The Allahabad High Court while dismissing an appeal observed that the refusal/ failure on part of the husband to lead any evidence would not be sufficient to extend a further opportunity to the husband to adduce evidence when no procedural infirmity is shown in the proceedings of the trial court.
The Division Bench of Justice Ashwani Kumar Mishra and Justice Donadi Ramesh passed this order while hearing an appeal filed by Neeraj Kumar.
Appeals have been preferred both by the husband and the wife challenging the decree passed by the family court, Mathura on 26.10.2017 in proceedings under Section 25 of the Hindu Marriage Act for grant of permanent alimony. The court below has allowed permanent alimony of Rs 10 lakh to the wife and Rs 5 lakh to the minor daughter.
Appellant-husband states that the amount determined to be paid to wife is not due and payable while the wife alleges that she is entitled to a higher sum as a permanent alimony.
The Court noted that marriage between the parties was solemnized on 29.01.2001. Appeal under Section 13 CrPC was filed by the wife seeking divorce which was decreed on 02.12.2014. Marriage between the parties was consequently dissolved in those proceedings. However, no orders were passed for payment of permanent alimony.
The wife alleges that in proceedings under Sections 125 and 127 CrPC the husband agreed to pay Rs 10 lakh to the daughter and Rs 20 lakh to her on 03.04.2013, but later he refused to pay such amount.
It is thereafter that proceedings were initiated by the wife for payment of permanent alimony. The trial court, on the basis of evidence led in the matter, has decreed the suit of the wife for payment of permanent alimony by order dated 26.10.2017. Thus, aggrieved the husband is before the Court. The wife has also filed an appeal seeking further enhancement in the permanent alimony to be paid to her and the daughter.
The Court further that,
Perusal of the materials placed on record of this appeal would clearly indicate that the factum of initial marriage between the parties on 29.01.2001 as well as dissolution of marriage pursuant to a decree obtained by the wife under Section 13 of the Hindu Marriage Act dated 02.12.2014 are admitted.
It is also admitted that a female child was born out of wedlock. The materials on record indicate that the wife is not employed and is living with her mother. As far as the husband is concerned, it is asserted that he owns an agency for distribution of kerosene apart from agricultural land and has other income. The husband is the only son of his parents. His two sisters have already got married. There is also a petrol pump owned by the father of the husband. It is also asserted that the father of the husband owns various houses, agricultural land apart from several commercial ventures undertaken by him. Huge amounts were also lying in the FDR and there were several policies obtained by the husband from LIC of which premium was being paid by the husband.
In proceedings under Section 125 CrPC, the wife has been receiving Rs 7,000 as monthly maintenance amount.
The trial court has observed on the basis of evidence placed on record that the husband has sufficient income to meet the liability of maintaining his wife and the unmarried daughter. It is thereafter, that the trial court has allowed permanent alimony of Rs 10 lakh to the wife and Rs 5 lakh to the daughter.
The Court said that,
Although, Counsel for the appellant contends that the findings of the trial court are perverse but it remains undisputed that the factual assertions made by the trial court with regard to source of earning available to the husband by virtue of various documents placed on record by the wife, are not disputed. The husband admittedly has not led any documentary evidence to contest the claim of the amount.
Apart from bare denial, there is no evidence led by the husband to contradict the assertions made by the wife. The fact that a settlement was earlier proposed and a bank draft of Rs10 lakhs was prepared by the husband to be paid to the wife is also undisputed. It remains equally undisputed that Rs10 lakhs was not paid to the wife. We, therefore, find substance in the plea of the wife that the husband had agreed to resolve the issues earlier, amicably, but he backtraced later on.
“Upon elaborate consideration of the material on record, we find that the husband has sufficient means available with him to pay the amount of permanent alimony to the wife. The fact that there existed a retail outlet in the name of his father which is inherited by the appellant is also not disputed. No evidence has been led to show that the petrol pump no longer exists in the name of the husband. Various other immovable property, referred to by the trial judge, clearly indicates that the husband is a man of adequate financial means and it is, otherwise, his responsibility to maintain his wife and daughter even after the marriage has been dissolved.
The fact that the minor daughter was dependent upon the wife and was living with her mother is equally undisputed. Although, the husband has stated that the wife is running a coaching institute and is moving in a four wheeler but such assertions are not backed by any cogent evidence led by the husband during the course of trial.
The trial itself was held by the family court after an elaborate opportunity given to the husband. In such circumstances, we find no occasion for the Court to interfere with the judgment of the trial court in awarding permanent alimony to the wife of the daughter,” the Court observed while dismissing the appeal.
“So far as appeal filed by the wife is concerned, we find that neither anyone has pressed the application during the course of hearing of the present appeal nor otherwise, we find any infirmity in the judgment of the trial court, which may persuade us to enhance the permanent alimony. The claim of the wife, in that regard, is also rejected,” the order reads.