REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOs. 5831-5833 OF 2011
(Arising out of SLP (C) Nos. 20518-20520 of 2009
Vinny Parmvir Parmar .... Appellant (s)
Versus
Parmvir Parmar .... Respondent(s)
J U D G M E N T
P. Sathasivam, J.
1) Leave granted.
2) These appeals are filed against the final order dated
24.04.2009 passed by the High Court of Bombay in Family
Court Appeal Nos. 110 of 2004 and 127 of 2004 and the order
dated 17.07.2009 in Review Petition Stamp No. 15671 of 2009
whereby the appellant's appeal was dismissed in entirety and
the petition filed by the respondent in Family Court for divorce
on ground of cruelty was converted into divorce by mutual
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consent and the marriage was dissolved by a decree under
Section 13-B of the Hindu Marriage Act, 1955 (hereinafter
referred to as "the Act").
3) Since the parties have dissolved their marriage by
consent and a fresh decree of divorce by consent has been
directed, the other question adjudicated before the High Court
was about the amount of maintenance/permanent alimony in
terms of Section 25 of the Act. By the impugned order, the
High Court confirmed the order passed by the Family Court
fixing the amount of permanent alimony at Rs. 20,000/- per
month. While disposing of the appeals, as an alternative
measure, the High Court also fixed the amount of permanent
alimony at Rs. 20 lakhs in lump sum to be paid by the
husband to his wife within a period of 3 months from the date
of the order. Being not satisfied with the maintenance fixed at
Rs. 20,000/- per month, the appellant-wife filed these appeals
for enhancement by pointing out her difficulties and the
income of the respondent.
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4) Heard Mr. Nidish Gupta, learned senior counsel for the
appellant-wife and Ms. Indu Malhotra, learned senior counsel
for the respondent-husband.
5) The only point for consideration in these appeals is what
would be the reasonable amount the appellant-wife is entitled
by way of maintenance from the husband in terms of Section
25 of the Act.
6) Considering the fact that after the marriage the appellant
herein resigned from the post of Air Hostess in Cathay Pacific
Airlines and after dispute between them she was not employed
and getting regular income, she was staying with her sister at
Mumbai and also taking note of the financial status of the
husband, namely, his salary as a Sr. Commander in Air India
and rental income from his properties, the Family Court fixed
maintenance at Rs. 20,000/- per month which was affirmed
by the High Court. While arriving at such amount, the Family
Court has determined the income of the husband as
Rs. 1,40,000/- per month.
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Discussion:
7) Mr. Nidish Gupta, learned senior counsel for the
appellant, by drawing our attention to various factual details
placed before the Family Court, High Court and in this Court,
submitted that from the salary slips it is seen that even after
income tax deductions the respondent's income from salary
and allowances alone for the period 01.04.2009 to 31.03.2010
was Rs. 83,19,031/-. In support of the above claim, the
appellant has produced TDS certificate issued by his
employer/the Income-Tax Department. According to him,
apart from the above salary income, the respondent has rental
income between Rs. 7,20,000 and Rs. 10,80,000 from his
properties. He further highlighted that in addition to the
salary and the rental income, the respondent has huge bank
deposits, investment in shares and mutual funds. He also
highlighted that the respondent being 42 years of age and a
Sr. Commander in Air India has a promising career with bright
chances of further promotions. With these facts and figures,
Mr. Nidish Gupta prayed for intervention of this Court by
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fixing reasonable amount towards maintenance and welfare of
the appellant.
8) In reply to the same, Ms Indu Malhotra, learned senior
counsel for the respondent-husband submitted that the
figures furnished by the appellant before the courts below as
well as in this Court are exaggerated. In any event, according
to her, the income shown above includes allowance and other
benefits which cannot be construed as actual salary or income
as claimed. She also pointed out that apart from the salary
from Air India he owns 1 acre of land in Pune and 1 Bedroom
flat in Mumbai. All other properties, according to the learned
senior counsel, belong to his father and he is not entitled for
anything from it at this moment. She further highlighted that
at present respondent-husband has married and having a
child apart from taking care of his parents. She finally
submitted that the amount determined by the Family Court as
affirmed by the High Court is quite reasonable and, therefore,
there is no valid ground for interference by this Court
exercising jurisdiction under Article 136 of the Constitution of
India.
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9) Before considering the rival claims based on facts and
figures, it is useful to refer to Section 25 of the Act which
reads as under:-
" 25. Permanent alimony and maintenance.- (1) Any court
exercising jurisdiction under this Act may, at the time of
passing any decree or at any time subsequent thereto, on
application made to it for the purpose by either the wife or
the husband, as the case may be, order that the respondent
shall pay to the applicant for her or his maintenance and
support such gross sum or such monthly or periodical sum
for a term not exceeding the life of the applicant as, having
regard to the respondent's own income and other property, if
any, the income and other property of the applicant, the
conduct of the parties and other circumstances of the case,
it may seem to the court to be just, and any such payment
may be secured, if necessary, by a charge on the immovable
property of the respondent.
(2) If the court is satisfied that there is a change in the
circumstances of either party at any time after it has made
an order under sub-section (1), it may, at the instance of
either party, vary, modify or rescind any such order in such
manner as the court may deem just.
(3) If the court is satisfied that the party in whose favour an
order has been made under this section has remarried or, if
such party is the wife, that she has not remained chaste, or,
if such party is the husband, that he has had sexual
intercourse with any woman outside wedlock, it may at the
instance of the other party vary, modify or rescind any such
order in such manner as the Court may deem just."
10) In Shri Bhagwan Dutt vs. Smt. Kamla Devi and Anr.
