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Tuesday, April 17, 2018

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 6 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.

 REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.3876 OF 2018
[Arising out of SLP (C) No.9691 of 2015]
Jalendra Padhiary .. Appellant(s)
Versus
Pragati Chhotray .. Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1) Leave granted.
2) 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
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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. The appellant-husband filed a petition against
the respondent-wife under Section 13 of the Hindu
Marriage Act, 1954 (hereinafter referred to as “the
Act”) before the Judge, Family Court, Bhubaneswar
seeking decree for dissolution of marriage on the
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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.
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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.
8. The short question, which arises for
consideration in this appeal, is whether the Division
Bench of the High Court was justified in dismissing
the appellant’s appeal in limine and thereby
upholding the order of the Family Judge insofar as it
related to awarding permanent alimony of
Rs.15,00,000/- to the wife(respondent).
9. Heard Mr. Kumar Gaurav, learned counsel for
the appellant and Mr. Radha Shyam Jena, learned
counsel for the respondent.
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
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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.
11. The operative portion of the order of the Family
Court reads as under:
“The petition of the petitioner is allowed on
contest in favour of the petitioner. A decree
of divorce is passed and the marriage
between the petitioner and the respondent is
hereby declared dissolved with effect from
the date of decree. The petitioner is directed
to pay permanent alimony of Rs.15,00,000/-
and litigation expenses of Rs.10,000/- to the
respondent.”
(emphasis supplied)
12. The order of the Division Bench of the High Court
reads as under:
“After looking into the allegations made and
pleadings taken by the parties, as recorded in
the impugned judgment, which during the
course of argument could not be snipped, we
do not find any reason to interfere with the
amount of Rs.15,00,000/- awarded as
permanent alimony to the wife by the learned
Judge, Family Court. In the present time,
the said amount is wholly insufficient for the
wife to maintain her entire life.
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Since we do not find any merit in the
appeal, we dismiss the same in limine at the
very stage of admission.”
13. The only question involved in the appeal before
the High Court, which was carried to this Court in this
appeal by the appellant (husband), was whether the
award of permanent alimony of Rs.15,00,000/- by the
Family Court to the respondent(wife) was legally and
factually sustainable.
14. 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
6
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.
16. Time and again, this Court has emphasized on
the Courts the need to pass reasoned order in every
case, which must contain the narration of the bare
facts of the case of the parties to the lis, the issues
arising in the case, the submissions urged by the
parties, the legal principles applicable to the issues
involved and the reasons in support of the findings
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recorded based on appreciation of evidence on all the
material issues arising in the case.
17. It is really unfortunate that neither the Family
Court nor the High Court kept in mind these legal
principles and passed cryptic and unreasoned orders.
Such orders undoubtedly cause prejudice to the
parties and in this case, it caused prejudice to the
appellant(husband) because the orders of the High
Court and Family Court deprived him to know the
reasons for fixing the permanent alimony amount of
Rs.15,00,000/- payable to his wife.
18. 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
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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.
20. We, however, make it clear that we have
refrained ourselves from making any observation on
merits of the controversy while forming an opinion to
remand the case to the Family Court for the reasons
mentioned above. The Family Court would, therefore,
decide the issue, uninfluenced by any of our
observations, strictly in accordance with law. If
necessary, the Family Court would also grant liberty to
the parties to amend the pleadings and adduce
evidence on the question of quantum of payment of
permanent alimony.
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21. The appeal is accordingly allowed. Impugned
order of the High Court and the order of the Family
Court insofar as it relates to fixation of permanent
alimony of Rs.15,00,000/- are set aside with the
aforesaid directions for compliance.
22. We direct the Family Court to decide the case
within six months as an outer limit.
23. Till the disposal of the case, the
appellant(husband) will continue to pay monthly
maintenance amount, which was fixed by the Family
Court, to the respondent regularly. Needless to say,
the payment of monthly maintenance will be subject
to the final determination made by the Family Court.
………………………………..J
(R.K. AGRAWAL)
 …..………………………………J.
 (ABHAY MANOHAR SAPRE)
New Delhi,
April 17, 2018
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