Andhra High Court
Dr. Lokeshwari vs Dr. Srinivasa Rao on 11 February, 2000
Equivalent citations: 2000 (3) ALD 350, 2000 (3) ALT 130, II (2000) DMC 351,AIR2000AP451.
Bench: M B Naik, A G Reddy
1. CMA No. 1082 of 1996 arises out of an order passed by the Court of Subordinate Judge, Kavali in OP No.2 of 1988 filed by the husband under Section 13(1)(ia) of the Hindu Marriage Act, 1955 and CMA No.1257 of 1996 arises out of an order passed by the same Court in OP No.85 of 1988 filed by the wife under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights. The learned Subordinate Judge, Kavali allowed OP No.2 of 1988 filed by the husband and granted a decree of divorce between the parties and dismissed OP No.85 of 1988 filed by the wife for restitution of conjugal rights, by a common order dated 28-9-1995. The wife has filed these two appeals aggrieved by the common order passed by the Court below in the two respective OPs.
2. For the sake of convenience, the parties are addressed to as the wife and husband.
3. The appellant-wife and respondent-husband are doctors by profession. Their marriage took place on 19-3-1981 at Secunderabad as per custom and usage. The wife joined the society of the husband eight months after the marriage. Initially, both of them lived together at Kavali for about four months. Thereafter, the husband secured a job at Vijayawada and he worked there for a period of one year.
4. Before the Court below, the case of the husband in OP No.2 of 1988 is that during his stay at Vijayawada, the wife hardly stayed with him for a month and she stayed more in Kavali and was visiting Viajaywada now and then. During her brief visits to Viajaywada, she used to pick up quarrels with the husband without any cause and used to expose the family affairs to public. According to the husband, the wife never intended to keep up the prestige of the family. She often used to scold the petitioner and his family members without any justification. She used to create scenes by removing the mangalasutra and cause lot of mental agony and suffering to the husband.
5. After his serving period of one year at Vijayawada, the husband was appointed as Government Doctor and posted to Pedapariya of Gudur Taluk of Nellore District and he worked there for about a year and half. It is alleged by the husband, the wife used to visit his place occasionally but failed to give him the conjugal happiness. She was bent upon creating nuisance during her visit. According to the husband, he was transferred to Hyderabad after serving about a year and half at Pedapariya. By that time, the wife completed her DGO which she discontinued by the date of her marriage.
6. According to the husband, he put up his family at Hyderabad with his wife. A daughter is also born to them at Hyderabad. Even at Hyderabad, the wife was behaving indecently by scolding the husband. Due to the cruel conduct of the wife, since he has no option, the husband cultivated the habit of adjusting with the wife. Despite his tolerance, the attitude of the wife was such that it became impossible for the husband to adjust with her.
7. After working about one year and eight months at Hyderabad, the husband seems to have secured a job in Iran. He came to his native place Kavali along with the wife and daughter and lived there for one month. During that period, the wife never treated him as her husband and did not behave with him properly. The husband requested the wife to treat him as her husband and behave properly. However, she did not care for his advice. The husband before leaving for Iran, requested the wife to stay at Kavali till he sends communication to her to go over to Iran after getting visa and other transport facilities ready.
8. According to the husband, after one and half years he returned from Iran to Kavali and requested the wife to come along with the child to Iran. However, the wife in her usual arrogant way refused to follow his words. The husband alleges that the wife has been habitually guilty of causing mental agony and treated him with cruelty. The attitude of the wife was also harsh towards the child and she used to beat and ill-treat the child for no reasons. The husband made efforts to see that the wife joins his society and advised her to mend her ways. But all his efforts proved futile. According to the husband, the wife left his society in the month of October, 1987 and went to Hyderabad along with the daughter without any reason and did not return to his fold. The husband, as a last resort and with a view to give the wife an opportunity to come and live with him, issued a notice calling upon the wife to come and live with him. But the notice was returned by her with false endorsements.
