Jyoti Sankar Panda vs Jyotirmayee Dash
2021 Latest Caselaw 10715 Ori

       IN THE HIGH COURT OF ORISSA AT CUTTACK
                       MATA Nos. 57 of 2020
                             with
                       MATA No.61 of 2020

From the Judgment and Order dated 29.02.2020 passed by Shri Rama
Krishna Choudhury, learned Judge, Family Court, Cuttack in Civil
Proceeding No.420 of 2012.

                      In MATA No.57 of 2020

  Jyoti Sankar Panda                          ....          Appellant

                                -versus-
  Jyotirmayee Dash                            ....          Respondent


  Advocates appeared in the case through hybrid mode:
  For Appellant               :    Mr. A.P. Bose, Adv.

                                -versus-
  For Respondent                :   Mr. Millan Kanungo, Sr. Adv.


                      In MATA No.61 of 2020

  Jyotirmayee Dash                            ....          Appellant

                                -versus-
  Jyoti Sankar Panda                          ....          Respondent


  Advocates appeared in the case through hybrid mode:
  For Appellant               :    Mr. Millan Kanungo, Sr. Adv.
                               -versus-
  For Respondent                :   Mr. A.P. Bose, Adv.




   MATA Nos.57 and 61 of 2020                         Page 1 of 9
  CORAM:
      JUSTICE S.K. MISHRA
      JUSTICE SAVITRI RATHO
       DATE OF HEARING:- 17.02.2021 & 07.10.2021
           DATE OF JUDGMENT:- 07.10.2021

S.K. Mishra, J.

01. Both the Appeals arise out of the Judgment and Order dated 29.02.2020 passed by the learned Judge, Family Court, Cuttack in Civil Proceeding No.420 of 2012.

02. MATA No. 57 of 2020 has been filed at the instance of husband- Jyoti Sankar Panda praying for reduction of quantum of the permanent alimony from Rs.40,00,000/- to Rs.22,00,000/-, whereas MATA No. 61 of 2020 has been filed at instance of wife- Jyotirmayee Dash praying for enhancement of permanent alimony. Since both the above Appeals are arise out of the same judgment and both sides rest their claims on quantum of permanent alimony, the matter were heard together.

03. The case of the Petitioner (husband) in the family court was that he and the Respondent (wife) tied the knot on 02.12.2007 at Cuttack as per Hindu Rites and Customs. Hereinafter, they are referred to as Appellant (husband) and Respondent (wife) for convenience. After the marriage was solemnized, they lived together in Cuttack town. The marriage was finalized basing on advertisement published in the Newspaper by the Petitioner and there was no demand for dowry in the marriage. He, at that time, was

MATA Nos.57 and 61 of 2020

serving at Bengaluru and after 7 days of marriage, he returned to his workplace and the Respondent returned to OUAT, Bhubaneswar, as she was studying there. In January, 2008 the Respondent went to Bengaluru and completed her project work for MCA course. Gradually, the attitude of the Respondent became unsociable, derogatory and against the social prestige of the Appellant. She forced the Appellant to stay away from the family members. The parents of the Respondent also forced him not to stay with his parents. The Respondent left the house of the Appellant in September, 2008. Finding no other way, the Appellant rights and when it came to the knowledge of the Respondent, she filed criminal case bearing G.R. Case No.1053 of 2010 and the father of the Appellant (husband) was sent to jail. Then the Appellant filed a divorce case against the Respondent.

04. Pursuant to the notice issued by the family court, the Respondent appearing in the matter, filed a written statement. Her stand in the written statement was that all the claims raised by the Appellant was false. She claimed that the cash of Rs.2,00,000/-, gold and silver ornaments along with household articles were given to the Appellant at the time of marriage and after completion of her study, she joined with the Appellant at Bengaluru where the younger brother and sister of the Appellant were staying with him. The case of the Respondent is that she was subjected to cruelty, misbehavior, harassment by the brother and sister of the Appellant and the Appellant realizing the problem assured the Respondent that he would arrange another house and he would take her to Bengaluru, but the Appellant never came to her, rather, he filed a false case for restitution of conjugal rights, although the Respondent never

deserted him. Rather, for demand of dowry and continuous torture, the Respondent was compelled to file a criminal case against the Appellant and his parents. During conciliation, the Appellant did not agree to join the society of the Respondent, so the case for restitution of conjugal rights was withdrawn. The Respondent expressed her willingness for divorce only if she gets Rs.60,00,000/- from the Appellant towards permanent alimony.

