Jalendra Padhiary vs Pragati Chhotray

CIVIL APPEAL NO.3876 OF 2018 [Arising out of SLP (C) No.9691 of 2015]

Jalendra Padhiary .. Appellant(s)

Versus

Pragati Chhotray .. Respondent(s)

JUDGMENT

Abhay Manohar Sapre, J.

1) Leave granted.

2) This appeal arises from the final judgment and

order dated 03.11.2014 passed by the High Court of Signature Not Verified Digitally signed by ASHA SUNDRIYAL Date: 2018.04.17 Orissa at Cuttack in M.A.T.A. No.113 of 2014 17:22:35 IST Reason:

whereby the Division Bench of the High Court

1 dismissed the appeal filed by the appellant herein in

limine at the stage of admission, in consequence,

upheld the order dated 17.09.2014 passed by the

Family Court, Bhubaneswar in Civil Proceeding

No.24 of 2011.

3. The facts of the case lie in a narrow compass

and it would be clear from the facts stated

hereinbelow.

4. The appellant is the plaintiff whereas the

respondent is the defendant in the civil suit out of

which this appeal arises. The dispute is between the

husband and wife and it relates to award of

permanent alimony payable to wife.

5. The appellant-husband filed a petition against

the respondent-wife under Section 13 of the Hindu

Marriage Act, 1954 (hereinafter referred to as “the

Act”) before the Judge, Family Court, Bhubaneswar

seeking decree for dissolution of marriage on the

2 grounds of desertion and cruelty. The respondent

filed her written statement and denied the material

averments of the appellant’s claim. On the basis of

the pleadings and the evidence adduced by the

parties, the Family Judge, by order dated

17.09.2014, allowed the petition and passed a decree

of divorce by dissolving the marriage. The Family

Judge also directed the appellant(husband) to pay

permanent alimony of Rs.15,00,000/- and litigation

expenses of Rs.10,000/- to the respondent(wife).

6. The appellant(husband), felt aggrieved by that

part of the order of the Family Court by which the

appellant was directed to pay permanent alimony of

Rs.15,00,000/- to the respondent(wife), filed appeal

before the Division Bench of the High Court. By

judgment/decree dated 03.11.2014, the Division

Bench of the High Court dismissed the appellant’s

appeal and affirmed the order of the Family Court.

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7. Against the order of the Division Bench of the

High Court, the appellant(husband) has filed this

appeal by way of special leave in this Court.

8. The short question, which arises for

consideration in this appeal, is whether the Division

Bench of the High Court was justified in dismissing

the appellant’s appeal in limine and thereby

upholding the order of the Family Judge insofar as it

related to awarding permanent alimony of

Rs.15,00,000/- to the wife(respondent).

9. Heard Mr. Kumar Gaurav, learned counsel for

the appellant and Mr. Radha Shyam Jena, learned

counsel for the respondent.

10. Having heard the learned counsel for the parties

and on perusal of the record of the case, we are

constrained to allow the appeal, set aside the

impugned order as also the order of the Family Court

to the extent it fixes the award of permanent alimony

4 and remand the case to the Family Court for deciding

the question of grant of permanent alimony payable to

wife afresh on merits in accordance with law.

11. The operative portion of the order of the Family

Court reads as under:

“The petition of the petitioner is allowed on contest in favour of the petitioner. A decree of divorce is passed and the marriage between the petitioner and the respondent is hereby declared dissolved with effect from the date of decree. The petitioner is directed to pay permanent alimony of Rs.15,00,000/- and litigation expenses of Rs.10,000/- to the respondent.” (emphasis supplied)

12. The order of the Division Bench of the High Court

reads as under:

“After looking into the allegations made and pleadings taken by the parties, as recorded in the impugned judgment, which during the course of argument could not be snipped, we do not find any reason to interfere with the amount of Rs.15,00,000/- awarded as permanent alimony to the wife by the learned Judge, Family Court. In the present time, the said amount is wholly insufficient for the wife to maintain her entire life.

5 Since we do not find any merit in the appeal, we dismiss the same in limine at the very stage of admission.”

13. The only question involved in the appeal before

the High Court, which was carried to this Court in this

appeal by the appellant (husband), was whether the

award of permanent alimony of Rs.15,00,000/- by the

Family Court to the respondent(wife) was legally and

factually sustainable.

14. Insofar as the grant of decree of divorce in favour

of the husband is concerned, it was not challenged by

the respondent (wife) in appeal before the High Court

and hence it attained finality.

16. In our view, mere perusal of the order of the

Family Court and the High Court quoted supra, would

go to show that both the Courts failed to apply their

judicial mind to the factual and legal controversy

insofar as award of permanent alimony to the

respondent(wife) is concerned. Both the Courts did

6 not even mention the factual narration of the case set

up by the parties on the question of award of

permanent alimony and without there being any

discussion, appreciation, reasoning and categorical

findings on the material issues such as, financial

earning capacity of husband to pay the alimony and

also the financial earning capacity of wife, a direction

to pay Rs.15,00,000/- by way of permanent alimony to

the wife was given. In our opinion, such direction is

wholly unsustainable in law.

16. Time and again, this Court has emphasized on

the Courts the need to pass reasoned order in every

case, which must contain the narration of the bare

facts of the case of the parties to the lis, the issues

arising in the case, the submissions urged by the

parties, the legal principles applicable to the issues

involved and the reasons in support of the findings

7 recorded based on appreciation of evidence on all the

material issues arising in the case.

17. It is really unfortunate that neither the Family

Court nor the High Court kept in mind these legal

principles and passed cryptic and unreasoned orders.

Such orders undoubtedly cause prejudice to the

parties and in this case, it caused prejudice to the

appellant(husband) because the orders of the High

Court and Family Court deprived him to know the

reasons for fixing the permanent alimony amount of

Rs.15,00,000/- payable to his wife.

18. We cannot countenance the manner in which

both the Courts passed the order which has compelled

us to remand the matter to the Family Court for

deciding the issue afresh on merits.

19. In the light of the foregoing discussion, we allow

the appeal, set aside the impugned order of the High

Court and the order of the Family Court insofar as it

8 relates to fixing of Rs.15,00,000/- towards payment of

permanent alimony to the respondent(wife) by the

appellant(husband) and remand the case to the Family

Court to decide the quantum of payment of permanent

alimony afresh in accordance with law keeping in view

our observations made supra.

20. We, however, make it clear that we have

refrained ourselves from making any observation on

merits of the controversy while forming an opinion to

remand the case to the Family Court for the reasons

mentioned above. The Family Court would, therefore,

decide the issue, uninfluenced by any of our

observations, strictly in accordance with law. If

necessary, the Family Court would also grant liberty to

the parties to amend the pleadings and adduce

evidence on the question of quantum of payment of

permanent alimony.

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21. The appeal is accordingly allowed. Impugned

order of the High Court and the order of the Family

Court insofar as it relates to fixation of permanent

alimony of Rs.15,00,000/- are set aside with the

aforesaid directions for compliance.

22. We direct the Family Court to decide the case

within six months as an outer limit.

23. Till the disposal of the case, the

appellant(husband) will continue to pay monthly

maintenance amount, which was fixed by the Family

Court, to the respondent regularly. Needless to say,

the payment of monthly maintenance will be subject

to the final determination made by the Family Court.

………………………………..J (R.K. AGRAWAL)

…..………………………………J. (ABHAY MANOHAR SAPRE) New Delhi, April 17, 2018

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