ORISSA HIGH COURT: CUTTACK
MATA Nos. 101 111 OF 2013
(In the matter of appeals challenging the order dated 21.09.2013 passed
by the learned Judge, Family Court, Cuttack in C.P. No.806 of 2009.)

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MATA Nos. 101 OF 2013

Smt.Arpita Mohanty …… Appellants

-Versus-

Sabyasachi Das …… Respondents

MATA Nos. 111 OF 2013

Sabyasachi Das …… Appellants

-Versus-

Smt.Arpita Mohanty …… Respondents

For Appellants :M/s. Prasan Kr. Sahu, A.K.Swain,
A.C.Mohapatra, A.K.Panda,
S.C.Mohanty and A.A.Lenka.
(MATA No. 101/2013)

M/s. Sidheswar Mohanty,
S.K.Routray, L.Mohapatra,
S.Pattnaik and A.Das.(MATA
No.111/2013)

For Respondents : None (MATA No.101 of 2013)

M/s.Ajaya Kumar Swain,
A.S.Mohapatra,S.S.Mohanty,
A.A.Lenka and A.K.Paul.
(MATA No. 111/2013)
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P R E S E N T :-

THE HONOURABLE MR. JUSTICE S.K. MISHRA
AND
THE HONOURABLE DR. JUSTICE A.K. MISHRA

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Date of hearing: 23.07.2019: Date of judgment – 31. 07.2019

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Dr.A.K. Mishra, J. Decree of divorce subject to payment of permanent

alimony of Rs.5,00,000/-(Rupees five lakhs) passed vide order dated

21.09.2013 in C.P. No. 806 of 2009 by the learned Judge, Family Court,

Cuttack is challenged in these two appeals, hence, this common judgment.

2. For party position, notwithstanding the appeal memos, the wife

shall be referred to as appellant while husband shall be referred to as

respondent hereinafter.

3. Appellant married the respondent as per the Hindu rites and

customs on 27.06.2007. After some days, the wife deserted alleging cruelty

against the husband and stayed in the house of her parents. Both of them

were of highly educated. There was a Panchayat Faisala Nama on 26.12.2008

to settle their dispute amicably. As per settlement, the father of the appellant-

wife received Rs.4,80,000/-(Rupees four lakhs eighty thousand) towards

presentation and ornaments given during the marriage. It was also settled to

go for mutual divorce. Accordingly, a mutual divorce case under Section 13(B)

of the Hindu Marriage Act, bearing C.P. No. 538 of 2009 was filed. But the

appellant wife having not cooperated, the case was dismissed. Thereafter, the

husband filed this divorce proceeding under Section 13 of the Hindu Marriage

Act on 15.09.2009 bearing C.T. No. 806 of 2009 before the learned Judge,

Family Court, Cuttack. The allegation of cruelty and desertion were
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challenged by the wife. Both the parties adduced their evidence. Husband and

an independent witness to the agreement are examined as P.Ws 1 and 2. The

certified copy of Panchayat Faisala Nama and other document were executed

as Exhibits-1 and 2. On behalf of the wife, she herself and her father were

examined as P.Ws. 1 and 2. Certified copy of the R.O.R. showing the landed

properties in favour of the husband is marked vide Exhibit-A/1 series.

Learned Judge, Family Court has recorded the finding that both the couples

had reached the point of no return. The allegation of cruelty and desertion

were not proved. The payment of Rs.4,80,000/- as per the agreement Exhibit-

1 was not towards the permanent alimony. Considering the landed properties

and income of the husband, the learned Judge, Family Court while dissolving

the marriage between them solemnised on 27.06.2007 by a decree of divorce,

allowed permanent alimony of Rs.5,00,000/-to be paid by the husband to the

wife within three months.

3.1 The wife filed MATA No. 101 of 2013 challenging the said decree.

The husband has also filed MATA No. 111 of 2013 assailing the quantum of

permanent alimony in specific.

4. Learned Advocate of both parties, in course of hearing, did not

dispute the decree of divorce but assiduously advanced a disputation on the

amount granted as permanent alimony.

5. Learned counsel for respondent submits that as the wife-

appellant agreed for divorce on receipt of Rs.4,80,000/- vide Panchayat

Faisala Nama (Ext.1) and gave consent in mutual divorce petition after receipt

of said amount, she is not entitled to permanent alimony.
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6. Secondly, the husband – appellant has no source of income being

unemployed and thus has no capacity to pay any amount towards permanent

alimony.

7. Per contra, learned counsel for wife – appellant submits that the

amount of Rs.4,80,000/- was paid towards the gift received by husband from

wife’s family during marriage and Ext.1 agreement cannot be read to bind the

wife for relinquishment of her claim to permanent alimony.

