's.. HIGH COURT OF CHHATTISGAKH. BILASPUR APPELLANT/: (Applicant) RESPONDENT/: (Non-appUcant) APPELLANT/: (Defendant) RESPONDENT/:' (Applicant)/ (Plaintiff) First Apoeal No.l96^f2005 Kanchan Pandya Versus Babixlal Pandya AND First Apneal No.218 of2005 Babu Lal Pandya Versus Kanchan Pandya • Post for pronouncenient ofjudginent on 23rd Julv. 2010 Sd/- T.P. Sharma Judge 'l'l-i. I '-Sts .('I-S 'i^. M _//" HIGH COURT OF CHHATTISGARH, BILASPUR APPELLANT/: (Applicant) RESPONDENT/ (Non-applicarit) First Appeal No. 196 of 20Q5 Kanchan Pandya, W/o Shri Babulal Pandya, aged about 40 years, R/o Kota, Hatri Chowk, Karagi Road, Tahsil Kota, Distt. Bilaspur (C.G.) Versus Babulal Pandya, S/o Late Mohan Lal Pandya, aged about 43 years, R/o Kenvtapara, Raigarh, TahsU 8s Distt. Raigarh (C.G.) {First appeal under Section 96 of the Code of Civil Procedure, '1908 read with Section 28 (1) ofthe Hindu Marriage Act, 1955} Present: Mr. K.A. Ansari, Senior Advocate with Mrs. Meera Ansari, Advocate for fhe appeUant. Mr. Sunil Sahu, Advocate for the respondent. AND APPELLANT/: (Defendant) RESPONDENT/ (Applicant)/ (Plaintiff) First Apneal No.218 6f 2005 Babu Lal Pandya S/o Late Mohan Lal Pandya aged about 43 years, resident of Kewtapara, Raigarh, Tahsil & Distt. Raigarh (CG). Versus Kanchan Pandya W/o Shri Babu Lal Pandya, agcd 40 years, r/o Kota, Hatari Chowk, Kargi Road, Tahsil Kota Distt. Bilaspur (CG). {First appeal under Section 28 ofthe Hindu Marriage Act, 1955} Present: Mr. SunU Sahu, Advocate for the appellant. - Mr. K.A. Ansari, Senior Advocate with Mrs. Meera Ansari, Advocate for the respondent. Single Bench: Hon'ble Mr. T.P. SharmaLJ '"'& S Bfc.... ' 1< '» ^fes'- 1 \ ^'1 / JUDGMENT (Delivered on 23rd July, 2010) 1. This judgment shall govern the disposal of F.A.No. 196/2005 tiled on behalfofwife and F.A.No.218/2005 filed on behalf of husband against fhe judgment & decree dated 26-7-2005 passed by the lst Additional District Judge, Ralgarl-i in Civil Suit No.28-A/2002. 2. By filing F.A.No. 196/2005 the appellant/wife has challenged the impugned judgraent & decree on the groi.ind that the amount of maintenance of Rs.1,000/- per month awarded to her under Section 25 ofthe Hindu Marriage Act, 1955 (for short 'the Acf) is not adequate and the Court below has committed illegality by dismissing fhe claim. of return of property. Inter atia, by filing F.A.No.218/2005 the appeUant/husband has challenged the award of maintenance to his wtfe under Section 25 oftheAct. ^ 3. As per the pleadings of parties, parties were Hindu legaUy wedded spouses and marriage between the parties was dissolved by decree of divorce dated 26-8-98 passed in Civil Suit No.23-A/93. After dissolution of marriage by decree of divorce, wife Kanchan Pandya has filed application under Section 25 of the Act for permanent alimony and for return of articles shown in Schedi.de 1 & 2 belonging to her. Husband Babu Lal Pandya has denied the adverse allegation and has atleged fhat he is not in possession of any article belonging to Kanchan Pandya and she is not entitled for any maintenance in terms of Section 25 of the Act. He has also alleged that her appUcation filed under Section 125 of the Cr.P.C. has been dismissed finally even by the revisional Court. On the basis of averments of the parties, issues were framed and after providing opportunity of hearing to the parties, leamed Additional District Judge has partly allowed the claim of permanent alimony to fhe tune of Rs.1,000/- per month to the wifff and has denied the claim of return of articles belonging to her in terms of Section 27 of the Act. 4. I have heard leamed coLinsel for the parties, perused the judgment & decree and record of fhe Court below. 5. Mr. K.A. Ansari, learned Senior Advocate appearing on behalf of Kanchan Pandya (wife), veher&ently argued that at the instance of Babu Lal Pandya (husband), dissolution of marriage by decree of divorce has been passed in the year 1998. Wife is entitled for permanent alimony and maintenance in accordance with Section 25 of the Act and she is also entitled for retum of property in terms of Section 27 of the Act. Mr. K.A. Ansari further argued that income of Babu Lal Pandya at the time of passing of the judgment was raore than Rs.10,000/- per month, but the Court below has not awarded adequate maintenance consideriog the need and status of wife and thereby committed Ulegality. 