At the outset, learned counsel for the non-applicant/ respondent questioned the very maintainability of this application on the ground that since the judgment dated 19.11.2001, passed in FAO (HMA) No. 50 of 2001, was on the basis of the compromise, therefore, the instant application for enhancement was not maintainable. Learned counsel for the non-applicant/respondent further argues that the applicant by her own act and conduct is estopped from filing the present application and the previous decision rendered by this Court operates as res judicata. {Para 11}
12. Both these submissions of the learned counsel for the
non-applicant/respondent are not at all tenable in view of the
judgment rendered by a Coordinate Bench of this Court in Kubja
Devi vs. Ishwar Dass AIR 2017 HP 21, wherein it was held that
where the maintenance is fixed by a Court though the basis of it was an agreement, it would come directly under Section 25 of the Act. Thus, a party will be entitled to have an enhancement of
maintenance once such party proves that there has been a material change in the circumstances justifying the enhancement. Therefore, even if agreement relating to the quantum may be a part of the settlement but when the decree passed on adopting the said settlement it becomes the order under Section 25(1) of the Act, as such the Court has statutory jurisdiction under Section 25(2) to direct enhancement of the maintenance with changed circumstances. It was further held that neither the provisions of Section 11 of the CPC nor the principles of res judicata will bar a suit of maintenance on an enhanced rate for a different period under altered circumstances even though on an earlier occasion a maintenance decree has been passed and a certain rate of maintenance had been fixed thereunder. The reason being that such a decree as to the rate of maintenance is not final.
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
CMP No. 8958 of 2019 in FAO (HMA) No. 50 of 2001
Smt. Beasa Devi Vs Sh. Shiv Dayal
Coram:
The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.
Decided on 28.04.2021
The applicant has filed this application under Section 25
(2) of the Hindu Marriage Act, 1955 (for short the ‘Act’) for the
enhancement of the permanent alimony and seeking further
directions/clarifications in terms of the liberty reserved vide
judgment dated 19.11.2001.
2. The brief facts leading to the filing of the present
application are that the parties to this application got separated from
each other and their marriage was dissolved by a decree of divorce
granted by this Court vide judgment dated 08.08.1980 passed in FAO
No. 4 of 1977 which was upheld in LPA No. 5 of 1980. However, the
application under Section 25 of the Act instituted by the
applicant/appellant for permanent alimony in LPA No. 5 of 1980 was
allowed by this Court vide judgment dated 29.08.1980 on the
following terms:-
“(i). The respondent shall pay maintenance of Rs.300/- per
mensem to the appellant for the period 01.07.1980 to
28.02.1982. the maintenance pertaining to a particular month
shall be payable by the 10th of the succeeding month.
(ii) The respondent shall deposit Rs.36,000/- in the Court of
the District Judge, Mandi on or before 22.08.1982 and on such
deposit being made the liability of the respondent to pay any
maintenance for the further period shall come to an end.
(iii) The amount of Rs.36,000/- if deposited by the respondent
within the period aforesaid in the Court of the District Judge,
shall be invested by that Court in a fixed deposit earning
monthly interest with some scheduled bank. The deposit shall
be made by the Court in its own name. The Court shall draw
monthly interest and pay the same to the appellant till her
remariage or till her death whichever contingency occurs
earlier. On the death or remarriage of the appellant, the
principal, alongwith interest, if any, accrued for the period
subsequent to the remarriage or death of the appellant shall
be paid back to the respondent. The District Judge shall in the
first instance invest this amount for a period of 7 years and
may renew it from time to time as the contingency may
require.
(iv) In case the respondent fails to deposit the aforesaid
amount of Rs.36,000/- on or before 22.08.1982, the appellant
shall be entitled to recover in lump sum Rs.30,000/- towards
her permanent alimony.
3. After some time, the applicant/appellant had filed an
application which was registered as CMP No. 83 of 1998 for
rescinding the decision dated 29.08.1980, however, the same was
dismissed vide order dated 13.10.1998 and the applicant was
directed to approach the appropriate Court/forum as permissible
under law.
4. Accordingly, the applicant approached the learned
District Judge, Mandi and filed an application under Section 25(2) of
the Act but the same was dismissed and aggrieved by this dismissal,
the applicant filed the appeal i.e. FAO (HMA) No. 50 of 2001 before
this Court.
