Sri Daniel Anand vs Smt G N Sujatha on 13 July, 2017

R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 13TH DAY OF JULY 2017

PRESENT

THE HON’BLE MR.JUSTICE JAYANT PATEL

AND

THE HON’BLE MRS.JUSTICE S.SUJATHA

M.F.A.No.3929/2017 (FC)

BETWEEN :
SRI DANIEL ANAND
S/O JAYAKUMAR
AGED ABOUT 38 YEARS
R/AT # 576, RAMABHAI NAGARA
MYSORE-570008. … APPELLANT

(BY SMT.S.SUSHEELA, ADVOCATE)

AND :
SMT.G.N.SUJATHA
W/O DANIEL ANAND
D/O NARASIMHA
AGED ABOUT 32 YEARS
R/AT No.122/A, RAILWAY QUARTERS
MYSORE SOUTH, MYSORE-570008. …RESPONDENT

THIS MFA FILED UNDER SECTION 55(1) OF THE
DIVORCE ACT 1869 SECTION 19(c) OF THE FAMILY COURTS
ACT 1984, AGAINST THE JUDGMENT AND DECREE DATED
01.02.2017 PASSED IN M.C.75/2014 ON THE FILE OF THE PRL.
FAMILY COURT AT MYSURU, ALLOWING THE PETITION FILED
UNDER Section 10(1)(x) OF THE DIVORCE ACT, FOR
DISSOLUTION OF MARRIAGE.
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THIS APPEAL HAVING BEEN RESERVED FOR ORDERS ON
05.07.2017, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT, THIS DAY, S. SUJATHA, J., PASSED THE
FOLLOWING:

ORDER

This appeal is directed against the Judgment and

order passed by the I-Additional Prl. Family Court,

Mysuru (‘Family Court’ for short) in M.C.No.75/2014

directing the appellant herein to pay permanent alimony

of Rs.5 lakhs to the respondent.

2. Facts in brief are:

The appellant and the respondent got married to

each other as per Christian Customary Rights on

28.12.2016 at Bethel Brothern Church,

Krishnamurthypuram, Mysuru. The couple had a

female child by name Grace Jacintha in the wedlock,

who is now aged about 8 years. Due to the matrimonial

disharmony between the couple, the appellant herein

filed petition under Section 10 (1) (x) of the Divorce Act,

1869 (the ‘Act’ for short) before the Family Court. So
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also, the respondent filed C.Misc.No.437/2014 against

the appellant claiming maintenance. The Court below

clubbed both the petitions and passed common

judgment and order on 01.02.2017. The petition filed by

the appellant for divorce was allowed and the

C.Misc.No.437/2014 filed by the respondent for

maintenance was dismissed. However, while granting

the decree of divorce, the Court below directed the

appellant herein to pay permanent alimony of Rs.5

lakhs. The said portion of the order directing the

appellant to pay permanent alimony of Rs.5 lakhs to the

respondent is challenged herein.

3. The learned counsel Smt.S.Susheela

appearing for the appellant challenged the impugned

order, quantifying the permanent alimony, on two

grounds. Firstly, Section 37 of the Act do not entitle the

wife to claim for permanent alimony, where the

husband has filed the petition for divorce. Placing
4

reliance on Section 37 of the Act, the learned counsel

vehemently argued that the Family Court exceeded its

jurisdiction in awarding the permanent alimony to the

wife exercising the power under Section 37 of the Act.

Secondly, it was contended that the respondent is

capable of earning, being a beautician whereas the

READ  B K Kumara vs State By Mandya Rural on 23 April, 2014

appellant is only a taxi driver not having the assured

income. In addition to that, the appellant has to take

care of his mother and child who are dependent on him.

In the absence of any material placed on record by the

respondent, to establish the factum of income of the

appellant, permanent alimony of Rs.5 lakhs awarded by

the Court below is wholly unsustainable. Thus, the

learned counsel sought for setting aside the order

impugned, awarding permanent alimony, allowing the

appeal.

4. We have heard the learned counsel for the

parties and perused the material on record.
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5. As regards the first point, we find it apt to

refer to the legal dictionary to ascertain the meaning of

the expression “alimony” and the same is extracted

hereunder.

“Alimony. In a legal sense, it is taken
for that allowance which a married woman
sues for and is entitled to, upon separation
from her husband; the allowance made to the
wife out of her husband’s estate for her
support, either during a matrimonial suit, or
at its termination, when she proves herself
entitled to a separate maintenance.”

6. Thus, Permanent alimony is the support

given to the wife under the provisions of the Act, post

divorce, to ensure a decent life to the wife. It is the

support to the wife lest she suffering vagrancy if, she is

not able to maintain herself. It is well settled position of

law by now that the amount of permanent alimony must

be sufficient to ensure that a woman lives with dignity

after separating from her husband. As regards granting
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of permanent alimony to the wife under the provisions

of the Act is considered, the issue is no more res integra,

in view of the Division Bench judgment of this Court in

the case of Mrs.Margaret Pereira V/s. Mr.Gerald

Castelino in MFA.10115/2011 (DD 04.08.2015). The

relevant para is extracted herein:

“8. We have given our anxious
consideration to the rival submissions made
at the Bar. The contention that the wife is not
entitled for permanent alimony in a case
where dissolution of marriage is granted in
favour of the husband, may not be the correct
proposition. Sections 36 to 39 of the Act cover
the subject of alimony to an aggrieved wife.
While
Section 36 deals with alimony
pendente lite to the wife,
Section 37 deals
with permanent alimony to a wife where a
decree of dissolution of marriage or decree of
judicial separation is obtained by the wife.
Section 38 is the relevant provision for the
present circumstances, which reads thus:

“38. Court may direct payment
of alimony to wife or to her
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trustee.- In all cases in which the
Court makes any decree or order
for alimony, it may direct the
same to be paid either to the wife
herself, or to any trustee on her
behalf to be approved by the
Court, and may impose any terms
or restrictions which to the Court
seem expedient, and may from
time to time appoint a new
trustee, if it appears to be the
Court expedient so to do.”

