HIGH COURT OF ORISSA: CUTTACK MATA No.78 OF 2010 From the judgment and order dated 24.10.2010 passed by learned Judge, Family Court, Cuttack in Misc. Case No. 93 of 2009 arising out of Civil Proceeding No.588 of 2004. ----------- Bikash Das …. Appellant - Versus - Dharitri Das …. Respondent For Appellant - Mr. G.B.Jena. For Respondent - M/s. A.Patnaik, , G.R.Patnaik & N.K.Dash. -------------- P R E S E N T : THE HONOURABLE SHRI JUSTICE L. MOHAPATRA AND THE HONOURABLE SHRI JUSTICE B.K.MISRA Date of judgment: 23.8.2011 B.K.MISRA, J. The appellant being aggrieved with the order of the learned Judge, Family Court, Cuttack in Misc. Case No. 93 of 2009 arising out of C.P. No. 588 of 2004, directing him to pay permanent alimony of Rs.14,00,000/- in modification of the order passed in C.P. No. 588 of 2004 on 22.9.2004 has preferred this appeal. 2. Similarly, the respondent-wife also not being satisfied with the quantum of permanent alimony as has been ordered in Misc. Case No. 93 of 2009 arising out of C.P. No. 588 of 2004 has filed the cross-objection. 3. The undisputed fact is that the appellant and the respondent got married as per the caste custom on 16.1.1984 but since dissension arose in between the spouses they started living separately from 5.8.2003. When the family discord became very acute the appellant filed a petition under Section 13 of the Hindu Marriage Act in the Court of learned Judge, Family Court, Cuttack for divorce and that was registered as C.P. No. 22 of 2004. The present respondent entered appearance and contested the case, but at the intervention of the well wishers of both the spouses a petition under Section 13-B of the Hindu Marriage Act was filed and the learned Judge, Family Court, Cuttack allowed the prayer of the parties for a mutual divorce and while dissolving the marriage in between the spouses directed as follows:- “(i) The permanent alimony was fixed at 1/4th of the entire retiral benefit of the husband on his voluntary retirement Puls Rs.30,000/- which was paid in court on 22.09.2004. (ii) The petitioner-husband will pay Rs.3,500/- towards maintenance every month from October, 2004 and this will be automatically enhanced to Rs.4,000/- from October, 2007. The payment of monthly maintenance to the wife will stop once she receives the 1/4th of the entire retiral benefit from the husband. (iii) The respondent wife will not claim any article from the appellant-husband including presents to her at the time of marriage; and (iv) C.P. No. 22 of 2004 be dropped.” 4. According to the case of the appellant he went on paying the monthly maintenance as has been ordered by the learned Court but the respondent-wife filed a petition under Section 25 of the Hindu 2 Marriage Act which was registered as Misc. Case No. 93 of 2009 for modification of the monthly maintenance from Rs.4,000/- to Rs.9,000/- and permanent alimony of Rs.10 lakhs. According to the appellant the learned Judge, Family Court, Cuttack without considering the objection which has been filed in Misc. Case No. 93 of 2009 and without considering the fact that the appellant has got married after the decree of divorce was granted and without any material on record about the change in the circumstances erroneously modified its order dated 22.9.2004 and directed him to pay permanent alimony of Rs.14 lakhs. 5. In the cross objection it is the case of the respondent-wife that though she prayed for enhancing the permanent alimony to Rs.20 lakhs but the learned Judge, Family Court, Cuttack without considering the material produced before it and without any justification has directed the appellant to pay Rs. 14 lakhs as permanent alimony. It appears that for condoning the delay of 78 days in filing the cross objection, a separate prayer has been made. After hearing the learned counsel for the respective parties, the delay in presentation of the cross objection is condoned. 6. We have heard the learned counsel appearing for both parties and also perused the impugned order passed in Misc. Case No. 93 of 2009 dated 24.10.2010. The dissolution of the marriage of the parties and the decree of divorce passed in C.P. No. 588 of 2004 on 22.9.2004 and directing the husband namely, the present appellant to pay to the Respondent-wife monthly maintenance of Rs.3,500/- from 3 October, 2004 and from October, 2007 the respondent would be entitled to receive Rs.4,000/- towards her monthly maintenance, receipt of Rs.30,000/- by the Respondent-wife as a part payment of permanent alimony on the very day of passing of the order are not at all controverted by the parties and nobody challenged that till the Respondent-wife filed an application on 9.4.2008 for modification of the order dated 22.9.2004 wherein she prayed for enhancing the payment of monthly maintenance from Rs.4,000/- to Rs.9,000/- and payment of Rs.20,00,000/- (Twenty lakhs) as one time settlement. The grounds taken by the wife for modification of the order can be stated as follows:- (i) that the husband is irregular in paying monthly maintenance, (ii) there is rise in price index and that (iii) the husband after taking voluntary retirement would avail all retiral benefits. While passing the impugned order the learned Judge, Family Court has observed as follows:- “It is not known if actually he would take voluntary retirement. It is not known what amount he would get after taking any such voluntary retirement. Therefore the question of petitioner getting money from him on his voluntary retirement has been exposed to uncertainties. In other words O.P. has obtained the benefit of mutual divorce on one of the conditions which one does not know if actually would happen.” 