BANDANA MISHRA Vs. JYOTIRANJAN MISHRA

JUDGEMENT

(1.) Appellant was wife in the marriage dissolved by impugned judgment dtd. 29/11/2021 made by the Family Court. The dissolution was on ground of cruelty and desertion. Controversy between the parties before us is quantum of permanent alimony. Mr. Rath, learned senior advocate appears on behalf of appellant and Mr. Das, learned advocate, for respondent.

(2.) On 30/4/2024 Mr. Rath had drawn our attention to impugned judgment to submit, ruling on issue no.5 is to be adjudicated in the appeal as erroneous. Though the Family Court correctly appreciated that even where the husband had made out a case for divorce the wife is entitled to permanent alimony for her sustenance, as declared by the Supreme Court in K. Srinivas Rao v. D.A. Deepa, reported in AIR 2013 SC 2176 and U. Shree v. U. Srinivas, reported in AIR 2013 SC 41, it is thereafter that said Court erred in saying there is no admitted evidence on record as to respondent- husband's assets, besides his salary. Without prejudice he submits, the Supreme Court in Kalyan Dey Chowdhury v. Rita Dey Chowdhury, reported in (2017) 14 SCC 200 had approved permanent alimony calculated factoring in 25% of the salary. His client filed affidavit of assets in the interim maintenance proceeding, following direction of the Supreme Court in Rajnesh v. Neha, reported in AIR 2021 SC 569. She disclosed to the Court, respondent's income is Rs.1.5 lakh per month. He drew attention to order dtd. 26/10/2021 made in the interim maintenance proceeding to demonstrate so. Respondent-husband did not and has not filed his affidavit.

(3.) Mr. Rath commented on aforesaid authorities beginning with Rajnesh v. Neha (supra). He drew attention to paragraph-72 and several supplementary paragraphs thereunder to submit, there were directions given, to be mandatorily followed, not complied with by respondent- husband at trial, resulting in impugned judgment. He also relied on Aditi Alias Mithi v. Jitesh Sharma, available at 2023 SCC Online SC 1451 paragraphs-9 and 15. He then relied upon view taken by a learned single Judge in the Calcutta High Court on order dtd. 8/2/2023 in CO 138 of 2022 (Nripendra Chandra Mahanta v. Smt. Pramila Mahanta). He submitted, evidence laid before the Family Court was not considered. It is a fit case for remand. Impugned judgment be set aside in appeal with the direction.