Vinny Parmvir Parmar Vs.
J U D G M E N T
P. Sathasivam, J.
appeals are filed against the final order dated 24.04.2009 passed by the High Court
of Bombay in Family Court Appeal Nos. 110 of 2004 and 127 of 2004 and the order
dated 17.07.2009 in Review Petition Stamp No. 15671 of 2009 whereby the
appellant's appeal was dismissed in entirety and the petition filed by the
respondent in Family Court for divorce on ground of cruelty was converted into divorce
by mutual consent and the marriage was dissolved by a decree under Section 13-B
of the Hindu Marriage Act, 1955 (hereinafter referred to as "the
the parties have dissolved their marriage by consent and a fresh decree of divorce
by consent has been directed, the other question adjudicated before the High
Court was about the amount of maintenance/permanent alimony in terms of Section
25 of the Act. By the impugned order, the High Court confirmed the order passed
by the Family Court fixing the amount of permanent alimony at Rs. 20,000/- per month.
While disposing of the appeals, as an alternative measure, the High Court also
fixed the amount of permanent alimony at Rs. 20 lakhs in lump sum to be paid by
the husband to his wife within a period of 3 months from the date of the order.
Being not satisfied with the maintenance fixed at Rs. 20,000/- per month, the
appellant-wife filed these appeals for enhancement by pointing out her difficulties
and the income of the respondent.
Mr. Nidish Gupta, learned senior counsel for the appellant-wife and Ms. Indu
Malhotra, learned senior counsel for the respondent-husband.
only point for consideration in these appeals is what would be the reasonable
amount the appellant-wife is entitled by way of maintenance from the husband in
terms of Section 25 of the Act.
the fact that after the marriage the appellant herein resigned from the post of
Air Hostess in Cathay Pacific Airlines and after dispute between them she was
not employed and getting regular income, she was staying with her sister at Mumbai
and also taking note of the financial status of the husband, namely, his salary
as a Sr. Commander in Air India and rental income from his properties, the
Family Court fixed maintenance at Rs. 20,000/- per month which was affirmed by
the High Court. While arriving at such amount, the Family Court has determined the
income of the husband as Rs. 1,40,000/- per month. Discussion:
Nidish Gupta, learned senior counsel for the appellant, by drawing our attention
to various factual details placed before the Family Court, High Court and in
this Court, submitted that from the salary slips it is seen that even after income
tax deductions the respondent's income from salary and allowances alone for the
period 01.04.2009 to 31.03.2010 was Rs. 83,19,031/-. In support of the above claim,
the appellant has produced TDS certificate issued by his employer/the Income-Tax
Department. According to him, apart from the above salary income, the
respondent has rental income between Rs. 7,20,000 and Rs. 10,80,000 from his properties.
He further highlighted that in addition to the salary and the rental income,
the respondent has huge bank deposits, investment in shares and mutual funds. He
also highlighted that the respondent being 42 years of age and a Sr. Commander
in Air India has a promising career with bright chances of further promotions. With
these facts and figures, Mr. Nidish Gupta prayed for intervention of this Court
by fixing reasonable amount towards maintenance and welfare of the appellant.
reply to the same, Ms Indu Malhotra, learned senior counsel for the respondent-husband
submitted that the figures furnished by the appellant before the courts below
as well as in this Court are exaggerated. In any event, according to her, the
income shown above includes allowance and other benefits which cannot be
construed as actual salary or income as claimed. She also pointed out that apart
from the salary from Air India he owns 1 acre of land in Pune and 1 Bedroom flat
in Mumbai. All other properties, according to the learned senior counsel,
belong to his father and he is not entitled for anything from it at this
moment. She further highlighted that at present respondent-husband has married and
having a child apart from taking care of his parents. She finally submitted
that the amount determined by the Family Court as affirmed by the High Court is
quite reasonable and, therefore, there is no valid ground for interference by this
Court exercising jurisdiction under Article 136 of the Constitution of India.
considering the rival claims based on facts and figures, it is useful to refer to
Section 25 of the Act which 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. (2) If the court is satisfied
that there is a change in the circumstances of either party at any time after
it has made an order under sub-section (1), it may, at the instance of either
party, vary, modify or rescind any such order in such manner as the court may
deem just. (3) If the court is satisfied that the party in whose favour an order
has been made under this section has remarried or, if such party is the wife,
that she has not remained chaste, or, if such party is the husband, that he has
had sexual intercourse with any woman outside wedlock, it may at the instance
of the other party vary, modify or rescind any such order in such manner as the
Court may deem just."
