Partly allowed

Smt. Divya v. Sri. Eshwar Prasad

Karnataka HC15 Jul 2024MFA/532/2020

Case brief

AI extract

What is this about?

Appeal against a divorce decree granted on cruelty where permanent alimony was rejected for want of pleadings on finances. Considering both parties' incomes and assets under Supreme Court parameters, the High Court awarded Rs.10,00,000 as permanent alimony.

What did the court decide?

Permanent alimony of Rs.10,00,000/- to appellant, payable within eight weeks, failing which interest at 6% per annum till realization.

Smt. Divya Vs Sri. Eshwar Prasad — Maintenance and Alimony | Karnataka HC (2024)

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1 - NC: 2024:KHC:27293-DB MFA No.532/2020

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15^TH DAY OF JULY, 2024 PRESENT

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THE HON'BLE MRS. JUSTICE K.S.MUDAGAL AND

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THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL MISCELLANEOUS FIRST APPEAL NO.532/2020 (FC)

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BETWEEN:

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SMT. DIVYA W/O VEDNTAM ESHWAR PRASAD AGED ABOUT 39 YEARS NO.G-05, TOPAZ ESTEEM HERITAGE APARTMENTS ROSE GARDEN ROAD J P NAGAR, 5TH PHASE BANGALORE-78.

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Digitally signed by RUPA V Location: HIGH COURT OF KARNATAKA

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PREVIOUSLY AT: R/AT NO.3, TYPE V MOEP STAFF QUARTERS ARIKERE MICO LAYOUT DORESANIPALAYA BANGALORE-78. …APPELLANT

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(BY SMT. BINDU U, ADV.,) AND:

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SRI. ESHWAR PRASAD S/O BHAGAWAT SASTRY VEDANTAM AGED ABOUT 40 YEARS R/AT 42L, READING ROAD EDISON, NEW JERSEY-08817, USA. …RESPONDENT

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(V/O DATED 23.11.2023 NOTICE TO RESPONDENT IS HELD SUFFICIENT)

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THIS MFA IS FILED UNDER SECTION 19(1) OF FAMILY COURT ACT, 1984, AGAINST THE JUDGMENT AND DECREE DATED

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24.09.2019 PASSED IN M.C.NO.4464/2015 ON THE FILE OF THE PRINCIPAL JUDGE, FAMILY COURT, BENGALURU, ALLOWING THE PETITION FILED UNDER SECTION 13(1)(ia) OF THE HINDU MARRIAGE ACT.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, VIJAYKUMAR A. PATIL J., DELIVERED THE FOLLOWING:

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JUDGMENT

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Challenging the judgment and decree of divorce passed in her favour for dissolution of marriage and by rejecting the claim for permanent alimony, the petitioner in M.C.No.4464/2015 on the file of the Prl. Judge, Family Court, Bengaluru, has preferred this appeal.

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The appellant was the petitioner and the respondent in this appeal was the respondent in M.C.No.4464/2015 before the Trial Court. For the purpose of convenience, the parties are referred to henceforth according to their ranks before the Trial Court.

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The marriage of the petitioner and the respondent

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was solemnized on 12.06.2011 at Hyderabad as per Hindu customs and rites.

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The petitioner filed M.C.No.4464/2015 against the respondent under Section 13(1)(ia) of the Hindu Marriage Act,

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1955 (hereinafter referred to as 'the Act') seeking decree for dissolution of marriage on the ground of cruelty and sought permanent alimony of Rs.50,00,000/-. The petitioner alleged that she was working at Bengaluru prior to the marriage. It was agreed that she would continue to work in Bengaluru and after getting suitable job at Hyderabad, she would join the respondent - husband who was working at Hyderabad. It is contended that the petitioner later joined the respondent at Hyderabad and she also started working there. However, the respondent and his family members used to pick up quarrels with the petitioner for silly reasons and used to dictate terms. It is further contended that the respondent secured job at United States of America in September 2014. Thereafter, the petitioner joined the respondent in United States of America. Even during her stay at U.S.A. there was mental cruelty to the petitioner. It is also contended that the respondent made the petitioner to spend all her earnings during her stay at USA. Finally, petitioner returned to India on 11.09.2015. The elders of the family made all efforts to resolve the dispute amicably. However, they failed as there was no positive response from the respondent - husband. Hence, she filed petition seeking

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decree for divorce on the ground of cruelty and also sought permanent alimony of Rs.50,00,000/-.

