under Section 25 of Hindu Marriage permanent alimony= directed the appellant herein to return dowry of Rs.2,00,000/- and Rs.1,00,000/- towards the cost of the articles. = While determining the permanent alimony, the Court has to take into account not only the necessity of the wife but also the resources of the husband. Though the parameters are somewhat different, when compared to the pendent lite maintenance, the Court is under obligation to take into account the expenditure, which the wife has to incur to lead a respectable life. The status of the spouses before they parted, as well as the expenditure that is required to be incurred for education, maintenance of children, if any, also become important and relevant. =However, taking into account the fact that the appellant is also placed under obligation to pay maintenance to the minor daughter, we feel it just and proper to reduce the permanent alimony by Rs.1,00,000/-. Hence, F.C.A is partly allowed by reducing the permanent alimony from Rs.6,00,000/- to Rs.5,00,000/- and in all other respects, the order of the trial Court, shall remain the same.


 THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY
AND
 THE HON’BLE SRI JUSTICE K.G.SHANKAR
F.C.A No.143 of 2013

JUDGMENT : (Per LNR,J)


The appellant and the respondent were married on 25.05.1996 and they were blessed with a female child.  However, differences have arisen between them.  The appellant filed O.P.No.446 of 2006 in the Additional Family Court, Hyderabad, against the respondent for divorce and the decree granted therein has resulted in separation of the parties herein. The decree has also become final.

The respondent filed O.P.No.388 of 2011 under Section 25 of Hindu Marriage Act, 1955 
claiming a sum of Rs.10,00,000/- towards permanent alimony and
 for return of dowry of Rs.2,00,000/- and
 articles worth Rs.1,00,000/-.  
She pleaded that she is not gainfully employed and it is difficult for her to maintain herself and her child.  
It was her further case that the appellant herein is holding a fairly superior post with salary of more than Rs.1,00,000/- per month.  
The O.P was opposed by the appellant.  
Through its order, dated 23-01-2013, the trial Court allowed the O.P by awarding a sum of Rs.6,00,000/- as permanent alimony and 
directed the appellant herein to return dowry of Rs.2,00,000/- and Rs.1,00,000/- towards the cost of the articles.  Hence, this appeal.
Sri P. Ravi Kiran, learned counsel for the appellant submits that the trial Court did not take into account, the fact that the respondent is also gainfully employed and that the appellant is saddled with the liability to pay monthly maintenance to the minor child.  He submits that the amount awarded by the trial Court is excessive. 

Sri C.NMurthy, learned counsel for the respondent, who filed caveat, submits that the claim was for Rs.10,00,000/- and though it was established that the appellant is drawing salary of more than Rs.1,00,000/- per month, a sum of Rs.6,00,000/- was awarded.

The matrimony between the appellant and the respondent came to an end with the decree passed by the Family Court. O.P.No.388 of 2011 was filed exclusively for permanent alimony, though such a relief could have been granted in the O.P filed for divorce. 

Before the trial Court, the respondent deposed as PW.1 and she filed Exs.P.1 to P.3.  
The documentary evidence, was in the form of order and decree in O.P.No.446 of 2006, school fee particulars and fee receipts.  
On behalf of the appellant RWs.1 and 2 were examined and Ex.R.1 to R.13 were filed.  Monthly pay slip is Ex.R.1.

While determining the permanent alimony, the Court has to take into account not only the necessity of the wife but also the resources of the husband.  
Though the parameters are somewhat different, when compared to the pendent lite maintenance, the Court is under obligation to take into account the expenditure, which the wife has to incur to lead a respectable life.   
The status of the spouses before they parted, as well as the expenditure that is required to be incurred for education, maintenance of children, if any, also become important and relevant. 

The trial Court has recorded a clear finding to the effect that the appellant was drawing more than Rs.1,00,000/- as gross salary 
and that no evidence was adduced by him to establish that the respondent is gainfully employed.  
The mere fact that she holds qualification, does not by itself lead to a conclusion that she is also employed.   
Strictly speaking, the order passed by the trial Court, does not warrant interference.  
However, taking into account the fact that the appellant is also placed under obligation to pay maintenance to the minor daughter, 
we feel it just and proper to reduce the permanent alimony by Rs.1,00,000/-.

Hence, F.C.A is partly allowed by reducing the permanent alimony from Rs.6,00,000/- to Rs.5,00,000/- and in all other respects, the order of the trial Court, shall remain the same.  
The amount covered by the decree as modified by this Court, shall be paid within a period of two months from today.   

The miscellaneous petition filed in this Family Court Appeal shall stand disposed of.   There shall be no order as to costs.

_______________________
L. NARASIMHA REDDY, J.   



_______________________
                                     K.G.SHANKAR, J.   


Dt:11.03.2013

rds/jsu                                                                                    

Comments

Popular posts from this blog

Article 54 of the Limitation Act, 1963 (36 of 1963) reads as follows: “For Specific performance of a contract: Three years The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused.”= the apex Court in Ahmmadsahb Abdul Mila vs. Bibijan[1], wherein it was held that the date fixed for the performance of the contract should be a specified date in the calendar, and submitted that since no specified date in the calendar for performance of the contract is mentioned in the agreement of sale, the second limb of Article 54 of the Limitation Act is applicable. ; whether the suit is barred by limitation or not becomes a tribal issue and when there is a tribal issue, the lower Court ought not to have rejected the plaint at the threshold. In view of the same, order, dated 27-01-2012, in CFR.No.90 of 2012, passed by the Additional Senior Civil Judge, Ongole, (FAC) Senior Civil Judge, Darsi, is, hereby, set aside. The Appeal is allowed accordingly.

Or.18, rule 17 and sec.151 C.P.C - petition filed for reopen and examination of the executant of Ex.A1 the sale deed to fill up the lacuna in evidence pointed out at the time of arguments not maintainable = Shaik Gousiya Begum. ..Petitioner Shaik Hussan and others.... Respondents = Published in http://judis.nic.in/judis_andhra/qrydisp.aspx?filename=10515

Order 39 Rules 1 and 2 CPC. plaintiff has to prove his title and possession how he came into possession prima faice , in the absence of the same, not entitled for interim injunction = The questions as to whether the lease deed was properly stamped and whether the stamp paper on which it was typed can be said to have been procured through proper source, need to be dealt with at the stage of trial.; The suit filed by the 1st respondent, is the one for injunction simplicitor in respect of an item of immovable property. He has also filed an application under Order 39 Rules 1 and 2 CPC. Basically, it was for the 1st respondent to establish that he is in possession and enjoyment of the property and that he derived the same through lawful means, particularly when he did not contend that he encroached upon the property.= assumptions of facts against to the contents of crucial third party by misreading the same- it is just un-understandable as to how the trial Court gathered the impression that Anuradha stated that there was a meeting of Board of Directors, where it was decided to lease the property to the appellants. - the trial Court itself was not clear as to whether the appellant is the lessee or a Manager or is working under any other arrangement. - The important findings that have a bearing upon the valuable rights of the parties cannot be based upon such uncertain and unverified facts. One of the cardinal principles in the matter of examining the applications filed under Order 39 Rules 1 and 2 CPC is that a party claiming that relief must come to the Court with clean hands. Prima facie, we find that there are no bona fides, much less consistency on the part of the 1st respondent, in his effort to get the order of temporary injunction. The trial Court has misread the evidence and misinterpreted the facts borne out by the record.