fca305.14.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
FAMILY COURT APPEAL NO.305/2014
APPELLANT: Juneshkumar s/o Kashiram Talmale,
Aged about 28 years, Occ. Pvt. Service,
R/o Baba Mastanshah Ward, In front of
Turaskar Nursingh Home, Bhandara,
Tah. & Dist. Bhandara.
...VERSUS...
RESPONDENT: Sau. Mrunal w/o Juneshkumar Talmale,
Aged about 29 years, Occ. Pvt. Service,
R/o C/o Chandubhau Dudhe, Kinkhede Nagar,
Near Hanuman Mandir, Behind Bohara
Compound, Binaki, Mangalwari, Nagpur.
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Ms Manju Ghatode, Counsel for the appellant
Shri A.H. Jamal, Counsel for the respondent
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CORAM : SMT. VASANTI A NAIK AND
ARUN D. UPADHYE, JJ.
DATE : 10.07.2017 ORAL JUDGMENT (PER : SMT. VASANTI A. NAIK, J.) By this family court appeal, the appellant - husband challenges the judgment of the Family Court, dated 25.11.2013 directing the appellant to pay a sum of Rs.4,32,000/- to the wife as one time settlement in four equal monthly installments of Rs.1,08,000/- w.e.f. January, 2014.
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fca305.14.odt 2 Few facts giving rise to the family court appeal are stated thus : -
The appellant - husband (hereinafter referred to as 'the husband' for the sake of convenience) and the respondent - wife (hereinafter referred to as 'the wife') were married on 13.2.2010. The husband and the wife filed cases against each other for a decree of divorce on the ground of cruelty. The parties were directed to lead common evidence in their respective cases. During the pendency of the two petitions, the parties arrived at an amicable settlement and decided that their marriage should be dissolved by a decree of divorce by mutual consent. It was also decided between the parties that the issue in regard to the maintenance and 'Stridhan' would be decided by the Family Court on merits. The marriage between the parties was dissolved in view of the consent terms and a decree of divorce by mutual consent was passed on 18.7.2013. The parties tendered the evidence in the matter of payment of maintenance to the wife and by the common judgment dated 25.11.2013, the Family Court directed the husband to pay a sum of Rs.4,32,000/- to the wife as permanent alimony.
Ms Ghatode, the learned Counsel for the husband submitted that the Family Court was not justified in directing the husband to pay a sum of Rs.4,32,000/- to the wife towards permanent alimony. It is ::: Uploaded on - 12/07/2017 ::: Downloaded on - 15/07/2017 00:16:32 ::: fca305.14.odt 3 submitted that the Family Court could have directed the husband to pay monthly maintenance to the wife. It is stated that though the husband was only 28 years of age at the relevant time and was earning an amount of Rs.6,782/- per month as salary, the Family Court directed the husband to pay an exorbitant amount of Rs.4,32,000/- to the wife in four equal monthly installments. It is submitted that the Family Court ought to have considered that a man aged 28 years with the monthly salary of Rs.6,782/- could not have saved a sum of Rs.4,32,000/-. It is stated that the husband is a diabetic and since he has remarried and has a child, it would be very difficult for him to pay maintenance to the wife in lump sum. It is submitted that the wife is appointed as a Notary and is working as such. It is stated that admittedly the wife is a practicing lawyer and in this background, the Family Court has committed an error in directing the husband to pay a sum of Rs.4,32,000/- to the wife, specially when the husband was earning a salary of Rs.6,782/- per month.
Shri Jamal, the learned Counsel for the wife supported the order of the Family Court. It is submitted that the Family Court rightly came to a conclusion that at least a sum of Rs.1,000/- was required for the maintenance of the wife. It is submitted that the Family Court rightly considered that the average life span of an Indian woman being 65 years, a sum of Rs.4,32,000/- was payable by the husband to the wife in lump ::: Uploaded on - 12/07/2017 ::: Downloaded on - 15/07/2017 00:16:32 ::: fca305.14.odt 4 sum. It is submitted that the husband had produced the salary certificate for the month of December, 2012 and since he had failed to file the recent salary certificate despite the direction, an adverse inference needs to be drawn against the husband. The learned Counsel for the wife relied on the judgment of the Hon'ble Supreme Court, reported in AIR 2011 SC 2748 to substantiate his submission that if the maintenance cannot be paid every month, it needs to be paid in lump sum within a specified time and it would be for the husband to accept one of the modes of payment, i.e. payment of monthly maintenance or payment in lump sum.
On hearing the learned Counsel for the parties and on a perusal of the record and proceedings, it appears that the following points arise for determination in this family court appeal.
(1) Whether the Family Court was justified in directing the husband to pay an amount of Rs.4,32,000/- to the wife in lump sum towards permanent alimony in four equal monthly installments ?
(2) What order ?
