Thursday 6 May 2021

Whether court can enhance permanent alimony if the court fixed it with the consent of parties?

  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


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