Dr. Athira Upendran Nair v. Jayakrishnan Krishnan Nair and Omana Amma Thankamma

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **THURSDAY, THE 30TH DAY OF MAY 2019 / 9TH JYAISHTA, 1941** **Mat.Appeal.No. 144 of 2012** **AGAINST THE NJUDGMENT IN OP 494/2010 of FAMILY COURT,ERNAKULAM DATED 30-12-2011** ## **APPELLANT/(PETITIONER IN THE COURT BELOW):** **DR.ATHIRA UPENDRAN NAIR D/O.UPENDRAN NAIR,KUNNATHUMANA BHAGHEERATH, 14/431,DESOM.P.O,CHENGAMANADU PANCHAYATH,ALUVA TALUK,ERNAKULAM DISTRICT,REPRESENTED BY POWER OF ATTORNEYHOLDER-UPENDRAN NAIR,S/O.PADMANABHA UPADYAYA,KUNNATHUMANABHAGHEERATHI,14/431,DESOM.P.O,ERNAKULAMDISTRICT.** **BY ADVS. SRI.S.VINOD BHAT SRI.LEGITH T.KOTTAKKAL** ## **RESPONDENTS/(RESPONDENTS IN THE COURT BELOW):** **1 JAYAKRISHNAN KRISHNAN NAIR S/O.G.KRISHNAN NAIR,DEVI PRIYA,ULSAVAMADOM NAGAR,FORT,THIRUVANANTHAPURAM,KERALA AND RESIDING AT 11031,ELLISTON WAY NE REDMOND,W.A.98053,U.S.A.** Mat.Appeal Nos.144 & 163/12 -:2:- **2 OMANA AMMA THANKAMMA W/O.G.KRISHNAN NAIR,DEVI PRIYA,ULSAVAMADOM NAGAR,FORT,THIRUVANANTHAPURAM-696023.** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 12.04.2019, ALONG WITH Mat.Appeal.163/2012, THE COURT ON 30.05.2019 DELIVERED THE FOLLOWING:** Mat.Appeal Nos.144 & 163/12 -:3:- **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **THURSDAY, THE 30TH DAY OF MAY 2019 / 9TH JYAISHTA, 1941** ## **Mat.Appeal.No. 163 of 2012** **AGAINST THE JUDGMENT IN OP 401/2010 of FAMILY COURT,ERNAKULAM DATED 30/12/2011** **APPELLANT/(PETITIONER IN THE COURT BELOW):** **DR.ATHIRA UPENDRAN NAIR D/O. UPENDRAN NAIR, KUNNATHUMANA BHAGEERATHI, 14/431, DESOM.P.O, CHENGAMANADU PANCHAYATH, ALUVA TALUK, ERNAKULAM DISTRICT, REPRESENTED BY POWER OF ATTORNEY HOLDER UPENDRAN NAIR, S/O. PADMANABHA UPADAYA, KUNNATHUMANA BHAGEERATHI, 14/431, DESOM.P.O, ERNAKULAM DISTRICT.** **BY ADVS. SRI.S.VINOD BHAT SRI.LEGITH T.KOTTAKKAL RESPONDENT/(RESPONDENT IN THE COURT BELOW):** **JAYAKRISHNAN KRISHNAN NAIR S/O. G. KRISHNAN NAIR, DEVI PRIYA, ULSAVAMADOM NAGAR, FORT, THIRUVANANTHAPURAM, KERALA AND RESIDING AT 11031, ELLISTON WAY, NE REDMOND, W.A 98053, U.S.A.** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 12.04.2019, ALONG WITH Mat.Appeal.144/2012, THE COURT ON 30.05.2019 DELIVERED THE FOLLOWING:** Mat.Appeal Nos.144 & 163/12 -:4:- **==> picture [41 x 10] intentionally omitted <==** ## **J U D G M E N T** ## _**Shaffique, J.**_ Both these appeals are filed by the petitioner in OP Nos.494/2010 and 401/2010 of the Family Court, Ernakulam decided by common order dated 30/12/2011. 2. Though the Original Petitions were partly allowed, these appeals are filed against the disallowed portion of the claim. In OP No.494/2010, she claimed permanent alimony of `50 lakhs which was rejected by the Family Court. A decree had been granted only for maintenance @`15,000/- per month from 16/2/2010 till the date of completion of compulsory internship of PW1 (petitioner) in USA. The Family Court rejected the claim for travel expenses and future maintenance after the date of expiry of internship. 3. The short facts of the case are as under:- Petitioner/appellant and the first respondent got married on 29/11/2007 as per Hindu religious rites and ceremonies. No children were born in the wedlock. Matrimonial issues developed between the parties and ultimately the wife had filed a petition Mat.Appeal Nos.144 & 163/12 -:5:- for divorce on the ground of cruelty which has already been allowed by the Family Court. Matrimonial claims other than the subject matter of the appeal had already been allowed. 