Partly allowed

Arpita Mohanty v. Sabyasachi Das

Orissa HC31 Jul 2019MATA/101/2013

Case brief

AI extract

What is this about?

In divorce appeals, the High Court held that an unsigned settlement agreement did not bar the wife's claim for permanent alimony. While confirming the divorce decree, the Court enhanced the alimony amount from five lakhs to eight lakhs considering the parties' status and assets.

What did the court decide?

Decree of divorce confirmed; permanent alimony enhanced to Rs. 8,00,000 payable within four months with 9% interest thereafter.

Arpita Mohanty Vs Sabyasachi Das — Maintenance and Alimony | Orissa HC (2019)

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ORISSA HIGH COURT: CUTTACK

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MATA Nos. 101 & 111 OF 2013

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(In the matter of appeals challenging the order dated 21.09.2013 passed by the learned Judge, Family Court, Cuttack in C.P. No.806 of 2009.)

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MATA Nos. 101 OF 201	-- 3	---------
Smt.Arpita Mohanty		…… Appellants -Versus-
Sabyasachi Das		...... Respondents
MATA Nos. & 111 OF 2	013
Sabyasachi Das		…… Appellants -Versus-
Smt.Arpita Mohanty		...... Respondents
For Appellants	:M/s.	Prasan Kr. Sahu, A.K.Swain, A.C.Mohapatra, A.K.Panda, S.C.Mohanty and A.A.Lenka. (MATA No. 101/2013)
		M/s. Sidheswar Mohanty, S.K.Routray, L.Mohapatra, S.Pattnaik and A.Das.(MATA No.111/2013)
For Respondents	: None	(MATA No.101 of 2013) M/s.Ajaya Kumar Swain, A.S.Mohapatra,S.S.Mohanty, A.A.Lenka and A.K.Paul. (MATA No. 111/2013)

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P R E S E N T :-

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THE HONOURABLE MR. JUSTICE S.K. MISHRA AND THE HONOURABLE DR. JUSTICE A.K. MISHRA

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Date of hearing: 23.07.2019: Date of judgment – 31. 07.2019 -----------------------------------------------------------------------------------

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Dr.A.K. Mishra, J. Decree of divorce subject to payment of permanent alimony of Rs.5,00,000/-(Rupees five lakhs) passed vide order dated 21.09.2013 in C.P. No. 806 of 2009 by the learned Judge, Family Court, Cuttack is challenged in these two appeals, hence, this common judgment.

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For party position, notwithstanding the appeal memos, the wife shall be referred to as appellant while husband shall be referred to as respondent hereinafter.

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Appellant married the respondent as per the Hindu rites and customs on 27.06.2007. After some days, the wife deserted alleging cruelty against the husband and stayed in the house of her parents. Both of them were of highly educated. There was a Panchayat Faisala Nama on 26.12.2008 to settle their dispute amicably. As per settlement, the father of the appellantwife received Rs.4,80,000/-(Rupees four lakhs eighty thousand) towards presentation and ornaments given during the marriage. It was also settled to go for mutual divorce. Accordingly, a mutual divorce case under Section 13(B) of the Hindu Marriage Act, bearing C.P. No. 538 of 2009 was filed. But the appellant wife having not cooperated, the case was dismissed. Thereafter, the husband filed this divorce proceeding under Section 13 of the Hindu Marriage

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Act on 15.09.2009 bearing C.T. No. 806 of 2009 before the learned Judge, Family Court, Cuttack. The allegation of cruelty and desertion were

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challenged by the wife. Both the parties adduced their evidence. Husband and an independent witness to the agreement are examined as P.Ws 1 and 2. The certified copy of Panchayat Faisala Nama and other document were executed as Exhibits-1 and 2. On behalf of the wife, she herself and her father were examined as P.Ws. 1 and 2. Certified copy of the R.O.R. showing the landed properties in favour of the husband is marked vide Exhibit-A/1 series. Learned Judge, Family Court has recorded the finding that both the couples had reached the point of no return. The allegation of cruelty and desertion were not proved. The payment of Rs.4,80,000/- as per the agreement Exhibit1 was not towards the permanent alimony. Considering the landed properties and income of the husband, the learned Judge, Family Court while dissolving the marriage between them solemnised on 27.06.2007 by a decree of divorce, allowed permanent alimony of Rs.5,00,000/-to be paid by the husband to the wife within three months.

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3.1 The wife filed MATA No. 101 of 2013 challenging the said decree. The husband has also filed MATA No. 111 of 2013 assailing the quantum of permanent alimony in specific.

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Learned Advocate of both parties, in course of hearing, did not dispute the decree of divorce but assiduously advanced a disputation on the amount granted as permanent alimony.

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Learned counsel for respondent submits that as the wifeappellant agreed for divorce on receipt of Rs.4,80,000/- vide Panchayat Faisala Nama (Ext.1) and gave consent in mutual divorce petition after receipt of said amount, she is not entitled to permanent alimony.

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Secondly, the husband – appellant has no source of income being unemployed and thus has no capacity to pay any amount towards permanent alimony.

