N THE SUPREME COURT OF INDIA<\/p>\n
CIVIL APPELLATE JURISDICTION
\nCIVIL APPEAL NOs. 5831-5833 OF 2011
\n(Arising out of SLP (C) Nos. 20518-20520 of 2009
\nVinny Parmvir Parmar …. Appellant (s)
\nVersus
\nParmvir Parmar …. Respondent(s)
\nJ U D G M E N T
\nP. Sathasivam, J.
\n1) Leave granted.
\n2) These appeals are filed against the final order dated\u00a024.04.2009 passed by the High Court of Bombay in Family\u00a0Court Appeal Nos. 110 of 2004 and 127 of 2004 and the order\u00a0dated 17.07.2009 in Review Petition Stamp No. 15671 of 2009\u00a0whereby the appellant\u2019s appeal was dismissed in entirety and\u00a0the petition filed by the respondent in Family Court for divorce\u00a0on ground of cruelty was converted into divorce by mutual \u00a0consent and the marriage was dissolved by a decree under\u00a0Section 13-B of the Hindu Marriage Act, 1955 (hereinafter\u00a0referred to as \u201cthe Act\u201d).
\n3) Since the parties have dissolved their marriage by\u00a0consent and a fresh decree of divorce by consent has been\u00a0directed, the other question adjudicated before the High Court
\nwas about the amount of maintenance\/permanent alimony in\u00a0terms of Section 25 of the Act. By the impugned order, the\u00a0High Court confirmed the order passed by the Family Court
\nfixing the amount of permanent alimony at Rs. 20,000\/- per\u00a0month. While disposing of the appeals, as an alternative\u00a0measure, the High Court also fixed the amount of permanent\u00a0alimony at Rs. 20 lakhs in lump sum to be paid by the\u00a0husband to his wife within a period of 3 months from the date\u00a0of the order. Being not satisfied with the maintenance fixed at\u00a0Rs. 20,000\/- per month, the appellant-wife filed these appeals\u00a0for enhancement by pointing out her difficulties and the
\nincome of the respondent.
\n2
\n4) Heard Mr. Nidish Gupta, learned senior counsel for the\u00a0appellant-wife and Ms. Indu Malhotra, learned senior counsel\u00a0for the respondent-husband.
\n5) The only point for consideration in these appeals is what\u00a0would be the reasonable amount the appellant-wife is entitled\u00a0by way of maintenance from the husband in terms of Section\u00a025 of the Act.
\n6) Considering the fact that after the marriage the appellant\u00a0herein resigned from the post of Air Hostess in Cathay Pacific\u00a0Airlines and after dispute between them she was not employed\u00a0and getting regular income, she was staying with her sister at\u00a0Mumbai and also taking note of the financial status of the\u00a0husband, namely, his salary as a Sr. Commander in Air India\u00a0and rental income from his properties, the Family Court fixed\u00a0maintenance at Rs. 20,000\/- per month which was affirmed\u00a0by the High Court. While arriving at such amount, the Family
\nCourt has determined the income of the husband as\u00a0Rs. 1,40,000\/- per month.\u00a0Discussion:
\n7) Mr. Nidish Gupta, learned senior counsel for the\u00a0appellant, by drawing our attention to various factual details\u00a0placed before the Family Court, High Court and in this Court,\u00a0submitted that from the salary slips it is seen that even after\u00a0income tax deductions the respondent\u2019s income from salary\u00a0and allowances alone for the period 01.04.2009 to 31.03.2010\u00a0was Rs. 83,19,031\/-. In support of the above claim, the\u00a0appellant has produced TDS certificate issued by his
\nemployer\/the Income-Tax Department. According to him,
\napart from the above salary income, the respondent has rental
\nincome between Rs. 7,20,000 and Rs. 10,80,000 from his
\nproperties. He further highlighted that in addition to the
\nsalary and the rental income, the respondent has huge bank
\ndeposits, investment in shares and mutual funds. He also
\nhighlighted that the respondent being 42 years of age and a
\nSr. Commander in Air India has a promising career with bright
\nchances of further promotions. With these facts and figures,
\nMr. Nidish Gupta prayed for intervention of this Court by
\n4
\nfixing reasonable amount towards maintenance and welfare of
\nthe appellant.
