:1: pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO. 110 OF 2004 Vinny Parmar ..Appellant Vs. Parmvir Parmar ..Respondent WITH FAMILY COURT APPEAL NO. 127 OF 2004 Parmvir Parmar ..Appellant Vs. Vinny Parmar ..Respondent Mr. Dhirajj Mirajkar i/by Ms. Rita Abraham for appellant in FCA No. 110 of 2004 and for respondent in FCA No. 127 of 2004. Mr. R.G. Bhat i/by Ms. Lata Wadhwani for the respondent in FCA No. 110 of 2004 and for appellant in FCA No. 127 of 2004. CORAM: CORAM: CORAM: B.H. MARLAPALLE & RAVI K.DESHPANDE,JJ. B.H. MARLAPALLE & RAVI K.DESHPANDE,JJ. B.H. MARLAPALLE & RAVI K.DESHPANDE,JJ. Reserved Reserved Reserved on : April 04, 2009. on : April 04, 2009. on : April 04, 2009. Pronounced Pronounced Pronounced on: April 24, 2009. on: April 24, 2009. on: April 24, 2009. JUDGMENT JUDGMENT JUDGMENT (Per B.H. Marlapalle,J.): (Per B.H. Marlapalle,J.): (Per B.H. Marlapalle,J.): 1. In these appeals filed under Section 19 of the Family Courts Act, 1984 filed by both the parties the following order is under challenge:- :2: ". The Petition is allowed. . The marriage solemnized between the parties on 6th December, 1995 is hereby dissolved by a decree of divorce u/s 13(1)(ia) of the Hindu Marriage Act, 1955. . Petitioner/Parmvir Parmar shall pay Rs.20,000/- per month towards the maintenance of the Respondent/Vinny Parmar. . He shall pay the same from the date of this order i.e. from 31st July, 2004 onwards. . No order as to costs. . A decree be drawn accordingly." 2. So far as the decree of divorce is concerned, we have allowed Civil Application No. 75 of 2009 today and the decree of divorce originally granted under Section 13(1)(ia) of the Hindu Marriage Act, 1955 (for short the Act) has been substituted by a :3: decree of divorce by consent under Section 13-B of the said Act. The parties have dissolved their marriage by consent and a fresh decree of divorce by consent has been directed to be issued to them. Hence, the only question that remains to be adjudicated in these appeals is about the amount of permanent alimony to be granted under Section 25 of the said Act. The appellant in FCA No. 110 of 2004 shall be referred to as the appellant and the appellant in FCA No. 127 of 2004 shall be referred to as respondent. 3. As per the appellant, the amount of Rs.20,000/- per month as directed by the Family Court is too inadequate and having regard to the monthly income of the respondent and estimated at about Rs.2 lakhs, she ought to have received beyond Rs.50,000/- per month by way of permanent alimony. As per her, the Family Court has not properly considered the financial status of the respondent as well as her financial conditions, namely, that she is unemployed and is entitled to live a comfortable life till such time that she gets remarried. Whereas, it is the case of the respondent that the wife was not entitled for permanent alimony as she was gainfully employed and :4: she was guilty of suppressing her employment all throughout. It is also his case that the alleged resignation from service from 31/1/2004 was a camouflage and was stage managed. He alleges that she is professionally qualified and is capable of earning handsome income as a fashion designer even in a place like Mumbai or Delhi. He further states that the amount of Rs.20,000/- per month fixed has not taken into consideration the professional income of the appellant and her capacity to earn much more. He claims that having regard to her capability to earn by way of self employment or in any fashion design firm she earns much more than she requires to spend. Lastly, he claims that the claim of permanent alimony ought to be dismissed solely on the ground that the wife misled the court by suppressing the facts about her employment and this was a deliberate and design act on her part. 4. In the impugned order itself, the Family Court has recorded displeasure against the wife on account of her false statements right from the time she filed an application for interim maintenance on or about 23/7/2002, regarding her financial status. However, :5: the Family Court did not reject her claim for permanent alimony under Section 25 of the Act and proceeded to consider the financial status of both the parties. It noted that the husband earns about Rs.2 lakhs per month by ay of salary and allowances from Air India and the wife was also employed as an Airhostess with Cathay Pacific Airlines till she got married and from December, 2001 onwards she was working as Retail Manager with M/s.J.J. Vallaya Group and was earning a monthly salary of Rs.20,000/-. The Family Court also took into consideration the savings, if any, and fixed the amount of Rs.20,000/- per month by way of permanent alimony. 5. Mr. Mirajkar the learned counsel for the appellant submitted that on the face of the admitted fact about the monthly income of the respondent, the amount of Rs.20,000/- by way of permanent alimony is too inadequate and grossly disproportionate to the monthly salary of the respondent, even in the year 2004. As per him at least 25% to 30% of the net monthly income of the respondent could have been the appropriate amount of permanent alimony. For the accounting year 2001-2002 the total income of the :6: respondent-husband was Rs.24,34,370/- and he paid an amount of Rs.8,10,001/- as tax on the said gross income. For the assessment year 2002-2003 his gross income was Rs.22,24,856/- and he paid income tax of Rs.6,39,293/-. For the assessment year 2003-2004 his gross income was shown at Rs.34,50,700/- and he paid income tax of Rs.10,59,671/-. These are the figures of gross income and income tax paid as are reflected in the returns submitted in Form No.3 and as placed on record. After deducting the tax, the net income for the three assessment years would be as under:- Sr.No. Assessment Year Net Income ----- --------------- ---------- 1. 