THE HON’BLE SRI JUSTICE N.V. RAMANA AND THE HON’BLE SRI JUSTICE K.S. APPA RAO F.C.A. No. 153 of 2008 and F.C.A. No. 134 of 2010 Common Judgment: (Per NVR,J) Both these F.C.As. arise out of the litigation between the parties in F.C.O.P. No. 907 of 2007 on the file of the Family Court, Hyderabad. The parties shall be referred to by their status in F.C.O.P. The petitioner is the wife while the respondent is the husband. The petitioner filed F.C.A. No. 153 of 2008 aggrieved by the order dated 15.05.2008 passed by the Family Court, insofar as it denied to grant permanent alimony of Rs.1.00 crore or in the alternative Rs.1,00,000/- per month and return Rs.5,80,000/-, while allowing her F.C.O.P. No. 907 of 2007 for dissolution of her marriage with the respondent and grant divorce on the ground of cruelty. While the respondent filed F.C.A. No. 134 of 2010 aggrieved by the order dated 15.04.2010, passed by the Family Court, dismissing the application in I.A. No. 923 of 2009 in I.A. No. 592 of 2008 in F.C.O.P. No. 907 of 2007, praying to set aside the order dated 31.10.2009 dismissing I.A. No. 592 of 2008 for default and restore the said I.A. to file. The learned counsel for the petitioner submitted that the Family Court, vide order dated 15.05.2008, having allowed the F.C.O.P. filed by the petitioner for dissolution of her marriage with the respondent, ought to have granted permanent alimony of Rs.1.00 crore or in the alternative directed the respondent to pay Rs.1,00,000/- per month towards maintenance and return Rs.5,80,000/- paid by the parents of the petitioner to the respondent, and more so when the respondent did not contest the claim of the petitioner by filing counter, and it committed a grave error in granting permanent alimony of Rs.10.00 lakhs. She further submitted that the respondent is getting Rs. 3,10,000/- per month and he also owns certain other properties. She further submitted that though the Family Court, by order dated 09.10.2009, allowed I.A. No. 592 of 2008 filed by the respondent for setting aside the ex parte order, directing the parties to appear before the Court for counseling on 31.10.2009, failing which the I.A. stands dismissed, the respondent did not appear, and therefore, the said I.A. was dismissed. Further as the respondent filed I.A. No. 923 of 2009 to set aside the order dated 31.10.2009 and restore I.A. No. 592 of 2008 with unclean hands, the Family Court, by order dated 15.04.2010 dismissed the same, and no interference is warranted therewith. Hence, she prayed that the appeal filed by the petitioner be allowed and the appeal filed by the respondent be dismissed. On the other hand, the learned counsel for the respondent submitted that while the respondent was working on deputation in USA, the respondent was served with the notice in the F.C.O.P. through his Head Office at Pune on 11.02.2008. When the respondent came to India, he was arrested on 03.03.2008 and was in judicial custody till 10.03.2008 when he was enlarged on bail. The respondent on coming to know that he was set ex parte on 15.05.2008, immediately filed application in I.A. No. 592 of 2008 to set aside the said ex parte order, and even though the Family Court, by order dated 09.10.2009, allowed the same subject to the condition that both the parties shall appear for counseling on 31.10.2009 otherwise the same stands dismissed, but the respondent could not attend the Court on the said date, because his mother was seriously ill. He further submitted that since the respondent filed I.A. No. 932 of 2009 to set aside the order dated 31.10.2009 within time, the Family Court ought to have allowed the same and restored I.A. No. 592 of 2008 to file, so as to enable the respondent to contest the F.C.O.P. on merits. He further submitted that the grant of permanent alimony of Rs.10.00 lakhs by the Family Court is on the higher side. He denied the contention of the petitioner that the respondent is getting Rs.3,10,000/- per month and submitted that the respondent is getting a pay package of Rs.9.00 lakhs per annum, and after tax deductions etc., he gets an amount of Rs.7.00 lakhs per annum. He thus prayed that the F.C.A. filed by the respondent be allowed and the F.C.A. filed by the petitioner be dismissed. We have heard the learned counsel for the petitioner and the learned counsel for the respondent and perused the orders under appeals. The petitioner filed F.C.O.P. No. 907 of 2007 seeking dissolution of her marriage with the respondent and grant divorce on the ground of cruelty and also sought permanent alimony of Rs.1.00 crore or in the alternative direct the respondent to pay Rs.1.00 lakh per month and return an amount of Rs.5,80,000/- paid by her parents to the respondent at the time of marriage. As can be seen from the order dated 15.05.2008 passed by the Family Court, allowing F.C.O.P. filed by the petitioner seeking dissolution of her marriage with the respondent and grant of divorce, the respondent having received the notice in the F.C.O.P., has not chosen to file counter, rebutting the allegations made by the petitioner, and he remained ex parte. In the absence of the respondent entering his appearance and contesting the F.C.O.P. rebutting the allegations made by the petitioner in the affidavit filed in support of the