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The respondent appeared through General Power of Attorney holder before the Trial Court. The GPA holder of the respondent and his advocate remained absent. They did not file objections to the petition.

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The Trial Court recorded the evidence of the petitioner. The petitioner examined herself as PW-1 and on her behalf Exs.P-1 to P-10 were marked. The respondent did not adduce any evidence. The Trial Court, on appreciation of the evidence, allowed the petition filed under Section 13(1)(ia) of the Act by dissolving the marriage of the petitioner and the respondent solemnized on 12.06.2011 and registered on 30.08.2014. The Trial Court rejected the prayer of the petitioner for permanent alimony on the ground that the petitioner failed to plead and prove her entitlement to permanent alimony.

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Smt.Bindu U., learned counsel for the appellant,

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reiterating the grounds of appeal, submits that the Trial Court committed error in not appreciating the evidence available on

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record more particularly Ex.P9 sale deed and Ex.P10 the encumbrance certificate of the property. It is submitted that the respondent, without any justifiable reason, deserted the petitioner by causing cruelty which has been proved before the Trial Court, hence, the petitioner is entitled for permanent alimony. It is further submitted that the respondent is gainfully employed in a multi national company and drawing salary of 92,000 USD p.a. It is also submitted that he has immovable property at Hyderabad in addition to the ancestral property, jewellery, etc. Hence, she seeks to allow the appeal by awarding Rs.50,00,000/- as permanent alimony.

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Though the notice of the proceedings is served, the respondent remained absent. Hence, he is placed exparte.

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Considering the submissions of the appellant and examining the materials on record, the point that arises for consideration is “ Whether the impugned judgment and decree rejecting the prayer for permanent alimony is sustainable in law”?

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ANALYSIS

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There is no dispute between the parties regarding solemnization of marriage and staying together from the date of marriage i.e. 12.06.2011 till 11.09.2015. The petitioner filed the petition under Section 13(1)(ia) of the Act seeking dissolution of marriage on the ground of cruelty. The petitioner also sought prayer to grant permanent alimony of Rs.50,00,000/-. The pleadings in support of the prayer sought are with regard to the various instances of cruelty. The allegations of cruelty are held to be established by the petitioner. Considering the pleadings, oral testimony of PW-1 and documentary evidence available on record, the Trial Court granted decree for dissolution of marriage on the ground of cruelty. The appellant's own petition indicates that the petitioner is highly qualified and the respondent is also highly qualified who was initially working at Hyderabad and later at U.S.A. There is absolutely no pleading with regard to the financial position of the respondent and the petitioner nor any evidence is placed before the Trial Court with regard to the assets and liabilities of the parties to the proceedings. Having

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regard to that the Trial Court rejected the prayer of the petitioner for grant of permanent alimony.

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Before this Court, appellant filed IA No.1/2024. In the affidavit accompanying the application, she claims that she was working at Bengaluru prior to the marriage and thereafter, she was compelled to work at Hyderabad. It is further averred that the petitioner has incurred Rs.1,39,500/- between November 2011 and December 2014 during her stay at Hyderabad. It is also averred that she incurred all the household expenses, spent amount towards her travel and her stay in the guest house for six months. It is contended that the petitioner resigned the job at Hyderabad where she was paid a salary of Rs.33,200/- p.m. and thereafter she remained unemployed till November 2018 which caused loss to her income. It is further contended that during her stay in U.S.A. she spent substantial amount of Rs.8,33,000/- and also incurred expenses towards travel. It is also contended that the petitioner is working as an Application Development Senior Analyst at Accenture and drawing salary of Rs.75,255/-. She is staying with her mother, paying Rs.15,000/- p.m. to meet the household expenses, Rs.900/- p.m. for electricity charges,