5. This appeal was disposed of as having been
compromised between the parties outside the Court. As per the
compromise/agreement so arrived at between the parties, the nonapplicant/
respondent agreed and undertook to deposit a further sum
of Rs.1,50,000/- on or before 31.03.2002 in addition to Rs.36,000/-
already deposited by him as per the decision dated 29.08.1980
passed in LPA No. 5 of 1980.
6. This Court vide judgment dated 19.11.2001 has held that
the applicant is entitled to interest on this total sum of Rs.1,86,000/-
w.e.f. 01.04.2001 till her life time or till her remarriage and Clause
(iii) of the decision dated 29.08.1980 was modified. In addition
thereto, non-applicant/respondent also agreed to pay a sum of
Rs.10,000/- towards the total claim of enhanced maintenance to the
applicant upto 31.03.2002 on or before 31.12.2001.
7. This Court while disposing of the appeal vide judgment
dated 19.11.2001 observed that in case of any difficulty liberty was
reserved to the parties to approach the Court for seeking further
directions/clarifications.
8. In this background the instant application has been filed
by the petitioner for enhancement of the permanent alimony.
9. Even though the non-applicant/respondent was granted
opportunity to file reply, however, he did not choose to do so, as is
evident from the statement given by his learned counsel today.
I have heard learned counsel for the parties and have
gone through the records of the case.
10. Section 25 of the Hindu Marriage Act 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 th 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 re-married 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.”
11. At the outset, learned counsel for the non-applicant/
respondent questioned the very maintainability of this application on
the ground that since the judgment dated 19.11.2001, passed in FAO
(HMA) No. 50 of 2001, was on the basis of the compromise,
therefore, the instant application for enhancement was not
maintainable. Learned counsel for the non-applicant/respondent
further argues that the applicant by her own act and conduct is
estopped from filing the present application and the previous
decision rendered by this Court operates as res judicata.
12. Both these submissions of the learned counsel for the
non-applicant/respondent are not at all tenable in view of the
judgment rendered by a Coordinate Bench of this Court in Kubja
Devi vs. Ishwar Dass AIR 2017 HP 21, wherein it was held that
where the maintenance is fixed by a Court though the basis of it was
an agreement, it would come directly under Section 25 of the Act.
Thus, a party will be entitled to have an enhancement of
maintenance once such party proves that there has been a material
change in the circumstances justifying the enhancement. Therefore,
even if agreement relating to the quantum may be a part of the
settlement but when the decree passed on adopting the said
settlement it becomes the order under Section 25(1) of the Act, as
such the Court has statutory jurisdiction under Section 25(2) to
direct enhancement of the maintenance with changed
circumstances. It was further held that neither the provisions of
Section 11 of the CPC nor the principles of res judicata will bar a suit
of maintenance on an enhanced rate for a different period under
altered circumstances even though on an earlier occasion a
maintenance decree has been passed and a certain rate of
maintenance had been fixed thereunder. The reason being that such
a decree as to the rate of maintenance is not final.
13. It is apt to reproduce relevant observations as contained
in paras 5 and 6 of the judgment, which read as under:-
5. After hearing the matter at length, in the light of the given
facts and circumstances and also the evidence available on
record as well as the law cited at the Bar, it would not be
improper to conclude that the agreement qua the payment of
a sum of Rs. 450/- per month to the petitioner as maintenance
allowance in terms of the divorce deed Ext.DA cannot be
treated as an estoppal to debar the petitioner for seeking
enhancement of the amount of alimony in the changed
circumstances. The law on the issue is no more res integra.
The High Court of Tripura at Agartala in Harilal Sarkar vs.
Subhra Sarkar, (2016) 165 AIC 784 :2016 SCC OnLine Tri 356 a
case having similar facts has held that an order qua
maintenance allowance based on the settlement/compromise
during the course of proceedings in a divorce petition has to
be treated an order of maintenance passed under Section
25(1) of the Hindu Marriage Act and as such a petition for
enhancement of the amount filed under Section 25(2) of the
Act is maintainable and not barred by the principle of
estoppal. It is seen that three points were formulated by
learned Judge after taking into consideration the provisions of
law and also the law laid down by various high Courts by way
of judicial pronouncements and has held as under:
“10.On the face of the submission made by the learned
counsel for the parties, 3(three) pertinent questions have
emerged for consideration, which are as under :
(i) Whether by agreement the jurisdiction of the
competent court under Section 25(2) of the Hindu
Marriage Act, 1955 can be ousted?