9. The husband on one occasion with a view to bring about a change in the attitude of the wife, took her and the child to the house of his friend Dr. Venkateswara Rao at Siddipet. But the wife did not change her attitude and there also as usual she wept and created scenes and tortured the husband. She also made attempts to interfere with the professional functions of Dr. Venkateswara Rao who advised the husband to take back the wife to her parents house. While coming to Hyderabad from Siddipet, the wife stopped the car and got down with the child near Sanjai theatre and threw the child on the traffic road and behaved in such a manner that huge mob gathered there. The husband somehow maintained his cool, persuaded the wife and brought her to Hyderabad. According to the husband, the wife instead of going to their house, went to her aunt's house and there also she abused the husband in filthy language. The husband suffered mental agony due to the attitude of the wife. According to the husband, the series of incidents right from the year 1982 onwards showed that the wife is bent upon creating problems and insulting him and her attitude was always to pick up quarrels with him. The husband also averred that one day he took his wife to Hotel Siddartha at Hyderabad to bring about a change in her attitude. According to him, she picked up quarrel with him even at the Hotel and threw chappals on him. The husband stated that all these acts of omissions and commissions by the wife are such that he is unable to bear them as they are tortuous and created mental agony to him.
10. The husband also complained that the wife gave a false complaint to the police as if he is harassing her. After preliminary enquiry, the police found the allegations made against him to be false. According to the husband, the father of the wife was encouraging her and was behind her but did not prevent and advise her to change her attitude. Under these circumstances, the husband pleaded that it is impossible for him to continue to lead the marital life with the wife and under such circumstances he presented OP No.2 of 1988 seeking dissolution of his marriage with the wife under Section 13(1)(ia) of the Hindu Marriage Act, 1955.
11. The wife filed a detailed counter to the OP No.2 of 1988 denying the allegations levelled against her by the husband. The wife denied that the husband has taken her along with the child to his friend Dr. Venkateswara Rao's house at Siddipet. She further stated that the said story is invented only for the purpose of getting rid of her. According to the wife, though their marriage took place in the year 1981, her parents could not give money to the husband and therefore, he started ill-treating her and created all sorts of trouble so that she would get money to quench the thirst of the husband. The wife has also denied the allegation that she was taken to Hotel Siddartha at Hyderabad where she is alleged to have created a scene and threw chappals at him. According to her, she stayed in the house of the husband at Kavali in the upstairs portion. She was constrained to vacate that portion as the other family members of the husband had created problems to her even by filing a case against her and obtained an interim injunction against her for vacating the house. According to her, the husband has not allowed her to stay along with joint family members nor he has allowed her to set up private practice. The respondent denied that she has no intention to live with the husband. She further alleged that the husband is accustomed to lead an immoral life and prayed for dismissal of the OP filed by the husband.
12. The wife also filed OP No.85 of 1988 against the husband under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights. In her petition, the wife averred that after the marriage she immediately joined the husband. At the time of marriage, she was doing post-graduation in Gynaecology and Obsteritrics. According to her, she continued her study of post-graduation for about one year subsequent to her marriage and the husband was staying at Secunderabad and has been applying for jobs. She stated that after one year, he secured a job in St. Ann's Hospital, Vijayawada as a Civil Assistant Surgeon and he worked there for a period of one and half years. At that time, she claims to have stayed in the parents house of the husband. The husband was occasionally visiting her. After the husband was selected as Civil Assistant Surgeon he was posted as Assistant Surgeon in Pedapariya, Gudur taluk of Nellore District and later he was transferred to Hyderabad by which time she completed her post-graduation and obtained DGO. According to her, the husband took a house in Red Hills area and they stayed in that house for a period of one and half years. During that period, her husband got a job in Iran as Civil Assistant Surgeon and he left for Iran after obtaining leave and stayed in Iran for about one and half years. She stated that though she advised the husband not to seek a job in Iran as there was a civil war at that time between Iran and Iraq, he refused to budge and on the contrary desired the wife to join his society at Iran. On this issue, some misunderstandings cropped up between them which has reached a point of no return. According to the wife, the husband has no justifying reasons to keep her away from his society and therefore, prayed the Court below to pass a decree for restitution of conjugal rights.
