IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD PRESENT : : THE HON’BLE SRI JUSTICE N.V.RAMANA AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD C.M.A No.875 of 2005 Dated:25-11-2011 Between: Dr.Murali Venkateswara Rao. ….Appellant. And Dr. Ganga Bhavani ….Respondent. The Court made the following: THE HON’BLE SRI JUSTICE N.V.RAMANA AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD C.M.ANo.875 of 2005 ORDER: (per the Hon’ble Sri Justice P.Durga Prasad) This appeal is directed against the Orders passed in I.A.No.267 of 2004 in H.M.O.P.No.82 of 2001 by the District Judge, Krishna, Machilipatnam on 06.06.2005. The appellant herein is the respondent therein and the respondent herein is the petitioner therein has ﬁled a petition under Section 25 of Hindu Marriage Act for payment of lump sum amount of Rs.20,00,000/- towards permanent alimony and maintenance from her husband/appellant. The parties in the appeal are being referred to as mentioned in the petition before the lower Court. According to the petitioner, her marriage with the respondent took place on 28.08.1986 at Tirumala according to Hindu rites and customs and both of them lived happily for sometime and blessed with two sons namely Sri Vivek, aged 15 years and Venkata Sri Siva Sai, aged 11 years. The respondent has ﬁled H.M.O.P.No.82 of 2001 under Section 13 (1) (iii) of Hindu Marriage Act, for decree of divorce and the same was allowed on 28.07.2003. While passing the decree of divorce, no provision was made for payment of permanent alimony and maintenance under Section 25 of Hindu Marriage Act. Hence it has become necessary for her to approach the Court for direction to the respondent for payment of permanent alimony and maintenance. She further pleaded that she is not keeping good health and she does not intend to remarry and she wants to dedicate rest of her life for the progress and welfare of her two sons. The respondent is a Government Doctor, working as Civil Assistant Surgeon and earning monthly salary of Rs.19,000/- besides salary, the respondent is also earning more than Rs.30,000/- per month by running a private hospital at Gannavaram. Thus, he is getting income of not less than Rs.50,000/- per month from his medical profession. Apart from that the respondent has got half share in the joint family property of Ac.10.00 of wet land in Peddarayuduthota H/O Kaza village and he is enjoying separately his share of Ac.5.00 of wet land, and get net income of 150 bags paddy per year, which is valued at Rs.80,000/-. Besides this the respondent has purchased Ac.3.63 cents of wet land within the limits of Movva and that he is realizing not less than 120 bags of paddy per years on the said land, which is valued at Rs.65,000/-. Thus, the annual income from agricultural lands is Rs.1,45,000/-. The respondent also got valuable house site of 500 square yards at Vijayawada worth Rs.7,50,000/-. The respondent also owns a house site of an extent of 500 square yards at Bandlagukda in Ranga Reddy District, the value of which would be not less than Rs.8,00,000/-. He is also having ancestral house at Peddarayuduthota and his half share in the said house is easily worth Rs.5,00,000/-. Thus, the income derived by the respondent is more than Rs.30,50,000/-. She is working as a Government Doctor and her salary is about Rs.15,000/- per month. Her 2nd son Venkata Sri Siva Sai is with her and he is in her custody and studying in Hyderabad. Even though an Order was passed in H.M.O.P.No.82 of 2001 for payment of Rs.22,600/- towards the maintenance and educational expenses of her 2nd son till the disposal of the above O.P., no amount was paid by the respondent. She has been looking after her 2nd son and maintaining him and meeting all his educational expenses. Except her monthly salary as Government Doctor, she does not have any other source of income. She does not have any house or agricultural property and her monthly salary is hardly suﬃcient for her sustenance. Taking into consideration of the necessities of the petitioner and status of the parties and income of the respondent, she is entitled to get an amount of Rs.20,00,000/- towards permanent alimony and maintenance. The respondent opposed the said application by ﬁling counter pleading that the petitioner is not entitled to claim any maintenance since she is living separately from the husband and is guilty of deserting the husband. The H.M.O.P.No.82 of 2001 was allowed on the said ground of desertion., as such she cannot claim any maintenance under Section 25 of Hindu Marriage Act. The petitioner never claimed any maintenance during the pendency of the O.P.No.82 of 2011 and there is no necessity for her to claim any maintenance from the respondent as the petitioner is drawing salary of Rs.15,000/- per month as a Doctor. She gave evidence that she is capable and rich enough to maintain both of her children. The respondent is drawing a total salary of Rs.16,900/- and he as to maintain his 2nd wife and mother. He denied about his earning Rs.30,000/- per month by running private hospital. According to