Court No. - 82
Case :- APPLICATION U/S 482 No. - 13369 of 2021 Applicant :- Rahul Kumar Yadav Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ram Om Vikram Singh Chauhan Counsel for Opposite Party :- G.A.
Hon'ble Vivek Agarwal,J.
1. Heard Sri Ram Om Vikram Singh Chauhan, learned counsel for applicant.
2. This Application U/S 482 has been filed assailing order dated 09.03.2021 passed by learned Additional Principal Judge, Family Court, Etawah in Case No. 104 of 2016 (Smt. Soni Yadav vs. Rahul Kumar Yadav) whereby a sum of Rs. 6,000/- per month has been awarded in favour of the applicant on the ground that applicant has been treated to be a daily wager and therefore, if income of daily wager is taken into consideration, then considering that applicant is able to get work for 25 days a month, his monthly income will come out to Rs. 10,375/- out of which, payment of maintenance @ Rs. 6,000/- per month is excessive. Second ground is that vide impugned order, maintenance has been directed to be paid from the date of the application whereas it should be from the date of the order. Third ground is that applicant's wife is elder to him and her behavior towards the present applicant was not conducive to the family life and therefore, a settlement was arrived at between the parties, where he paid a sum of Rs. 3,25,000/- as one time alimony. Thus, after payment of Rs. 3,25,000/- towards permanent alimony, no claim survives for grant of maintenance.
3. As far as issue of date of grant of maintenance and the quantum of maintenance are concerned, in case of Rajnesh vs. Neha and Another; (2021) 2 SCC 324, it is held in Para-131 that maintenance in all cases will be awarded from the date of filing of application for maintenance, as held in Part B-IV above. Thus, issue in regard to date of maintenance is already settled by Supreme Court, no interference is required in this regard.
4. As far as plea of payment of permanent alimony is concerned, learned Family Court has considered this aspect in minute details and has referred to evidence of DW1 and DW2- Ashok Kumar, where DW1 admitted that no documentation had taken place in regard to payment of Rs. 3,25,000/- whereas DW2 deposed that documentation was made while paying a sum of Rs. 3,25,000/-. Wife had denied receiving any amount from the applicant.
5. In an application filed by the present applicant under Section 13-B of the Hindu Marriage Act, 1955, wife had denied her consent for taking mutual divorce and had on the contrary, stated that she wants to stay with her husband-Rahul, who has filed a case for mutual divorce under threat and coercion. She stated that she does not wish to take divorce from her husband. It has come on record that DW1 and DW2, who are applicant and his father respectively have clearly stated that they are not willing to keep wife of the present applicant. Thus, plea of payment of permanent alimony is also not substantiated from the documentary or oral evidence.
6. Third ground is that applicant is unemployed, whereas after denial of employment by Rahul, Court considered that even if calculation is made on the basis of minimum wages, then also his income will be to the tune of Rs. 415/- per day. However, fact of the matter is that present applicant has admitted that he has passed B.A. Examination. Even, if the wages for a skilled labourer are taken into consideration, then also income of the applicant will be to the tune of Rs. 12,000/- per month. In case of Rajnesh vs. Neha and Another (supra) in Para-77, it is observed that the objective of granting interim/permanent alimony is to ensure that the dependant spouse is not reduced to destitution or vagrancy on account of the failure of the marriage, and not as a punishment to the other spouse. There is no straitjacket formula for fixing the quantum of maintenance to be awarded.
7. Para Nos. 81 and 84 of the judgment in case of Rajnesh vs. Neha and Another (supra), reads as under:-
"..........81. A careful and just balance must be drawn between all relevant factors. The test for determination of maintenance in matrimonial disputes depends on the financial status of the respondent, and the standard of living that the applicant was accustomed to in her matrimonial home.36 The maintenance amount awarded must be reasonable and realistic, and avoid either of the two extremes i.e. maintenance awarded to the wife should neither be so extravagant which becomes oppressive and unbearable for the respondent, nor should it be so meagre that it drives the wife to penury. The sufficiency of the quantum has to be adjudged so that the wife is able to maintain herself with reasonable comfort.
84. The Delhi High Court in Bharat Hedge v Smt. Saroj Hegde; 2007 SCC OnLine Del 622 laid down the following factors to be considered for determining maintenance :
"1. Status of the parties.
2. Reasonable wants of the claimant.
3. The independent income and property of the claimant.
4. The number of persons, the non-applicant has to maintain.
5. The amount should aid the applicant to live in a similar lifestyle as he/she enjoyed in the matrimonial home.
6. Non-applicant's liabilities, if any.
7. Provisions for food, clothing, shelter, education, medical attendance and treatment, etc. of the applicant.
8. Payment capacity of the non-applicant.
9. Some guess work is not ruled out while estimating the income of the non-applicant when all the sources or correct sources are not disclosed.
10. The non-applicant to defray the cost of litigation.
11. The amount awarded under Section 125 Cr.P.C. is adjustable against the amount awarded under Section 24 of the Act. 17."
8. When these parameters are considered, then it is evident that present applicant has averred that he paid a sum of Rs. 6,50,000/- as permanent alimony, though, not proved on record. Thus, a person capable of paying Rs. 6,50,000/- as permanent alimony, can presumed to be having substantial income to pay this amount, thus, by own admission of the present applicant, he has resources to meet obligation for payment of maintenance.
9. Applicant is B.A. pass, which reflects status of the parties. It has come on record that when marriage was performed on 13.05.2014, then in dowry, a motorcycle, a fridge, a T.V., an almirah, a double bed, a sofa set and Rs. 5,00,000/- cash, were paid. It has come on record that applicant's father is an employee of Electricity Department whereas present applicant Rahul, is working in Electricity Department as a private employee, earning about Rs. 20,000/- per month and has 18 bighas of agricultural land besides a house at Etawah, two plots and a flat at Noida.
10. Though, not substantiated, but also not rebutted with sufficient documentary evidence, these facts are indicative of the status of the parties. There is no evidence on record that wife of the applicant has any independent income. There is no claim of the applicant-Rahul that he has number of persons/non-applicants to maintain. He has also not brought anything on record to demonstrate his liabilities, therefore, when the cost of living, for food, clothing, medical attendance, treatment etc. are taken into consideration, coupled with capacity of non-applicant, the guesswork made by the learned Family Court in estimating the income of the non-applicant, when all the sources or correct sources are not disclosed, cannot be said to be arbitrary and therefore, award of sum of Rs. 6,000/- per month, does not call for any interference, therefore, application fails and is dismissed.
Order Date :- 21.9.2021 Vikram/-