6. On the other hand, Mr. Sunil Sahu, leamed 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 of husband 85 wife, the Court below was under obligation to dismips fhe application for permanent alimony, but the Coiirt below has comm.itted gross illegality by awarding maintenance of Rs.1,000/- per month. 7. In order to appreciate the arguments advanced on behalf of the parties, I have examined the evidence adduced on behalf of both the parties. 8. In the present case, both the parties have led evidence. As per the evidence of Kanchan Pandya (AV/-1) i.e. wife, at the time of solemnization of marriage the articles shown in Schedule 1 85 2 were given to Babu Lal Pandya (husband) which are stUl in his possession. Kanchan Pandya (AW-1) has further deposed in her evidence that maintenance of Rs.4,000/- per month be awarded to her. Inter alia, Babu Lal Pandya (husband) has denied such allegation and by proving Ex.D-6 he has tried to establish that his net jncome was Rs.6,070/- per month after deductions and Kanchari Pandya is not entitled for permanent alimony or retum 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-1), 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 the Act the court is competent to make such provisions in the.decree relating to property presented, at or about fhe time of marriage, belonging jointly to both the husband and the wife. Section 27 of the Act reads as follows: - "27. Disposal of property.—Inany proceeding under this 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 naay belong jointly to both fhe husband and the wife." 10.In the present case, as per pleadings and evidence of Kanchan Pandya (AW-1), she alone is owner of fhe property given.at the time of her marriage and therefore, the property owned only by husband or wife cannot be the subject matter under Section 27 of the Act unless it belongs jointly to bofh the husband and the wtfe. Therefore, she is not entitled for return of property belonging to her and owned by her. In the circumstances, the Court below has rightly declined to pass any order relating to retum of said property in terms of Section 27 of the Act. ll.Pleadings and evidence of fhe parties clearly reveal fhat marriage between the parties has been dissolved by decree of divorce in fhe year 1998 and it has reached into finality. Therefore, at this stage, grounds for dissolution of mamage and the circumstances for dissolution of marriage cannot be questioned in fhe application filed zuider Section 25 of fhe Act. In the present case, fhe only crucial question for consideration is whether wife is entiUed for permanent alimony and whether permanent alunony ofRs.1,000/- per month is adequate or not. l2.Babu Lal Pandya (husband) has adduced documentary and oral eviden'ce,, but has not been able to estabUsh the fact that Kanchan Pandya (wife) is not entitled for permanent alimony in terms of Sectidn 25 of fhe Act. As regards the question of adequacy, as per admission of Babu Lal Pandya, his net income is Rs.6,070/- per month and the Court below has awarded ^-^ permanent alimony of Rs.1,000/- 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 speciEcaUy alleged that she is not havirig any source of her liveUhood. Babu Lal Pandya (husband) has cross- examihed Kanchan Pandya (wife) in detail, but has not been able to elicit anythmg to show that Kanchan Pandya (wife) was having any source of her livelihood. Net income of Babu Lal Pandya at the time of judgment was Rs.6,070/- per month, but the Court below has awarded maintenance of Rs.1,000/- 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 araount of niaintenance is not adequate and a reasonable anaount is required to be awarded to Kanchan Pandya (wife). In the present circumstances, considering the need of Kanchan 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 (v/ife). 14.For the foregoing reasons, F.A.No. 196/2005 filed on behalf of Kanchan Pandya is partly allowed and permanent alimony ' Rs.1,000/- per month awarded to Kanchan Pandya is hereby increased to Rs.2,000/- per month from today. In these circumstances, F.A.No.218/2005 ffled on behalf 6f Babu Lal Pandya is dismissed. No order as to costs. Soma Sd/- T.P. Sharma Judge