13. The husband who filed OP No.2 of 1988 for dissolution of his marriage with the wife, filed a detailed counter in OP No.85 of 1988 reiterating the same stand taken by him OP No.2 of 1988.
14. The Court below decided to dispose of these two OPs., by a common order and on a memo filed by both parties, the two OPs., were clubbed together and evidence was recorded in OP No.2 of 1988.
15. On behalf of the husband, PWs.1 to 3 were examined and Exs.A1 to A7 were marked. The husband himself examined as PW1, and examined his friend one Dr. Venkateswara Rao as PW2 whereas PW3 is the father of the husband. On behalf of the wife, she examined herself as RW1. However, Exs.X1 to X4 were marked on behalf of the witnesses.
16. The Court below, on an appraisal of both oral and documentary evidence, allowed OP No.2 of 1988 filed by the husband and granted a decree of divorce by dissolving the marriage between the parties. The Court below, however, dismissed OP No.85 of 1988 field by the wife for restitution of conjugal rights, by a common order dated 28-9-1995, against which the wife has preferred these two appeals.
17. When these two appeals are taken up for consideration, a preliminary objection was raised by Sri P. Sridhar Reddy, learned Counsel appearing on behalf of the respondent-husband as to the maintainability of the appeal in CMA No.1082 of 1996 arising out of OP No.2 of 1988 on the ground that the appeal has been filed after the period of limitation and by the time the appeal is filed, the husband has contracted second marriage.
18. Before we take up to decide the implication on the question of limitation, we proceed to examine whether the respondent-husband is justified in seeking a decree of divorce for dissolution of his marriage with the appellant-wife on the ground of cruelty?
19. The marriage between the parties took place on 19-3-1981 at Secunderabad as per Hindu rites and customs. Both the parties ar doctors by profession. The husband who examined himself as PW1 deposed that after his marriage with the appellant-wife, initially they stayed in Kavali for about four months and later having secured a job in Vijayawada, he settled down at Vijayawada. During this period, the wife was not co-operating with him and humiliating him. Even while his stay at Vijayawada, the wife had only made occasional visits now and then and returned back to Kavali and as such, according to PW1, he was forced to go back to Kavali and stay with her. He also deposed that he secured a job in Hyderabad later and put up his family with his wife. Even during that period, according to the husband, the wife was disrespecting him and the other members of his family. PW1 deposed that the wife used to loose her senses quite often and behaved in reckless manner which was in bad taste. With the hope that she would change her attitude, he took her and the daughter to his friend Dr. Venkateswara Rao at Siddipet. However, while returning from Siddipet to Hyderabad, the wife created scene at Sanjay Theatre, got down from the car and threw the child on the road. The husband has also stated that he made yet another effort to convince her and took her to Siddartha Hotel in Hyderabad but she again behaved in a rash manner in the Hotel and threw chappals at him. Bearing all this humiliation he requested the wife to join him in Iran but she refused to join his society by going over to Iran. PW1 also deposed that disturbed with all this, he had no option than to file a petition for divorce.
20. In order to prove that the wife is adamant, indifferent and treating him with humiliation. PW1 examined PW2-Dr. S. Venkateswara Rao. It is in the evidence of PW2 that he used to visit Hyderabad frequently. During his visits, he was also going to the house of PW1 and there he noticed the non-co-operation between the husband and wife and confrontation even on trivial issues. He further deposed that the wife was at fault and she was showing scant respect towards the husband. He staled that the wife was behaving like a mad lady. After picking up quarrels with the husband, she was going out of the house and creating scene in the presence of others. She used to stay out of the house despite the request of the husband to come into the house. According to PW2, in the month of October, 1987 the wife and husband visited his Hospital at Siddipet and stayed there for two days. At his Hospital, before patients, the wife used to quarrel with her husband in his nursing home. He deposed that he advised the husband to set up his practice at Gajwel. On this, the wife became furious as she was not interested in that, sat opposite to the car in the presence of others and confronted her husband and himself (PW2) and did not allow them to go out. As a result of this, according to PW2, he asked the wife to go out of his Nursing Home. PW2 further deposed that the wife had used vulgar language and asked him whether he had taken her husband to lodges and bars and accused him of spoiling her husband. PW2 further narrated other incidents which have taken place in his house.
