f- ;::,:^ti« ^ :^i, f,:i 8-i M:t1 '; K^!:: i l' ^s^ M .^^-/ asa^ ^^ ii ^f w s 1 :^. t ^: Il' '..^^:.'::^^ '^^^K ;I 1 i ?i^ :.l: ^ -t; ^ E 'vt^" ^t' II1 t^- ^ M ^ 1 ^ % I 1t: l^ s w !K ^ ^. ^ ^: 1 1 $ iBI 's iB ^^ ^IIIM HIGH COURT OF CHHATTISGARH, BILASPUR APPELLANT/: (Applicant) RESPONDENT/: (Non-applicant) FirstAooeal No. 196 of2005 Kanchan Pandya, W/o Shri Babulal Pandya/ aged abouf 40 years, R/o Kota, Hatri Chowk, Karagi Road, TahsilKpta,Distt.Bilaspur(C.G.) Versus - Babulal Pandya, S/o Late Mohan Lal Pandya, aged about 43 years, R/o Kenvtapara, Raigarh, Tahsil & Distt.Raigarii(C.G.) {First appeal under Section 96 oftheCode of Civil Procedure^ *1908 read with Section 28 (1) ofthe Hindu Marriage Act, 1955} Present: ' '?. ;::'; 1. .'.-; ! ,-1.'•''.-. .':'1.. :'- •'• ' ••'..'•'/1' Mr. _K.A. Ansari, Senior Advocate with Mrs. Meera Ansari, Advocatecfor the appellant. Mr. Sunil Sahu, Advocate for the respondent. APPELLANT/: (Defendant) RESPONDENT/: (AppUcant)/ (Plaintiff} AND Fu-st Appeal No.218 df 200S Babu Lal Pandya S/o Late Mohan Lal Pandya aged aboyt 43 years, resident of Kewtapara, Raigarh, Tahsil & Distt. Raigarh (CG). Versus Kanchan Pandya W/Q Shri Baby Lal Pandya, aged 40 years, r/o Kota, Hatari Chowk, Kargi Road, Tahsil KotaDistt Bilaspur (CG). {F'irst appeal under Section 28of the HirLdu Marriage Act, 1955} ^ Present: Mr. Sunil Sahu, Advocate for fhe appellant Mr. K.A. Ansari, Senior Advocate with Mrs. Meera Ansari, Advocate for the respondent. Single Behch: Hon'ble Mr. T.P. Sharma, J f k^ t ^ / JUDGMBNT (Delivered ott 23rd July, 2010) 1. Thisjudgment shallgovernthe disposalof F.A.N6.196/2005 filed on behalf of wife andF.A.No.218/2005 filed on behalf of husband against the judgment & decree dated 2^-7-2005 passedbyfhe lst Additional District Judge, Raigarh in Civil Suit No.28-A/2002. 2. ByfilingF.A.No. 196/2005 theappellant/wifehaschallengedthe impugned judgment & decree on the ground that the amounf bf maintenance of Rs.1,000/- per month awarded to her under Section 25 of the Hindu Marriage Act, 1955 (for Short (the Acf) is not adequate ,and the Court below has committed illegality by dismissing the claim of return of property. Inter alia, by filing F.A.No.218/2005 the appellant/husband has challenged the award of maintenance to his wife under" Sectipn 25 oftheAct. •f' 3. As per the pleadings Qfparties, parties were Hindu legally wedded spouses and raarriage between the parties was dissoh^ed by decree of divorce dated 26-8-98 passed in Civil Suit No.23-A/93, After dissolution of marriage by decree pf divorce, wife Kanchan Pandya has filed application under Section 25 of the Act for permanent alimony and for returnof articles shown in Schedule 1 85 2 belonging to her. Husband Babu Lal Pandyahas denied the adverse allegation and has alleged fhat he is not in possession of any article belonging to Kanchan Pandya and she is nof entitled for ahy maintenance trt terms of Section 25 of the Act. He has also alleged that her application filed under Section 125 of the Cr.P.C. has been dismissed finally even by the revisional Coyrt. On the basis of averments of the parties, issues were framed and i after providing opportunity of hearing to the parties, learned Additional District Judge has partly allowed the claim of permanent alimony to the fune of Rs. 1,000/- per month to the wife and has denied the claim of refurn of artieles belonging to herin terms ofSection 27 ofthe Act. * "• '• ^- •• • ^ 4.1 have heard leamed counsel for the parties, perused the judgment & decree and recordofthe Court below. ^ 5^ Mr. K.A. Ansari, learned Senior Advocate appearing on behalf of Kanchan Pandya (wife), vehemently argued that at the iristance of Babu Lal Pandya (husband), dissolution of niarriage by decree of * divorce has been passed in the year 1998. Wife is entitled for permanent alimony and maintenance in accordance with Section 25 pf the Act and she is also entitled for return of property in terms of Section 27 oftheAct.Mr. K.A. Ansari further argued fhat income of Baby Lal Pandya at the time of passing of the judgment was more than Rs. 10,000/- per month, byt the Court helow has not awarded adequate maintenance considering the/ ' need and status of wife and thereby committed illegality. 6. On the other haLnd, Mr. Sunil Sahu, learned counsel appearing on behalf of Babu Lal Pandya (husband), vehemently opposed and submitted that at the time of passing of the judgment & decree, net salary of the husband was Rs.6,070/- per month. Considering the need 6f husband & wife, the Court below was under obligation to dismiss the application for permanent alimony, but the Court below has committed gross illegality by awardmgmairitenanceofRs.l,000/-permonth. . ' ' 7, In order to appreciate the arguments advanced on behalf of the parties, I have examined the evidence adduced on behalf of both :theparties. ' ,/ '; •' . ' '; • .'