\n8) In reply to the same, Ms Indu Malhotra, learned senior
\ncounsel for the respondent-husband submitted that the
\nfigures furnished by the appellant before the courts below as
\nwell as in this Court are exaggerated. In any event, according
\nto her, the income shown above includes allowance and other
\nbenefits which cannot be construed as actual salary or income
\nas claimed. She also pointed out that apart from the salary
\nfrom Air India he owns 1 acre of land in Pune and 1 Bedroom
\nflat in Mumbai. All other properties, according to the learned
\nsenior counsel, belong to his father and he is not entitled for
\nanything from it at this moment. She further highlighted that
\nat present respondent-husband has married and having a
\nchild apart from taking care of his parents. She finally
\nsubmitted that the amount determined by the Family Court as
\naffirmed by the High Court is quite reasonable and, therefore,
\nthere is no valid ground for interference by this Court
\nexercising jurisdiction under Article 136 of the Constitution of
\nIndia.
\n5
\n9) Before considering the rival claims based on facts and
\nfigures, it is useful to refer to Section 25 of the Act which
\nreads as under:-
\n\u201c 25. Permanent alimony and maintenance.- (1) Any court
\nexercising jurisdiction under this Act may, at the time of
\npassing any decree or at any time subsequent thereto, on
\napplication made to it for the purpose by either the wife or
\nthe husband, as the case may be, order that the respondent
\nshall pay to the applicant for her or his maintenance and
\nsupport such gross sum or such monthly or periodical sum
\nfor a term not exceeding the life of the applicant as, having
\nregard to the respondent’s own income and other property, if
\nany, the income and other property of the applicant, the
\nconduct of the parties and other circumstances of the case,
\nit may seem to the court to be just, and any such payment
\nmay be secured, if necessary, by a charge on the immovable
\nproperty of the respondent.
\n(2) If the court is satisfied that there is a change in the
\ncircumstances of either party at any time after it has made
\nan order under sub-section (1), it may, at the instance of
\neither party, vary, modify or rescind any such order in such
\nmanner as the court may deem just.
\n(3) If the court is satisfied that the party in whose favour an
\norder has been made under this section has remarried or, if
\nsuch party is the wife, that she has not remained chaste, or,
\nif such party is the husband, that he has had sexual
\nintercourse with any woman outside wedlock, it may at the
\ninstance of the other party vary, modify or rescind any such
\norder in such manner as the Court may deem just.\u201d
\n10) In Shri Bhagwan Dutt vs. Smt. Kamla Devi and Anr.
\n(1975) 2 SCC 386, though this Court has considered the
\namount of maintenance payable to wife under Section 488 of
\n6
\nthe Code of Criminal Procedure, 1898, the principle laid down
\nis applicable to the case on hand. In para 19, this Court held:
\n\u201c19. The object of these provisions being to prevent vagrancy
\nand destitution, the Magistrate has to find out as to what is
\nrequired by the wife to maintain a standard of living which is
\nneither luxurious nor penurious, but is modestly consistent
\nwith the status of the family. The needs and requirements of
\nthe wife for such moderate living can be fairly determined,
\nonly if her separate income, also, is taken into account
\ntogether with the earnings of the husband and his
\ncommitments.\u201d
\n11) In Chaturbhuj vs. Sita Bai, (2008) 2 SCC 316, which
\nalso relates to maintenance claim by deserted wife under
\nSection 125 of the Code of Criminal Procedure, 1973. The
\nfollowing statement in para 8 is relevant which reads as
\nunder:
\n\u201c\u2026..Where the personal income of the wife is insufficient she
\ncan claim maintenance under Section 125 CrPC. The test is
\nwhether the wife is in a position to maintain herself in the
\nway she was used to in the place of her husband. In
\nBhagwan Dutt v. Kamla Devi it was observed that the wife
\nshould be in a position to maintain a standard of living
\nwhich is neither luxurious nor penurious but what is
\nconsistent with status of a family. The expression \u201cunable to
\nmaintain herself\u201d does not mean that the wife must be
\nabsolutely destitute before she can apply for maintenance
\nunder Section 125 CrPC.\u201d
\n7
\n12) As per Section 25, while considering the claim for
\npermanent alimony and maintenance of either spouse, the
\nrespondent\u2019s own income and other property, and the income
\nand other property of the applicant are all relevant material in
\naddition to the conduct of the parties and other circumstances
\nof the case. It is further seen that the court considering such
\nclaim has to consider all the above relevant materials and
\ndetermine the amount which is to be just for living standard.
\nNo fixed formula can be laid for fixing the amount of
\nmaintenance. It has to be in the nature of things which
\ndepend on various facts and circumstances of each case. The
\ncourt has to consider the status of the parties, their respective
\nneeds, the capacity of the husband to pay, having regard to
\nreasonable expenses for his own maintenance and others
\nwhom he is obliged to maintain under the law and statute.
