/- per year. She also stated that her husband earning

about Rs.20,000/- per month from tuition. According to salary slip

(Salary slip of respondent Tarachand (Ex.1) is on record) in the

year 2014 Tarachand was getting Rs.42,147/- per month as total

salary. Jamabandi (Ex.2) also shows that Tarachand have

agricultural land on his name and definitely be having additional

income from agriculture.

Another witness of appellant Vishan Devi, Omvir also stated

in his statement that Tarachand is working as Physical teacher and

his salary is about Rs.40,000/- per month and about Rs.50,000/-

per year from agricultural land. Omvir also support this fact that

Tarachand has an additional earning of Rs.40,000/- per month

from tuition.

This is indisputed that the price index increases day by day

and this fact we cannot be ignored that the application for

permanent alimony was filed by the appellant wife in the year

1997 and from 1997 price index has increased rapidly and survival

has become very difficult and the learned Judge of Family Court

has failed to consider these salient facts before passing the order

of permanent alimony.

Appellant Smt.Vishan Devi has clearly stated in her evidence

that she is illiterate and physically very weak and is from rural

background and has further stated that she has no source of

income with no movable or immovable property with her and due

to physical unfitness she is unable to perform any work for

sustenance.

On the basis of above material, we are of the considered

view that in the present situation amount of permanent alimony

granted by learned Family Court, Bharatpur is not sufficient for

livelihood of appellant and consider it appropriate to increase the

amount of permanent alimony from Rs.2,00,000/- to

Rs.3,50,000/-. Appellant Smt.Vishan Devi is also entitled for

simple interest on this amount at the rate of 6% per annum from

the date of presentation of application before learned Family

Court, Bharatpur.

According to above mention discussion, we accept this Civil

Misc. Appeal in terms that appellant Smt. Vishan Devi will get

Rs.3,50,000/- (Three lakh Fifty Thousand Rupees) as permanent

alimony from her husband with interest @ 6% per annum until

actual payment. No cost.