Biswanath Rath, J
1. The Matrimonial Appeal involves a challenge to the judgment of the Judge, Family Court, Cuttack in C.P. No. 460 of 2018, a proceeding invoked under Section 13(1)(i-a) of the Hindu Marriage Act, 1955 and there has been grant of divorce further with grant of permanent alimony to a sum of Rs.2,00,000/-(rupees two lakh) in favour of the Respondent-Wife therein.
2. In course of submission, learned counsel for the Appellant-Wife herein taking this Court to the observation through the impugned order itself and the ground in the MATA contented that even though the Appellant-Wife is not interested in re-union between the parties but looking to the quantum aspect is concerned, there has been permanent alimony granted in a gross lower side.
3. For the submission of learned counsel for the Appellant-Wife, the Wife intends to confine the challenge in the proceeding only on the aspect of the permanent alimony.
4. In course of submission, it has also been brought to the notice of this Court by both learned counsel that following the impugned judgment in C.P. No. 460 of 2018, there has been already deposit of sum of Rs. 2,00,000/-(rupees two lakh) by way of Bank Draft and the Wife is already in receipt of the said amount.
5. This Court also involved the submission of learned counsel for the Respondent-Husband herein who has already appeared by way of notice in the limitation matter, there is no dispute by the learned counsel for the Respondent that the Wife-Appellant is already in receipt of the permanent alimony to the tune of Rs.2,00,000/-(rupees two lakh) and it has been sent by the Respondent-Husband by way of Bank Draft. Learned counsel for the Respondent-Husband also brings to the notice of this Court that once the Wife has already accepted permanent alimony, there is no availability of the scope on the part of the Appellant-Wife in assailing the order so far it relates to divorce is concerned.
6. On consideration of rival contentions of the parties, this Court finds, there is no dispute that the C.P. No. 460 of 2018 has been decided ex parte in non-cooperation of the Respondent-Wife therein, this Court herein above already recorded the stand of the Wife through her counsel that she is no more interested for re-union and for the submission of learned counsel for the Appellant through the Petition it appears, the Appellant-Wife is contesting only on the aspect of permanent alimony.
7. This Court in the process of consideration finds, the permanent alimony and maintenance aspect comes through the provisions under Section 25(1), (2) and (3), the provisions reveals as follows:-
“1) Any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall 1*** pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondents own income and other property, if any, the income and other property of the applicant 2[the conduct of the parties and other circumstances of the case], it may seem to the court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent.
(2) If the court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under sub-section (1), it may, at the instance of either party, vary, modify or rescind any such order in such manner as the court may deem just.
(3) If the court is satisfied that the party in whose favour an order has been made under this section has re-married or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, 3[it may at the instance of the other party vary, modify or rescind any such order in such manner as the court may deem just.”
8. Looking to the limited extent of challenge by the Appellant-Wife herein but at the same time finding the impugned order ex parte one, this Court finds any Court exercising jurisdiction under the Hindu Marriage Act at the time of passing any decree or at any time subsequent that to on application made to it for the purpose by either Wife or the Husband, the responsible party shall pay for her or his maintenance and supports such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as having regard to the Respondent’s own income and other property, if any, the income or other property of the applicant.
9. Apart from the above legal provision, this Court has also come through a recent decision of Hon’ble apex Court in the case of Rajnesh Vrs. Neha reported in (2021) 2 SCC 324. The Hon’ble Supreme Court has also come to the lay down the areas of concerned in undertaking permanent alimony as well as maintenance exercise.
10. It is keeping in view the decision as involved herein has been taken ex parte and further also keeping in mind the interest of the Appellant-Wife presently involving such dispute, the impugned judgment is interfered in part. Accordingly, while confirming the judgment of the Family Court, Cuttack so far as it relates to divorce, it is only remitted to the Judge, Family Court, Cuttack for limited purpose of consideration on the proper permanent alimony in the involvement of an application under Section 25 of the Hindu Marriage Act and also involving an objection of the Husband, if any.
11. For there is already joint submissions of learned counsel that the Appellant-Wife is already in receipt of sum of Rs.2,00,000/-(rupees two lakh), this Court observes, the received amount be treated as part of permanent alimony and without prejudiced to the Appellant-Wife’s rights and contentions to be adjudicated in the remand proceeding in C.P. No. 460 of 2018. This Court while remanding the proceeding to the limited extent indicated herein above directs both the parties to appear before the Judge, Family Court, Cuttack on 1st September, 2023.
12. For there is requirement of consideration of the case keeping in view the provisions under Section 25 of the Hindu Marriage Act, 1955, the Wife-Respondent therein is permitted to bring appropriate application at least within a period of ten days of appearance on service of such copies on the Husband-Petitioner therein. It shall be open to the Respondent-Husband to bring objection, if any, for consideration of the Court also within further period of seven days of service of such copies. Further there is relevance through the judgment of Hon’ble apex Court in the case of Rajnesh Vrs. Neha (supra), further also a judgment of this Court in the Case of Tapaswini Das Vrs. Santosh Kumar Swain passed in MATA No. 33 of 2022 also taking into help of the judgment of Rajnesh Vrs. Neha (supra), the Husband-the Petitioner therein while directing to bring an affidavit strictly in terms of Rajnesh Vrs. Neha (supra) also within a period of two weeks of appearance with opportunity to the Respondent-Wife therein to bring her objection to the same, if any, within seven days hence. The Judge, Family Court is directed to take a decision on appropriate grant of permanent alimony taking into consideration the decision through Rajnesh Vrs. Neha (supra) and decision passed in the Case of Tapaswini Das Vrs. Santosh Kumar Swain (Supra). The further proceeding in C.P. No. 460 of 2023 but the limited extend of assessment of permanent alimony shall also be concluded at least within a period of four months from the date of appearance of the parties.
13. The Appeal succeeds in part but no order as to cost.
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