7.1. Further, it is countered that there is evidence adduced to show

that the husband has income from his properties amounting rupees one lakh

per month and has sufficient landed properties to spare a good amount for

her sustenance.

8. Following two points have emerged contentious for us.

(i) Whether agreement (Ext.1) bars the wife to claim permanent
alimony U/s.25 of Hindu Marriage Act; and

(ii) If the wife is found entitled to permanent alimony, whether the
amount granted by learned Judge, Family Court needs to be
interfered with?

Answer to point no.1

9. We carefully read the contents of Ext.1. It is an agreement for

settlement of marital dispute between Appellant and Respondent. It was

executed on 26.12.2008. It is not signed by the both spouses, i.e., wife and

husband, whose marriage was the thrust of controversy. Both of them were

major and educated then. The said agreement was executed by the respective
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father of the parties and mediator including P.W.2. This ex facie facts is

deposed by P.W.2. in paragraph-10 of his evidence.

9.1 An agreement not signed by the competent parties having

capacity to contract cannot be said to have legal effect of binding-ness upon

those non-executants. In other words, parties are not bound by the written

agreement which they have not executed, though otherwise they are

competent to do so. For this reasons simplicitor, we exclude Ext.1 agreement

to consider the entitlement of wife-respondent under Sectionsection 25 of Hindu

Marriage Act.

9.2 Notwithstanding above, the content of Ext.1, so called agreement

does not support the respondent-husband’s submission. Expressly it is stated

therein that the amount Rs.4,80,000/- was to be paid towards value of

presentation and gold ornaments brought by the wife during marriage.

Contextually no other meaning is either possible or permissible.

Consequently, Ext.1 agreement is not a bar to claim permanent alimony by

the wife-appellant.

Answer to point No.(II)

10. Learned Family Judge has awarded Rs.5 lakhs towards

permanent alimony to be paid by husband to wife. This amount is now the

core of contest.

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10.1 In the decision reported in (2013) 2 SCC-114 U. Sree Vs.

U.Srinivas , the Hon’ble Apex Court have stated the broad principles to fix

the amount in the following words:-

“xxx xxx xxx As a decree is passed, the wife is entitled

to permanent alimony for her sustenance. Be it stated,

while granting permanent alimony, no arithmetic formula

can be adopted as there cannot be mathematical

exactitude. It shall depend upon the status of the parties,

their respective social needs, the financial capacity of the

husband and other obligations. SectionIn Vinny Parmvir

Parmar v. Parmvir Parmar, while dealing with the

concept of permanent alimony, this court has observed

that while granting permanent alimony, the Court is

required 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 the

mode of life she was used to 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.”

10.2. In the case at hand, admittedly no document is filed to show the

income of the wife and thus she is unable to maintain herself. In evidence as

OPW-1 she claimed Rs.20,000/- per month towards food, clothing, shelter

with regards to dignity and prestige. On her behalf, during cross-examination
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of husband as P.W.1 suggestion was given for rupees ten lakh for permanent

alimony.

10.3. Husband, P.W.1, in his evidence does not show that he was

unable to earn. He has no other liability as his mother is getting family

pension and elder brother is not a dependent. His father died leaving landed

properties and Building. Ext. A/1 ROR stands in his mother’s name while

Ext. A/2, A/3 RORs are in respect of landed properties at villages.

Considering the fact that the husband-respondent is an able bodied educated

man and has sufficient interest on the joint family immoveable properties, we

are persuaded to arrive at a conclusion that he can spare rupees eight lakhs

towards his estranged wife. Appellant-wife needs security however meagre

may be and provision qua the status would be a determining factor for

permanent alimony. A visible source of financial security as subsistence

would be the income from the fixed deposit interest. Balancing the entitlement

and capacity, regards being had to the status of the parties, we fix the

quantum of permanent alimony at rupees eight lakhs. Accordingly, the

quantum of permanent alimony fixed by learned Judge should be enhanced

and is hereby enhanced to rupees eight lakhs.

11. In the result, the decree of divorce dtd.21.04.2013 in C.P. No.806

of 2009 dissolving the marriage between appellant and respondent by the

Judge, Family Court, Cuttack is confirmed. The amount of permanent

alimony is enhanced to Rs.8,00,000/- (Eight lakhs) to be paid by the

husband-respondent to wife- appellant. The payment shall be made within
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four months failing which it would carry interest at the rate of 9% per annum

from today till its realization.

12. In result, MATA No.101 of 2013 is allowed in part and MATA No.

111 of 2013 is dismissed.

13. LCRs. be returned immediately to the lower court by the Registry.

………………………..

Dr. A.K. Mishra, J.

S. K. Mishra, J. I agree.

…………………….
S.K. Mishra, J.

Orissa High Court, Cuttack.
Dated the, 31st July, 2019/Dhal