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incurring approximately Rs.2,000/- p.m. towards her medicine, Rs.20,000/- p.m towards transport expenses to office and Rs.7,500/- towards miscellaneous expenses like phone, clothing and conveyance. The affidavit further discloses that the respondent was working in India and drawing salary of Rs.1,00,000/- p.m. and he has no other dependants and also getting rental income of Rs.35,000/- p.m. The last known salary drawn by the respondent in U.S.A. is 92,000 USD per year which is approximately Rs.66,00,000/- p.a.

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On 18.03.2024, the appellant has filed the affidavit of assets and liabilities in terms of Judgment of Supreme Court in Rajnesh vs. Neha and another¹ . The affidavit indicates that the appellant is M.Com, MBA graduate, staying with her mother at Bengaluru, working as an Application Development Senior Analyst at Accenture and her gross earning is Rs.81,832/- as per Annexure-1 to the affidavit. In support of her claim, she has produced income tax returns for the assessment year 2023-24 and also produced bank statement

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1 (2021) 2 SCC 324

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which indicates that the appellant is working and drawing a sum of Rs.81,832/- as reflected in Annexure-1 to the affidavit.

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The affidavit of assets and liabilities further

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indicates that the respondent is a B.Tech. graduate, an IT professional and initially worked in different companies. Annexure-9 to the affidavit indicates that the respondent - husband is working with Mastech at U.S.A. as a Senior Oracle Database Administrator and drawing 92,000 USD per annum. It is not in dispute that respondent-husband owns an apartment as per Exs.P9 and P10. The respondent purchased the apartment under the registered sale deed dated 05.05.2017. The sale consideration is shown as Rs.36,13,000/-. The affidavit filed by the appellant indicates that the respondent is getting rentals from the said apartment.

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Before considering the claim for permanent alimony, it would be useful to refer the decision of the Hon'ble Supreme Court in the case of Rajnesh referred to supra. The Hon'ble Supreme Court has laid down broader parameters to determine the quantum of alimony. Keeping in mind the enunciation of law laid down by the Hon'ble Supreme Court

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referred to supra and also keeping in mind the material available on record, we proceed to consider the case on hand.

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Admittedly, the petitioner is also qualified, gainfully employed and drawing a sum of Rs.81,832/- p.m. The petitioner is residing with her mother in Bengaluru and it is claimed that she requires Rs.15,000/- p.m. towards household expenses, Rs.900/- towards electricity charges, Rs.2,000/p.m. towards her medical expenses, Rs.20,000/- p.m for her travel expenses to office and Rs.7,500/- towards miscellaneous expenses like phone, clothing and conveyance. The petitioner is now aged about 43 years, is dependant on her mother to certain extent and is required to stay alone in view of dissolution of marriage.

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There cannot be any arithmetical formula for determination of permanent alimony as it depends on various factors like the petitioner losing emotional support from her husband. As per Section 25 of the Act, Court has to take into consideration the parties' status in the society, standard of living, cost of living etc. We are of the considered view that it would be difficult for the petitioner to maintain herself for the

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rest of her life only on her earnings. Considering that and keeping in mind the status of the respondent - husband, his financial capacity and the position which he is holding presently, it would be just and proper to award Rs.10,00,000/as permanent alimony to the petitioner.

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For the aforementioned, we proceed to pass the

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following:

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ORDER

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The appeal is allowed in part.

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The appellant is awarded permanent alimony of Rs.10,00,000/- payable within eight weeks, failing which the same shall carry interest at 6% per annum from the date it becomes due till its realization.

Sd/JUDGE

Sd/JUDGE

List No.: 1 Sl No.: 11

Smt. Divya v. Sri. Eshwar Prasad

Case brief

What is this about?

What did the court decide?

Smt. Divya v. Sri. Eshwar Prasad

Case brief

What is this about?

What did the court decide?

What the court decided

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