THE HON’BLE SRI JUSTICE V.ESWARAIAH AND THE HON’BLE SRI JUSTICE B.N.RAO NALLA C.M.A.No.2976 of 2001 JUDGMENT: (Hon’ble Sri Justice B.N.Rao Nalla) This Civil Miscellaneous Appeal is filed against the order dated 04.06.2001 in I.A.No.75 of 1997 in O.P.No.95 of 1994 on the file of the Senior Civil Judge, Nellore, whereby and whereunder the application filed by the respondent-wife under Section 25 of Hindu Marriage Act, 1955 (for short ‘the Act’) for grant of permanent alimony, was allowed granting Rs.5,00,000/- (Rupees Five Lakhs) only. 2. For the sake of convenience, the parties hereinafter be referred to as the appellant and the respondent as arrayed in this C.M.A. 3. The appellant-husband filed O.P.No.95 of 1994 under Section 13 (1) (ia) and 13(1) (ib) of the Act alleging cruelty and desertion by the respondent-wife and sought divorce. The same was allowed and the divorce decree has become final. On his petition, the custody of the minor son was also ordered in favour of the respondent under Section 7 of the Guardians and Wards Act,1890 by the District Judge, Nellore. 4. The appellant-husband is stated to be working as a Deputy Manager (Marketing) in Tata Honeywell Limited at Pune, drawing handsome monthly salary, besides holding properties in the form of a house and house plots in Nellore, fetching monthly rent and he also has bank investments, that he has no liabilities and no dependents. Therefore, the respondent-wife in her petition claimed Rs.5,000/- per month towards monthly maintenance. 5. Since the appellant-husband is alleged to have committed default in paying monthly maintenance in O.P.No.95 of 1994 and since he is changing place of employment, she claimed a lumpsum alimony to be fixed by the court towards maintenance creating a charge on his property and salary. The appellant-husband denied the allegations as to his owning properties and having investments etc and stated that he has to maintain the family consisting of his parents and two unmarried sisters. Therefore, he contended that the lumpsum amount of Rs..5,00,000/- granted in favour of respondent-wife towards permanent alimony is excessive and unjust. He also alleged that since the respondent-wife is educated and qualified and gainfully employed, the impugned order may be suitably modified. He also contended that since decree of divorce is already granted, the respondent-wife is not entitled to claim permanent alimony. 6. However, in the above circumstances, the trial court after taking into consideration the provisions under Section 25 of the Act, the facts, circumstances and the evidence brought on record, as well as the fact that both the sisters of the appellant are gainfully employed and that his father is getting regular pension as a retired lecturer sufficient to maintain himself and his wife, came to the conclusion that the respondent-wife has no independent means of maintaining herself and that she was also not employed at the time of the impugned order. As such, the court below passed the impugned order calculating the monthly salary of the appellant-husband basing on Ex.A.1- salary certificate and taking into consideration the longevity of human life to be at 70 years in the country, awarded a lumpsum amount of Rs.5,00,000/- towards permanent alimony exercising the discretion vested in it under Section 25 of the Act. 7. The court below has not created any charge on the property in view of the fact that the allegation of owning ancestral properties was not proved. However, by the impugned order, a charge is created on the salary of the appellant-husband. 8. We have perused the record. It is seen that appellant-husband filed O.P.No.95 of 1994 for grant of divorce and the same was allowed on 14.10.1996. Thereafter, the respondent-wife filed present I.A.No. 75 of 1997 for grant of permanent alimony in a sum of Rs.5,000/- per month or to direct payment of lumpsum and making the said payment as the first charge on the share of the house property mentioned in the petition schedule as well as on the salary of the appellant-husband. The appellant married one Ragini on 18.6.1998 at Tirumala and she is working as Assistant Professor in Sri Venkateswara University at Tirupati. Out of wedlock between the appellant and the respondent, a boy was born and he was six years old by the time the O.P. was disposed of. Since then the boy is in the custody of the respondent-wife. The appellant-husband filed O.P.No.17 of 1995 on the file of the District Judge, Nellore for custody of the boy under Section 7 of the Guardians and Wards Act, 1890 and the same was allowed. Aggrieved by the same, the respondent-wife preferred appeal before this court. 9. It is seen that the appellant-husband is not paying maintenance after disposal of the O.P. During the pendency of the O.P. the respondent-wife filed I.A.No.159 of 1994 for interim maintenance and the court below has granted Rs.500/- per month to her and Rs.250/-per month to her son by order dated 24.7.1995. The respondent- wife is presently not gainfully employed. The appellant-husband is working in Tata Honeywell Limited at Pune and he is drawing handsome salary along with perks and other benefits. The appellant-husband stated that he is suffering from hypertension and he is required to spend Rs.8,000/- per month and he is also suffering from cholesterol problem, but there was no evidence on record to show how much amount he is spending to that effect. Further, it is seen that appellant’s father is a pensioner and his two sisters are employed. 10. The court below after going through the evidence on record, came to the conclusion that a charge cannot be created on the property, which according to the respondent is purchased from the sale proceeds of the ancestral property. The father of the appellant was examined as RW.2 and his evidence goes to show that he purchased the property with his own funds and as such it cannot be said that RW.2 purchased the property from the sale proceeds of ancestral property. 11. The respondent-wife is claiming a lumpsum amount as permanent alimony as the appellant is changing place of employment for better opportunities. Since the appellant is getting handsome monthly salary along with perks and other benefits, the court below taking into consideration the said aspect and particularly considering the fact that the appellant could change his employment, if he gets better opportunity, granted a lumpsum amount of Rs.5,00,000/-as permanent alimony, instead of granting Rs.5,000/- per month. As such, the finding of the court below on this aspect cannot be found fault with. 12. Having regard to the facts and circumstances of the case and in view of the above discussion, we are of the considered opinion that the court below has not committed any error, irregularity or illegality in passing the impugned order dated 4.6.2001 in I.A.No.75 of 1997 in O.P.No.95 of 1994 and as such the same is not liable to be interfered with in any manner. 13. In the result, the Civil Miscellaneous Appeal is dismissed. There shall be no order as to costs. _____ V.ESWARAIAH,J ______________ B.N.RAO NALLA, J .03.2010 Stp