Shri Bhagwan Dutt vs. Smt. Kamla Devi and Anr. (1975) 2 SCC 386, though this Court
has considered the amount of maintenance payable to wife under Section 488 of the
Code of Criminal Procedure, 1898, the principle laid down is applicable to the
case on hand. In para 19, this Court held: "19. The object of these
provisions being to prevent vagrancy and destitution, the Magistrate has to
find out as to what is required by the wife to maintain a standard of living
which is neither luxurious nor penurious, but is modestly consistent with the
status of the family. The needs and requirements of the wife for such moderate living
can be fairly determined, only if her separate income, also, is taken into account
together with the earnings of the husband and his commitments."
Chaturbhuj vs. Sita Bai, (2008) 2 SCC 316, which also relates to maintenance claim
by deserted wife under Section 125 of the Code of Criminal Procedure, 1973. The
following statement in para 8 is relevant which reads as under: ".....Where
the personal income of the wife is insufficient she can claim maintenance under
Section 125 CrPC. The test is whether the wife is in a position to maintain herself
in the way she was used to in the place of her husband. In Bhagwan Dutt v. Kamla
Devi it was observed that the wife should be in a position to maintain a standard
of living which is neither luxurious nor penurious but what is consistent with
status of a family. The expression "unable to maintain herself" does not
mean that the wife must be absolutely destitute before she can apply for maintenance
under Section 125 CrPC."
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 in mind while
determining maintenance or permanent alimony.
is not in dispute that before their marriage, the appellant-wife was working as
Air Hostess with Cathay Pacific Airlines and getting sizeable income. It is
also brought to our notice that after marriage, at the instance of the respondent,
she resigned from her job. The particulars furnished also show that at present she
is living with her sister at Mumbai and she does not possess any immovable
property at Mumbai.
to the respondent-husband, at the time of filing of petition under Section 25,
she suppressed her employment and income thereon and on this ground her entire
case has to be rejected. The fact remains, though she was employed for a shorter
period which was not stated so subsequently, she clarified that she had earned
only an amount of Rs. 1.5 lakhs from casual assignments from July, 2004 to
September, 2009. She also asserted that her income was not fixed or regular and
she is struggling to take up casual assignments of interior decoration even though
she was not formally trained for the same. She also explained that at particular
time her employment with JJ Valaya Couture was only transitory in nature and
was not permanent, it was not a source of regular and permanent income for her and
that she had not been issued even any letter of appointment setting out the
terms of employment and she further explained that at the relevant time she was
earning an ad hoc remuneration of Rs. 20,000/- per month.
There is no reason to
either reject or disbelieve her explanation. In the same way, though she had highlighted
salary income of the respondent, admittedly, those figures include allowances and
other payments under various heads of salary. The respondent has also placed certificates
from income tax authorities such as Form 16C etc.
the light of the details furnished by both the parties, we are of the view that
the amount of Rs. 1,40,000/- determined as net monthly income of the
respondent-husband is not acceptable. Equally, direction for payment of maintenance
at the rate of Rs. 20,000/- per month to the appellant-wife is also inadequate.
It is relevant to point out that the status of the appellant before her
marriage is also one of the relevant factors for determining the amount of maintenance.
It is not in dispute that
before her marriage with the respondent, she was working as an Air Hostess in Cathay
Pacific Airlines and after marriage she resigned from the said post. Considering
the conditions prescribed in Section 25 of the Act relating to claim of permanent
alimony/maintenance and the fact that the appellant is not permanently employed
as on date and residing with her sister at Mumbai, taking note of the
respondent's income from salary as Sr. Commander in Air India, other properties
standing in his name, age being 42 years, future employment prospects and also
considering the fact that the respondent re-married, having a child and also to
look after his parents, we feel that the ends of justice would be met by fixing
maintenance at the rate of Rs.40,000/- per month instead of Rs.20,000/- per month
as fixed by the Family Court and affirmed by the High Court.
The same shall be payable
from the date of her application and continue to pay in terms of Section 25 of
the Act. The respondent is granted one year time from 01.08.2011 to pay all the
arrears payable in six equal installments. It is made clear that if there is
any change in the circumstance of either party, they are free to approach the
Court concerned to modify or rescind. As suggested and fixed by the High Court,
in the alternative, we fix the amount of permanent alimony/maintenance at Rs.
40 lakhs in lump sum to be paid by the respondent within a period of six months
from 01.08.2011 which will forfeit all her claims. The respondent is free to opt
any one mode to comply with the same. If the respondent opts the first method, the
same is subject to the conditions prescribed in sub-Section (3) of Section 25 of
the Act. The appeals are allowed to the extent mentioned hereinabove. No order
as to costs.
(DR. B.S. CHAUHAN)
Pages: 1 2