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GAHC010004572017
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Mat.App. 51/2018
1:SMT DIPIKA GOGOI KHANIKAR
W/O SRI PRADIP KHANIKAR ,
RESIDENT OF SRIPURIA, TINSUKIA ,P.O. P.S. AND DIST TINSUKIA
VERSUS
1:SRI PRADIP KHANIKAR
S/O LATE SWARUP KHANIKAR ,
RESIDENT OF DULIAJAN OIL COMPANY , QUARTER NO. 229B TYPE (NEAR
LIBRARY) DULUAJAN ,P.O. AND P.S. DULIAJAN ,DIST. DIBRUGARH,
ASSAM ,PIN. 7866502
Counsel for appellant : Mr. AK Gupta
Counsel for respondent : Mr. D Kalita
BEFORE
HON’BLE THE CHIEF JUSTICE MR. AJAI LAMBA
HON’BLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
13.11.2019
(Ajai Lamba, C.J.)
Smt. Dipika Gogoi Khanikar @ Dipika Khanikar has preferred this matrimonial appeal
directed against judgment rendered by Additional District Judge-2, Tinsukia in Title Suit (M)
Case No.77/2015 titled Sri Pradip Khanikar v. Smt. Dipika Gogoi Khanikar dated 19.7.2019.
2. We have taken judicial notice of the fact that the appellant wife and the respondent
husband got married on 5.5.1986. Allegedly the marriage survived only for few months on
account of matrimonial differences. The parties have been living separately since 1987. One
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child, daughter, was born out of the wedlock, who is already married and is not dependant.
3. On going through the impugned judgment and decree, it becomes evident that the
respondent husband preferred a suit for divorce under Section 13(1) of the Hindu Marriage
Act, 1955. Vide impugned judgment and decree, the suit was decreed. The marriage has
been dissolved.
So far as alimony is concerned, permanent alimony in the sum of Rs.20 lakhs or an
amount of Rs.15,000/- per month as maintenance allowance has been allowed towards the
wife.
4. The appeal has been filed by Smti Dipika Gogoi Khanikar @ Dipika Khanikar, wife, in
challenge to the judgment and decree of divorce. When the matter was taken up for hearing
on 29.10.2019, following order was passed;
“1. The respondent/husband preferred a suit for divorce vide Title Suit (M)
No.77/2015, Sri Pradip Khanikar vs. Smt. Dipika Gogoi Khanikar. Decree for divorce
has been granted vide the judgment and decree dated 19.07.2017.
So far as alimony is concerned, as provided in paras 23 and 24 of the
impugned judgment, the court directed the husband to pay permanent alimony in
the sum of Rs.20,00,000.00 (Rupees twenty lakh) or an amount in the sum of
Rs.15,000.00 (Rupees fifteen thousand) per month as maintenance allowance to
the wife.
2. Mat. App. No.51/2018 has been filed by the wife while praying that if
permanent alimony in the sum of Rs.20,00,000.00 (Rupees twenty lakh) is given,
she will not contest the divorce, and consequently would accept decree of divorce.
It has further been said in the appeal that if alimony at the rate of Rs.15,000.00
(Rupees fifteen thousand) per month is upheld by this Court, then she would
contest the divorce.
3. So far as the amount of alimony is concerned, learned counsel for the
respondent/husband has pointed out that other than Rs.20,00,000.00 (Rupees
twenty lakh) onetime payment as alimony or in the alternative Rs.15,000.00
Page No.# 3/5(Rupees fifteen thousand) per month, the husband is required to pay Rs.15,000.00
(Rupees fifteen thousand) per month under Section 125 Cr.P.C. and another
Rs.15,000.00 under Hindu Adoptions and SectionMaintenance Act, 1956. It has been
pointed out that in regard to the order passed under the Hindu Adoptions and
SectionMaintenance Act, 1956, CRP No.278/2017, Pradip Khanikar vs. Smt. Dipika
Khanikar has been filed which is required to be taken up with this case.
4. We have also taken into account the fact that Mat.App. No.21/2018 has
been filed by the husband in challenge to the amount of alimony awarded vide
judgment and decree dated 19.07.2017 (supra).