7. Admittedly, the order in Misc. Case No. 93 of 2009 has been passed exparte. In the said Misc. Case though the husband- opposite entered appearance and filed the objection to the petition which was filed for modification of the order dated 22.9.2004 in C.P. 4 No. 588 of 2004 but thereafter he did not take part in the proceeding for which the matter was decided exparte basing on the evidence of the petitioner-wife and the documents relied upon by the petitioner- wife in the said case. 8. It is seen that the respondent-wife is not satisfied with the impugned order as without assigning any reason the learned Judge, Family Court, Cuttack has granted Rs.14 lakhs as permanent alimony, despite the fact that she prayed for Rs.20 lakhs as permanent alimony. 9. Though the order passed in C.P. No. 588 of 2004 was never challenged but in the given facts and circumstances we fail to understand as to how the learned Judge, Family Court could pass a speculative order basing upon a contingency to happen and passed the decree on mutual agreement. The Court cannot shut its eyes to the executability of its decree and it cannot sit with hands tight on the pretext that parties have mutually agreed to the terms and conditions of the compromise. Be that as it may, after giving our anxious hearing to the matter, we find that the impugned order does not show as to what necessitated the court below in directing payment of permanent alimony of Rs.14 lakhs, though the petitioner prayed for permanent alimony of Rs.20 lakhs. The order in question is a speculative one which cannot be sustained in the eye of law. In our considered view in the greater ends of justice to thrash out the question of quantifying the permanent alimony to be paid to the wife an opportunity be given to the appellant to place his side in the matter. Thus, while setting 5 aside the impugned order, it is directed that both parties would appear before the learned Judge, Family Court, Cuttack on 12.9.2011 positively and opportunity be afforded to the appellant-husband in participating in Misc. Case No. 93 of 2009. The learned Judge, Family Court, Cuttack after examining the parties and taking into consideration the materials, if any, produced before it would be free to dispose of the said proceeding in accordance to law and effort also should be made by the learned Judge, Family Court, Cuttack for arriving at an amicable settlement in between the parties with regard to fixation of the permanent alimony. The entire exercise is to be concluded by the end of October, 2011. 10. It was brought to our notice by the learned counsel for the Respondent- wife that the learned Judge, Family Court by his order dtd. 22.9.2004 had directed the appellant-husband to pay maintenance per month to the wife @ Rs.3,500/- from October, 2004 and @ Rs.4,000/- from October, 2007 which the appellant-husband is not paying regularly. It was also brought to our notice that since no permanent alimony has been paid with a paltry sum of Rs.4,000/- it has become difficult for the respondent-wife to live with dignity especially when the cost price of all the essential commodities and price of cooking gas have gone high. It was also brought to our notice that the appellant-husband is drawing handsome salary by working as Senior Programme Producer in Doordarsan Kendra, Bhubaneswar and also has other source of income as a Music Director. Accordingly, the learned counsel for the respondent-wife prayed for enhancing the 6 monthly maintenance till one time settlement with regard to the permanent alimony is determined and a modest claim of Rs.9,000/- towards monthly maintenance has been made. After hearing the learned counsel for the Respondent-wife as well as for the appellant and taking into consideration the present market trend and spiral rise of the cost index of all essential commodities and also taking into consideration the financial status of the appellant, we direct that the appellant-husband to pay Rs.9,000/- (Rupees nine thousand) per month towards maintenance of the Respondent-wife from 24.10.2010. We further direct that the appellant-husband would go on paying the monthly maintenance to the Respondent-wife by the 5th of every month till payment of permanent alimony as would be determined by the Court. The entire exercise is to be concluded by the end of October, 2011. Accordingly the Matrimonial Appeal and the cross objection stand disposed of. ……………………… B.K.Misra, J. L.Mohapatra, J. I agree. ……………………….. L.Mohapatra, J. Orissa High Court, Cuttack The 23rd August, 2011/RNS 7