Gandiboina. Kanaka Durga vs Gandiboina. Nrayana Rao
2021 Latest Caselaw 1144 AP

            HON'BLE SRI JUSTICE U. DURGA PRASAD RAO

                                AND

             HON'BLE SRI JUSTICE B.KRISHNA MOHAN


           CIVIL MISCELLANEOUS APPEAL NO.402 OF 2019


JUDGMENT : (per Hon'ble Sri Justice B.Krishna Mohan)


      This Civil Miscellaneous Appeal arises against the Order in

H.M.O.P. No.214 of 2017 on the file of the Court of Principal Senior

Civil Judge at Eluru, West Godavari District dated 08.07.2019

granting decree of divorce and dismissing the relief of permanent

alimony.


2.    The appellant herein is the petitioner before the trial Court

and the respondent herein is the respondent before the trial Court.

3. Heard the learned counsel for the appellant and the learned

counsel for the respondent.

4. The appellant herein is the wife and the respondent herein is

the husband. The appellant/the petitioner filed H.M.O.P No.214 of

2017 on the file of the Court of Principal Senior Civil Judge at Eluru

against the respondent under Section 13 (1) (ia) of Hindu Marriage

Act, 1955 seeking grant of divorce and permanent alimony by

dissolving the marriage of the petitioner and the respondent dated

12.05.1974 on the ground of cruelty and desertion.

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5. It is the case of the petitioner that she is the legally wedded

wife of the respondent and their marriage was solemnized as per

Hindu rites and customs at Borrampalem on 12.05.1974 and it was

consummated, during their wedlock they were blessed with two

daughters and they also got married in due course after they grown

up, while so, the respondent started living with one Bommidi

Gangamma since 1985 abandoning the petitioner, having come to

know the same she placed the matter before the elders and at

their instance the respondent handed over a piece of land in an

extent of Ac.0-36 cents for the support of their two daughters and

the petitioner, subsequently the said property was given to their

daughters at the time of marriage towards 'pasupu kumkuma' and

the petitioner is left alone without any support and she is taking

shelter with the help of her brother Suryanarayana, and the

respondent deserted the petitioner without any justifiable reason

and there is no possibility of reunion between the petitioner and

the respondent. As the petitioner is an illiterate woman, she was

unable to sustain herself, hence she got issued a legal notice dated

24.04.2017 to the respondent demanding divorce and payment of

Rs.10,00,000/- towards permanent alimony. But the respondent

did not reply for the same and kept quiet. Hence she filed the

above said O.P. for grant of divorce and permanent alimony.

6. The respondent filed a counter denying the material

allegations and contended inter alia that the petitioner and her

two daughters behaved cruelly against him and pressurized him to ~3~

give all the properties to them, in that connection they filed

number of suits against the respondent to grab away his properties

situated at Borrampalem village and the said suits are pending

before the Courts, the respondent neither deserted nor neglected

to maintain the petitioner and as such the question of payment of

permanent alimony of Rs.10,00,000/- does not arise and he further

denied receiving of the legal notice dated 24.04.2017 also. Hence

sought for dismissal of the O.P.

7. Basing upon the above said rival averments and contentions,

the trial Court framed the point for consideration as follows :_

"Whether the petitioner is entitled for grant of decree of divorce and permanent alimony?"

8. During the course of trial, PWs.1 and 2 were examined on

behalf of the petitioner and Exs.P1 to P9 were marked. For the

respondent RW1 was examined and no document was marked.

PW1 is the petitioner herself and PW2 is an independent

witness of the petitioner. RW1 is the respondent himself. Ex.P1 is

the Lagna Patrika of the petitioner and the respondent, Ex.P2 is

the Office copy of the legal notice dated 24.04.2017, Ex.P3 is the

Aadhaar Card of the petitioner, Ex.P4 is the certified copy of the

partition list dated 22.10.1989 executed between the respondent

and his brothers, Ex.P5 is the Adangal Pahani dated 04.01.2019 of

an extent of Ac.0-16 cents, Ex.P6 is the Adangal Pahani dated

31.12.2018 of an extent of Ac.0-05 cents, Ex.P7 is the Adangal ~4~

Pahani of Ac.0-04 cents dated 31.12.2018, Ex.P8 is the 1B Adangal

Copy and Ex.P9 is the Adangal Pahani of Ac.1-15 cents dated

31.01.2019.