\nThe courts also have to take note of the fact that the amount
\nof maintenance fixed for the wife should be such as she can
\nlive in reasonable comfort considering her status and mode of
\nlife she was used to live when she lived with her husband. At
\nthe same time, the amount so fixed cannot be excessive or
\n8
\naffect the living condition of the other party. These are all the
\nbroad principles courts have to be kept in mind while
\ndetermining maintenance or permanent alimony.
\n13) It is not in dispute that before their marriage, the
\nappellant-wife was working as Air Hostess with Cathay Pacific
\nAirlines and getting sizeable income. It is also brought to our
\nnotice that after marriage, at the instance of the respondent,
\nshe resigned from her job. The particulars furnished also
\nshow that at present she is living with her sister at Mumbai
\nand she does not possess any immovable property at Mumbai.
\n14) According to the respondent-husband, at the time of filing
\nof petition under Section 25, she suppressed her employment
\nand income thereon and on this ground her entire case has to
\nbe rejected. The fact remains, though she was employed for a
\nshorter period which was not stated so subsequently, she
\nclarified that she had earned only an amount of Rs. 1.5 lakhs
\nfrom casual assignments from July, 2004 to September, 2009.
\nShe also asserted that her income was not fixed or regular and
\nshe is struggling to take up casual assignments of interior
\ndecoration even though she was not formally trained for the
\n9
\nsame. She also explained that at particular time her
\nemployment with JJ Valaya Couture was only transitory in
\nnature and was not permanent, it was not a source of regular
\nand permanent income for her and that she had not been
\nissued even any letter of appointment setting out the terms of
\nemployment and she further explained that at the relevant
\ntime she was earning an ad hoc remuneration of Rs. 20,000\/-
\nper month. There is no reason to either reject or disbelieve her
\nexplanation. In the same way, though she had highlighted
\nsalary income of the respondent, admittedly, those figures
\ninclude allowances and other payments under various heads
\nof salary. The respondent has also placed certificates from
\nincome tax authorities such as Form 16C etc.
\n15) In the light of the details furnished by both the parties,
\nwe are of the view that the amount of Rs. 1,40,000\/-
\ndetermined as net monthly income of the respondent-husband
\nis not acceptable. Equally, direction for payment of
\nmaintenance at the rate of Rs. 20,000\/- per month to the
\nappellant-wife is also inadequate. It is relevant to point out
\nthat the status of the appellant before her marriage is also one
\n1
\nof the relevant factors for determining the amount of
\nmaintenance. It is not in dispute that before her marriage
\nwith the respondent, she was working as an Air Hostess in
\nCathay Pacific Airlines and after marriage she resigned from
\nthe said post. Considering the conditions prescribed in
\nSection 25 of the Act relating to claim of permanent
\nalimony\/maintenance and the fact that the appellant is not
\npermanently employed as on date and residing with her sister
\nat Mumbai, taking note of the respondent\u2019s income from salary
\nas Sr. Commander in Air India, other properties standing in
\nhis name, age being 42 years, future employment prospects
\nand also considering the fact that the respondent re-married,
\nhaving a child and also to look after his parents, we feel that
\nthe ends of justice would be met by fixing maintenance at the
\nrate of Rs.40,000\/- per month instead of Rs.20,000\/- per
\nmonth as fixed by the Family Court and affirmed by the High
\nCourt. The same shall be payable from the date of her
\napplication and continue to pay in terms of Section 25 of the
\nAct. The respondent is granted one year time from 01.08.2011
\nto pay all the arrears payable in six equal instalments. It is<\/p>\n
made clear that if there is any change in the circumstance of
\neither party, they are free to approach the Court concerned to
\nmodify or rescind. As suggested and fixed by the High Court,
\nin the alternative, we fix the amount of permanent
\nalimony\/maintenance at Rs. 40 lakhs in lump sum to be paid
\nby the respondent within a period of six months from
\n01.08.2011 which will forfeit all her claims. The respondent
\nis free to opt any one mode to comply with the same. If the
\nrespondent opts the first method, the same is subject to the
\nconditions prescribed in sub-Section (3) of Section 25 of the
\nAct. The appeals are allowed to the extent mentioned
\nhereinabove. No order as to costs.
\n.\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026J.
\n(P. SATHASIVAM)
\n.\u2026….\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026J.
\n(DR. B.S. CHAUHAN)
\nNEW DELHI;<\/p>\n
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