Mrs Priya Naik V vs Mr.K.S.Sanjay Naik
2023 Latest Caselaw 2607 Kant

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 25TH DAY OF MAY 2023
                    PRESENT

       THE HON'BLE MR. JUSTICE ALOK ARADHE

                       AND

THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE


   MFA CROSS OBJECTION NO.11 OF 2017 (FC)
                    IN
            MFA NO.5556 OF 2016
BETWEEN:

MRS.PRIYA NAIK V,
AGED ABOUT 38 YEARS,
D/O
R/AT 'RAJESHWARI',
KRISHNAPURA ROAD,
SURATHKAL,
MANGALORE-575014.             ...CROSS OBJECTOR

(BY SRI VENKATESH SOMAREDDY, ADVOCATE FOR
 SRI PONNANNA I. C., ADVOCATE)

AND:

MR.K.S.SANJAY NAIK,
AGED ABOUT 48 YEARS,
SON OF SUNDAR NAIK,
RESIDING AT "SUCHETHA" NEAR
GUDDE TEMPLE, KUDLU VILLAGE
AND POST,
KASARAGOD - 671 124.             ... RESPONDENT

(BY SRI ASHWIN R. A. A/W
 MISS NIDHI KALYANI, ADVOCATE)
                           -2-




   THIS MFA CROSS OBJECTION IN MFA NO.5556/2016
IS PASSED UNDER ORDER XLI RULE 22 R/W SECTION
19(1) OF FAMILY COURT ACT, AGAINST THE JUDGMENT
AND DECREE DATED 31.03.2016 ON THE FILE OF THE
PRINCIPAL JUDGE, FAMILY COURT, D.K.MANGALURU,
DIRECTING THE RESPONDENT TO PAY PERMANENT
ALIMONY OF RS.25,00,000/- TO THE PETITIONER.

     THIS MFA CROSS OBJECTION HAVING BEEN
HEARD    AND   RESERVED  FOR  JUDGMENT  ON
23.05.2023, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, ANANT RAMANATH HEGDE J.,
DELIVERED THE FOLLOWING:



                       JUDGMENT

This Cross objection is filed by the petitioner/wife

in M.C.No.27/2013 on the file of Family Court at

Mangaluru. The Cross objector is assailing the judgment

and decree dated 31.03.2016 wherein the Family Court

has awarded Rs.25,00,000/- as permanent alimony as

against the claim of Rs.75,00,000/- towards permanent

alimony. This Cross objection is in respect of rejected

claim of Rs.50,00,000/- and the cross objector is seeking

enhancement of alimony.

2. The records reveal that the

respondent/husband also filed appeal in MFA 5556/2016

challenging the alimony for Rs.25,00,000/-. However, the

husband has satisfied the award of Rs.25,00,000/- in the

execution proceeding filed by the wife and thereafter,

has withdrawn the said appeal.

3. Briefly stated the facts of the case are as

under:

- The marriage of the parties was solemnized on

24.06.1999. Neha, the daughter was born on 31.01.2002

from the wedlock. As the relationship between the

parties got strained, the wife filed the petition seeking

dissolution of marriage in M.C. No.27/2013 on the file of

Family Court, Mangaluru. The petition seeking divorce

on the ground of cruelty and desertion was allowed on

21.09.2013 and the Family Court granted permanent

alimony of Rs.15,00,000/- to the wife. The husband filed

appeal in MFA 9793/2013 challenging the judgment and

decree of the Family Court. The wife filed Cross objection

91/2014, in the aforesaid appeal. In terms of judgment

dated 14.08.2014, the matter was remitted to the Family

Court to fix permanent alimony. The decree for divorce

is confirmed, by this Court.

4. After the remand, the Family Court awarded

Rs.25,00,000/- as permanent alimony and the wife is

seeking enhancement of alimony.

5. Before the Family Court, the wife is

examined as PW1 and husband is examined as RW1. On

behalf of wife, Exs.P.1 to P.10 were marked and on

behalf of husband Exs.R.1 to R.9 were marked.

6. The Family Court has recorded evidence and

concluded that the husband is working in Shipping

Company and is earning Rs.4,00,000/- per month.

Consequently, the Family Court awarded Rs.25,00,000/-

as permanent alimony.

7. We have heard the learned counsel

appearing for the Cross objector/wife and the learned

counsel appearing for the husband. We have also

perused the materials placed on record.

