Gauhati High Court
Page No.# 1/8 vs Xxxxxxxx on 1 October, 2024
Author: S. K. Medhi
Bench: Sanjay Kumar Medhi
Page No.# 1/8
GAHC010085332021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Mat.App./13/2021
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D/O- KALICHARAN PATHAK, W/O- GAURIKANTA ROY, R/O- VILL.-
KATHALMURA, P.O. JALKHANA, P.S. TIHU, DIST.- NALBARI, ASSAM, PIN-
781371.
VERSUS
XXXXXXXX
S/O- LATE SONESWAR ROY, C/O- OFFICE OF THE SUPERINTENDENT OF
POLICE NAGAON DISTRICT UBC-265, P.O., P.S. AND DIST.- NAGAON,
ASSAM, PIN- 782001 AND PERMANENT ADDRESS- VILL.- KAWOIMARI,
MOUZA- PAKA, P.O. RAMPUR DEKAPARA, P.S. SARTHEBARI, DIST.-
BARPETA, ASSAM, PIN- 781375.
Advocate for the Petitioner : MR. S N KRISHNATRAYA,
Advocate for the Respondent : MS F BEGUM, MS P DASGUPTA,MR S PAUL
BEFORE
HON'BLE MR. JUSTICE SANJAY KUMAR MEDHI
HON'BLE MRS. JUSTICE MITALI THAKURIA
Advocate for the petitioner : Shri S. N. Krishnatraya, Advocate.
Advocate for the respondent : Shri S. Paul, Advocate.
Date of hearing : 24.09.2024
Date of Judgment : 01.10.2024
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Judgment & Order
(S. K. Medhi, J)
The instant appeal has been preferred under Section 28 of the Hindu
Marriage Act, 1955 against the impugned Judgment dated 02.01.2021 passed in
F. C. (Civil) Case No.146/2021 by the Principal Judge, Family Court, Nalbari. The
appellant herein is the wife-second party. By the impugned judgment and
decree, the marriage between the parties has been dissolved and there is a
direction for payment of permanent alimony of Rs. 5,00,000/- (Rupees Five
Lakh) only. Being aggrieved by the said judgment and decree, the instant
appeal has been preferred by the wife.
2. We have heard Shri S. N. Krishnatraya, learned counsel for the appellant.
Also heard Shri S. Paul, learned counsel for the respondent.
3. Shri Krishnatraya, the learned counsel for the appellant has submitted that
the marriage was solemnized on 26.02.1993 as per the Hindu rites and rituals
and in the year 1994 a daughter was born. However, on 26.01.1998, the
appellant was thrown away from the matrimonial house and since then, the
parties are living separately. The appellant had instituted a proceeding under
Section 125 of the CrPC which was allowed and initially an amount of Rs. 2000/-
(Rupees Two Thousand) only was granted each to the second party as well as
the daughter. Subsequently, vide an order dated 19.02.2018, the learned
Sessions Judge, Nalbari had enhanced the maintenance amount to Rs. 3500/-
(Rupees Thirty Five Hundred) only each for the appellant and her daughter. It is
thereafter that in the year 2019 the petition for divorce was filed by the
respondent-first party.
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It is the case of the appellant that though written statement was filed by her,
due to the advent of COVID pandemic, both the parties were continuously
absent. He has drawn the attention of this Court to the order sheets more
particularly, the order dated 01.12.2020 as per which the matter was fixed for
judgment on 02.01.2021. It is contended that till the earlier date i.e.
20.10.2020, none of the parties were present and the next date was fixed on
01.12.2020 when the respondent was present with an witness whereas the
appellant could not be present. However, the learned Court had held that the
appellant had forfeited her right to cross-examine the witness and the matter
was accordingly fixed for judgment on the next date which was fixed on
02.01.2021. It is submitted that the entire procedure adopted was not in
accordance with law and the appellant was denied a fair opportunity to defend
herself. Be that as it may, vide the impugned judgment and decree dated
02.01.2021, the marriage was dissolved and an alimony of Rs. 5,00,000/-
(Rupees Five Lakh) only was directed to be paid.
