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Wife’s maintenance rejected by FC but HC awards 1 lakh as permanent alimony

MISC. APPEAL No.215 OF 2010

1-SANTOSH KUMAR SINHA S/O SRI SURESH LAL R/O VILL.- DAYAL CHHAPRA, P.S.- CHARPOKHARI, DISTT.- BHOJPUR —– Petitioner-Appellant

Versus

1-MADHUBALA SINHA D/O SHYAM KISHORE PRASAD R/O VILL.- RATANPUR, P.S.- ARRAH MUFFASIL, DISTT.- BHOJPUR —–Opposite Party-Respondent

———–

PRESENT

THE HON’BLE MR. JUSTICE NAVIN SINHA

THE HON’BLE MR. JUSTICE JYOTI SARAN

Navin Sinha & The appellant was married to the respondent on Jyoti Saran,

J.J. 12.6.1991. Matrimonial acrimony led to the institution of Charpokhari P.S. Case No. 68 of 1992, under Section 498A of the Indian Penal Code and Section 3/4 of the Dowry Prohibition Act, by the father of the respondent against the appellant and his family members. The accused were taken into custody. They were subsequently released on bail. The matter is then stated to have been compromised. Thereafter the respondent is alleged to have sent a legal notice making certain allegations and demanding Rs. 250/- per month which was denied by the appellant stating that the respondent was leading an adulterous life. The appellant then filed Matrimonial Case No. 02 of 1993, from which the present 2

appeal arises. The Family Court unsuccessfully attempted reconciliation on more than one occasion. The respondent expressed her willingness to go back to the matrimonial home. The appellant on account of custody, consequent to the criminal prosecution denied restoration of matrimonial harmony. The respondent in the matrimonial case filed a counter claim for restitution of conjugal rights. The respondent also filed Title Suit No. 103 of 1993 for getting monthly allowance and for the return of her matrimonial properties, ornaments, other articles etc. In the matrimonial suit the appellant alleged cruelty against the respondent social, mental and physical. The respondent denied the allegations alleging bad behaviour on part of the appellant sought to be justified by institution of Charpokhari P.S. Case No. 68 of 1992 by her. The Family Court noticed that during her evidence the respondent sought to suppress the filing of Title Suit No. 103 of 1993 by her. It appears from the judgment under appeal that the suit has also been dismissed. The Family Court came to the conclusion that there was an irretrievable break down of the marriage since the parties had not been residing together for nearly 17 years, opining that it may be cruelty to compel them to live together. While granting divorce it granted permanent alimony of Rs. 3,00000/- (three lakhs) 3

to the respondent.

Learned counsel for the appellant contended that the amount of permanent alimony awarded is fanciful and he does not have the capacity to pay the same. He is a licensed deed writer in the Civil Court at Ara in the District of Bhojpur and has no source of income. Strong reliance was sought to be placed on the judgment and decree in Title Suit No. 103 of 1993 at paragraph-25 of the same.

Learned counsel for the respondent reiterated the submission for willingness to revive matrimonial harmony. The judgment in Title Suit No. 103 of 1993 is acknowledged to have attained finality not having been questioned in appeal. We find no error in the judgment under appeal on merits in the peculiar facts and circumstances of the case to the extent that it grants divorce and rejects the counter claim for restitution of conjugal rights. Matrimonial relations are based on mutual trust and belief in each other. Once the trust and belief collapses and more than reasonable time elapses before efforts could be made to restore the faith and trust, an irretrievable situation is created. Perhaps the English adage that distance makes the heart grow fonder takes effect in the reverse direction. On the issue of the quantum of permanent alimony awarded, considering the submission of both sides as also the judgment in Title Suit No. 103 of 1993, we are 4

satisfied that the amount of permanent alimony awarded is excess. The respondent has not brought any materials before us to satisfy of the economic status or financial capacity of the appellant. On the contrary, the appellant has a judicial finding in his favour. At this stage, learned counsel for the respondent submitted that she would be satisfied, if at least a permanent alimony Rs. 1,50,000/- is awarded to her and the judgment under appeal may be modified to that extent. Prima facie we were inclined to accept the submission of the respondent as reasonable. The appellant however reiterated his inability to pay relying upon the judgment in Title Suit No. 103 of 1993.

In absence of any cogent material before us placed by the respondent to counter the findings given in the Title Suit filed by her, but at the same time keeping her interest in mind, the case of the appellant himself that he is a deed writer and that his father does possess joint family property also, we consider it proper to modify the amount of permanent alimony to make it reasonable which the appellant shall be able to pay. The fact that he may encounter difficulty in payment does not impress us at it is his bounden duty in law to provide for his separated wife unless the law exempts him from that responsibility. Being an able bodied male it is for him to find the resources to pay permanent alimony to his 5

wife. We therefore modify the amount of permanent alimony Rs. 3,00000/- to Rs. 1,00000/- payable in two equal installments. We further direct that the first installment of the alimony of Rs. 50,000/- shall be paid to the respondent within a period of one month. The balance amount of Rs. 50,000/- shall be paid after an interval of one month from the date of payment of first installment of Rs. 50,000/-. The appeal is disposed off with the aforesaid modification in the quantum of permanent alimony. ( Navin Sinha, J.)

(Jyoti Saran, J.)

Patna High Court,

Dated 14th July, 2010

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  1. September 8, 2011 at 11:46 am

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