(ii) Whether the judgment and order dated 14.09.2010 is
the order of maintenance will not come within the
province of Section 25(2).
(iii) Whether the right to future maintenance is
transferrable and if not whether the settlement is void,
so far the terms of maintenance is concerned ?
WHETHER BY AGREEMENT THE JURISDICTION OF THE
COMPETENT COURT UNDER SECTION 25(2) OF THE
HINDU MARRIAGE ACT, 1955 CAN BE OUSTED?
11. By agreement, jurisdiction of the court which has been
created by a statute cannot be taken away. Section 25 as a
whole confers the jurisdiction on the competent court to
provide permanent alimony and maintenance "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 maintenance and support such gross
sum (alimony) which is factored by various element as
statutorily provided or by the law as developed in the
course of time. It is no more res integra that if any
agreement comes in conflict with any valid statute or its
provision that becomes unlawful agreement and void in
terms of Section 23 of the Indian Contract Act. Hence the
jurisdiction of the court for granting maintenance at the
time of passing any decree or subsequent thereto cannot
be taken away by the settlement/agreement. It is true that
if the order is passed under Section 25(1) of the Hindu
Marriage Act, 1955 in that case the competent court may
vary, modify or rescind any order of maintenance or gross
maintenance in a change in the circumstance under Section
25(2) of the Hindu Marriage Act, 1955. But at the same
time, if any settlement which has been acted on by the
court or recorded, the parties thereto cannot in the ordinary
course take the stand contrary thereto and in that case,
their action might be hit by the principle of estoppel, if not,
such stand emanates from the statute.
WHETHER THE JUDGMENT AND ORDER DATED 14.09.2010
IS THE ORDER OF MAINTENANCE UNDER SECTION 25(1) OF
THE HINDU MARRIAGE ACT OR NOT?
12. There was a compromise petition before the court on
settlement of the quantum of the maintenance which was
termed as the fixed maintenance and the court had given
its approval by passing the compromise decree on granting
divorce and maintenance. It is a well accepted proposition
that compromise decree pertains the charter of agreement
and the decree is drawn accordingly. It can perhaps be said
that the quantum of maintenance under the decree was not
the result of any decision by the court, it was the result of
an agreement between the parties, which was
acknowledged by the court, for purpose of making it
executable at the instance of maintenance-holder.
13. In Seshi Ammal and another Vs. Thaiyu Ammal,
reported in AIR 1964 Madras 217(V 51 C 61), the Madras
High Court has enunciated the law holding that such a case
will be one where the maintenance is fixed by a decree of
court though the basis of it was an agreement it will come
directly under Section 25. Thus, the respondent will be
entitled to have an enhancement of maintenance once she
proves that there has been a material change in the
circumstances justifying the enhancement. Therefore, even
if agreement relating to the quantum may be the part of
the settlement but when the decree passed on adopting the
said settlement it becomes the order under Section 25(1) of
the Hindu Marriage Act. And as such the court has the
statutory jurisdiction under Section 25(2) to direct
enhancement of the maintenance with a change in the
circumstances. The said manner may not be applicable in
the case where the permanent alimony has been settled
and paid by means of one-time payment. That payment has
to be treated as the property transferred for purpose of
maintenance.
WHETHER THE RIGHT TO FUTURE MAINTENANCE IS
TRANSFERRABLE AND IF NOT WHETHER THE SETTLEMENT
IS VOID SO FAR THE TERMS OF MAINTENANCE IS
CONCERNED ?
14. Section 6(dd) of the Transfer of Property Act has been
incorporated by the Amending Act, 1929. Prior to the
amendment there was a conflict of opinion on whether a
right of future maintenance when it was fixed by a decree,
was transferable. The Madras High Court held that it was, in
(Rajah D.K. Thimmanayanim Bahadur Varu, Rajah of
Kalahasti and others Vs. Rajah Damara Kumara Venkatappa
Nayanim Bahadur Varu and others reported in AIR 1928
Madras 713), but the Calcutta High Court ruled that it was
not. Asad Ali Mokat Vs. Haidar Ali reported in 1910 (ILR) 38
Cal 13 did not agree with the decision of Madras High
Court. The words ‘in whatsoever manner arising, secured or
determined’ as appearing are very comprehensive and it is
submitted that they overrule cases in which when the right
has been created by a deed of transfer, it was held that the
question whether the right was alienable depends upon the
intention of the parties as expressed in the deed.
