Mrs. Josephine vs Mr. Edgar Rajdayal Allan
2022 Latest Caselaw 12722 Kant

                              1
  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

    DATED THIS THE 2ND DAY OF NOVEMBER, 2022

                       PRESENT

       THE HON'BLE MR. JUSTICE ALOK ARADHE

                            AND

   THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY

            M.F.A. NO.3324/2020 (SMA)

BETWEEN:

MRS. JOSEPHINE
W/O EDGAR RAJDAYAL ALLAN
AGE: 53 YEARS
OCC UNEMPLOYED
R/O NO.14, MAIGANDA DEVA
MUDALIAR ROAD, FRAZER TOWN
BENGALURU - 560 005.

PRESENTLY RESIDING AT 43/2
CHRIST NIVAS, VENKATESHAPPA
LAYOUT, N BEERAPPA ROAD
M.S. NAGAR POST, KAMMANAHALLI
BANGALORE - 560 033.               ...APPELLANT

(BY SRI ASIM MALIK, ADV.)

AND:

MR. EDGAR RAJDAYAL ALLAN
S/O ALLAN P V
AGE: 52 YEARS
OCC PRIVATE R/O NO 14
MAIGANDA DEVA, MUDALIAR
ROAD, FRAZER TOWN
BENGALURU - 560 005.               ...RESPONDENT

(BY SRI SHRIDHARA K., ADV.)
                             2
       THIS M.F.A. IS FILED UNDER SECTION 39 OF SMA,
READ WITH SECTION 19(1) OF THE FAMILY COURT ACT,
1984, PRAYING TO ALLOW THIS APPEAL BY SETTING ASIDE
THE    PART       OF    THE     JUDGMENT     AND    DECREE    DATED
04.09.2019 IN M.C. NO.3508/2015 PASSED BY THIE LEARNED
PRL.     JUDGE,        FAMILY    COURT,     BANGALORE,       THEREBY
DISMISSING THE APPLICATION U/S 37 OF THE SPECIAL
MARRIAGE ACT, 1594 FILED BY THE APPELLANT SEEKING
PERMANENT ALIMONY.


       THIS APPEAL COMING ON FOR FINAL DISPOSAL THIS
DAY,     VISHWAJITH             SHETTY     J.,      DELIVERED    THE
FOLLOWING:

                           JUDGMENT

This miscellaneous first appeal is filed assailing the

judgment and decree dated 04.09.2019 passed by the

Principal Judge, Family Court, Bengaluru in

M.C.No.3508/2015 wherein the Family Court had allowed

the petition filed by the respondent - husband under

Section 27(1)(d) of the Special Marriage Act, 1954

(hereinafter referred to as "the Act of 1954") and the

marriage between the parties registered on 21.04.1993

before the Registrar of Marriages, Bengaluru and

subsequently, solemnized on 11.11.1994 at St.John's

Church, Bengaluru was dissolved by decree of divorce

and the application filed by the appellant - wife under

Section 37 of the Act of 1954 seeking permanent alimony

was also dismissed.

2. We have heard the learned counsel appearing

for the parties and also perused the material available on

record.

3. Brief facts leading to filing of this appeal as

revealed from the records are, the marriage of the

appellant with the respondent was registered before the

Registrar of Marriages, Bengaluru and subsequently,

solemnized on 11.11.1994 at St.John's Church,

Bengaluru as per Christian rites and traditions. For short

period after marriage, the couple were living happily and

thereafter their relationship had strained and they were

quarrelling on petty issues. From the marriage, the

couple had no biological issues and therefore, they

adopted a girl child was named as Renae Nakshatra

Allan. Even thereafter, the relationship between the

parties did not improve and ultimately, the respondent -

husband had filed petition under Section 27(1)(d) of the

Act of 1954 seeking dissolution of marriage on the

ground of cruelty. The appellant - wife had entered

appearance in the said proceedings and filed detailed

statement of objections denying the petition averments

and also contended that the respondent was addicted to

alcohol and he used to treat her indifferently and never

allowed her to mingle with any of his relatives and child.

To substantiate his case, the respondent - husband had

examined himself as P.W.1 and got marked 39

documents and on the other hand, the appellant - wife

examined herself as R.W.1 and got marked Ex.R.1 to R9.

After completion of evidence, the appellant - wife had

filed I.A.No.V under Section 37 of the Act of 1954 with a

prayer for awarding Rs.3 crores as permanent alimony.

The Family Court vide the impugned judgment and

decree had allowed the petition filed by the respondent -

husband and had dismissed the application - I.A.No.V

filed by the appellant - wife. Being aggrieved by the

impugned judgment and decree in so far as it relates to

rejection of the application-I.A.No.V filed under Section

37 of the Act of 1954 , the appellant - wife has preferred

this appeal.

4. The learned counsel for the appellant submits

that the Family Court was not justified in dismissing the

application -I.A.No.V filed by the appellant - wife under

Section 37 of the Act of 1954. He further submits that

since the learned Judge has dissolved the marriage by

decree of divorce, he ought to have granted permanent

alimony to the appellant - wife as sought.

5. Per contra, learned counsel for the

respondent has argued in support of the impugned

judgment and decree and submits considering the

evidence on record, the learned Judge has rightly

dismissed the application filed under Section 37 of the

Act of 1954 by the appellant - wife and the same does

not calls for any interference.

6. The material on record would go to show that

the couple have no biological issue from the marriage

and they had adopted a girl child who was named as

Renae Nakshatra Allan and she is aged about 19 years at

present and admittedly, she is in custody of the

respondent - husband and he is taking care of the

educational and other maintenance expenses of her. It

has also come on record that the respondent was

working in a private company and was earning

Rs.46,500/- per month as on 07.01.2019 and from the

said income, he was paying EMI towards housing loan

and he also had to meet educational and other expenses

of his daughter. The appellant-wife had pleaded her

ignorance about the expenses that was incurred by the

respondent for the purpose of educational and other

maintenance expenses of their daughter.

7. It has also come on record that the appellant

- wife was working in Titan Company and drawing salary

of Rs.8,20,332/- per annum in the year 2013 and she

was drawing a sum of Rs.10 lakhs per annum in the year

2016 and subsequently, she has taken voluntary

retirement from the service and received a sum of Rs.30

lakhs from her employer. It has also come on record that

she had purchased a flat in the year 2014 and she is

receiving a sum of Rs.18,000/- per month as rent from

the same and in addition to the same, she has got other

investments. She also owns a Santro Car. It has also

come on record that after retirement from the Titan

Company, she was working for private company as

freelancer and further she is a skilled handicraft artisan

and had income from the same. The learned Judge of the

Family Court having considered all these aspects of the

matter has dismissed the application filed under Section

37 of the Act of 1954 filed by the appellant - wife,

wherein she had claimed a sum of Rs.3 crores towards

permanent alimony.

8. The material on record would go to show that

the appellant-wife has not bothered to take the

responsibilities of the daughter and till date she has not

contributed for the purpose of well being, maintenance

and education of the girl child. It is also not in dispute

that the appellant-wife till date has not initiated any

proceedings either seeking custody of the girl child or for

visitation rights and entire responsibility of girl child is

saddled on the respondent. Under these circumstances,

we are of the considered view that the learned Judge of

the Family Court was fully justified in dismissing the

application-I.A.No.V filed under Section 37 of the Act of

1954 by the appellant - wife seeking permanent alimony

and we find no good reasons to interfere with the said

order. Accordingly, miscellaneous first appeal is

dismissed.

SD/-

JUDGE

SD/-

JUDGE NMS