Vinny Parmar vs Paramvir Parmar

Vinny Parmvir Parmar .... Appellant (s)

Versus

Parmvir Parmar .... Respondent(s)

J U D G M E N T

P. Sathasivam, J.

1) Leave granted.

2) These 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

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consent and the marriage was dissolved by a decree under

Section 13-B of the Hindu Marriage Act, 1955 (hereinafter

referred to as "the Act").

3) Since 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.

2 4) Heard Mr. Nidish Gupta, learned senior counsel for the

appellant-wife and Ms. Indu Malhotra, learned senior counsel

for the respondent-husband.

5) The 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.

6) Considering 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.

3 Discussion:

7) Mr. 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

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fixing reasonable amount towards maintenance and welfare of

the appellant.

8) In 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.

5 9) Before 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."

10) In 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

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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."

11) In 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."

7 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

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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.

13) It 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.

14) According 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

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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.

15) In 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

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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 instalments. It is

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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.

...............................J.

(P. SATHASIVAM)

...............................................J.

(DR. B.S. CHAUHAN)

NEW DELHI;

JULY 20, 2011.

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