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Judgments of Supreme Court of India and High Courts

Mat.App./55/2018 on 15 February, 2019

Page No.# 1/4

GAHC010125312018

THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. Mat. Appeal No.55/2018

SMTI. PADMINI DEKA,
Daughter of Sri Atul Deka,
Village: Gopal Bazar, PS: Nalbari,
District: Nalbari, Assam.
……..Appellant
-Versus-

SHRI PULAKESH BARUAH,
Son of Sri Jitendra Nath Deka,
Village: Barnaddi, PO: Barnaddi,
PS: Belsor, District: Nalbari, Assam.
……..Respondent

For the appellant : Mr. D. Choudhury, Advocate.
For respondent : Mr. A.C. Sarma, Senior Advocate.

BE F O R E
HON’BLE THE CHIEF JUSTICE MR. A.S. BOPANNA
HON’BLE MR. JUSTICE SANJAY KUMAR MEDHI

JUDGMENT ORDER (ORAL)
Date : 15-02-2019
(A.S. Bopanna, CJ)

Heard Mr. D. Choudhury, learned counsel for the appellant. Also heard Mr. A.C.
Sarma, learned senior counsel, appearing for the sole respondent.

2. The appellant is before this Court assailing the judgment dated 14.03.2018
passed by the Court below in Misc. (J) Case No.2/2017. The appellant herein is the
former wife of the respondent. Due to certain marital disputes, the respondent herein
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alleging cruelty on the part of the appellant herein had filed a petition in T.S. Case
No.14/2015 seeking dissolution of the marriage on the ground of cruelty. The said
petition was allowed through the judgment dated 22.12.2016 and the marriage between
the parties was dissolved. In the said proceedings, the issue relating to the permanent
alimony had been kept open. It is in that light, the appellant herein had instituted the
present proceedings in Misc. Case No.2/2017 under Section 25 of the Hindu Marriage
Act, 1955 (for short, “1955 Act”) seeking permanent alimony of ` 20,00,000/-. The
respondent herein having appeared had filed written statement and opposed the claim.
It was contended therein that the salary of the respondent is only the sum of ` 18,542/-
after deduction of ` 4,000/-, which was paid as maintenance to the appellant herein.
Hence, it was contended that the alimony of ` 20,00,000/- as prayed is not justified and
the dismissal of the petition was sought.

3. The Court below having taken note of the rival contentions has also taken into
consideration the evidence tendered by the parties. In that light, the Court below had
arrived at a conclusion that the appropriate alimony to be ordered would be at
` 4,00,000/-, which was accordingly ordered. The appellant is before this Court
contending that the quantum of alimony, as ordered, is meagre and is, therefore,
seeking enhancement of the same.

4. The learned counsel for the appellant, having regard to the provisions
contained in
Section 25 of the 1955 Act has also sought to rely upon Section 23 of the
Hindu Adoptions and
Maintenance Act, 1956, to indicate the constituents that is to be
taken into consideration while the maintenance is ordered. It is his contention that even
as per the determination of the Court below, the net salary of the respondent herein is
` 28,243/- and in such circumstance, when the appellant herein is not employed and has
to eke out her livelihood, an appropriate alimony was required to be awarded. It is his
contention that if in that light the income as also the status of the parties is kept in view,
the alimony is liable to be enhanced.

5. The learned counsel appearing for the respondent would seek to sustain the
judgment passed by the Court below. It is pointed out that though the salary of the
respondent was quantified at ` 28,243/-, the fact which had also been taken note by the
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Court below is that from the said amount, a monthly maintenance of ` 4,000/- was
being paid by the respondent. The learned counsel would, during the course of the

submission, bring to the notice of this Court the proceedings in Misc. Case No.29 M/2017
under
Section 127 Cr.PC, wherein the said amount of ` 4,000/- was enhanced to
` 6,000/- per month through the order dated 30.07.2018. In that light, it is contended
that when in addition to the alimony as ordered by the Court below, the said monthly
maintenance is also being paid, the appellant seeking for any further enhancement
would not be justified.

6. In the light of the rival contentions, it is noticed that all other aspects relating
to the relationship between the parties, there being dissolution of the marriage on
22.12.2016 and the fact that the maintenance is ordered to be paid in another
proceedings are not in dispute. In that background, the only issue for consideration
herein is to take note as to whether the quantum of alimony as ordered by the Court
below is justified in the facts and circumstances of the case. In that regard, the
consideration as made by the Court below would indicate that the Court below had
referred the evidence before it. In so far as the salary of the respondent, from the
evidence, it is noticed that the respondent is working in the Veterinary Department and
his gross salary is in a sum of ` 30,733/-. After deduction, the amount of ` 28,243/- is
drawn as net salary. On this aspect, there is no dispute between the parties. If that be
the position, when the respondent from out of the said amount is also paying the
monthly maintenance and when the same has been enhanced to ` 6,000/- per month
through the order dated 30.07.2018, i.e. on a date subsequent to the date of the
judgment in the instant case on 14.03.2018, the same would become relevant fact to
take note in determining as to whether the quantum of alimony is justified. In such
situation, what is also to be taken note is that the appellant is an LL.B degree holder and
the prospect of employment or self employment is bright. That apart, the age of the
appellant as disclosed from the appeal papers is 31 years, which would indicate that the
prospect of remarriage cannot be ruled out. Further, when the age of the respondent is
also commensurate to the same, his remarriage and having another family cannot also
be lost sight of. In addition, presently it is stated that he has his family to take care of.

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7. If all these aspects are taken into consideration and in that circumstance when
the Court below has referred to the evidence available before it and has arrived at a
conclusion in determining the quantum of alimony, we see no error in the judgment
passed by the Court below so as to call for interference in this appeal.

8. Accordingly, the appeal being devoid of merit stands disposed of.

Sd/- Sd/-
JUDGE CHIEF JUSTICE

M. Sharma

Comparing Assistant

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