Shree Chandrashekhar, J.

1. The records of Misc. Case No.37 of 2015 filed by the appellant under section 125 of the Code of Criminal Procedure are tendered in the Court.

2. Taken on record.

3. Original Suit No. 446 of 2016 was filed by the respondent seeking dissolution of marriage by a decree of divorce on the ground of cruelty and desertion.

4. By an ex-parte judgment and decree dated 2nd August 2018 marriage between the parties solemnized on 16th May 2003 at Khalsa Club, Bistupur, Jamshedpur was dissolved, but without any order of alimony for the wife.

5. First Appeal No.44 of 2020 was filed on 20th March 2020 with the delay of 566 days and IA No.6111 of 2020 filed under section 5 of the Limitation Act was allowed vide an order dated 11th February 2021 by a co-ordinate Bench of this Court.

6. By the said order, the parties were also directed to approach JHALSA for a possible settlement of dispute through mediation. However, as the order dated 28th July 2021 records mediation between the parties failed and First Appeal No. 44 of 2020 was admitted for hearing and lower Court records of Original Suit No.446 of 2016 were called for from the Court of Principal Judge, Family Court, East Singhbhum, Jamshedpur.

7. First Appeal No. 44 of 2020 was listed before us for the first time on 3rd March 2022 when the learned counsel for the appellant made a statement in the Court that the appellant shall not be contesting the ex-parte divorce decree and would confine the present Appeal only to grant of permanent alimony.

8. The following order was passed by this Court on 3rd March 2022:

“Order No.11/Dated: 3rd March 2022

The wife is in appeal against the judgment dated 2nd August 2018 passed in Original Suit No. 446 of 2016 which was decreed ex-parte in favour of the husband.

Mr. Vikash Kumar, the learned counsel for the appellant submits that now this First Appeal is confined to grant of alimony to the appellant.

We find that in the judgment under challenge there is no consideration by the learned Family Court Judge as regards grant of permanent alimony to the wife.

The respondent shall file an affidavit disclosing the details of his movable and immovable properties including the details of joint family properties and business, if any, within a period of four weeks.

We do not find any reference in the records that the respondent has remarried, however, Mr. Samir Kumar Lall, the learned counsel for the respondent, on instruction, submits that the respondent has remarried.

Since there is no document or statement on oath by the husband, we hereby stay the operation of the judgment dated 2nd August 2018 passed in Original Suit No. 446 of 2016 and execution of the decree prepared thereon.

Post this matter on 19th April 2022.”

9. In the context of confining this Appeal only to the extent of grant of alimony, the appellant has filed an affidavit dated 13th June 2022 stating as under:

“4. That it is stated that during the pendency of the instant Memo of Appeal the learned Counsel appearing on behalf of the Respondent Husband upon instruction had submitted before the Hon'ble High Court on 11.02.2021 that the Respondent has remarried after the Judgment dated 2ndof August 2018 passed in Original Suit No. 446 of 2016 by the Learned Court of Sri Satya Prakash Sinha, the Learned Principal Judge, Family Court, East Singhbhum at Jamshedpur which was decreed ex-parte in favour of the Respondent Husband.

5. That it is stated that out of the said wedlock three childeren were born to them out of which two of them namely Tanisha Singh and Dhairya Singh are staying with the Appellant and the Appellant is all alone taking care of them and all the expenses incurred in their day to day life is borne by the Appellant.

6. That it is stated at the Appellant had filed an application under Section 125 of the Criminal Procedure Code for grant of maintenance before the Learned Court of the Principal Judge, Family Court, Seraikella Kharsawan bearing Number OM No. 37 of 2015 which was dismissed vide an onder dated 18.01.2019 passed by the Learned Principal Judge, Family Court at Seraikella Kharsawan.

7. That it is stated that the appellant has preferred Criminal Revision No. 255 of 2019 against the order dated 18.10.2019 passed in O.M. Case No. 37 of 2015 passed by the Learned Principal Judge, Family Court at Seraikella Kharsawan which is still pending before the Hon'ble High Court.

8. That it is stated that thus in view of the facts and circumstances as enumerated above the Appellant Wife confines her prayer only to grant of Alimony in connection with Judgment dated 2nd of August 2018 passed in Original Suit No. 446 of 2016 by the Learned Court of Sri. Satya Prakash Sinha, the Learned Principal Judge, Family Court, East Singhbhum at Jamshedpur.”

10. We have heard the learned counsel for the parties on the quantum of permanent alimony.

11. The learned Principal Judge, Family Court, Jamshedpur has observed as under:

“6. Despite issuance of notice and publication of the same in the newspaper, respondent did not come forward to refute the contentions of the petitioner herein and the case proceeded ex parte against her. The petitioner has examined himself as his sole witness and has supported his case regarding infliction of cruelty upon him by the respondent. The contention of the petitioner, regarding infliction of cruelty has remained un-rebutted on behalf of the respondent, due to her non appearance and as such, in my view, the petitioner has established cruelty inflicted upon him, by the respondent, which is sufficient for the dissolution of marriage between the parties.