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Per contra, learned counsel for wife – appellant submits that the amount of Rs.4,80,000/- was paid towards the gift received by husband from wife’s family during marriage and Ext.1 agreement cannot be read to bind the wife for relinquishment of her claim to permanent alimony.

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7.1. Further, it is countered that there is evidence adduced to show that the husband has income from his properties amounting rupees one lakh per month and has sufficient landed properties to spare a good amount for her sustenance.

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Following two points have emerged contentious for us.

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(i) Whether agreement (Ext.1) bars the wife to claim permanent alimony U/s.25 of Hindu Marriage Act; and

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(ii) If the wife is found entitled to permanent alimony, whether the amount granted by learned Judge, Family Court needs to be interfered with?

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Answer to point no.1

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We carefully read the contents of Ext.1. It is an agreement for settlement of marital dispute between Appellant and Respondent. It was executed on 26.12.2008. It is not signed by the both spouses, i.e., wife and husband, whose marriage was the thrust of controversy. Both of them were major and educated then. The said agreement was executed by the respective

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father of the parties and mediator including P.W.2. This ex facie facts is deposed by P.W.2. in paragraph-10 of his evidence.

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9.1 An agreement not signed by the competent parties having capacity to contract cannot be said to have legal effect of binding-ness upon those non-executants. In other words, parties are not bound by the written agreement which they have not executed, though otherwise they are competent to do so. For this reasons simplicitor, we exclude Ext.1 agreement to consider the entitlement of wife-respondent under section 25 of Hindu Marriage Act.

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9.2 Notwithstanding above, the content of Ext.1, so called agreement does not support the respondent-husband’s submission. Expressly it is stated therein that the amount Rs.4,80,000/- was to be paid towards value of presentation and gold ornaments brought by the wife during marriage. Contextually no other meaning is either possible or permissible. Consequently, Ext.1 agreement is not a bar to claim permanent alimony by the wife-appellant.

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Answer to point No.(II)

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Learned Family Judge has awarded Rs.5 lakhs towards permanent alimony to be paid by husband to wife. This amount is now the core of contest.

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10.1 In the decision reported in (2013) 2 SCC-114 U. Sree Vs. U.Srinivas , the Hon’ble Apex Court have stated the broad principles to fix the amount in the following words:-

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“xxx xxx xxx As a decree is passed, the wife is entitled to permanent alimony for her sustenance. Be it stated, while granting permanent alimony, no arithmetic formula can be adopted as there cannot be mathematical exactitude. It shall depend upon the status of the parties, their respective social needs, the financial capacity of the husband and other obligations. In Vinny Parmvir Parmar v. Parmvir Parmar, while dealing with the concept of permanent alimony, this court has observed that while granting permanent alimony, the Court is required to take note of the fact that the amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with her husband. At the same time, the amount so fixed cannot be excessive or affect the living condition of the other party.”

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10.2. In the case at hand, admittedly no document is filed to show the income of the wife and thus she is unable to maintain herself. In evidence as OPW-1 she claimed Rs.20,000/- per month towards food, clothing, shelter with regards to dignity and prestige. On her behalf, during cross-examination

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of husband as P.W.1 suggestion was given for rupees ten lakh for permanent alimony.

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10.3. Husband, P.W.1, in his evidence does not show that he was unable to earn. He has no other liability as his mother is getting family pension and elder brother is not a dependent. His father died leaving landed properties and Building. Ext. A/1 ROR stands in his mother’s name while Ext. A/2, A/3 RORs are in respect of landed properties at villages. Considering the fact that the husband-respondent is an able bodied educated man and has sufficient interest on the joint family immoveable properties, we are persuaded to arrive at a conclusion that he can spare rupees eight lakhs towards his estranged wife. Appellant-wife needs security however meagre may be and provision qua the status would be a determining factor for permanent alimony. A visible source of financial security as subsistence would be the income from the fixed deposit interest. Balancing the entitlement and capacity, regards being had to the status of the parties, we fix the quantum of permanent alimony at rupees eight lakhs. Accordingly, the quantum of permanent alimony fixed by learned Judge should be enhanced and is hereby enhanced to rupees eight lakhs.

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In the result, the decree of divorce dtd.21.04.2013 in C.P. No.806 of 2009 dissolving the marriage between appellant and respondent by the Judge, Family Court, Cuttack is confirmed. The amount of permanent alimony is enhanced to Rs.8,00,000/- (Eight lakhs) to be paid by the husband-respondent to wife- appellant. The payment shall be made within

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four months failing which it would carry interest at the rate of 9% per annum from today till its realization.

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In result, MATA No.101 of 2013 is allowed in part and MATA No. 111 of 2013 is dismissed.

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LCRs. be returned immediately to the lower court by the Registry.

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………………....…….

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Dr. A.K. Mishra, J.

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S. K. Mishra, J. I agree.

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………................

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S.K. Mishra, J.

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Orissa High Court, Cuttack. Dated the, 31^st July, 2019/Dhal

Arpita Mohanty v. Sabyasachi Das

Case brief

What is this about?

What did the court decide?

Arpita Mohanty v. Sabyasachi Das

Case brief

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