4. At the time of marriage, husband was working as a Software Engineer in Microsoft Corporation, Washington and the wife was studying her 9[th] semester of MBBS at Amritha Institute of Medical Sciences in Kerala. After her studies, she was taken to U.S on 9/2/2008. She had to return back from US to continue her studies on 11/9/2008. She along with her mother had again gone to U.S. But since the travel documents had to be regularised, finally she was sent back to continue her studies on 17/4/2009. She returned to US on 28/9/2009 and in the meantime, it is her case that she was physically and mentally harassed and tortured. Ultimately it is stated that, on 16/11/2009, her brother had gone to U.S and she was taken back. The respondent came back to Trivandrum on 11/2/2010 and thereafter also he continued his illtreatment. She was forced to file a petition for police protection before the High Court. It is in this background she sought for divorce and for other reliefs. According to the appellant, he is having substantial income from his employment and he is bound Mat.Appeal Nos.144 & 163/12 -:6:- to give `50 lakhs as permanent alimony. 5. Respondent in the objection denied the allegations of cruelty. It is contended that the intention of the petitioner and her father was to squeeze money from the respondent and his mother. Petitioner was taken abroad and she could continue her studies with the help of the respondent. The father of the petitioner has played fraud and has cheated them. All transfers in respect of the property were made in the name of the petitioner. Since the respondent was having sufficient income and assets, they were not interested in any of the assets of the petitioner or their family members. She has virtually deserted him and is now making allegations of cruelty. 6. In order to prove the claim, petitioner was examined as PW1 and her father was examined as PW2. Exts.A1 to A48 were the documents marked. Respondent did not chose to adduce any evidence. 7. Most of the claims of the petitioner were allowed by the Family Court except future maintenance and permanent alimony. Apparently future maintenance has been allowed by the Family Court until the wife completes her internship in U.S. In Mat.Appeal Nos.144 & 163/12 ## -:7:- fact, at the relevant time, petitioner was in U.S and she had a Green Card. Her father also had a Green Card and the entire expense had been met by the first respondent. The question is whether taking into account the factual circumstances involved in the matter, the appellant is entitled for permanent alimony. S.25(1) 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 the 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.”_ 8. The petitioner has a contention that the respondent's income is not less than $1.8 lakhs per year which is equivalent to `90 lakhs per year. In order to claim permanent alimony by a wife, what is to be considered is the amount required by the wife Mat.Appeal Nos.144 & 163/12 -:8:- to maintain a standard of living which is neither luxurious nor penurious, but should be modestly consistent with the status of the family. In _**Bhagwan Dutt v. Kamla Devi**_ [(1975) 2 SCC 386] it has been held that the needs and requirements of the wife for such moderate living can be fairly determined only if her separate income is also taken into account together with the earnings of the husband and his commitments. In _**Vinny Parmvir Parmar v. Parmvir Parmar**_ [(2011) 13 SCC 112], the Apex Court had also referred to _**Chaturbhuj v. Sitha Bhai**_ [(2008) 2 SCC 316] wherein it was held that where the personal income of the wife is insufficient, she can claim maintenance u/s 125 Cr.P.C. The test is whether the wife is in a position to maintain herself in the way she was used to in the place of the husband. It is further held at paragraph 12 as under:- _**“12.** As per Section 25, while considering the claim for permanent alimony and maintenance of either spouse, the respondent’s own income and other property, and the income and other property of the applicant are all relevant material in addition to the conduct of the parties and other circumstances of the case. It is further seen that the court considering such claim has to consider all the above relevant materials and determine the amount which is to be just for living standard. No fixed formula can be laid for fixing the_ Mat.Appeal Nos.144 & 163/12 ## -:9:- _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 considering her status and mode of life she 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 (sic keep) in mind while determining maintenance or permanent alimony.”