F.C.O.P., and considering the evidence placed by the petitioner, namely Exs. P1 to P8, the Family Court, allowed the F.C.O.P. by dissolving the marriage of the petitioner with the respondent and granted divorce and directed the respondent to pay Rs.10.00 lakhs towards permanent alimony and return the jewellery shown in Ex. P8 to the petitioner. Even though the respondent, to set aside the said ex parte order, filed I.A. No. 592 of 2008, the fact remains, the Family Court by order dated 09.10.2009 allowed the same subject to the condition of the parties appearing for counseling on 31.10.2009, failing which the petition will be dismissed, and as on that day, the respondent did not appear and comply the condition imposed by the Court and as there was no representation on his behalf, the Family Court, by order dated 31.10.2009, dismissed the said I.A. for default. The respondent immediately thereafter, though filed I.A. No. 923 of 2009, praying to set aside the order dated 31.10.2009 and restore the I.A. No. 592 of 2008 to file, contending that his father died due to heart attack and that after his father’s death, his mother went into depression and seriously fell ill, and he being the only son, had to take care of her, who is living with him at Pune, and therefore, he could not attend the Court on 31.10.2009, the fact remains, the Family Court disbelieved the stand taken by the respondent that his mother fell ill seriously, and therefore, he could not attend the Court, because the respondent did not deny the stand taken by the petitioner in her counter that the father of the respondent died about four years back and that his mother was attending the criminal court. Thus, disbelieving the stand taken by the respondent, the Family Court held that the respondent approached the Court with unclean hands and dismissed the said I.A. No. 923 of 2009, and considering the facts and circumstances of the case, we find no reason whatsoever to interfere therewith. Now coming to the justification or otherwise of the claim made by the petitioner for grant of Rs.1.00 crore permanent alimony or in the alternative direct the respondent to pay Rs.1,00,000/- per month and return the amount of Rs.5,80,000/- paid by her parents at the time of marriage, the petitioner in the affidavit filed in support of the F.C.O.P., stated that she married the respondent on 27.10.2004. That the father of the petitioner having agreed to give Rs.2,00,000/- by way of cash, present gold worth Rs.4,00,000/-, clothes worth Rs.1,00,000/- and a plot worth Rs.10,00,000/- to the respondent, had at the time of betrothal ceremony, paid an amount of Rs.2,00,000/- to the respondent and his mother, and that after settlement of marriage, he paid an amount of Rs.1,50,000/-, another Rs.30,000/- towards purchase of clothes and Rs.2,00,000/- towards Adabidda lanchanam. The respondent, admittedly, did not dispute the receipt of the above-mentioned amounts, amounting to Rs.5,80,000/- by filing counter-affidavit, and as noted supra, he remained ex parte, and an ex parte order was passed, and even though, he filed application to set aside the same, in spite of passing of conditional order, directing his appearance for counseling, he did not appear, and instead filed another application, which was dismissed, as upheld by this Court, above. Since the respondent did not dispute the receipt of the amount of Rs.5,80,000/- from the parents of the petitioner by filing counter, the petitioner is entitled to return of the same. Therefore, the Family Court, committed an error in not directing the respondent to return the said amount of Rs.5,80,000/- to the petitioner. Even though the petitioner claimed that the respondent is drawing a salary of Rs.80,000/- per month and getting US$ 6,000/- per month on account of his deputation to work in USA, which comes to nearly Rs.3,00,000/- per month, and as such, she is entitled to claim permanent alimony of Rs.1.00 crore or in the alternative Rs.1,00,000/- per month towards her maintenance, the fact remains, the counsel for the respondent disputed the same and submitted that the respondent is presently working at Pune and his pay package is Rs.9,00,000/- per annum and after deductions, he gets Rs.7,00,000/- per annum. At this stage, the learned counsel for the petitioner submitted that interests of justice would be met, if two years’ salary of the respondent is given to the petitioner as permanent alimony. The learned counsel for the respondent expressed no objection to this proposal put forward by the counsel for the petitioner. Hence, considering the fact that the yearly salary of the petitioner is Rs.7,00,000/-, the two years’ salary would come to Rs.14,00,000/-. Hence, as agreed to by the parties, we deem it appropriate and accordingly grant Rs.14,00,000/- to the petitioner towards permanent alimony. In the result, F.C.A. No. 153 of 2008 filed by the petitioner is partly allowed, directing the respondent to pay Rs.14,00,000/- to the petitioner towards permanent alimony and also return to the petitioner the amount of Rs.5,80,000/- paid by her parents to him. While F.C.A. No. 134 of 2010 filed by the respondent is dismissed. No costs. __________________ JUSTICE N.V. RAMANA ___________________ JUSTICE K.S. APPA RAO Dated: 8th April, 2011 IBL