Xxxxxxxx vs Xxxxxxxx

Sanjay Kumar Medhi, J

The instant appeal has been preferred under Section 19 of the Family Court Act, 1984 read with Section 28 of the Hindu Marriage Act, 1955 against the judgment and decree dated 12.08.2022 passed by the learned Principal Judge, Family Court, Barpeta in TS (M) FC 160/2020. The appellant is the husband-second party in the suit filed for divorce by the respondent first party-wife. Vide the impugned judgment dated 12.08.2022, the divorce has been granted and there is a direction for payment of permanent alimony of Rs. 8,00,000/-.

We have heard Shri TJ Mahanta, learned Senior Counsel assisted by Shri U Sarma, learned counsel for the appellant. We have also heard Shri D Borah, learned counsel for the respondent.

At the outset, Shri Mahanta, the learned Senior Counsel for the appellant has submitted that the present appeal is not against the direction for dissolution of the marriage but mainly against the amount/quantum of the permanent alimony which has been quantified at Rs. 8,00,000/-.

It is submitted that the marriage was solemnized on 12.05.2018 as per the Hindu rites and rituals and at that time, the appellant was having a computer repairing work by which he used to go from door to door when there was a call for such repair and the said job was not of permanent nature. On 02.02.2020, the appellant had met with a motor vehicle accident and was admitted in hospital as he had suffered serious injuries on the head. Immediately thereafter, there was the outbreak of COVID Pandemic which had severely affected his business. On the other hand, the respondent-wife was having her own source of income and at one point of time, she was having a job at Guwahati. Subsequently, she had opened a Beauty Parlour. It is submitted that the appellant is dependent on his parents as because of the injuries sustained, he is not in a position to move actively and do his business of computer repairing.

By drawing the attention of this Court to the injury report sustained in the accident which has been annexed to the records, he submits that there was head injury and fracture at proximal phalanx of middle finger with surrounding soft tissue swelling and bilateral temporo-parietal scalp haematoma. He has also drawn the attention of this Court to the evidence of the appellant as DW1 wherein, he had narrated about the accident in details and his dependency on the other family members after the said accident. Reference has also been made to the evidence of the father of the appellant as DW2 who had made a similar deposition. The Gaonburah of the village was examined as DW3 wherein a similar statement has been made.

The learned Senior Counsel for the appellant has accordingly submitted that while he is not aggrieved with the aspect of dissolution of the marriage, the alimony granted is absolutely on the higher side and therefore, he prays for interference.

Per contra, Shri D. Bora, learned counsel for the respondent has submitted that it is after dissolution of marriage in the year 2023, his client was engaged in a private job at Guwahati wherein she was getting a salary of Rs. 11,000/- and had to take a room on rent in Guwahati and there was sufficient expense. Later on, she had left the job as she had to accompany her widowed mother as her father had passed away on 30.01.2024. She had also taken a loan to open a Beauty Parlour and the EMI for the same is Rs. 9,000/- per month. However, it is submitted that the business of Beauty Parlour had failed. By drawing the attention of this Court to the additional-affidavit filed on 18.05.2024 by the respondent, the learned counsel has submitted that all these aspects have been elaborated in the same.

The learned counsel for the respondent has also disputed the seriousness of the injuries, as projected by the appellant. By referring to the Discharge Certificate of the Narayana Hospital, Guwahati which has been annexed to the Memo of Appeal, the learned counsel has submitted that the appellant was admitted in the hospital on 03.02.2020 and was discharged on the very next day i.e. 04.02.2020. He submits that the accident had occurred on 02.02.2020 and during the stay for one day in the hospital, his client was with the appellant and the Discharge Certificate was, in fact handed over to her.

It is submitted that the appellant used to commit various cruelty to his client forcing her to approach the Court seeking dissolution of marriage which was accordingly done. On the aspect of the permanent alimony, it is submitted that the amount granted of Rs. 8,00,000/- is absolutely reasonable in the present day context.

He has also submitted that the respondent has to look after her widowed mother and there is no source of income. On the aspect of declaration of “Assets and Liabilities” as per the direction of the Hon’ble Supreme Court in the case of Rajnesh Vs. Neha & Anr., reported in (2021) 2 SCC 324, it is submitted that the appellant has not annexed any bank statement. He has also relied upon the case of Vinny Parmvir Parmar Vs. Parmvir Parmar, reported in (2011) 13 SCC 112 on the aspect of permanent alimony.