21. A careful scrutiny of the evidence of PW2, it is clear, the version of PW2 corroborates with the evidence of PW1. Being a close friend of PW1, PW2 is in a position to speak about the marriage life of PW1.
22. PW3 who is the father of PW1 has narrated several incidents about the behaviour of his daughter-in-law, her attitude, her cruel behaviour and her disrespect towards PW1. He also deposed the incident relating to lodging a police complaint by the wife against her husband. The evidence of PW3 fully corroborates with the evidence of PWs.1 and 2 in material particulars. Being the father-in-law he is in a position to speak the attitude of his daughter-in-law towards his son.
23. The appellant has examined herself as RW1 and has not chosen to examine any other witnesses on her behalf. In her evidence, she reiterated what has been stated by her in her counter filed to OP No.2of 1988.
24. The husband has filed OP No.2 of 1988 under Section 13(1)(ia) of the Hindu Marriage Act, 1955 seeking to dissolve his marriage with the appellant-wife on the ground of cruelty. It is well settled that the acts of cruelty need not be physical but could also be mental. The traces of physical cruelty could be apparent but the traces of mental cruelty could only be felt. The husband has alleged that the wife was cruel towards him and has narrated several incidents about her cruel and humiliating acts towards him. In his evidence of PWl, the husband deposed that the wife is cruel towards him and never treated him as her husband. He spoke about specific incidents of her cruelly and humiliating acts towards him. He deposed that when he took her along with the child to Dr. Venkateswara Rao's house at Siddipet, she created ugly scenes there also, which have been amply corroborated by the testimony of PW2. The husband further deposed that while returning from Siddipet, the wife stopped the car near Sanjay Theatre near the outskirts of Hyderabad and attempted to threw the child on the road. In another incident, the husband deposed, in order to see that the wife changes her attitude towards him, he took her to Siddartha Hotel. Even at the Hotel, the wife became furious for no reason and threw chappals at him causing humiliation and embarrassment to him. To corroborate the nature, attitude and behaviour of the wife, the husband examined his friend Dr. S. Venkateswara Rao who also spoke about the adamant behaviour of the wife towards the husband. Even the evidence of PW3 who is the father of PW1 is to the same effect that the wife humiliated the husband and treated him with cruelty causing him mental agony.
25. It is interesting to note that both the parties are doctors by profession. It is also seen by us that an effort to bring about reconciliation between the parties has also been made by the Court below but that effort fizzled out. Though the wife examined herself as RW1, she did not examine any other witness to corroborate her evidence. Therefore, there is no supporting evidence available on record, to support her case. It is this factor which strengthens the allegation that the wife is guilty of treating the husband with cruelty and harassing him causing mental agony to him, forcing him to seek divorce from her on the ground of cruelty. The evidence adduced on behalf of the husband, on a careful scrutiny, amply proves that the wife is cruel towards him and an element of cruelty is apparent in her acts making his life miserable. Therefore, we are inclined to hold, on a careful scrutiny of the overall evidence on record and considering the totality of the circumstances of the case, the husband has been able to establish the ingredients required to be proved seeking a decree of divorce against the wife. The Court below has rightly considered these aspects and granted a decree of divorce dissolving the marriage between the parties, which in our view, is just and proper.