•' .. ' ^ •1;1. ' , ,1 /'•^ . ,.•. ^ -:^.^, .•••,1..;11-;.';1 ^ 8. In the present case, both the parties have led evidence. As per the evidence of Kanchan Pandya (AW-1) i.e. wife, af the time of solemnizatiQn of marriage the articles shown in Schedule 1 & 2 were giveh to Baby Lal Pandya (husband) which are still in his possession. Kanchan Pandya (AW-1) has furfher deposed in her evidence that maintenance of Rs.4,000/- per montli be awarded to her. Inter alia, Babu Lal Pandya (husband) has dehied such allegation and by proving Ex.D-6 be has tried to establish that his net income was Rs.6,070/- per month after deductions arid Kanchan Pandya is not entitled for permanent alimony or return of property belonging to her because he is not in possession of any property belonging to her. ^ (^ 9.;*As per pleadings and evidence of Kanchan Pandya (AW-l),-it, appears that she has claimed the property owned by her in terms of Section 27 of the Act, As per the provisions of Section 27 of fhe Acf the court is competent to make such provisions in the*decree relating to property presented, at or about the time of marriage, belonging jointly to both the husband and the wife. Section 27 of ti-ie Actreads as follows: - "27. Disposal of property.—Inany proceeding under this Act, the court may make such provisions in the decree as it deems just ahd proper with respect to any property presented, at or about the time of marriage^ which may belong ^ f jointly to both the husband and the wife." 10.In thepresent case, as per pleadings and evidence of Kanchan Pandya (AW-1), she alone is owner of the properfy given. at the time of her marriage and therefore, the property owned bnly by husband or wife cannot be the subject matter under Section 27 of the Act unless it belongs Jointly to both the husband and the wife. Therefore, she is not entitled for return of property bdoriging to her and owned by her. In the circumstances, the Court below has rightly declined to pass any order relating to return of said property in terms of Section 27 of the Act. 1 l.Pleadings and evidence of the parties clearly reyeal that marriage between the parties has been dissolved by decree ofdivorce in the year 1998 and it has reached into finality. Therefore, at this stage, grounds for dissolution ofmarriage and the circumstances fpr dissolution of marriage cannot be questioned in the appUcation flled under Section 25 of the Act. In the present case, the only crucial question for eonsideration is whether wife is entitled for permanent alimony and whether permanent alimony ofRs.l,000/-permonthisadequateor'not. 12.Babu Lal Pandya (husband) has adduced documentary and oral evidence, but has not been able to establish the fact that Kanchan Pandya (wife) is not entitled for permanent alimony in terms of Secfion 25 of the Act As regards the question pf adequacy, as per admission of Babu Lal Pandya, his net income is Rs.6,070/- per month and the Court below has awai-ded u ^^s^ Soma 'permanent alimony of Rs.l,OOQ/- per month to Kanchan Pandya (wife). Babu Lal Pandya (husband) has deposed in his evidence on affidavit that Kanchan Pandya (wife) is having sufficient means for her livelihood, but he has not deposed in his evidence that as to what are the sources of her livelihood, Inter alia, Kanchan Pandya (wife) has specifically alleged that she is not havirtg any source of her livelihood. Babu Lal Pandya (husband) has cross- examined Kanchan Pandya (wife) in detail, but has not been able to elicit anything to show that Kanchan Pandya (wife) was having any source of her livelihood, Net inconie of Babu Lal Pandya at the time of judgment was Rs.6,070/- per month, but the Court below has awarded mainfenance of Rs. 1 ,OQO/- per month to Kanchan Pandya. IS.Considering the cost of living and need of a woman for her livelihood including food, clothing, residence etc., the aforesaid amount of inaintenance is not adequate and a reasonable ainount is required to be awarded to Kanchan Pandya (wife). In the present circumstances, considering the need of Kanchaja Pandya (wife), income of Babu Lal Pandya (husband) and his liability, permanent alimony ofRs,2,000/- per month would be reasonable and adequate alimony for Kanchan Pandya (wife). l4.For the foregoing reasons, F.A.No. 196/2005 filed on behalf of Kanchan Pandya is partly allowed and permanent alimony of Rs.1,000/- per raonth awarded to Kanchan Pandya is hereby increased to Rs.2,000/- per month from today. In these circumstances, F.A.No.218/2005 filed on behalf 6f Babu Lal Pandya is dismissed. No order as to costs. Sd/- T.P. Sharma Judge :r ,