_ 9. Learned counsel for the appellant placed reliance on a judgment of the Apex Court in _**Kalyan Dey Chowdhury v. Rita Dey Chowdhury Nee Nandy**_ (AIR 2017 SC 2383). That was a case in which Court held that when the appellant husband was getting a net salary of `63,842/-, 25% of the husband's net salary would be just and proper to be awarded as maintenance to the respondent wife. But, in this case, the Court below had rejected the claim for permanent alimony on the ground that she has sufficient properties in her own name which is evident from the factual circumstances and the respondent had expended Mat.Appeal Nos.144 & 163/12 -:10:- substantial amount for obtaining Green Card for PW1 and PW2. Further PW2 is also financially sound to meet the expenditure of her daughter for her travel. In a case where permanent alimony claim is being considered, which amount is to be utilized as maintenance of the spouse, the income derived by both the parties are to be taken into consideration. If from the income of the appellant, she is capable to maintain a standard of living, she cannot claim any maintenance from her husband. Alimony by itself is an amount to be paid when spouse is not in a position to maintain himself or herself. Permanent alimony is an amount which takes care of the future maintenance by derivation of interest or other investment as the case may be. The statute also takes care of instances where on account of change in circumstances, the parties could seek for variation, modification or even to rescind the order passed by the Court. 10. Apparently, the appellant is a Doctor by profession and she was undergoing her internship course in MBBS and the Court below had directed payment of monthly maintenance at `15,000/- until she completes her internship. Once she becomes a full fledged professional, she will also derive substantial income Mat.Appeal Nos.144 & 163/12 -:11:- especially in US. The situation of Doctors in India is also not different. There is no material to indicate what income she was deriving after her internship. Being a professional, definitely she would be employed and even at this stage, no materials had been produced before this Court to prove that she was not deriving any income on her own. Under such circumstances, we do not think that this is a case in which any order should be passed directing payment of permanent alimony. That the husband is deriving substantial income by itself cannot be a reason to direct grant of permanent alimony. The income derived by the wife also has to be considered before issuing any such direction. There is evidence in this case to show that she has properties in her name, but that apart, no materials are produced to indicate her present income. 11. Yet another claim in this case was regarding certain travel expenditure. The claim of travel expenditure depends upon the contractual obligation of the parties. No such contractual obligation had been stated, pleaded or proved. That apart, the Court below has found that PW2 was financially sound to expend for his daughter's travelling expenditure and therefore Mat.Appeal Nos.144 & 163/12 -:12:- such claims cannot be entertained. We do not find any error being committed by the Family Court in that regard. Maintenance had been claimed @`30,000/- per month and the Family Court directed payment of `15,000/- per month until completion of internship. We do not find any error being committed in that regard as reasonable amount was directed to be paid. In the result, we do not find any ground to interfere with the judgment of the Family Court. Mat.Appeals are dismissed. **Sd/-** Rp //True Copy// PS to Judge **A.M.SHAFFIQUE JUDGE** Sd/- **ASHOK MENON JUDGE**