(1975) 2 SCC 386, though this Court has considered the
amount of maintenance payable to wife under Section 488 of
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the Code of Criminal Procedure, 1898, the principle laid down
is applicable to the case on hand. In para 19, this Court held:
"19. The object of these provisions being to prevent vagrancy
and destitution, the Magistrate has to find out as to what is
required by the wife to maintain a standard of living which is
neither luxurious nor penurious, but is modestly consistent
with the status of the family. The needs and requirements of
the wife for such moderate living can be fairly determined,
only if her separate income, also, is taken into account
together with the earnings of the husband and his
commitments."
11) In Chaturbhuj vs. Sita Bai, (2008) 2 SCC 316, which
also relates to maintenance claim by deserted wife under
Section 125 of the Code of Criminal Procedure, 1973. The
following statement in para 8 is relevant which reads as
under:
".....Where the personal income of the wife is insufficient she
can claim maintenance under Section 125 CrPC. The test is
whether the wife is in a position to maintain herself in the
way she was used to in the place of her husband. In
Bhagwan Dutt v. Kamla Devi it was observed that the wife
should be in a position to maintain a standard of living
which is neither luxurious nor penurious but what is
consistent with status of a family. The expression "unable to
maintain herself" does not mean that the wife must be
absolutely destitute before she can apply for maintenance
under Section 125 CrPC."
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12) As per Section 25, while considering the claim for
permanent alimony and maintenance of either spouse, the
respondent's own income and other property, and the income
and other property of the applicant are all relevant material in
addition to the conduct of the parties and other circumstances
of the case. It is further seen that the court considering such
claim has to consider all the above relevant materials and
determine the amount which is to be just for living standard.
No fixed formula can be laid for fixing the amount of
maintenance. It has to be in the nature of things which
depend on various facts and circumstances of each case. The
court has to consider the status of the parties, their respective
needs, the capacity of the husband to pay, having regard to
reasonable expenses for his own maintenance and others
whom he is obliged to maintain under the law and statute.
The courts also have to take note of the fact that the amount
of maintenance fixed for the wife should be such as she can
live in reasonable comfort considering her status and mode of
life she was used to live when she lived with her husband. At
the same time, the amount so fixed cannot be excessive or
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affect the living condition of the other party. These are all the
broad principles courts have to be kept in mind while
determining maintenance or permanent alimony.
13) It is not in dispute that before their marriage, the
appellant-wife was working as Air Hostess with Cathay Pacific
Airlines and getting sizeable income. It is also brought to our
notice that after marriage, at the instance of the respondent,
she resigned from her job. The particulars furnished also
show that at present she is living with her sister at Mumbai
and she does not possess any immovable property at Mumbai.
14) According to the respondent-husband, at the time of filing
of petition under Section 25, she suppressed her employment
and income thereon and on this ground her entire case has to
be rejected. The fact remains, though she was employed for a
shorter period which was not stated so subsequently, she
clarified that she had earned only an amount of Rs. 1.5 lakhs
from casual assignments from July, 2004 to September, 2009.
She also asserted that her income was not fixed or regular and
she is struggling to take up casual assignments of interior
decoration even though she was not formally trained for the
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same. She also explained that at particular time her
employment with JJ Valaya Couture was only transitory in
nature and was not permanent, it was not a source of regular
and permanent income for her and that she had not been
issued even any letter of appointment setting out the terms of
employment and she further explained that at the relevant
time she was earning an ad hoc remuneration of Rs. 20,000/-
per month. There is no reason to either reject or disbelieve her
explanation. In the same way, though she had highlighted
salary income of the respondent, admittedly, those figures
include allowances and other payments under various heads
of salary. The respondent has also placed certificates from
income tax authorities such as Form 16C etc.
15) In the light of the details furnished by both the parties,
we are of the view that the amount of Rs. 1,40,000/-
determined as net monthly income of the respondent-husband
is not acceptable. Equally, direction for payment of
maintenance at the rate of Rs. 20,000/- per month to the
appellant-wife is also inadequate. It is relevant to point out
that the status of the appellant before her marriage is also one
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of the relevant factors for determining the amount of
maintenance. It is not in dispute that before her marriage
with the respondent, she was working as an Air Hostess in
Cathay Pacific Airlines and after marriage she resigned from
the said post. Considering the conditions prescribed in
Section 25 of the Act relating to claim of permanent
alimony/maintenance and the fact that the appellant is not
permanently employed as on date and residing with her sister
at Mumbai, taking note of the respondent's income from salary
as Sr. Commander in Air India, other properties standing in
his name, age being 42 years, future employment prospects
and also considering the fact that the respondent re-married,
having a child and also to look after his parents, we feel that
the ends of justice would be met by fixing maintenance at the
rate of Rs.40,000/- per month instead of Rs.20,000/- per
month as fixed by the Family Court and affirmed by the High
Court. The same shall be payable from the date of her
application and continue to pay in terms of Section 25 of the
Act. The respondent is granted one year time from 01.08.2011
to pay all the arrears payable in six equal instalments. It is
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made clear that if there is any change in the circumstance of
either party, they are free to approach the Court concerned to
modify or rescind. As suggested and fixed by the High Court,
in the alternative, we fix the amount of permanent
alimony/maintenance at Rs. 40 lakhs in lump sum to be paid
by the respondent within a period of six months from
01.08.2011 which will forfeit all her claims. The respondent
is free to opt any one mode to comply with the same. If the
respondent opts the first method, the same is subject to the
conditions prescribed in sub-Section (3) of Section 25 of the
Act. The appeals are allowed to the extent mentioned
hereinabove. No order as to costs.
...............................J.
(P. SATHASIVAM)
...............................................J.
(DR. B.S. CHAUHAN)
NEW DELHI;
JULY 20, 2011.
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