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.)
MATA Nos. 101 OF 2013
Smt.Arpita Mohanty …… Appellants
Sabyasachi Das …… Respondents
MATA Nos. 111 OF 2013
Sabyasachi Das …… Appellants
Smt.Arpita Mohanty …… Respondents
For Appellants :M/s. Prasan Kr. Sahu, A.K.Swain,
S.C.Mohanty and A.A.Lenka.
(MATA No. 101/2013)
M/s. Sidheswar Mohanty,
S.Pattnaik and A.Das.(MATA
For Respondents : None (MATA No.101 of 2013)
M/s.Ajaya Kumar Swain,
A.A.Lenka and A.K.Paul.
(MATA No. 111/2013)
P R E S E N T :-
THE HONOURABLE MR. JUSTICE S.K. MISHRA
THE HONOURABLE DR. JUSTICE A.K. MISHRA
Date of hearing: 23.07.2019: Date of judgment – 31. 07.2019
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
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
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.
6. Secondly, the husband – appellant has no source of income being
unemployed and thus has no capacity to pay any amount towards permanent
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
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
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
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
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
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.
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
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
of husband as P.W.1 suggestion was given for rupees ten lakh for permanent
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
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