To answer the aforesaid points for determination, it would be necessary to consider the evidence of the parties. The evidence of the parties is very scanty. The wife has pleaded that she has no source of income. Admittedly, the wife has secured a LL.B. degree and according to the husband, the wife is a practicing lawyer. The wife has also not very ::: Uploaded on - 12/07/2017 ::: Downloaded on - 15/07/2017 00:16:32 ::: fca305.14.odt 5 seriously disputed the said fact. According to the wife, the husband is earning a handsome salary by serving in the S.B.I. Insurance Company at Gondia and hence, would be able to shell out a sum of Rs.15,00,000/- to her towards permanent alimony. The wife has pleaded and also stated in her evidence that the father of the husband has house property in Bhandara and the father of the husband was serving as a Headmaster and nobody is dependent on him. According to the wife, the husband earns a sum of Rs.50,000/- per month. The wife however admitted in her cross- examination that she had not filed any document to show as to what was the actual income of the husband. The wife admitted that she had not produced any document on record to point out as to what was the source of income of the husband. The wife had denied the suggestion that she was earning a sum of Rs.15,000/- per month by practicing as a lawyer. The husband had denied that he earns a sum of Rs.50,000/- per month. The husband had denied that he receives a handsome salary by serving in the S.B.I. Insurance Company at Gondia. The husband produced a salary certificate on record that was marked as Exhibit - 33. The salary certificate pertained to the month of December, 2012. As per the said salary certificate the gross salary of the husband was Rs.7,370/- and after deduction of E.P.F. and P.T., the take-home salary of the husband was Rs.6,782/-. The Family Court held on the basis of the aforesaid evidence ::: Uploaded on - 12/07/2017 ::: Downloaded on - 15/07/2017 00:16:32 ::: fca305.14.odt 6 tendered by the parties on record that the wife was unsuccessful in proving that the income of the husband was Rs.50,000/- per month. The Family Court assumed that the monthly income of the husband was Rs.6,782/-. The Family Court then proceeded to hold that if the monthly income of the husband was Rs.6,782/-, considering his personal expenses and his medical expenses as he was a diabetic patient, he could have spared at least a sum of Rs.1,000/- per month for the wife. It is surprising that after having held so, the Family Court proceeded to hold that the wife was entitled to an amount of Rs.4,32,000/- in lump sum as alimony. The Family Court proceeded to decide the matter pertaining to permanent alimony and maintenance as if it was a matter under the Workmen's Compensation Act or a motor accident case. The Family Court held that since the wife was 29 years of age at the relevant time and since the life span of an Indian woman is 65 years, the husband would be liable to pay a sum of Rs.4,32,000/- to the wife in four equal monthly installments of Rs.1,08,000/- each. While holding so, the Family Court did not appreciate that an young boy aged 28 years who was receiving a monthly salary of Rs.6,782/- could not have saved by any stretch of imagination a sum of Rs.4,32,000/- at the age of 28. When the Family Court had recorded a finding that the husband could have spared only a sum of Rs.1,000/- for the wife after spending on himself, it is difficult to gauge as to how the ::: Uploaded on - 12/07/2017 ::: Downloaded on - 15/07/2017 00:16:32 ::: fca305.14.odt 7 Family Court could have recorded a finding that the husband was liable to pay a sum of Rs.4,32,000/- to the wife in four equal monthly installments. A person saving a sum of Rs.1,000/- per month from his salary of Rs.6,782/- would not be able to save a sum of Rs.4,32,000/- though he may work for 30 more years. The order directing the husband to pay a sum of Rs.4,32,000/- to the wife in four equal monthly installments is extremely harsh and unsustainable. While holding that the husband must be earning a sum of Rs.6,782/- per month the Family Court did not record a finding that the wife was not capable of earning for her livelihood or that she had no source of income. The Family Court has not recorded a finding that the wife did not have any source of income. Before directing the husband to pay any particular sum to the wife towards alimony, it was necessary for the Family Court to have recorded a finding in regard to the income of the wife and the income of the husband. Unfortunately, the Family Court has recorded a finding regarding the monthly income of the husband but has not recorded any finding in respect of monthly income of the wife and/or that she was not a practicing lawyer and that she did not have any income. In the circumstances of the case, specially when the husband was receiving only a sum of Rs.6,782/- per month and when the Family Court had held that he could have spared a sum of Rs.1,000/- per month for the wife, the Family Court could not have directed the husband ::: Uploaded on - 12/07/2017 ::: Downloaded on - 15/07/2017 00:16:32 ::: fca305.14.odt 8 to pay a sum of Rs.4,32,000/- to the wife in four equal monthly installments. While holding so, we are not inclined to accept the submission made on behalf of the wife that an adverse inference needs to be drawn against the husband because he has not produced the salary certificate after the Court directed him to do so. The submission in that regard is ill-founded as by an order dated 4.10.2012, the Family Court had directed the husband to produce the recent salary certificate and he had filed the salary certificate for the month of December, 2012, which was a subsequent one. Though we are inclined to set aside the judgment of the Family Court directing the husband to pay a sum of Rs.4,32,000/- to the wife in four equal monthly installments, it would be necessary to direct the husband to pay a reasonable amount to the wife towards maintenance every month. In the circumstances of the case, it would not be proper to direct the husband to pay maintenance amount to the wife in lump sum. Considering the fact that the husband has remarried and has a child and the said fact is not disputed by the Counsel for the wife, it would be necessary to hold that the wife would be entitled to a sum of Rs.1,500/- per month towards maintenance. The judgment of the Family Court is required to be modified to the aforesaid extent. The judgment, reported in AIR 2011 SC 2748 and relied on by the learned Counsel for the wife would not support the case of the wife that it could be incumbent ::: Uploaded on - 12/07/2017 ::: Downloaded on - 15/07/2017 00:16:32 ::: fca305.14.odt 9 on the part of the husband to pay the alimony to the wife in lump sum. In that case, the Hon'ble Supreme Court has held that the husband would have an option to decide whether he would be ready to shell out a sum of Rs.40,000/- per month to the wife towards maintenance or to pay a sum of Rs.40,00,000/- to her in lump sum.
For the reasons aforesaid, the family court appeal is partly allowed. The judgment of the Family Court as far as it directs the husband to pay a sum of Rs.4,32,000/- to the wife in four equal monthly installments w.e.f. 1.1.2014 is set aside. The husband is directed to pay a sum of Rs.1,500/- to the wife every month towards maintenance.
In the circumstances of the case, there would be no order as to costs.
JUDGE JUDGE
Wadkar
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