15. The Privy Council in Lal Rajindra Narain Singh alias Lallu
Sahib Vs. Mt. Sundar Bibi reported in AIR 1925 PC 176 held
that a right of future maintenance cannot be attached as
the right to future maintenance is not capable of transfer. In
this regard provisions of Section 60 of the Code of Civil
Procedure, 1908 can be referred as co-terminous provision
of Section 6(dd) of the Transfer of Property Act as the said
provision operates in the similar field, for protection of right
of future maintenance from attachment. Therefore, so far
the settlement is concerned the parties can determine in
whatsoever manner the maintenance in the circumstances
when the settlement or the compromise was struck. In this
case, the decree dated 14.09.2010 as passed by the Judge,
Family Court, West Tripura in T.S.(Divorce) No. 183 of 2010
is couched with the order of maintenance though the
quantum, has emerged from an agreement as stated, and
such order has been passed under Section 25(1) of the
Hindu Marriage Act, 1956. There can be no other
interpretation, harmonious to the object of Section 25 of the
Hindu Marriage Act, 1955. The determination of the
maintenance was in the circumstances which existed at the
time of execution of the settlement/ compromise cannot
extinguish the authority of the court as provided under
Section 25(2) of the said Act. If the word 'fixed' quantifying
the maintenance is attributed and read in its literal
meaning, such agreement shall come in conflict with the
statutory provision and the public policy, hence, that part of
the agreement shall be void in terms of Section 23 of the
Indian Contract Act. In the event of permanent alimony, as
settled and as termed as the property for maintenance will
not come within the province of Section 25(2).
16. Hence, there is not illegality when the Judge, Family
Court, Agartala exercised the jurisdiction under Section
25(2) of the Hindu Marriage Act by enhancing the
maintenance from Rs.4000/- to Rs.6000/- . Even if, a fixed
maintenance allowance is agreed upon towards a decree of
divorce, the quantum if accorded and recorded by the court,
has to be understood for purpose of maintenance within the
ambit of Section 25(1) of the Hindu Marriage Act and with the
change in the circumstances the same shall be liable to be
re-assessed under Section 25(2) of the Hindu Marriage Act.
The statutory purpose is very simple is to preserve the value
of the maintenance allowance. This statutory principle shall
equally apply when the maintenance to be paid periodically in
terms of any settlement.
17. Having held so, we do not find any merit in this appeal
from the order and accordingly the same is dismissed”.
6. Similar is the ratio of High Court of Allahabad in Ram Shanker
Rastogi vs. Smt. Vinay Rastogi, AIR 1991 Allahabad 255. The
facts of this case were also identical to the present one before
this Court. It has been held in this judgment that the plea of
estoppel or res judicata can not be invoked in a case of this
nature nor the question of maintainability of petition under
Section 25(2) for enhancement of maintenance allowance
previously awarded by a consent order cannot be raised. This
judgment reads as follows:
“10. Neither the provisions of S. 11 of the Code of Civil
Procedure nor the principles of res judicata will bar a suit for
maintenance on an enhanced rate for a different period under
altered circumstances even though on an earlier occasion a
maintenance decree had been passed and a certain rate of
maintenance had been fixed thereunder. The reason being
that such a decree as to the rate of maintenance is not final.
11. The case of Hirabai Bharucha v. Pirojshah Bharucha, AIR
1945 Bombay 537, stems from proceedings under S. 40 of
the Parsi Marriage and Divorce Act, 1936. Under this
provision, a Court is authorised to award permanent alimony
to a wife either at the time of the passing of any decree under
that Act or subsequently thereto. The wife is granted a decree
of divorce. After the decree is passed, the husband and wife
arrive at certain consent terms. One of the terms of the
consent order is :
"This Court doth declare that the defendant hereby agrees
not to claim any alimony now or at any time in future.".
