The Hindu Marriage Act,
1955 – Section 25 - Permanent Alimony and Maintenance - In order to claim
permanent alimony by a wife, what is to be considered is the amount required by
the wife to maintain a standard of living which is neither luxurious nor
penurious, but should be modestly consistent with the status of the family.
Permanent alimony is an amount which
takes care of the future maintenance by derivation of interest or other
investment as the case may be. The statute also takes care of instances where
on account of change in circumstances, the parties could seek for variation,
modification or even to rescind the order passed by the Court. [Para 9]
The Hindu Marriage Act,
1955 – Section 25 - Permanent Alimony and Maintenance - That the husband is
deriving substantial income by itself cannot be a reason to direct grant of
permanent alimony. The income derived by the wife also has to be considered
before issuing any such direction.
IN THE HIGH COURT OF
KERALA AT ERNAKULAM
PRESENT THE HONOURABLE
MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE ASHOK MENON
THURSDAY, THE 30TH DAY OF
MAY 2019 / 9TH JYAISHTA, 1941
Dr. Athira Upendran Nair
v. Jayakrishnan Krishnan Nair
Mat. Appeal No. 144 of
2012
AGAINST THE NJUDGMENT IN
OP 494/2010 of FAMILY COURT, ERNAKULAM DATED 30-12-2011
APPELLANT: BY ADVS. SRI. S. VINOD BHAT SRI. LEGITH T. KOTTAKKAL
J U D G M E N T
Shaffique, J.
Both these appeals are filed by the petitioner in OP Nos.494/2010
and 401/2010 of the Family Court, Ernakulam decided by common order dated
30/12/2011.
2. Though the Original
Petitions were partly allowed, these appeals are filed against the disallowed
portion of the claim. In OP No.494/2010, she claimed permanent alimony of ₹50 lakhs which was rejected by the Family Court. A decree had been
granted only for maintenance @₹15,000/- per month
from 16/2/2010 till the date of completion of compulsory internship of PW1
(petitioner) in USA. The Family Court rejected the claim for travel expenses
and future maintenance after the date of expiry of internship.
3. The short facts of
the case are as under:-
Petitioner / appellant and the first respondent got married on 29/11/2007
as per Hindu religious rites and ceremonies. No children were born in the
wedlock. Matrimonial issues developed between the parties and ultimately the
wife had filed a petition for divorce on the ground of cruelty which has
already been allowed by the Family Court. Matrimonial claims other than the subject
matter of the appeal had already been allowed.
4. At the time of
marriage, husband was working as a Software Engineer in Microsoft Corporation,
Washington and the wife was studying her 9th semester of MBBS at Amritha Institute of Medical Sciences in
Kerala. After her studies, she was taken to U.S on 9/2/2008. She had to return
back from US to continue her studies on 11/9/2008. She along with her mother
had again gone to U.S. But since the travel documents had to be regularised, finally
she was sent back to continue her studies on 17/4/2009. She returned to US on
28/9/2009 and in the meantime, it is her case that she was physically and
mentally harassed and tortured. Ultimately it is stated that, on 16/11/2009,
her brother had gone to U.S and she was taken back. The respondent came back to
Trivandrum on 11/2/2010 and thereafter also he continued his illtreatment. She
was forced to file a petition for police protection before the High Court. It
is in this background she sought for divorce and for other reliefs. According
to the appellant, he is having substantial income from his employment and he is
bound to give ₹50 lakhs as permanent
alimony.
5. Respondent in the
objection denied the allegations of cruelty. It is contended that the intention
of the petitioner and her father was to squeeze money from the respondent and
his mother. Petitioner was taken abroad and she could continue her studies with
the help of the respondent. The father of the petitioner has played fraud and
has cheated them. All transfers in respect of the property were made in the
name of the petitioner. Since the respondent was having sufficient income and
assets, they were not interested in any of the assets of the petitioner or their
family members. She has virtually deserted him and is now making allegations of
cruelty.
6. In order to prove the
claim, petitioner was examined as PW1 and her father was examined as PW2.
Exts.A1 to A48 were the documents marked. Respondent did not chose to adduce
any evidence.
7. Most of the claims of
the petitioner were allowed by the Family Court except future maintenance and
permanent alimony. Apparently future maintenance has been allowed by the Family
Court until the wife completes her internship in U.S. In fact, at the relevant
time, petitioner was in U.S and she had a Green Card. Her father also had a
Green Card and the entire expense had been met by the first respondent. The
question is whether taking into account the factual circumstances involved in the
matter, the appellant is entitled for permanent alimony. S.25(1) of the Hindu
Marriage Act reads as under:-
“25 Permanent alimony and maintenance - (1) Any court
exercising jurisdiction under this Act may, at the time of passing any decree
or at any time subsequent thereto, on application made to it for the purpose by
either the wife or the husband, as the case may be, order that the respondent
shall pay to the applicant for her or his maintenance and support such gross
sum or such monthly or periodical sum for a term not exceeding the life of the
applicant as, having regard to the respondent's own income and other property,
if any, the income and other property of the applicant , the conduct of the
parties and other circumstances of the case], it may seem to the court to be
just, and any such payment may be secured, if necessary, by a charge on the
immovable property of the respondent.”