In his rejoinder, Sri Mahanta, the learned Senior Counsel has submitted that the Assets and Liabilities statement has, indeed been submitted by the appellant and in matters of grant of alimony, a balance is required to be struck. He submits that the alimony is on the higher side taking into account the dependency of the appellant on his parents and other family members.

The rival submissions have been duly considered and the materials placed before this Court have also been carefully perused. The LCRs have also been scrutinized.

As observed above, the present challenge is not on the aspect of dissolution of marriage but only confined to the quantum of the permanent alimony of Rs. 8,00,000/- granted by the learned Family Court. The primary thrust is that the appellant is not having a permanent source of income and after his accident on 02.02.2020, coupled with the outbreak of the Pandemic, his business of computer repairing has suffered a severe jolt.

On the other hand, as per the respondent-wife, though after the dissolution of the marriage, she was having a private job at Guwahati, she had to leave the same to look after her mother due to the death of her father on 30.01.2024 and these facts have been stated in the additional-affidavit filed on 18.05.2024. This Court has noticed that such statement has not been disputed. The respondent has also stated that she had taken loan for opening a Beauty Parlour, the EMI of which is Rs.9000/-. It is also stated that the same business had failed and payment of the EMI has become extremely difficult. The Hon’ble Supreme Court in the case of Vinny Parmvir Parmar (supra) has laid down as follows:

“12. As per Section 25, while considering the claim for permanent alimony and maintenance of either spouse, the respondent’s own income and other property, and the income and other property of the applicant are all relevant material in addition to the conduct of the parties and other circumstances of the case. It is further seen that the court considering such claim has to consider all the above relevant materials and 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 and 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 and others whom he is obliged to maintain under the law and 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 considering her status and mode of life she 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 (sic keep) in mind while determining maintenance or permanent alimony.”

In the case of Rajnesh Vs. Neha & Anr. (supra), the Hon’ble Supreme Court has laid down the guidelines to be followed for ascertaining alimony as well as permanent alimony. There is a requirement for declaration of Assets and Liabilities of the parties. While it is the contention of the appellant that there was no permanent source of income and he is dependent on his family members, it is submitted on behalf of the respondent that such statement is disputed as the appellant was having sufficient resources.

As an objective determination following the guidelines of Rajnesh Vs. Neha & Anr. (supra), the parties in a matrimonial dispute are required to furnish the bank statement. A scrutiny of the LCRs would show that the appellant has four numbers of bank accounts and it was submitted that such accounts have been disclosed. However, a close scrutiny would show that the statements produced by the appellant before the learned Family Court do not contain any bank statement and it is only the PPF statement maintained in one bank.

Admittedly, the appellant has four numbers of bank accounts. When there is an obligation fastened as per the judgment of Rajnesh Vs. Neha & Anr. (supra) to the parties in a matrimonial dispute to disclose the Assets and Liabilities, the action of non-discloser of such Assets and Liabilities would lead the Court to draw adverse inference. If an incumbent submits that in spite of having four numbers of bank accounts, he does not have sufficient bank balance, it is incumbent upon him to annex all the bank accounts to show that such account does not have sufficient funds.

In the instant case, however, no such bank statement of the four accounts of the appellant were annexed to the affidavit filed before the learned Family Court though in the said affidavit the following statement has been made.

“7. That I have 4 (four) numbers of Bank Account at State Bank of India, HDFC Bank, Bank of India & Union Bank of India.

That I have not any amount lying in my above mentioned Bank Accounts and only Rs. 500/- lying upon my the account of State Bank of India.”

Though a frail submission has been made on behalf of the appellant to allow such submission at the appellate stage, this Court is of the opinion that the judgment of Rajnesh Vs. Neha & Anr. (supra) was pronounced on 04.11.2020 and the impugned judgment by the learned Family Court is dated 12.08.2022 and it is a matter of fact that by following the guidelines of Rajnesh Vs. Neha & Anr. (supra), the Assets and Liabilities affidavit was filed. If an incumbent chooses not to follow the same guidelines, such an incumbent would not have the luxury of filing another affidavit in that regard in the Appellate Court, more so when the appeal is pending for the last more than two years and such a prayer is made at the final hearing stage.

In view of the aforesaid discussions, this Court is of the considered opinion that the grant of permanent alimony of Rs. 8,00,000/- does not appear to be unreasonable or arbitrary and accordingly, we are of the view that this appeal does not warrant any interference. The appeal is accordingly dismissed.

No order as to costs.

Send back the LCRs.