2001 - 2002 Rs.16,24,369/- 2. 2002 - 2003 Rs.15,95,563/- 3. 2003 - 2004 Rs.23,91,029/- 6. The learned counsel for the respondent has urged that the Family Court was not justified in granting any amount by way of permanent alimony and :7: the claim ought to have been dismissed on two grounds, namely, (a) the appellant was guilty of suppressing her employment status and she did that deliberately and (b) that she was employed and had sufficient earnings so as to maintain herself, she was not financially dependent on her father or sister. In addition, he pointed out that though she filed the application for interim maintenance, it was never pressed for and the Family Court did not grant any interim maintenance to her. As per him even for the future it cannot be accepted that the appellant with her qualifications in Fashion Design would remain without any income. On the contrary, in a city like Mumbai or Delhi she would get professional assignments or a job with handsome salary. He also pointed out that once the marriage was dissolved by consent, it cannot be accepted that the appellant would stay at Mumbai and she has no income of her own to support herself, to live a comfortable life. He pointed out that the appellant holds a B.Com. degree and has completed one year diploma course in fashion design, which fact is admitted. He also pointed out that appellant suppressed her employment from December, 2001 with M/s. J.J. Vallaya Group until she was :8: confronted in her cross-examination with the private detective service agency’s report along with the connected documents. He also pointed out that M.A. No. 261 of 2002 filed to initiate perjury proceeding against the appellant is still pending before the Family Court. The appellant has relied upon the decision in the case of Komalam Amma vs. Kumara Pillai Raghavan Pillai & ors. [2008 AIR SCW 7799] [2008 AIR SCW 7799] [2008 AIR SCW 7799], whereas the respondent has placed reliance on the decisions in the case of S.P. Chengalvaraya Naidu (dead) by LRs. vs. Jagannath (dead) by LRs [(1994) 1 [(1994) 1 [(1994) 1 SCC SCC SCC 1] 1] 1] and Hamza Haji vs. State of Kerala and anr. [(2006) [(2006) [(2006) 7 SCC 416] 7 SCC 416] 7 SCC 416]. 7. As per Section 18 of the Hindu Adoptions and Maintenance Act, 1956 (the Maintenance Act for short), a Hindu wife shall be entitled to be maintained by her husband during her lifetime and she will be entitled to live separately from her husband without forfeiting her claim to maintenance for the reasons set out under subsection (2) therein. Whereas as per subsection (3) of Section 18, a Hindu wife shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by conversion :9: to another religion. The benefit of maintenance under Section 18 of the Maintenance Act is available to a deserted wife if she is able to make out any of the grounds set out below subsection (2) of Section 18. Whereas Section 25 of the Act entitles the wife for permanent alimony and maintenance, at the time of passing any decree of divorce or at any time subsequent thereto. Section 27 of the Act states that in any proceeding under the Act, the court may make such provisions in the decree as it deems just and proper with respect to any property presented, at or about the time of marriage, which may belong jointly to both the husband and wife. Section 18 of the Maintenance Act confers a right on the wife to be maintained by her husband during her lifetime and such a right is an incident of the status or estate of matrimony and a Hindu is under a legal obligation to maintain his wife. Whereas, on the status of the wife being terminated by a decree of divorce under the Act, the rights of the divorced wife seem to be cribbed, confined and cabined by the provisions of the Act and to the rights available under Sections 25 and 27 therein, as has been held in the case of B.P. Achala Anand vs. S. Appi Reddy and anr. [AIR 2005 SC 986] [AIR 2005 SC 986] [AIR 2005 SC 986]. :10: The right for maintenance under Section 18 of the Maintenance Act comes to an end with the wife loosing her status as wife consequence upon a decree of divorce. The position of a divorced wife stands on a different footing as the divorce is termination of matrimonial relationship and brings to an end the status of the wife as such. Thus, the powers available under Section 18 of the Maintenance Act cannot be equated with the powers available under Section 25 of the Act for granting maintenance and thus these two benefits, though termed as maintenance, are distinct and the permanent alimony to be granted under Section 25 of the Act cannot be equated with the maintenance to be granted under Section 18 of the Maintenance Act. 8. In the instant case, the respondent has to support his aged parents and he has his own house at Mumbai. The appellant, on the other hand, is the younger daughter of a retired State Government employee in as much as her father retired as Deputy Secretary from the Haryana Electricity Board and he has his own house in Haryana. The appellant’s brother is married and settled at Delhi, whereas her elder :11: sister works with Air India and is unmarried. She has a ownership flat at Mumbai and the appellant is staying with her. If the appellant chooses to stay with