8. There is no dispute over the fact that the

husband is working in a Shipping Company. The Family

Court has recorded a finding that the husband is earning

Rs.4,00,000/- per month. Said finding is based on

Exs.P.8 to 10. The learned counsel for the wife would

contend that considering the income of the husband, the

permanent alimony of Rs.25,00,000/- awarded by the

Family Court is not sufficient. It is his contention that

the daughter of the parties is residing with the wife and

wife is taking care of her expenses and based on the

materials placed on record, the Family Court ought to

have awarded Rs.75,00,000/- as permanent alimony.

9. Learned counsel for the husband would

contend that the wife is capable of earning and the

husband is not having a permanent avocation.

Considering the nature of the work of the husband, the

Family Court awarded Rs.25,00,000/-. It is his further

contention that Rs.25,00,000/- awarded by the Family

Court itself is on higher side and the husband had

questioned the said decree by filing an appeal before this

Court. Later, the said appeal was withdrawn with an

intention to put a quietus to the litigation and with an

assurance from the wife that she would not press her

claim for enhancement of alimony, and the husband has

paid Rs.25,00,000/-. He further contended that wife has

not acted as per her assurance and is prosecuting this

appeal.

10. There is no dispute over the fact that the

wife and her daughter are living together and the wife is

taking care of her daughter. The records also reveal that

husband is earning Rs.4,00,000/- per month. Though it

is urged on behalf of the husband that his employment is

not a permanent employment, nothing is placed on

record to show that he was removed from service and

was unemployed at any point of time during the

pendency of proceeding. The husband has not produced

corroborative evidence to hold that the wife is earning

sufficient income to maintain the lifestyle similar to the

one she led before separation from her husband. It is

well settled principle of law that the alimony payable,

should be, to the extent possible good enough to lead the

similar lifestyle which was led before the separation. The

circumstance suggesting decrease in the income of the

husband or any other circumstances suggesting

incapacity of the husband to pay higher amount of

alimony and to ensure almost similar lifestyle, are not

made out.

11. This Court during the course of hearing also

sought to know as to what is the present income of the

husband. Learned counsel appearing for the husband on

instructions, submitted that the husband is earning

$5,000/- per month.

12. The decree for Rs.25,00,000/- alimony

awarded by the Family court is challenged by the

husband and the said amount is paid in the year 2021

before the Executing Court in an Execution Petition filed

by the wife. Though, it is urged on behalf of the husband

that said amount is paid relying on the assurance of the

wife that she will not prosecute the cross objection

seeking enhancement of alimony, except the submission

made at the bar, there is nothing on record to show that

such an assurance was made by the wife. Had it been so,

same would have been part of the record or the parties

would have presented the compromise petition. This

being the position, the contention of the husband

regarding wife's assurance cannot be accepted.

13. The daughter was born in the year 2002.

Admittedly, the wife has raised her daughter and is

taking care of her. The wife was aged 35 years when the

petition was filed. She has a long life ahead. The husband

was aged 45 years when the petition was filed. Though

the wife has made a claim to award the permanent

alimony of Rs.75,00,000/-, this Court is of the view that

it is not justifiable to award Rs.75,00,000/- towards

permanent alimony. However, this Court is of the view

that Rs.25,00,000/- awarded by the Family Court is

inadequate. Taking into consideration the income of the

husband and the fact that the wife has to perform the

marriage of her daughter and also taking into

consideration the cost of living, this Court is of the view

that the cross objector/wife is entitled to permanent

alimony of Rs.50,00,000/- as against the decree for

Rs.25,00,000/- awarded by the Family Court.

14. For the aforementioned reasons, the

impugned judgment and decree passed by the Family

Court is modified and permanent alimony of

Rs.50,00,000/- is granted by enhancing the alimony by

Rs.25,00,000/-. The respondent/husband in this cross

objection shall pay the amount of Rs.25,00,000/-, the

enhanced alimony within three months from this date. If

the amount is not paid, it shall carry interest @ 6% p.a.

from this date till payment. Hence, the following:

ORDER

(i) MFA Crob. No.11/2017 in MFA No.5556/2016 is

allowed in part and impugned judgment and decree

dated 31.03.2016 passed in M.C.No.27/2013 by the

Family Court, Mangaluru are modified and permanent

alimony is enhanced to Rs.50,00,000/- by modifying

the decree for permanent alimony of Rs.25,00,000/-

granted by the Family Court.

(ii) The enhanced alimony of Rs.25,00,000/- shall carry

interest @ 6% per annum as aforesaid in case

payment is not made within three months from

today.

Sd/-

JUDGE

Sd/-

JUDGE BRN