9. Basing upon the evidence on record the trial Court came to a

conclusion that the respondent has willfully, intentionally and

deliberately neglected her and deserted her without any justifiable

cause and there is no possibility of reunion and as such she is

entitled for grant of decree of divorce by dissolving the marriage.

But on point of grant of permanent alimony the trial Court came to

a conclusion that the petitioner could not prove the quantum of

income being derived by the respondent from the properties and as

such she is not entitled to claim any permanent alimony i.e., life

maintenance for the present from the respondent observing further

that there is no legal bar to the petitioner to work out for other

remedies against the respondent by way of filing a separate civil

suit claiming life maintenance/permanent alimony. In the result,

the trial Court granted decree of divorce by dissolving the marriage

of the petitioner and the respondent dated 12.05.1974 and

dismissed the claim of grant of permanent alimony vide its

Judgment dated 08.07.2019.

10. Aggrieved by the same, the petitioner filed this Civil

Miscellaneous Appeal No.402 of 2019 before this Court questioning

the refusal of grant of permanent alimony.

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11. The learned counsel for the appellant contended that the

trial Court miserably failed in refusing to grant permanent alimony

to the petitioner - wife in spite of showing that the respondent has

got sufficient means by way of landed properties while granting

decree of divorce on the ground of cruelty and desertion.

12. The trial Court erred in not awarding maintenance for the

divorced wife when it is obligated for the respondent - husband to

maintain her even after grant of divorce under law. Per contra,

the learned counsel for the respondent submits that the trial Court

is justified in rejecting the claim of permanent alimony as she

could not establish what is the income being derived by the

respondent on the said landed property.

13. Upon perusal of the Judgment of the trial Court and the

material available on record it is to be seen that the respondent

even before and after the desertion maintained the petitioner and

her two daughters and performed the marriages of the said

daughters at the intervention of the elders by giving some portion

of the land towards their 'pasupu kumkuma'. That apart it is the

specific case of the respondent that the petitioner and their

daughters committed cruelty against him in order to grab his

properties and filed some civil suits against him. That itself shows

he has got sufficient means and support to maintain himself and

other family members also. Anyhow, it is the duty of the

respondent/husband to maintain the wife during her life time by ~6~

supporting her financially even after grant of decree of divorce

unless she suffers any disqualification under law to claim such

relief. The trial Court committed an error in observing that the

petitioner could not establish the quantum of income derived out

of the said properties by the respondent and on that ground alone

it ought not have rejected permanent alimony as the law

circumscribes to decide about the issues of grant of divorce and

permanent alimony together in the same O.P. Since it is the duty

of the husband to pay maintenance for the divorced wife as per

law the trial Court ought to have fixed some reasonable amount

towards maintenance of the petitioner - wife basing upon their

social and economic status and standard of living. The trial Court

did not grant any amount towards permanent alimony. The order

of the trial Court dated 08.07.2019 is to be set aside to the extent

of denying maintenance to the petitioner-wife-appellant herein in

the interest of justice.

14. Accordingly this Civil Miscellaneous Appeal is partly allowed

and keeping in view of the above said circumstances and

considering the present day sky rocketing prices, we consider that

a sum of Rs.10,000/- per month is reasonable amount to grant

towards maintenance of the petitioner. The respondent is thus

directed to pay Rs.10,000/- (Rupees Ten thousand only) per month

to the petitioner towards permanent alimony for her life and once

in five years, she is at liberty to claim an increase of the said

amount by filing an appropriate application before the Court ~7~

below concerned. The petitioner is declared entitled for the

above said monthly maintenance amount with effect from the date

of petition. The respondent shall pay the arrears from the date of

petition till this date within 3 months from today and he shall

continue to pay in the first week of every month, at the rate of

Rs.10,000/- per month towards maintenance w.e.f. 01.03.2021

without any default.

15. Accordingly, the Civil Miscellaneous Appeal is partly allowed

with no costs.

As a sequel thereto, miscellaneous petitions, if any pending

in the CMA, shall stand closed.

__________________________ JUSTICE U. DURGA PRASAD RAO

_______________________ JUSTICE B. KRISHNA MOHAN

Date: 25-02-2021.

Yvk.