her parents, it cannot be said that the amount of Rs.20,000/- per month granted by way of permanent alimony is unreasonable. However, we have to consider the credentials of the appellant to decide her claim for permanent alimony. The Family Court was justified in recording its displeasure against the appellant for suppressing her employment status as well as earnings there from. If she desires to stay at Mumbai or Delhi, it cannot be accepted that she would be without any professional or employment income in fashion design or any other related field. The learned counsel for the respondent may be justified in his arguments that the appellant had put up a stagemanaged story about her unemployment from December, 2004 onwards and if she wants to continue at Mumbai or Delhi, obviously, she is interested in pursuing her own career and in such a situation, in our considered opinion, she cannot claim any provision for her residence and to be made by the respondent by way of permanent alimony. She must stand on her own as a professional and she appears to have made her own :12: arrangement with her sister to stay at Mumbai which state is by choice and obviously to pursue an alternative career. She cannot expect as a matter of legal right, that the amount of permanent alimony granted, must include the financial requirements for her stay at Mumbai or for that matter at Delhi. In the facts and circumstances of this case the law laid down in the case of Komalam Amma (Supra) is not applicable and the said case was considered in the light of Section 14(1) of the Hindu Succession Act, 1956. We, therefore, hold that the appellant cannot claim any amount over and above the amount that has been granted by the Family Court by way of permanent alimony. In our view, the amount granted by the Family Court is just and proper. 9. So far as the contentions of the respondent to deny permanent alimony to the appellant are concerned, the appellant left her job with the Cathay Pacific Airlines just before the marriage. They lived together as husband and wife for about one and half years. The respondent had filed Petition No.A-2145 of 1997 for divorce in the Family Court at Mumbai and it was decreed in July 2000. The Family Court refused to :13: set aside the ex parte decree by rejecting the application for condonation of delay and the ex parte decree came to be set aside by consent of the parties before this court. The divorce petition was decided thereafter on merits and has been allowed on the ground of cruelty. The parties settled the matrimonial disputes and decided to obtain a decree of divorce by consent and the same has been granted by us on 4/4/2009. The suppression of her employment by the appellant by itself will not be a ground to reject her claim for permanent alimony. Her purported resignation from employment from 31/1/2004, though could not be disputed by the respondent, her capacity to earn as a professional is certainly taken into consideration while fixing the amount of permanent alimony at Rs.20,000/- per month, despite the fact that the respondent’s monthly salary is in excess of Rs.1,50,000/-. Undoubtedly, the benefit of permanent alimony would be available to the appellant till she gets re-married or starts living in a domestic relationship with another man. 10. In the peculiar facts of this case and the young age of both the parties, we venture to fix the :14: amount of permanent alimony, if the parties so agreed, and the amount so determined should be such that it would not be an additional burden to the respondent and would be advantageous to the appellant. We cannot expect both of them or either of them to remain unmarried and more particularly to remain in uncertainty to receive the monthly amount of permanent alimony in case appellant finds a new partner in her future life. If the amount of Rs.25 lakhs is invested in fixed deposit for a period exceeding one year, with the present rate of interest, it would earn an amount of Rs.2,50,000/- per annum or about Rs.21,000/- per month. In addition, if the appellant receives a one time lump sum payment by way of permanent alimony, she is relieved of the uncertainties to face application under Section 27 of the Act and she has an additional advantage of investment to enhance her professional career. We would, therefore, deem it appropriate that in the alternative of Rs.20,000/- per month the respondent - husband should pay by way of permanent alimony a lump sum amount of Rs.20,00,000/- to the appellant - wife. :15: 11. In the premises, we confirm the order passed by the Family Court fixing the amount of permanent alimony at Rs.20,000/- per month. In the alternative, if the parties so choose, we fix the amount of permanent alimony at Rs.20,00,000/- (Rupees Twenty Lakhs only) to be paid by the respondent in lump sum within a period of three months from today to the appellant. 12. The appeals are disposed off accordingly. (Ravi (Ravi (Ravi K. Deshpande,J.) K. Deshpande,J.) K. Deshpande,J.) (B.H. (B.H. (B.H. Marlapalle,J.) Marlapalle,J.) Marlapalle,J.) . After pronouncement of this judgment, the learned counsel for the respondent has prayed for stay to the operation of this order. . Oral application is allowed and the operation of this order is stayed for a period of six weeks from :16: today, subject to the condition that the respondent shall continue to pay the monthly maintenance as granted by the Family Court. (Ravi (Ravi (Ravi K. Deshpande) K. Deshpande) K. Deshpande) (B.H. (B.H. (B.H. Marlapalle,J.) Marlapalle,J.) Marlapalle,J.)