B. Veerappa, J.@mdashThe appellant/husband has filed the above appeal against the judgment and award dated 31.07.2014 passed in MC No. 83/2012 on the file of the Principal Judge, Family Court, Dakshina Kannada, Mangalore.
2. The respondent, who is the wife filed petition against the appellant claiming permanent alimony of Rs. 50,00,000/- and return of gold ornaments from the appellant alleging that their marriage was solemnized on 9.7.1997 at Mumbai as per the customs and rituals prevailing in their community. Subsequently she filed a divorce petition before the Family Court at Mangalore in M.C. No. 94/2001. After contest the suit came to be decreed vide order dated 3.11.2010 granting divorce.
3. In the decree, no order has been passed regarding permanent alimony or maintenance. Hence she filed M.C. No. 83/2012 for the relief sought for. She also contended that at the time of marriage appellant demanded 25 pawn of gold, diamond ear stud and diamond ring. Accordingly her parents gave the same, which is in the possession of the respondent. So far it has not been returned and she was subjected to cruelty and harassment both physically and mentally and she does not have any residential house to reside at Mangalore and she is presently residing with her sister. She further contended that she filed M.C. No. 159/2001 and the Hon''ble Court by order dated 13.10.2003 has directed the appellant to pay maintenance of Rs. 500/- per month and the appellant has challenged the same before the Sessions Court in Crl. R.P. No. 243/2003 and the learned Sessions Judge has set aside the order against which she filed Crl. M.C. No. 211/2011 before the Court for recovery of arrears of maintenance which is pending and the appellant has not paid any maintenance and she has no income and does not have any source of income and it has become difficult for her to prolong the days. She further contended that for her food, clothing and basic requirements in life she requires minimum Rs. 15,000/- per month. She submits the respondent is running Tobacco business in Mulund at Mumbai and he is having a shop and earning Rs. 50,000/- per month etc., and for the reasons stated above, filed the petition claiming permanent alimony from the appellant.
4. After service of summons the appellant herein filed statement of objections, admitted the marriage between the appellant and respondent and also admitted the decree of divorce dated 3.11.2010 and denied the allegations made by the wife and he has stated that the respondent is residing in her ancestral house in which she is having a share along with her sister and therefore, the contention of the respondent that she does not have any house to stay fails and he has admitted the petition filed by the respondent in M.C. No. 159/2001 and Crl. Petition No. 2166/2005 and orders made thereon etc., and sought for dismissal of the petition.
5. Based on the pleadings, Family Court framed the following issues:-
"1. Whether the petitioner proves that she is entitled to get permanent alimony as sought under Section 25 of the Hindu Marriage Act? If so what is its quantum?
2. What Order?"
In order to establish her case wife was examined as P.W. 1 and marked documents Exs. P. 1 to P. 5. The appellant-husband was examined as R.W. 1 and marked the documents R-1 and R-2.
6. Considering the material on record the Family Court has directed the appellant to pay permanent alimony of Rs. 5,00,000/- to the respondent - wife holding that the appellant is having sufficient means to pay the same. Hence the present appeal is filed by the appellant.
7. We have heard the learned counsel appearing for the appellant and perused the material on record.
8. It is not in dispute that the appellant and respondent were married on 9.7.1977 at Mumbai and it is also not in dispute that a decree of divorce was granted by the Family Court on 3.11.2010 and it is also not in dispute that P.W. 1 has categorically stated in her evidence that her husband was doing business in Mulund, Mumbai, owning a shop and earning Rs. 50,000/- per month and owning a residential house at Mumbai worth Rs. 2,00,00,000/-, shop worth Rs. 4,00,00,000/- and also properties worth about Rs. 5,00,00,000/-. The respondent - wife is spending for her livelihood around Rs. 7,000/- to 8,000/- per month and according to her, her brother was helping her financially and recently in the year 2013 her brother died. The Family Court after considering the entire material on record has held that even in the original petition for divorce, the respondent has not claimed maintenance, but that does not bar her from claiming permanent alimony, subsequent to the judgment passed in the said case, in view of the provisions of Section 25 of the Hindu Marriage Act. Section 25 of the Hindu Marriage Act reads as under:-
25. Permanent alimony and maintenance-
(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 [***] 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 respondent''s own income and other property, if any, the income and other property of the applicant, [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, [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].