4. Shri Krishnatraya, the learned counsel for the appellant has, at this stage
clarified that the present challenge would be confined to the aspect of the
amount of the alimony and there is no serious dispute with the aspect of
divorce.
5. The learned counsel has submitted that the respondent was a Constable in
the Assam Police and in the judgment itself it has been recorded that the salary
of the respondent would be more than Rs. 30,000/- per month. He has also
informed that in the present appeal there was an endeavour for amicable
settlement including an attempt by mediation which had failed.
6. By drawing the attention of this Court to the guidelines laid down by the
Hon'ble Supreme Court in the case of Rajnesh vs. Neha & Anr. reported in
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(2021) 2 SCC 324 it is submitted that it is incumbent upon the parties to a
matrimonial dispute for declaration of asset and liability. It is submitted that so
far as the appellant is concerned, she had filed an affidavit declaring such assets
and liability. It is submitted that the appellant was self-employed being engaged
as a Tailor and was earning a meagre amount of Rs.5,000/- to 6,000/-. It has
also been admitted that in the meantime on 04.05.2022, the alimony amount of
Rs.5,00,000/- (Rupees Five Lakh) only has been credited to her account.
7. The learned counsel has however submitted that the obligation as per the
case of Rajnesh vs. Neha (supra) has not been discharged in the proper
manner by the respondent. He has drawn the attention of this Court to the
affidavit dated 16.05.2024 filed by the respondent on the aspect of declaration
of assets and liability. He has submitted that under Heading "F" wherein the
details of the income are to be given, no such details were furnished by the
respondent. The requirements under Sl. No. 4 which pertains to the aspect of
Government servants as well as to furnish latest salary statements were also not
answered. As regards the income of the spouse which is required to be filled up
under Sl. No. "J", it has been stated that the appellant earns a monthly income
of Rs. 20,000/-(Rupees Twenty Thousand) only. However, no supporting
documents have been given by the respondent.
8. The learned counsel has also referred to the prescription dated 16.05.2024
of the respondent as he had claimed that he was suffering from serious medical
ailment including paralysis of one part and has submitted that the prescription
was not adequate and in any case cannot be conclusive. By drawing the
attention of this Court to the Bank statement of the respondent, the learned
counsel for the appellant has submitted that it would clearly appear that the
respondent was getting a monthly salary of Rs. 63,058/- (Rupees Sixty Three
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Thousand Fifty Eight) only. It also appears that he had availed a loan for a two
wheeler which would imply that his excuse of suffering from paralysis is not
acceptable.
9. It is categorically submitted that in the meantime, though the only
daughter of the parties was married, not a single penny was paid by the
respondent for such marriage. It is submitted that though in February, 2024, the
respondent had retired, he was getting pension of a reasonable amount. The
learned counsel accordingly submits that the alimony of Rs. 5,00,000/- (Rupees
Five Lakh) only is absolutely on the lower side as the appellant is facing grave
hardships in her livelihood. It is also submitted that for the purpose of the
marriage of the only daughter, she had taken loan with the expectation that the
respondent would bear the expenses of such marriage which was not ultimately
done. The learned counsel submits that an alimony of Rs. 18,00,000/- (Rupees
Eighteen Lakh) only would be reasonable under the facts and circumstances of
the case.
10. Per Contra, Shri Paul, the learned counsel for the respondent has
submitted that though his client was a salaried person, he had retired in
February, 2024 and thereafter the pension is also held up. It is submitted that
his client is having health issues and the pension is held up due to certain
complaints made by the appellant. He has referred to the LCRs including the
medical documents from which it would appear that the respondent is having
serious medical issues including paralysis of one part of the body.
11. He submits that the alimony granted is reasonable and the same is not
required to be enhanced. As regards the aspect of not bearing the expenses of
the marriage of the daughter, it is submitted that though the respondent had
agreed to bear the expenses, the same was on the condition that the marriage
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has to be performed in the house of the respondent which was not done. The
learned counsel however, does not dispute the aspect that his client did not bear
the expense of the marriage.
