ORISSA HIGH COURT CUTTACK MATA No.108 of 2012 From the order dated 15.5.2012 passed by the learned Judge, Family Court, Jajpur in Civil Proceeding No.16 of 2011 -------------------In MATA No.108 of 2012 Asish Mohapatra .…… Appellant -versusPriyadarsini Barik ….… For Appellant : M/s. Bibhu Pr.Mohanty For Respondent Respondent : M/s. Susanta Kumar Dash, Anang Kumar Otta, & Mrs.Arunima Dhalsamant In MATA No.64 of 2012 Smt. Priyadarshini Barik @ Priyadarsini Barik .…… Appellant -versusAshish Mohapatra ….… For Appellant : M/s. Susanta Kumar Dash, Anang Kumar Otta, & Mrs.Arunima Dhalsamant For Respondent : M/s. Bibhu Pr.Mohanty -------------------Date of Judgment:
31. 07.2013 -------------------- Respondent 2 P R E S E N T: THE HONOURABLE KUMARI JUSTICE SANJ.PANDA AND THE HONOURABLE DR. JUSTICE B.R.SARANGI ----------------------------------------------------------------------------------------------------S. Panda, J.MATA No.64 of 2012 has been filed by the wife challenging the order dated 15.5.2012 passed by the learned Judge, Family Court, Jajpur in C.P No.16 of 2011 for enhancement of the permanent alimony and MATA No.108 of 2012 has been filed by the husband for reducing the quantum of permanent alimony. However, decree of divorce passed by the learned Judge, Family Court, Jajpur in C.P No.16 of 2011 is said to have No.been challenged. Since both the appeals arise out of common judgment and decree, they were heard together and are being disposed of by this common judgment.
2. The facts leading to the present appeals are as follows: An application under Section 13 of the Hindu Marriage Act (hereinafter referred to as “the Act”.) was filed by the husband for decree of divorce. The marriage took place in the year 2009. The husband is an Engineer having B.Tech and Telecommunication qualification. Though there was no demand of dowry, Rs.3 lakhs were transferred to the account of the father-in-law of the husband for purchase of articles to be used in day-today living. The dispute started immediately on the next date of marriage due to indifferent attitude of the family members of the wife who did No.take care of the Barat party. It is alleged that the wife had lack of respect towards the family members of the in-law’s and did No.agree to complete any rituals as per the social and cultural background of the society. She neither dried her clothes No.performed Puja. Sometimes thereafter the husband left to join his service. During his absence, the wife misbehaved and created disturbances in the in-laws’ house making false allegations and also threatened to file criminal cases through his uncle, who is a police officer. While the matter stood thus, on 11.6.2009 the father of the wife had taken her to his house and avoided to receive any telephonic calls/mobile calls. Several attempts were made to settle the dispute. However, due to above attitude of the wife, there was no possibility of settlement of the dispute as the relationship between two were No.congenial and she treated the family members and 3 the husband with cruelty. Finding no other way, the husband filed the application with the aforesaid prayer which was registered as C.P No.852 of 2009 before the Family Court, Cuttack. After the functioning of the Family Court at Jajpur, the said case was transferred. The wife filed her written statement with counter claim traversing the allegations made by the husband. She further pleaded that the marriage was an arranged marriage and there was a demand of motor cycle, LCD colour television, fridge, furniture, gold and silver ornaments, household articles from the side of the petitioner which was beyond the capacity of the father of the wife. The father of the wife had also given Rs.3 lakhs to the father of the husband to purchase furniture and other house hold articles. She was harassed and misbehaved for non-fulfilment of the dowry. Her father tried his best to fulfil the dowry demand. However, the in-laws tortured her and did No.allow her to meet her parents. Thereafter, they approached the police and as such she returned to her parents house with mental shock and trauma and hopeful for amicable settlement. She was subjected to severe mental and physical torture for which she filed an application under the Domestic Violence Act. Accordingly, the husband was responsible for irreparable damage in the marital relationship. Since the husband made an allegation about the character of the wife, she had to stay in her parents’ house and file a counter claim demanding the return of the Stridhan property which had been given at the time of marriage and to pay permanent alimony.