05. Upon completion of pleadings from both the parties, learned Judge, Family Court, Cuttack framed the following issues-

1. If the Respondent being the legally married wife of the Appellant showed cruelty to him and also deserted him for which the Appellant is entitled for decree of divorce.

2. To what other relief parties are entitled to.

06. After hearing the Parties, while dealing with issue no.1, the learned Judge Family Court, Cuttack held that the plea of cruelty advanced by both the parties to each other and after marriage both of them hardly stayed together for 8-9 months and since 07.11.2008 for about 12 years they stayed separately from each other. In such a case, the family court held that there would be no beneficial purpose to force them to be together. Rather, the learned Judge, Family Court, Cuttack granted a decree of divorce declaring dissolution of marriage. Similarly, while dealing with issue No.2, the learned Judge, Family Court, Cuttack came to the finding that both the Appellant and the Respondent are educated persons and the Appellant was working in INFOSYS Company and earning more than Rs.1,70,000/- per month. On the other hand, the Respondent was serving in a College on contractual basis and was earning a sum

MATA Nos.57 and 61 of 2020

of Rs.7,500/- per month. After considering all the materials on record and considering the fact that the Appellant was 40 years old at that time and Respondent was 35 years old, the civil court by deciding the interim maintenance of Rs.15,000/- per month towards the Respondent for her maintenance from the income of the Appellant and granted permanent alimony of Rs.40,00,000/- for Respondent.

07. Being aggrieved by the quantum of the permanent alimony as fixed by the family court, the Appellant/husband filed MATA No.57 of 2020 to reduce the permanent alimony to Rs.22.00 lakhs from Rs.40.00 lakhs. Similarly, being aggrieved by the very same impugned judgment, the Respondent-wife has preferred MATA No.61 of 2020 on the same date to enhance the quantum of permanent alimony.

08. Both the parties did not raise any question as to dissolution of marriage by granting decree of divorce between them and their sole grievance is with regard to the quantum of permanent alimony granted by the learned Judge, Family Court, Cuttack.

09. The question now comes for consideration is as to what should be the appropriate quantum of permanent alimony to be granted to the Respondent. Learned Judge Family Court, Cuttack granted permanent alimony of Rs.40,00,000/- to the wife to be paid by the husband.

10. Learned counsel for the Respondent submitted that the said amount of Rs.40,00,000/- is at a lower side taking into consideration the status of the parties and the salary receipt by the Appellant. The learned Judge, Family Court, Cuttack has failed to appreciate Ext- A/6(The 7 sheets of income tax return certificate of the Appellant)

and Ext-G (TDS form of the Appellant),the documents filed and relied by the Appellant for computation of permanent alimony that the Appellant was drawing a salary of Rs.2,50,000/- . However, ignoring those facts, the learned Judge, Family Court, Cuttack has fixed the permanent alimony at a lower side. So, the quantum of maintenance should be enhanced.

11. Learned Counsel for the Appellant, however, submitted that the Appellant all along tried to bring back the Respondent, but she refused to come. He relied on exibit-22 series to establish the conduct of the Respondent towards the Appellant. The Appellant filed a petition under Section 9 of Hindu Marriage Act, but on receipt of such notice, the Respondent surprisingly filed a false case under Section 498A of the Penal Code which was ended in acquittal, which amounts to mental cruelty towards the in-laws. The Appellant has paid a sum of Rs.11,00,000/- (Approximately) as interim maintenance and over and above fixation of Rs.40,00,000/- is too harsh for the Appellant. Therefore, the amount of permanent alimony should be reduced.