him, he is entitled to a share in the joint family property, but after meeting the expenses, he will get meager amount towards his share in the joint family properties. He is getting annual income of Rs.1,45,000/- on agricultural lands. He has no other income fetching properties. No doubt, he has got two house sites apart from the ancestral properties, but the valuation given in the aﬃdavit is exaggerated to obtain huge amount of Rs.20,00,000/- towards maintenance. The entire motive of the petitioner appears to be to extract a huge amount from the respondent after obtaining divorce and cause harassment to the respondent even after divorce. There is no genuine need for the petitioner to claim amount towards maintenance. Hence, the petition is liable to be dismissed. No oral and documentary evidence was adduced by either side during the course of enquiry. The lower Court by taking into consideration of the pleadings of both the parties, granted an amount of Rs.10,00,000/- to the petitioner towards permanent alimony. Aggrieved by the same, the respondent therein has filed the present appeal. Admittedly, the respondent has obtained divorce from the petitioner by ﬁling H.M.O.P. 82 of 2001 on 28.07.2003 and they are having 2 sons and the elder son is living with the respondent and the 2nd son is living with the petitioner. She is claiming an amount of Rs.20,00,000/- towards permanent alimony and maintenance. Admittedly, no amount was awarded towards permanent alimony while disposing of the H.M.O.P.No.82 of 2001. The appellant’s counsel has pleaded that she has deserted her husband; as such she is not entitled for any maintenance or permanent alimony. Section 25 (1) of Hindu Marriage Act, any Court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as having regard to the respondent’s own income and other property, if any, the income and other property of the applicant (the conduct of the parties and other circumstances of the case), it may seem to the court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent. By reading of Section 25 (1) of Hindu Marriage Act, does not prohibit granting permanent alimony even if the wife deserted the husband. The lower Court by relying upon the various decisions rightly came to the conclusion that the petitioner is entitled to claim permanent alimony under Section 25 (1) of Hindu Marriage Act even though a decree of divorce was granted in favour of the respondent on the ground of desertion against the petitioner. The said ﬁnding does not warrant any interference by this Court. The next point to be considered is whether the petitioner is entitled for the permanent alimony of Rs.10,00,000/- as granted by the lower Court. As per 25 of the Hindu Marriage Act, the status, income and other properties owned by the parties has to be taken into consideration while awarding permanent alimony under the said section. In the present case, the petitioner is working as Government Doctor and she is earning Rs.15,000/- per month. According to her, there is no other source of income for her. Admittedly, her 2 nd son is living with her and she is looking after his education and maintenance. The respondent also working as a Government Doctor and he is earning Rs.19,000/- per month. According to the petitioner, he is earning Rs.30,000/- per month by doing private practice. Apart from that he is having share in the joint family properties at Peddarayuduthota and getting an income of Rs.l,45,000/- per year on agriculture and he is also having two house sites at Vijayawada and Bandlaguda at Ranga Reddy District, the value of the above sites is more than Rs.50,00,000/-. The respondent even though has denied about his earning Rs.30,000/- by private practice, admitted about the other agricultural properties and share in the joint family property. Even according to him, he is getting Rs.1,45,000/- from the agricultural properties. Apart from that, he also admitted that he is having 2 house sites as stated by the petitioner. According to him, he has to maintain his 2nd wife and mother, who are depending on him. The petitioner has also pleaded that the 2nd wife of the respondent is also Gazetted Oﬃcer and drawing not less than Rs.20,000/- per month and the said fact was not denied by the respondent. The lower Court by taking into consideration of the status of both the parties and income of both parties granted Rs.10,00,000/- to the petitioner. The petitioner’s only source of income is from her salary, which is Rs.15,900/- per month and she has to maintain her 2nd son, look after his educational expenses and whereas the respondent is getting Rs.1,45,000/- P.A. and having house sites worth more than Rs.20,00,000/-. Thus by taking into consideration of the income of the respondent and status of the parties, the petitioner is entitled for Rs.10,00,000/- towards permanent alimony and maintenance as awarded by the lower Court. In the result, the Civil Miscellaneous Appeal is dismissed without costs. _______________________ JUSTICE N.V.RAMANA. _____________________________ JUSTICE P. DURGA PRASAD Dated:25-11 -2011 Ksp