The wife applies under S. 40 for alimony. It is held that on
grounds of public policy the wife cannot enter into a contract
that she will not claim any alimony in future. The contract is
void and the Court will take notice of that and ignore that
part of the order although it was made by consent. Reliance
is placed upon a remark by Lord Atkin:
"The wife's right to future maintenance is a matter of public
concern which she cannot barter away."
Accepting this proposition, the learned Judge takes the view
that the wife cannot barter away her right to future
maintenance and enter into a contract to that effect and
such a contract will be a void contract in the eye of law.
12. Let us now read Section 25. Subsection (1), inter alia,
provides that any Court exercising jurisdiction under the Act
may, at the time of passing any decree or at any time
subsequent thereto, 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 the other property of the applicant, the conduct
of the parties and other circumstances of the case, which
may seem to the Court to just. Sub-section (2) may be
extracted :--
(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."
Admittedly, the Second Civil Judge exercised powers under
the Act while passing a decree of divorce under S. 13 and, as
already indicated, he passed an order fixing a certain sum as
the monthly maintenance allowance for the wife. The Court
did not pass any order that the wife will not claim an
enhancement of the maintenance allowance in future
Assuming a wife gives up her right to claim a higher rate of
maintenance allowance in future her consent, in our opinion,
will not bring into existence a valid contract. Such an
agreement will not only defeat the provisions of subsection
(2) of S. 25 but will also frustrate the purpose of giving
maintenance allowance. Judicial notice can be taken of rising
prices with the result that the cost of bare existence is
regularly rising, rather mercurially. In principle, it makes no
difference between an agreement by a wife not to claim any
alimony at all and an agreement not to claim any
enhancement of the rate of maintenance allowance,
whatever be the change in the circumstances”.
14. Now, adverting to the facts of the case, it would be
noticed that initial order of maintenance was passed four decades
back on 29.08.1980 and thereafter the same was enhanced by an
order which was passed nearly two decades back on 19.11.2001.
15. The inherent and fundamental principles of granting
maintenance is for the amelioration of the financial state of affairs as
well as mental agony and anguish that a woman suffers when she is
compelled to leave her matrimonial home. The matrimonial statutes
dealing with the subject command that there have to be some
acceptable arrangements, so that she can sustain herself. A woman
who is constrained to leave matrimonial home, should not be allowed
to feel that she has fallen from grace and compelled to move hither
and thither for arranging sustenance. As per law, she is entitled to
lead a life in similar manner as she would have lived in the house of
her husband. She cannot be compelled to become a destitute or
beggar.
16. The purpose is to achieve ‘social justice’. In interpreting
provisions relating to maintenance, the Court is expected to bridge
the gap between law and the society. Provisions relating to
maintenance fall in category of legislation which is aimed at
empowering the destitute and achieving the social justice, equity
and dignity of the individual. In dealing with such cases there is
necessity for drift from the ‘adversarial litigation’ to social context
adjudication”, which is the need of the hour.
17. In granting permanent alimony no arithmetic formula can
be adopted as there cannot be mathematical exactitude. It shall
depend upon the status of the parties, their respective social needs
and financial capacity of the husband and other obligations. The
Court is required to take note of the fact that amount of maintenance
fixed for the wife should be such as she can live in reasonable
comfort considering her status and the mode of life she was used to
when she lived with her husband. At the same time, the amount so
fixed cannot be excessive or affect the living condition of the other
party.
18. The Hon’ble Supreme Court in Vinny Parmvir Parmar
vs. parmvir Parmar, AIR 2011 SC 2748 held as follows:-
“…. It is further seen that the court considering such
claim has to consider all the above relevant material 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 was used to live when she
lived with her husband. At the same time, the amount so
fixed cannot be excessive or 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.”
19. In Vishwanath Sitaram Agrawal vs. Sau. Sarla
Vishwanath Agrawal, AIR 2012 SC 2586, the Hon’ble Supreme
Court while granting permanent alimony has observed that the
amount that has already been paid to the respondent-wife towards
alimony is to be ignored as the same had been paid by virtue of the
interim orders passed by the courts. It is not expected that the
respondent-wife has sustained without spending the said money.
20. The Division Bench of the Orissa High Court in Ruby @
Pritipadma Pradhan vs. Debasish Pradhan 2014 (2) Orissa LR
691, after taking note of the various decisions on the subject has
summed up the principles as follows:-
(a) Maintenance depends upon the summation of all the facts
of the situation involved in the particular case.