12. The learned counsel for the appellant in his rejoinder has referred to the
order dated 13.10.2023 of this Court requiring the parties to submit the asset
liability statement as per the mandate of the Hon'ble Supreme Court in the case
of Rajnesh v. Neha (supra). It is submitted that such asset liability statement
was furnished by the respondent after 6 months and therefore it would not lie
upon the respondent to contend that the relevant documents were not in his
possession.
13. The learned counsel has also placed before us an excerpt of the Service
Book wherein two names, namely, Ms. Runu Roy and Akash Roy are seen. A
bare perusal of the said excerpts would show that the said Runu Roy is the wife
of the respondent and Akash Roy is the son who is said to be born in the year
2000. Though the excerpts of the Service Book which were not exhibited is not
liable to be taken into cognizance by this Court as an Appellate Court without
following the due procedure, there is another aspect which is revealed from the
LCR. In the "C-2 file" of the LCR, there are certain medical documents of one
Runu Roy, who appears to be the wife of the respondent.
14. At this stage, the learned counsel for the respondent has submitted that
Runu Roy is not the wife but the Caretaker. Be that as it may, the excerpts of
the Service Book also reveals that a son was born in the year 2000, who is
named Akash Roy. The divorce being of the year 2021, no second marriage
could have been solemnized prior to such divorce and such marriage, if any
cannot be recognized by law.
15. Without even going to that aspect of the matter, this Court is required to
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examine the present appeal which has been limited to the aspect of the
amount/quantum of the permanent alimony. We have noticed that an order was
passed on 13.10.2023, directing the parties to submit asset and liability
statement as per the directive of the Hon'ble Supreme Court. The appellant, in
her affidavit has stated that she was self-employed with a monthly income of
Rs.5000/- to Rs. 6000/-. On the other hand, the asset and liability statement of
the respondent is not properly filled up. There is no proper statement of income
in the said affidavit. This Court has seen that so far as heading "F" is concerned
on the aspect of details of income, no details whatsoever has been given and Sl.
No. 4 has not even been answered.
16. For ready reference, the query against Sl. No. 4 is extracted herein
below:-
"4. If engaged in Government Service, furnish latest Salary Certificates or Current Pay
Slips or proof of deposit in the bank account, if being remitted directly by the
employer."
17. Even in the Bank statement annexed by the respondent, there is no
statement after March, 2024 whereas the affidavit has been filed in May, 2024.
As regards the submission that the appellant was not receiving pension, there
is no such statement placed on record by an affidavit. Even assuming that the
pension is held up for some reason, the same would not have a significant
bearing on the aspect of permanent alimony. It is also not in dispute that the
respondent who is the father did not bear any expense on the marriage of the
only daughter which he had promised to do. The explanation that such
expenses was not borne due to the fact that the marriage was not solemnized
from his house is not acceptable at all. It cannot be held to be unreasonable
that a daughter who has been staying with her mother for the last about more
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than two decades would like to have her marriage solemnized from the house of
her father in a different district.
18. The income of the appellant to have a livelihood in a decently manner
appears to be wholly inadequate. It has also been submitted that the appellant
had to take loan for the marriage of her daughter.
19. Upon consideration of the materials on record, this Court is of the opinion
that a case for enhancement of the permanent alimony is made out. Though the
appellant has claimed an amount of Rs. 18,00,000 (Rupees Eighteen Lakh) only,
this Court is of the opinion that considering the facts and circumstances and
striking a balance, a total amount Rs.10,00,000/- (Rupees Ten Lakh) only as
permanent alimony would be justified.
20. We therefore direct the respondent to pay the balance amount of Rs.
5,00,000 (Rupees Five Lakh) only to the appellant. Such amount is directed to
be deposited in the Registry of this Court within a period of 3 (three) months
from today and the appellant would be at liberty to withdraw the amount on
being properly identified by her counsel.
21. The appeal stands allowed in the manner indicated above.
22. No order as to cost.
JUDGE JUDGE
Comparing Assistant