READ  Subramaniam Vs. State Of Tamil Nadu & Anr. on 13 May, 2009

A plain reading of the above provision
would contemplate that the Court may order
permanent alimony either to her or to her
trustee in any case instituted either by the
wife or by the husband. The statute expressly
or impliedly does not debar a wife, who was
respondent in divorce petition for permanent
alimony

9. The court below has rejected her
application mainly on the ground that already
she is enjoying maintenance amount by virtue
of an order passed by the jurisdictional
J.M.F.C.Court, therefore, she is not entitled for
separate permanent alimony. In our
considered opinion, the court below
misdirected itself in equating the provisions of
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Section 125 of the Code of Criminal Procedure
to that of
Section 38 of Indian Divorce Act.
While
Section 125(1)(a) of Cr.P.C.
contemplates maintenance amount to a wife,
who is unable to maintain herself,
Explanation (b) of the very same provision
contemplates that “wife” includes a woman,
who has been divorced by or has obtained a
divorce from her husband and has not re-
married. The maintenance amount ordered in
a petition under
Section 125 of Cr.P.C. is
monthly allowance as provided in second
proviso to same Section. Under
Section 125 of
Cr.P.C., there is no provision to order
permanent alimony. Though an order is
passed in favour of wife under
Section 125 of
Cr.P.C. unless the husband defaults and
monthly allowance becomes due, the wife
cannot invoke
Section 128 of Cr.P.C. to
recover the maintenance amount. It is only on
default on the part of the husband to pay
maintenance, she can execute the
maintenance order under
Section 128 of
Cr.P.C. for recovery of amount within
limitation period of 11 months from the date
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of default. Whereas, under Section 37 of the
Act either a permanent alimony or monthly or
weekly payment is possible. When
Sections
37 and
38 of the Act are read in conjunction
with each other, the relief of payment of
alimony applies to all cases, as available
under
Section 37 of the Act. In our considered
opinion, this Court could not have out rightly
rejected to apply the benefit of
Section 38 in
favour of the wife on the ground that she has
the order of maintenance passed by the JMFC
Court. It was still possible for the Court to
pass an order under
Section 38 keeping in
view the amount of maintenance passed by
the JMFC Court. In that view of the matter,
we are of the considered opinion that the
Court below has to hold an enquiry about the
question of permanent alimony after giving
opportunity to both the parties.

READ  Padma Tandon vs State Of U.P.& Anr on 13 July, 2011

10. At this juncture, we have noticed
that the wife had invoked the provision of
Section 37 of the Act seeking permanent
maintenance of Rs.30 lakhs. But the provision
applicable in the present circumstances of the
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husband’s petition for divorce being decreed,
is
Section 38 of the Act. However, quoting a
wrong provision of law shall not disentitle the
party to the relief for which he/she is
entitled.”

7. We are of the view that purposive approach

to the provisions of the Act would sub-serve achieving

the objects of the Act rather than the literal

construction. Cardinal Rule of construction is that the

statute has to be read as a harmonious whole to

ascertain the legislative intent. A conjoint reading of the

Sections 36 to 39 of the Act makes it clear that there is

no legal impediment or embargo under the Act for a

wife, respondent in divorce petition, to seek for

permanent alimony. Accordingly, the first contention of

the learned counsel for the appellant deserves to be

negated and is accordingly rejected.

8. As regards the second point, as aforesaid the

relevant factors which are required to be examined
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while granting permanent alimony are: (1) Financial

condition; (2) The standard of living of the parties; (3)

The length of the marriage; (4) The age of the parties; (5)

Physical condition of the parties; and (6) Ability of the

person to support the recipient. It is significant to note

that in a recent judgment, the Hon’ble Apex Court has

set a benchmark in the case of Kalyan Dey Chowdhury

-v- Rita Dey Chowdhury Nee Nandy reported in AIR

2017 SC 2383, it is held that 25% of the income of the

husband would be an appropriate maintenance amount

to the wife. The Family Court has considered the

evidence on record to quantify the amount towards the

permanent alimony which is the amount based on the

financial ability of the person qua the status, the

dependency of the wife coupled with the inflation in

consumer prices and value of the money, the

maintenance amount quantified at Rs.5 lakhs, at any

stretch of imagination cannot be considered as

excessive or exorbitant. Accordingly, we are not inclined
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to interfere with the well reasoned order of the Court

below.

9. For the aforesaid reasons, the appeal stands

dismissed as devoid of merits.

IA-2/2017 seeking for stay of the impugned order

do not survive for consideration in view of the dismissal

of the appeal.

Sd/-

JUDGE

Sd/-

JUDGE

NC.

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