26. On behalf of the respondent-husband, a preliminary objection is taken by Sri P. Sridhar Reddy, learned Counsel as to the maintainability of CMA No. 1082 of 1996 on the ground that the said appeal is filed after the expiry of the appeal period and the respondent-husband contracting second marriage on 24-4-1996. Learned Counsel for the husband further submitted that at the relevant point, the husband was working in London as a doctor, which factor is well-known to the appellant, she deliberately showed the address of the husband as if he is residing in Kavali and notices were taken by her to his Nellore address. As he is not present there, permission for substitute service of notices was obtained by the appellant from this Court alleging that the respondent though was staying in the said address refused to receive the notices, which is incorrect. Learned Counsel further submitted that the Division Bench believed the version of the appellant that the husband is deliberately avoiding to receive the notices, permitted the appellant to effect substitute service of notices by way of affixure of notices on the house as well as publishing the notice in the newspaper. Counsel submitted that the entire effort of the appellant is in the nature of hoodwinking the Court and in that process she has succeeded in getting the delay of 123 days condoned by misrepresentation. On this ground also. Counsel contended, the appeal CMANo.1082 of 1996 is liable to be dismissed.
27. Learned Counsel nextly contended the decree though was granted by the Court below on 28-9-1995, the appellant filed copy application only on 16-10-1995. The certified copies of the decree and common order were made ready on 5-12-1995. From that day, the time available for the appellant to file the appeal is only 13 days excluding the 17 days delay between the date of decree and presentation of copy application. In all probability the appeal should ahve been filed on or before 19-12-1995. However, the appellant presented the appeal with a petition to condone delay only on 22-3-1996. The delay was condoned by the Court in the circumstances indicated above only on 30-8-1996 and the appeal was admitted on 9-9-1996. The respondent contracted second marriage on 24-4-1996 after waiting for a period of four months over and above the appeal period. Counsel therefore, submitted for all these reasons, CM A No. 1082 of 1996 is liable to be dismissed.
28. The learned Counsel for the appellant-wife, however, contended that since the Court has condoned the delay in filing the appeal CMA No. 1082 of 1996, it is not permissible for the respondent to agitate on that aspect all over again. Learned Counsel stated that the appeal is to be treated as if it is filed in time and the second marriage contracted by the respondent would not in any way vitiate the appeal proceedings.
29. Section 28 of the Hindu Marriage Act, 1955, provides for an appeal from the decrees and orders. Sub-clause (4) of Section 28 of the Act further provides that the appeal shall be preferred within a period of 30 days from the date of decree or order.
30. The implication with regard to the contracting second marriage by either party to the proceedings and iis effect on the appeal proceedings has been examined by various Courts. In Mrs. Suresh Bala Dehradun v. Major Gurmohinder S. Bala, , it is held by the Delhi High Court that the limitation as provided under Section 28(4) of the Hindu Marriage Act would apply to the appeal proceedings but, however, the time consumed for obtaining the copy of the order has to be excluded. If the appeal is filed within time, contracting of second marriage by a party is immaterial for deciding the appeal on merits. Same is the view taken by the Calcutta High Court in Smt. Sipra Dey v. Ajit Kumar Dey, . However, a Division Bench of the Kerala High Court in S. V, Suhasini Devi v. Padmanabhan Madhavan, , took a different view holding that when the delay is condoned by the Court pursuant to filing of a delay condonation petition, the appeal so filed is to be treated as if it is filed in time and contracting second marriage by a party has no effect on the appeal proceedings.
31. The Supreme Court in Tejender Kaur v. Gurmit Singh, , and in Smt. Lata Kamar v. Vilas, , held that a party appealing under Section 28(4) of the Hindu Marriage Act is also entitled for exclusion of the time taken by it for obtaining certified copies of the decree. If the appeal is filed in time, after excluding the time consumed by the party for obtaining the copy of the order, such an appeal has to be treated as appeal filed in time as provided under Section 28(4) of the Hindu Marriage Act, 1955.
32. In the light of the scenario emerging on the question of preferring the appeal by an aggrieved party, from the above cited pronouncements, we shall now proceed to examine the facts of the case.
