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Judgment
ALOK SINGH, J
Both the appeals are filed against judgment dated 21.09.2011 passed by Principal Judge, Family Court, Dehradun whereby Suit No. 5 of 2009 titled
as Dilip Kumar Vs. Mrs. Manju filed under Section 13 of the Hindu Marriage Act was allowed. Decree for dissolution of marriage between the
parties was passed. Counter claim filed by wife was partly allowed and permanent alimony of Rs. 5,00,000/- was awarded in favour of wife. Husband
is aggrieved by the permanent alimony part while wife is aggrieved by the decree of divorce.
Both the appeals are heard together and disposed of by this common judgment.
Brief facts of the present case are that marriage between the parties was solemnized on 02.05.2001, as per Hindu rites and rituals. Marriage
between the parties was arranged marriage. Dilip Kumar (husband) is a Government Servant and Smt. Manju (wife) is a post graduate and
homemaker.
Case of the husband is that his wife is of skeptic nature. She always doubted on his character. She was very quarrelsome and arrogant. She has
problem with her in-laws and she pressurized him to take separate house. In order to make harmony, he took her to Shimla and visited other nearby
places. She used to admonish him and she usually said that she is more qualified and she can earn more money than him. When family members of
the husband tried to intervene between them, she insulted them. She said that she would not do household work and on 26.07.2001, she left her
matrimonial home. On 08.02.2002, a son was born out of the wedlock. He paid all the bills of hospital. Baptism (Namakaran) function of child was
organized in her parental house. After 3-4 months from the birth of his son, he asked his wife to return her matrimonial home but she refused to live
with her in-laws. Accordingly, he applied for government accommodation. Initially, a small accommodation was allotted to him, but she refused to live
therein, therefore, he again requested the Authorities for bigger accommodation and again on
23.12.2003, a bigger accommodation was allotted to him then they started living in that government accommodation. In this accommodation, her
parents and relatives used to visit her frequently and there was great interference of his in-laws in this house and again she left his company and
started living with her parent. He issued a notice through his Advocate to her for living together but she in turn filed an FIR under Section 498A, 323,
506 IPC and ¾ of the Dowry Prohibition Act, a case under Section 125 Cr.P.C, a case under 24 of the Hindu Marriage Act. Per contra, wife
denied all the allegations.
Having heard learned counsel for the parties, the learned trial Judge framed following four issues:
“i. Whether husband meted out with cruelty, as stated in different paragraphs of the plaint, at the hands of wife.
ii. Whether plaint is liable to be dismissed under Order 7 Rule 11 CPC as stated in paragraph 56 of the counter claim.
iii. Whether wife and Master Gaurav are entitled for one time compensation towards maintenance and education of Rs. 15,00,000/- or Rs. 12,000/- per
month.
iv. Whether husband is entitled for the relief sought.â€
Mr. Bhupesh Kandpal, Advocate for the wife has submitted that husband never paid any penny towards the delivery charges of boy. In support of
his contention, he has placed reliance on the medical bills submitted by the wife. He has further submitted that wife was living in her parental house on
the advice of her husband.
Wife has categorically stated that her husband has not taken proper care of her. Even when she was pregnant, he has not taken to her hospital
regular check ups. She has not left her matrimonial house out of her own will but her husband took her to her parental home and asked to remain there
until he arranged another accommodation. When her parents pressurized him, then he applied for government accommodation and took her to the
government accommodation. In the Government accommodation, her husband did not provide ration. There again, he started maarpeet with her and
ousted her along with her son from that house only in the apparels which they wore. On 15.05.2004, her husband came along with one Mr. Naval
Bhatia to her parental house. Her husband and Naval Bhatia beat her. On 27.06.2004, her husband and her in-laws came to her house and demanded
a Maruti Car and Rs. Two lakh cash. When her parents showed their inability to meet their demands, they said that we have married our son in the
family of beggars.
We have heard learned counsel for the parties and perused the record. Learned trial Judge has failed to appreciate the evidence in right perspective
and has totally ignored the version of wife. Wife has elaborately explained the cruelty meted to her by her husband.
We are of the firm opinion that cruelty was meted out to wife and not to husband. There is no hope for compromise between the parties and now,
parties are not ready to live together, therefore, no useful purpose would be served in reversing the finding of learned trial Judge and deciding the
issues no. 1 and 2 in favour of wife.
Mr. D. Barthwal, learned counsel for the husband submits that learned Trial Judge has allowed the counter claim partially and awarded permanent
alimony of Rs. 5,00,000/- in favour of wife and Master Gaurav, which is exorbitant. He is a Class III employee and his wife is a qualified lady and she
is giving tuitions and doing work of knitting and embroidery. In support of this contention, he has placed reliance on Annexure No. 4 to the appeal,
which is his pay slip.
We are not convinced with the argument of Mr. D. Barthwal. Present appeal was filed before this Court on 21.10.2011 and impugned judgment
was of dated 21.09.2011, the reason as to why he has filed pay slip of October, 2010 is best known to him. Though there is no arithmetic formula for
granting permanent alimony but the Court while granting the permanent alimony must consider the status of parties, their respective social needs, the
financial capacity of the husband and other obligations. Amount so fixed cannot be excessive or affect the living condition of other party. It is the duty
of Court to see that wife lives with dignity and comfort and not in penury. The living need not be luxurious but simultaneously she should not be left to
live in discomfort. The Court has to act with pragmatic sensibility to such an issue so that the wife does not meet any kind of manmade misfortune.
So far as third issue is concerned, we are not in agreement with the findings of learned Trial Judge. Wife is residing with her son, so Rs. 5,00,000/-
by no stretch of imagination would be sufficient to maintain both persons. Nowadays, Rs. 5,00,000/-would not fetch interest @ Rs. 4,000/- per month.
It is admitted case that husband is Class III employee and nobody is dependent on him. The alimony was granted in 2011 and now, it is 2018, income
of husband would naturally be increased. Husband has enclosed salary slip of October, 2010 whereas he could have enclosed salary slip of October,
2011 very conveniently, so it appears that husband has not come with clean hands to the Court. So in our view Rs. 8,00,000/- would be sufficient, as
one time permanent settlement. Accordingly, we modified the judgment passed by the trial Judge only to the extent that wife is entitled for permanent
alimony of Rs. 8,00,000/- as one time settlement and accordingly, we direct the husband to pay Rs. 8,00,000/- as permanent alimony as one time
settlement to his wife Ms. Manju within six months. Issue no. 4 stands decided accordingly.
In view of the above observations, appeal no. 118 of 2011 stands allowed and appeal no. 127 of 2011 stands dismissed accordingly.
Let copy of this judgment be placed in the connected appeal and lower court record be sent back forthwith.