5. Learned counsel for the respondent has impressed upon the Court that
though life expectancy of 75 years has been considered by the trial court, the trial
court, however, has failed in taking into account the fact that the
respondent/husband is already aged 58 years and his earning life would be
restricted to about 60 years. This has caused manifest injustice.
6. We find that the appellant/wife is approbating and reprobating which
cannot be permitted.
7. Learned counsel for the appellant contends that the appellant/wife shall
take specific instructions and file specific affidavit of the appellant in regard to the
prayer to be pressed in this appeal.
8. Learned counsel for the parties have made a joint request for adjournment
to seek specific instructions from their respective clients.
9. We deem it just and proper to direct the parties to remain present in the
Court on the next date of listing, considering the peculiar facts and circumstances
of the case.
List this bunch of cases on 13.11.2019.”
5. In context of the observations of the Court, an application has been filed along with an
affidavit sworn by the appellant wife. In the affidavit, it has been stated that prayer made in
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the appeal be considered modified. The appellant does not want to press the first prayer
made in the memo of appeal i.e. for setting aside the judgment dated 19.7.2019 so far as it
relates to grant of decree of divorce.
It has been pleaded that the appeal be considered as relevant only in regard to
enhancement of permanent alimony.
6. The stand taken by the learned counsel for the appellant wife is that payment on
monthly basis is not acceptable to the wife and en bloc permanent alimony be awarded. The
amount of permanent alimony as awarded in the sum of Rs.20 lakhs is on the lower side.
7. We have heard learned counsel for the parties. We have also heard at length the
parties who are present in Court.
8. In view of the prayer made on behalf of the appellant wife, the impugned judgment
and decree in regard to divorce is hereby made absolute. The appeal in that context is hereby
dismissed on the statement made by the appellant through affidavit (supra).
9. So far as amount of alimony is concerned, we have gone through the pay slip of the
respondent husband furnished in Court for the period from 1.8.2019 to 31.8.2019. The
figures mentioned therein have not been disputed by the learned counsel for the appellant.
The income of the respondent husband according to the pay slip would be in the vicinity of
Rs.1,50,000/- per month after paying income tax.
10. We have taken into account the fact that the respondent husband would be
superannuating on 31st March, 2021.
11. The lower court has taken life expectancy of the parties into account as 75 years.
12. We are of the considered view that the earning life of the husband would be relevant
to consider assessment of alimony. As per the case of the respondent husband, the post on
which he has been serving is not pensionable. He does not have money in hand. It has been
pleaded that the sum of Rs.20 lakhs as assessed is on the higher side for which Mat Appl
21/2018 titled Pradip Khanikar vs. Dipika Khanikar has been filed. It has been pleaded on
behalf of the respondent husband that he does not have Rs.20 lakhs available. He is ready to
pay the permanent alimony amount on 30.4.2021, after he gets his retirement benefits.
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13. We have gone through the contents of the appeal. As per the grounds of appeal, the
prayer made is for “just and adequate alimony/maintenance considering the income and
status of the respondent” be allowed. Even on the asking of the Court, learned counsel for
the appellant wife has not been able to give any figure in terms of law to claim
alimony/maintenance.
14. Having considered all the facts and circumstances of the case in totality including the
income of the husband; his age; his date of superannuation and the fact that the only
daughter of the couple is already married and is no more dependent on the mother, we are of
the considered view that ends of justice would be served if permanent alimony in the sum of
Rs.25 lakhs is assessed to be paid to the appellant wife.
15. So far as mode of payment is concerned, we hereby provide that either sum of Rs.25
lakhs be paid as permanent alimony en bloc by the respondent husband to the appellant wife
within three months from today. In case, however, the husband is unable to make the said
amount available, we hereby direct the respondent husband to continue to pay to the
appellant wife a sum of Rs.15,000/- per month till the date of his retirement i.e. 31.3.2021.
Sum of Rs.25 lakhs en bloc be paid within one month of retirement of the respondent
husband, to the appellant wife.
16. The appeal is allowed in the above noted limited terms.
17. We make it clear that the permanent alimony as assessed would be in lieu of all the
rights arising out of the matrimony between the appellant wife and the respondent husband.
No further amount would be payable in addition to the amount as assessed hereinabove.
JUDGE CHIEF JUSTICE
13.11.2019
Comparing Assistant
