Case: JALENDRA PADHIARY Vs. PRAGATI CHHOTRAY

This appeal arises from the final judgment and order dated 03.11.2014 passed by the High Court of Orissa at Cuttack in M.A.T.A. No.113 of 2014 whereby the Division Bench of the High Court dismissed the appeal filed by the appellant herein in limine at the stage of admission, in consequence, upheld the order dated 17.09.2014 passed by the Family Court, Bhubaneswar in Civil Proceeding No.24 of 2011.3. The facts of the case lie in a narrow compass and it would be clear from the facts stated hereinbelow.4. The appellant is the plaintiff whereas the respondent is the defendant in the civil suit out of which this appeal arises. The dispute is between the husband and wife and it relates to award of permanent alimony payable to wife.5. Thefiled a petition against theunder Section 13 of the Hindu Marriage Act, 1954 (hereinafter referred to) before the Judge, Family Court, Bhubaneswar seeking decree for dissolution of marriage on the grounds of desertion and cruelty. The respondent filed her written statement and denied the material averments of the appellant?s claim. On the basis of the pleadings and the evidence adduced by the parties, the Family Judge, by order dated 17.09.2014, allowed the petition and passed a decree of divorce by dissolving the marriage. The Family Judge also directed the appellant(husband) to pay permanent alimony of Rs.15,00,000/and litigation expenses of Rs.10,000/to the respondent(wife).6. The appellant(husband), felt aggrieved by that part of the order of the Family Court by which the appellant was directed to pay permanent alimony of Rs.15,00,000/to the respondent(wife), filed appeal before the Division Bench of the High Court. By judgment/decree dated 03.11.2014, the Division Bench of the High Court dismissed the appellant?s appeal and affirmed the order of the Family Court.7. Against the order of the Division Bench of the High Court, the appellant(husband) has filed this appeal by way of special leave in this Court.

Reasoning:
10. Having heard the learned counsel for the parties and on perusal of the record of the case, we are constrained to allow the appeal, set aside the impugned order as also the order of the Family Court to the extent it fixes the award of permanent alimony and remand the case to the Family Court for deciding the question of grant of permanent alimony payable to wife afresh on merits in accordance with law.Insofar as the grant of decree of divorce in favour of the husband is concerned, it was not challenged by the respondent (wife) in appeal before the High Court and hence it attained finality.16. In our view, mere perusal of the order of the Family Court and the High Court quoted supra, would go to show that both the Courts failed to apply their judicial mind to the factual and legal controversy insofar as award of permanent alimony to the respondent(wife) is concerned. Both the Courts did not even mention the factual narration of the case set up by the parties on the question of award of permanent alimony and without there being any discussion, appreciation, reasoning and categorical findings on the material issues such as, financial earning capacity of husband to pay the alimony and also the financial earning capacity of wife, a direction to pay Rs.15,00,000/by way of permanent alimony to the wife was given. In our opinion, such direction is wholly unsustainable in law.We cannot countenance the manner in which both the Courts passed the order which has compelled us to remand the matter to the Family Court for deciding the issue afresh on merits.19. In the light of the foregoing discussion, we allow the appeal, set aside the impugned order of the High Court and the order of the Family Court insofar as it relates to fixing of Rs.15,00,000/towards payment of permanent alimony to the respondent(wife) by the appellant(husband) and remand the case to the Family Court to decide the quantum of payment of permanent alimony afresh in accordance with law keeping in view our observations made supra.