8. The petitioner has a contention that the respondent's income is
not less than $1.8 lakhs per year which is equivalent to ₹90 lakhs per year. In order to claim permanent alimony by a wife,
what is to be considered is the amount required by the wife to maintain a
standard of living which is neither luxurious nor penurious, but should be
modestly consistent with the status of the family. In Bhagwan Dutt v.
Kamla Devi [(1975) 2 SCC 386] it has been held that the needs and
requirements of the wife for such moderate living can be fairly determined only
if her separate income is also taken into account together with the earnings of
the husband and his commitments. In Vinny Parmvir Parmar v. Parmvir
Parmar [(2011) 13 SCC 112], the Apex Court had also referred to Chaturbhuj v.
Sitha Bhai [(2008) 2 SCC 316] wherein it was held that where the personal income
of the wife is insufficient, she can claim maintenance u/s 125 Cr.P.C. The test
is whether the wife is in a position to maintain herself in the way she was
used to in the place of the husband. It is further held at paragraph 12 as
under:-
“12. 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. No fixed formula can be laid for fixing the amount of maintenance. It
has to be in the nature of things which depend on various facts and
circumstances of each case. The court has to consider the status of the
parties, their respective needs, the capacity of the husband to pay, having regard
to reasonable expenses for his own maintenance and others whom he is obliged to
maintain under the law and statute. The courts also have 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 mode of life she was
used to live 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. These are all the
broad principles courts have to be kept (sic keep) in mind while determining
maintenance or permanent alimony.”
9. Learned counsel for the appellant placed reliance on a judgment
of the Apex Court in Kalyan Dey Chowdhury v. Rita Dey Chowdhury Nee Nandy (AIR 2017 SC 2383).
That was a case in which Court held that when the appellant husband was getting
a net salary of ₹63,842/-, 25% of the
husband's net salary would be just and proper to be awarded as maintenance to
the respondent wife. But, in this case, the Court below had rejected the claim
for permanent alimony on the ground that she has sufficient properties in her
own name which is evident from the factual circumstances and the respondent had
expended substantial amount for obtaining Green Card for PW1 and PW2. Further PW2 is also financially sound to meet the expenditure of her
daughter for her travel. In a case where permanent alimony claim is being
considered, which amount is to be utilized as maintenance of the spouse, the
income derived by both the parties are to be taken into consideration. If from
the income of the appellant, she is capable to maintain a standard of living,
she cannot claim any maintenance from her husband. Alimony by itself is an
amount to be paid when spouse is not in a position to maintain himself or
herself. Permanent alimony is an amount which takes care of the future
maintenance by derivation of interest or other investment as the case may be.
The statute also takes care of instances where on account of change in circumstances,
the parties could seek for variation, modification or even to rescind the order
passed by the Court.
10. Apparently, the
appellant is a Doctor by profession and she was undergoing her internship
course in MBBS and the Court below had directed payment of monthly maintenance
at ₹15,000/- until she completes her
internship. Once she becomes a full fledged professional, she will also derive
substantial income especially in US. The situation of Doctors in India is also
not different. There is no material to indicate what income she was deriving
after her internship. Being a professional, definitely she would be employed
and even at this stage, no materials had been produced before this Court to
prove that she was not deriving any income on her own. Under such
circumstances, we do not think that this is a case in which any order should be
passed directing payment of permanent alimony. That the husband is deriving
substantial income by itself cannot be a reason to direct grant of permanent
alimony. The income derived by the wife also has to be considered before
issuing any such direction. There is evidence in this case to show that she has
properties in her name, but that apart, no materials are produced to indicate
her present income.
11. Yet another claim in
this case was regarding certain travel expenditure. The claim of travel
expenditure depends upon the contractual obligation of the parties. No such contractual
obligation had been stated, pleaded or proved. That apart, the Court below has
found that PW2 was financially sound to expend for his daughter's travelling
expenditure and therefore such claims cannot be entertained. We do not find any
error being committed by the Family Court in that regard. Maintenance had been
claimed @₹30,000/- per month
and the Family Court directed payment of ₹15,000/- per month until completion of internship. We do not find
any error being committed in that regard as reasonable amount was directed to
be paid. In the result, we do not find any ground to interfere with the
judgment of the Family Court.
Mat. Appeals are dismissed.
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