3. In support of their respective pleas, the husband examined himself as P.W. 1 and examined another witness. The wife examined herself as O.P.W.5 and also examined four other witnesses. Xerox copy of pay particulars of the husband and some other documents were produced which were marked as Exts.A to C. Taking into consideration the materials available on record, the court below recorded the finding that it had become difficult on the part of the wife to stay in her marital home till the end of her life. Therefore, she is entitled for a decree of divorce and the court below directed the husband to pay a lump sum of Rs.10 lakhs, inclusive of Rs.3 lakhs, as permanent alimony.
4. Learned counsel for the appellant-wife submitted that the said amount is at a lower side taking into consideration the status of the parties and the salary received by the husband. The husband is deducting the amount from his salary and he will get the benefit of such deduction in future. However, ignoring those facts, the Family Court has fixed the 4 permanent alimony at a lower side. Therefore, the quantum of maintenance is to be enhanced.
5. Learned counsel for the respondent-husband, however, submitted that the wife created an unhealthy atmosphere in the in-laws’ house and she did No.perform her duties towards in-laws as per the social custom which amounts to mental cruelty towards the in-laws. Therefore, the wife is No.entitled to get any compensation and she has filed many criminal cases against the husband and his family members falsely. Since the quantum of permanent alimony is at a higher side, the same may be reduced.
6. This Court has taken into consideration all the above and the fact that both the parties have agreed for dissolution of marriage by decree of divorce. Admittedly, the husband is an Engineer working in a Company in Pune and from the salary slip, it appears that the salary of the husband is more than Rs.1,00,000/- per month.
7. The apex Court in the case of K.Srinivas Rao v. D.A Deepa reported in (2013) 5 SCC 22.while parting with the case discussed the issues which need to be dealt with in the interest of the victim of the matrimonial dispute and observed that while purely a civil matrimonial dispute can be amicably settled by a Family Court either by itself or by directing the parties to explore the possibility of settlement through mediation, a complaint under Section 498-A IPC presents difficulty because the said offence is No.compoundable. The Court has always adopted a positive approach and encouraged settlement of matrimonial disputes and discouraged their escalation. Taking into consideration the decisions of G.V. Rao v. L.H.V Prasad, (2000) 3 SCC 693.B.S. Joshi v. State of Haryana, (2003) 4 SCC 67.and (2012) 10 SCC 303.Gian Singh v. State of Punjab, the apex court held that certain offences which overwhelmingly and predominantly bear civil flavour like those arising out of matrimony, particularly relating to dowry, etc. or the family dispute and directed that though offence punishable under Section 498-A IPC is No.compoundable, in appropriate cases if the parties are willing and if it appears to the criminal court that there exist elements of settlement, it should direct the parties to explore the possibility of settlement through mediation and where the offender and the victim had settled all disputes between them amicably, irrespective of the fact that such offences have No.been made compoundable, the High Court may quash the criminal proceedings if it feels that by No.quashing the same, the ends of justice shall be defeated”
8. Law is well settled that the quantum of alimony should be fixed taking into consideration the status of the parties. In view of the above we feel that the quantum of permanent alimony is at a lower side.
9. In view of the above position of law and taking into consideration the facts and circumstances of the case and the price index, it will be just and proper to enhance the permanent alimony from Rs.10,00,000/- to Rs.12.50,000/- (rupees twelve lakhs fifty thousand).
10. Accordingly, we enhance the permanent alimony from Rs.10,00,000/- to Rs.12.50,000/- (rupees twelve lakhs fifty thousand). The said amount shall be paid to the wife within two months from today. As the decree of divorce has been passed, all the criminal cases which are pending shall be dropped on filing of an application by both the parties on payment of the permanent alimony. With the above direction, the appeals along with Misc. Case Nos.108 of 2012 and 50 of 2013 arising out of MATA No.64 of 2012 stands disposed of. ………..…………… SANJ.PANDA, J.Dr.B.R.Sarangi, J : I agree. ………..…………… Dr.B.R.Sarangi,J High Court of Orissa, Cuttack Dated 31st July, 2013/Pradeep