33. Admittedly, the common order and decree in OP Nos.2 of 1988 and 85 of 1988 were passed on 28-9-1995. The appellant-wife ought to have acted swiftly and should have presented the copy application for obtaining the certified copies of the same. However, the appellant applied for the certified copies of the decree and common order only on 16-10-1995. Thus, the appellant at the first instance has lost the valuable time of 17 days from out of the statutory 30 days available to her in preferring the appeal. The certified copies of the common order and decree though were made ready on 5-12-1995, the appellant obtained the same only on 11-12-1995. Thus, there is also a delay of 5 days in receiving the said certified copies. The time of 17 days in the first instance and the time of 5 days in the second instance, totalling 22 days have to be included for the purpose of computing the limitation. The appellant had 30 days time in preferring the appeal and the time of 22 days if excluded from out of the 30 days, the appellant should have filed the appeal within eight days from 6-12-1995. That is to say, the appeal, in all probability, ought to have been filed on or before 13-12-1995. Even granting concession to the appellant for a period of five days which was lost by her in receiving the certified copies of the decree and common order which were received by her on 11-12-1995, the appellant would still have to file the appeal excluding 17 days within a period of thirty days which was lost by her in the first instance. Thus, the appellant should have filed the appeal within 13 days from 11-12-1995. That means, the appeal should have been filed on or before 24-12-1995. Even giving further concession to the appellant by condoning the delay of 17 days which occasioned due to the belated filing of copy application on 16-10-1995, copies of the decree and common order being delivered to the appellant on 11-12-1995, the appeal should ahve been filed on or before 10-1-1996 even if the limitation period of 30 days is computed from 11-12-1995. However, as seen from the record, the appeal was preferred with a delay condonation petition under Section 5 of the Limitation Act on 22-3-1996. The said delay was condoned on 30-8-1996 which is also a controversy before us. The appeal was admitted only 9-9-1996. The respondent contracted the second marriage only on 24-4-1996 which factor has also not been disputed by the appellant. We are, therefore, of the view, the appeal filed by the appellant in CMA No.1082 of 1996 is also liable to be dismissed on the ground of the respondent contracting second marriage after the expiry of appeal period to which he is legally entitled to. We are not persuaded to accept the view taken by the Kerala High Court in the decision S. V. Suhasini Devi's case cited (supra) that if delay is condoned by the Court, the appeal so filed shall be construed as if it is filed in time and that contracting of second marriage by either spouse after the expiry of the proscribed time, excluding the time consumed for obtaining the copy of the order, would not have any bearing on the appeal. We may, with great respect to the Division Bench of the Kerala High Court, say, if this view is accepted, a defaulter would ruin the lives of many connected with family life. The Legislature desired, the appeal, if any, to be filed within the prescribed time. Of course, the time consumed for obtaining the copy of the order to be appealed, has to be excluded. There is no excuse for a person if he/she fails to show urgency to pursue the matter. Life is short and things cannot be taken so casually. A party in whose favour a decree is granted must be planning to contract a second marriage. There is no illegality in such a desire. The reasonable time within which appeal is to be filed is provided in the provisions of the Act. The facts in this case disclose that the appellant has deliberately shown the address of the respondent to be at Kavali, though she is aware of the fact that the respondent is working in London. We are, therefore, of the view, such a party cannot be permitted to get away with such a design.
34. For the above reasons, we see no merits in CMA No.1082 of 1996 and accordingly, we dismiss the same.
35. Coming to CMA No.1257 of 1996 which is filed by wife against the order passed in OP No.85 of 1988 filed by her under Section 9 of the Hindu Marriage Act, 1955 seeking restitution of conjugal rights, she has averred the very same grounds in the said OP which were pleaded by her in the counter filed by her in OP No.2 of 1988. The Court below has given cogent and convincing reasons for dismissing the OP No.85 of 1988. Having regard to the totality of facts and circumstances and also in view of our above discussion, we are not inclined to take a different view than the view taken by the Court below. We, therefore, see no merits in CMA No.1257 of 1996 and we accordingly dismiss the same.
36. Since both the appeals filed by the appellant-wife are dismissed by us confirming the decree of divorce granted by the Court below dissolving the marriage between the parties, the next question that arises for consideration before us is the entitlement of maintenance by the divorced wife.