(b) For granting maintenance, the scale and mode of living,
the age, habits, wants and class of the life of the parties has
to be regarded.
(c) Maintenance being such that the wife could live in a
reasonable comfort; considering her status and mode of life
which she was used to while living with her husband.
(d) During the pendency of the suit for maintenance, which
may take a considerable time to attain finality, the wife
cannot be forced to face starvation till she is subsequently
granted maintenance from the date of the filing of the suit.
(e) Maintenance must necessarily encompass a provision for
residence. Maintenance is given so that the lady can live in
the manner, more or less, to which she was accustomed.
(f) Maintenance, necessarily must encompass a provision for
residence. Maintenance is given so that the lady can live in
the manner, more or less, to which she was accustomed. The
concept of maintenance must, therefore, include provision for
food and clothing and the like and take into account the basic
need of a roof over the head.
(g) Maintenance must vary according to the position and
status of a person. It does not only mean food and raiment.
(h) It is to be seen that the amount fixed cannot be excessive
affecting the living condition of the other party.
21. The Hon’ble Supreme Court in Kalyan Dey Chowdhury
vs. Rita Dey Chowdhury Nee Nandy (2017) 14 SCC 200, while
dealing with the case of maintenance has calculated the permanent
alimony on the basis of 25% of the salary of the husband in the
following words:-
“15…...Following Dr. Kulbhushan Kumar vs. Raj Kumari and
Anr. 1970 (3) SCC 129, in this case, it was held that 25% of
the husband’s net salary would be just and proper to be
awarded as maintenance to the respondent – wife. The
amount of permanent alimony awarded to the wife must be
befitting the status of the parties and the capacity of the
spouse to pay maintenance. Maintenance is always
dependent on the factual situation of the case and the court
would be justified in moulding the claim for maintenance
passed on various factors.”
22. The respondent in the instant case is a retired Shashtri
teacher and is currently drawing a pension of about Rs.32,000/-.
Whereas the applicant has admittedly no independent source of
income and is receiving interest of Rs.1240/- per month which is
accruing on the amount invested in the bank pursuant to the
directions passed by this Court in FAO(HMA) No. 50 of 2001 (supra).
23. Learned counsel for the respondent argues that in
addition to the aforesaid amount, the applicant is also getting a sum
of Rs.3000/- per month under the Ekal Nari Pension Scheme and,
therefore, is not a destitute.
24. I find no merit in this contention as the applicant is
getting a monthly pension of only Rs.1000/- per month from the
Government of Himachal Pradesh under the Social Security Pension
Scheme known as ‘Ekal Nari Pension” and not Rs. 3000/- as alleged
by the respondent. That apart, this Scheme is Social Security
Scheme at the instance of the Government, therefore, nonapplicant/
respondent cannot take any credit or advantage of such
scheme.
25. As observed above, the respondent is drawing a pension
of Rs.32,000/- per month and now that both the parties are more
than 75 years of age, obviously, they would be suffering from various
old age ailments for which adequate provisions have to be made in
monetary terms. The judgment of the Hon’ble Supreme Court in
Kalyan Dey Chowdhury’s case supra can work as a guide for
fixing the future maintenance and accordingly respondent can be
directed to pay 1/4th of the pension amount i.e. Rs.8,000/- per
month to the applicant.
26. Learned counsel for the respondent would argue that the
amount is exorbitant. However, I find no merit in the same as this
Court, for the time being, has not ordered to deduct payment of
maintenance from the retiral benefits including gratuity, leave
encashment and other benefits that have been received by the
respondent.
27. Taking into consideration the peculiar facts and
circumstances of the case, the present application is allowed and the
respondent is directed to pay a further sum of Rs. 8000/- per month
to the applicant. The concerned Treasury Officer is directed to
henceforth deduct a sum of Rs.8000/- per month from the pension of
the respondent and remit the same directly to the bank account of
the applicant, details whereof shall be supplied by her to the
concerned Treasury Officer within a period of four weeks from today
and thereafter remaining amount of the pension be remitted to the
respondent.
(Tarlok Singh Chauhan)
Judge
28.04.2021
No comments:
Post a Comment