12. This Court has taken into consideration all the above facts and the fact that both the parties have agreed for dissolution of marriage by decree of divorce. Admittedly, the Appellant was working in TCS at the time of decree of divorce and the income tax reports filed by the Appellant show that the salary of the Appellant is more than Rs.2,50,000/- per month. It is important to note that the information provided by the competent authority of I.T Department was for the assessment year 2016-2017 but the judgment was passed on 29.02.2020. The Respondent has filed another application on

MATA Nos.57 and 61 of 2020

02.07.2019 to call for the record from the competent authority of I.T. Department for the assessment year 2018-2019 and 2019-2020 which was disallowed vide order dated 05.08.2019 and against such rejection order, the Respondent has filed W.P.(C) No.16088 of 2019 which is pending for adjudication. It appears from the salary slip of the Appellant that the salary of the Appellant was Rs.2,57,259/- in the month of February 2020 as per Exibit-21 and after deduction towards provident fund, professional, tax, voluntary provident fund, Health Insurance Scheme Premium, NPS, NPS Processing Charges etc., the home take salary is Rs.1,44,914/-.

13. In the case of Vinny Parmvir Parmar-vs.- Paramvir Parmar, A.I.R.2011 SC 2748, the Hon'ble Supreme Court in para- 12 held as follows-

"As per Section 25, while considering the claim for permanent alimony and maintenance of either spouse, the respondent's own income and other property, and the income and other property of the applicant are all relevant material in addition to the conduct of the parties and other circumstances of the case. It is further seen that the court considering such claim has to consider all the above relevant materials and determine the amount which is to be just for living standard......."

14. In the case of Shamima Farooqui-Vrs.-Shahid Khan, reported in (2015) 5 SCC 705, it has been held as follows-

"15.......A woman, who is constrained to leave the marital home, should not be allowed to feel that she has fallen from grace and move hither and thither arranging for sustenance. As per law, she is entitled to lead a life in the similar manner as she would have lived in the house of her husband. And that is where the status and strata of the husband comes into play and that is where the legal obligation of the husband becomes a prominent one."

15. Law is well settled that the quantum of permanent alimony should be fixed taking into consideration the status of the parties. In view of the above, we feel that the quantum of permanent alimony is at a lower side.

16. It is brought to our notice that the Appellant is earning a sum of Rs.2,50,000/- per month as salary. Out of which, approximately 33 per cent is deducting for income tax which comes to around Rs.83,000/-. So, his home take salary (including his contribution to GPF, Health Insurance Scheme Premium etc.) comes to around Rs.1,60,000/-. The Respondent is entitled to 1/4th of the same which comes to around Rs.40,000/- per month. The Respondent is also earning a sum of Rs.15,000/- per month approximately. So, the monthly money the Respondent entitled to is Rs.25,000/- per month and per annum it comes to Rs.3,00,000/-. Since the parties were 35 and 40 years old at the time of filing of the Civil Proceeding, the multiplier 16 should be applied in this case. Therefore, the total amount comes to Rs.48,00,000/-.

17. In view of the above position of law and taking into consideration the facts and circumstances of the case and the price index, it will be just and proper to enhance the permanent alimony from Rs.40,00,000/- to Rs.48,00,000/-.

18. Accordingly, we enhance the permanent alimony from Rs.40,00,000/- to Rs.48,00,000/-. The said amount shall be paid to the Respondent (wife) by the Appellant (husband) within 3 months from today. The amount that has already been paid to the Respondent (wife) towards the interim maintenance is to be ignored as the same has been paid by virtue of the interim order passed by the Court and

MATA Nos.57 and 61 of 2020

it is not expected that the Respondent (wife) has sustained herself without spending the said money.

19. In that view of the matter, MATA No. 61 of 2020 filed by the wife is disposed of as allowed and MATA No.57 of 2020 filed by the husband is dismissed.

20. T.C.Rs. be returned back forthwith.

21. Urgent certified copy of this order be granted on proper application.

( S.K. Mishra ) Judge Savitri Ratho, J. I agree.

( Savitri Ratho ) Judge

Orissa High Court, Cuttack, Dated the 7th October, 2021/B. Jhankar