Bombay High Court
Juneshkumar S/O Kashiram Talmale vs Sou. Mrunal W/O Juneshkumar ... on 10 July, 2017
Bench: V.A. Naik
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.
--------------------------------------------------------------------------------------------------
Ms Manju Ghatode, Counsel for the appellant
Shri A.H. Jamal, Counsel for the respondent
--------------------------------------------------------------------------------------------------
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.
fca305.14.odt
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
fca305.14.odt
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
fca305.14.odt
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
fca305.14.odt
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
fca305.14.odt
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
fca305.14.odt
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
fca305.14.odt
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
fca305.14.odt
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