37. A petition in CMP No.12488 of 1998 has been filed by the wife under Section 25 of the Hindu Marriage Act, 1955 seeking maintenance at the rate of Rs.25,000/- per month to herself and Rs.25,000/- per month to the daughter and Rs.10,000/- towards legal expenses. Alternatively, the wife has also sought permanent alimony of Rs.25.00 lakhs for herself and Rs.25.00 lakhs for the daughter.
In support of her claim, the appellant has stated that the respondent has vast properties, viz., double storeyed building, shops at Nellore and he is a doctor by profession doing a lucrative job in London and gets substantial income from his profession and as such he is capable of paying the above amounts to herself and the child.
38. The respondent has filed a detailed counter resisting this petition and stated that during the pendency of the OPs. maintenance was awarded by the Competent Court in MC No.2 of 1991 and the said amounts were paid to the appellant. Later, pursuant to the order passed in CMPNo.13091 of 1996 by this Court, an amount of Rs.3,31,500/- has been paid to the appellant towards maintenance from 11-7-1991 to 11-1-1997 including a sum of Rs.66,000/- for the daughter. The respondent has denied that he has vast properties. He stated that he gets a salary of 1800 pounds out of which 331.40 pounds have to be paid towards income tax, 136.01 pounds towards National Insurance, 111.65 pounds towards superannuation, 146.89 pounds towards rent, 26.76 pounds towards hire of furniture, and 28.14 pounds towards Counsel tax. Thus, a total amount of 808.99 pounds was being spent from his salary for the above purposes and the balance of 1081.84 pounds is hardly sufficient for him to maintain himself, his daughter born through the appellant, his second wife and the son born through her. The respondent further stated that the appellant being a qualified post-graduate doctor in Gynaecology is capable of earning more than Rs.10,000/- per month and she has two buildings in Secunderabad apart from house plot. She hails from a rich family owning four buildings in Secunderabad.
39. It is not disputed by the appellant that the daughter born to her through the respondent is now presently staying with the respondent in London and prosecuting her studies there at London. The fact of the appellant receiving an amount of Rs.3,31,500- from time to time under various receipts from 28-5-1996 to 3-2-1997 pursuant to the interim direction of this Court in CMP No. 13091 of 1996 has also not been denied by her.
40. In order to grant permanent alimony to a divorced wife, the factors such as status of the parties, their sources of income, and properties, if any, held by them, their employment etc., are to be taken into consideration. The admitted fact is that the appellant is a practicing qualified post-graduate doctor in Gynaecology and as such she is capable of earning substantial income through her profession. Whereas the respondent who is also a doctor by profession settled down in London, has to maintain his first daughter born through the appellant, his second wife and a son born through his second wife. The respondent has indicated his monthly income in his counter as stated supra. Further information relating to the facts and figures of the monthly income of the respondent has also been placed before us during the course of hearing of the appeals.
41. Taking all these factors into consideration, we are of the view, instead of directing the respondent to pay monthly maintenance to the appellant, the respondent could be directed to pay a lumpsum amount towards permanent alimony to the appellant, which in our opinion, could be just and reasonable for her maintenance. Though there are claims and counter claims by the appellant and the respondent on the quantum of alimony to be awarded to the appellant, we are of the view, an amount of Rs.5.00 lakhs (five lakhs only) could be awarded as permanent alimony to the appellant. While determining the above amount of permanent alimony, we have also taken into consideration the amount of Rs.3,31,500/- already paid by the respondent to the appellant during the pendency of these appeals as directed by this Court in CMP No.13091 of 1996. We direct the respondent pay an amount of Rs.5.00 lakhs to the appellant through demand draft drawn in her favour within a period of three months from the date of this order. Pending payment of the permanent alimony of Rs.5.00 lakhs by the respondent, the respondent shall pay maintenance at the rale of Rs.5.000/- to the appellant per month which shall be paid on or before 5th of every monthly from the month of January, 2000 onwards. The respondent shall also pay an amount of Rs.5,000/- to the appellant towards her legal expenses which shall also be paid by him within a period of three months from today, apart from the above amounts.
42. For the above reasons, we also dismiss the cross-objections in CMA No.1082of 1996.
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