By reading the said provision it makes clear that while granting permanent alimony, no arithmetic formula can be adopted as there cannot be a mathematical exactitude. It shall depend upon the status of the parties, their respective social needs, the financial capacity of the husband and other obligations shall be taken into consideration. Amount so fixed cannot be excessive or affect the living condition of the other party. It is the duty of the Court to see that the wife lives with dignity and comfort and not in penury. The living need not be luxurious but simultaneously, she should not be left to live in discomfort. The Court has to act with pragmatic sensibility to such an issue so that the wife does not meet any kind of manmade misfortune.
9. Considering the provisions of Section 25 of the Act, stated supra, the Family Court recorded a categorical finding that P.W. 1 in her cross-examination stated that she is unable to lead her life, that she does not have any income of her own and requires Rs. 15,000/- per month for her food, shelter, clothing etc., and the appellant -- husband is doing business and he is earning Rs. 50,000/- per month and he has residence at Mumbai worth Rs. 2,00,00,000/- and shop premises worth Rs. 4,50,00,000/- at Navuru, Mumbai and properties worth Rs. 5,00,00,000/- and admittedly the appellant is the only son to his parents, both the parents have died and the appellant has succeeded to the said property. Accordingly P.W. 1/wife contends the appellant is liable to pay permanent alimony of Rs. 50,00,000/-.
10. R.W. 1/the appellant has admitted in his cross-examination that his mother died in the year 2008 and father died in the year 2010 and copy of the electoral card shows that he is residing in Door No. II-102, Shiva Ashish, Mahatma Gandhi St(E) Mulund, (W) Bombay and the copy of the ration card shows that now along with his sisters he is residing in the said house, as both his parents have died. In the cross-examination at length appellant R.W. 1 has simply stated that at the time of marriage he was working in a shop at Mumbai. In the marriage affidavit produced at Ex. P. 4 confronted to R.W. 1, learned counsel tries to elicit with shop phone number 5610677, witness states that he is ignorant of the said number and denied that the phone number pertains to the shop of his father. However, he admits the house No. 102, Shiva Ashish, Mahatma Gandhi Road, Mumbai, which is found in the ration card and electoral card, which according to him is a flat standing in the name of his father and since more than 30 years he has been residing in the said house. A clear admission was made that his father died on 29.8.2012 and mother pre-deceased to his father on 17.9.2008. About the flat in which he is residing belongs to his father and he has stated the particulars that it is a five storeyed building having the control of the society, but he has tried to show his ignorance about the fact that after death of his parents, property was succeeded by him. The Family Court also recorded a finding that he is living along with his ailing sister in the said flat and is having a phone connection and the evidence of R.W. 1 clearly shows his ignorance about the property left by his father and he admits that his father was owner of the said flat. Therefore, the residential flat in Mulund, Mumbai, which was left by his father wherein presently the appellant is residing is owned by him, stands proved by the evidence of R.W. 1 only. The Family Court, also recorded a finding that the business of the appellant is well established in Mumbai. With all pomp and splendor marriage was done. The respondent - wife has also produced marriage album containing a number of photos. It depicts that about more than one thousand people have gathered for the marriage and P.W. 1 has stated that the expenses of the marriage was borne by her parents. The Family Court also recorded a finding that he and his father himself were doing the business, whether running Tobacco merchant shop or doing independent business, but they had sufficient earnings. Even he has stated what are all the properties that stood in his name and denied that he was Tobacco Merchant and the shop was standing in the name of the father, which was transferred to his name after his death. Therefore, we can gather from the evidence of the respondent that he and his father were doing business whether Tobacco Merchant or doing independent business, but they had sufficient earnings and his say that in the year 2004 he left the job, now cannot be appreciated at all. Even though the wife failed to prove satisfactory evidence of the actual income that he is earning Rs. 50,000/- per month, in the circumstances gathered that the respondent is having sufficient income and from that income only he is maintaining his ailing sister and he has got properties left by his father including the residential house, the same is reflected in the I.A. 4 filed by giving notice to produce the relevant documents regarding the properties to show his bona fides. His wife is not in a position to secure the documents and appellant cannot take undue advantage of the same by stating that he is not owning any property. All these reasons stated above factually goes to show that Rs. 5,00,000/- as permanent alimony under the provisions of Section 25 of Hindu Marriage Act, which is in the nature of compensation by way of damages is just and proper. The said finding is based on the evidence and material documents on record. The same is in accordance with law. Such a finding of fact recorded by the Family Court does not call for any interference by us in the above appeal.
11. Accordingly the above appeal is dismissed at the stage of admission. Since the appeal is dismissed on merits. Question of considering 38 days delay does not arise. Consequently I.A. 1/2015 is also dismissed.