7. I further find that, as per the case of the petitioner, respondent left her matrimonial home finally on 29.07.14, thereafter, she filed a criminal case against the applicant and his mother, vide Adityapur PS. Case No. 266/14. Subsequently, during hearing of Anticipatory Bail Application, before the Hon'ble High Court, the petitioner agreed to reside with her separately and they entered into a compromise. As a result, the petitioner and his mother were granted anticipatory bail. But still, the respondent, despite several efforts made by the petitioner, refused to reside with him. This case has been filed on 27.08.16 i.e. after more than two years of desertion of the petitioner by the respondent. As such, in my view the petitioner has also established the case of desertion, which is sufficient for the dissolution of marriage between the parties.

8. On the basis of above discussions, it is, hereby,

ORDERED

that, the present suit filed on behalf of the petitioner, for dissolution of his marriage with the Respondent, is hereby, decreed, without contest. The marriage solemnized between the parties on 16.05.03, stands dissolved by a decree of divorce, from the date of decree. Let a decree be prepared accordingly.”

12. As it is clear from the judgment in Original Suit No. 446 of 2016, summons is said to have been effected upon the appellant through publication.

13. Sub-rule (1-A) of Order V Rule 20 of the Code of Civil Procedure provides that substituted service of summons can be ordered by a publication in the daily newspaper circulating in the locality in which the defendant was lastly known to have actually and voluntarily resided, carried on business or personally worked for gain.

14. The proceedings in the divorce case reveal that service report of the notice issued upon the appellant was not received and vide order dated 6th March 2018 the respondent was directed to file a petition for service of notice through substituted mode of publication in the daily newspaper. It appears that a notice regarding pendency of the divorce case was published in the daily newspaper “Dainik Bhaskar” on 18th May 2018, and the suit proceeded ex-parte by virtue of the order dated 7th July 2018.

15. Appendix-B in the Code of Civil Procedure provides the format for summons under Order V Rule 1 and 5 of the Code of Civil Procedure. The summons so issued to a defendant must contain (i) description of the suit (ii) cause for the suit and (iii) date, time and place for appearance.

16. The proceedings in the divorce case would further disclose that after the order dated 14th February 2018 was passed directing the husband to file a petition to take steps for service through substituted mode, the suit came up for hearing on as many as five occasions and the respondent filed an application on 3rd May 2018 seeking permission of the Court to publish a notice in the newspaper. The suit was thereafter listed on 19th May 2018, 4th June 2018 and 19th June 2018 – the order dated 19th May 2018 records that notice was published in the daily newspaper.

17. To repeat, a format for notice to be approved by the Court was filed on 3rd May 2018 and according to the respondent the newspaper publication was taken out on 18th May 2018. Apparently, the notice issued to the wife through newspaper publication, on the basis of which order dated 7 th July 2018 was passed setting the suit for ex-parte judgment, was not a valid service of notice upon her because the next date fixed for hearing of the divorce case was 4th June 2018, whereas clear 30 days time must be provided to the defendant for appearance in the suit.

18. The stand taken by the respondent in the proceeding of divorce suit was that his wife refused to stay in his parental house and left his company on 29th July 2014 taking the minor daughter and son along with her and thereafter did not come back to her matrimonial home. She gave a written report making false allegations against him and his mother and on that basis Adityapur PS Case No. 266 of 2014 was drawn on 6th August 2014 for commission of offences under sections 498-A/306/504 read with section 34 of the Indian Penal Code. The respondent would further state that in the criminal case his old parents were threatened to be sent to judicial custody and only upon his agreeing to file a joint compromise petition they were granted anticipatory bail by the High Court.

19. We have gone through the examination-in-chief of the husband filed on affidavit and find that the allegations made by him against his wife even if accepted on their face value shall not constitute cruelty as envisaged under section 13(1)(i-a) of the Hindu Marriage Act, and act of the wife staying away from the company of her husband does not amount to desertion unless animus deserendi is proved by leading, cogent and consistent evidence.

20. In “Maya Devi v. Lalta Prasad” (2015) 5 SCC 588 the Hon'ble Supreme Court has held that even in ex-parte proceeding the Court is required to apply its judicial mind before the suit is decreed ex-parte.

21. In “Maya Devi” the Hon'ble Supreme Court has held as under:

“41. The absence of the defendant does not absolve the trial court from fully satisfying itself of the factual and legal veracity of the plaintiff's claim; nay, this feature of the litigation casts a greater responsibility and onerous obligation on the trial court as well as the executing court to be fully satisfied that the claim has been proved and substantiated to the hilt by the plaintiff. Reference to Shantilal Gulabchand Mutha v. Telco Ltd., will be sufficient. The failure to file a written statement, thereby bringing Order 8 Rule 10 CPC into operation, or the factum of the defendant having been set ex parte, does not invite a punishment in the form of an automatic decree. Both under Order 8 Rule 10 CPC and on the invocation of Order 9 CPC, the court is nevertheless dutybound to diligently ensure that the plaint stands proved and the prayers therein are worthy of being granted.”

22. The aforesaid circumstances appearing in the case, in our opinion, are relevant considerations as indicated under section 25 of the Hindu Marriage Act, 1955.

23. Section 24 of the Hindu Marriage Act, 1955 which confers powers upon the Court to grant maintenance pendente lite and expenses of the proceedings and section 25 of the Act which deals with permanent alimony and maintenance are enacted with the object of providing support to a wife or husband with no independent income sufficient for maintaining herself/ himself.

24. Section 25 of the Hindu Marriage Act, 1955 provides that any Court exercising jurisdiction under this Act may pass an order on an application made either by the wife or by the husband, at any occasion of passing of any decree or at any time subsequent thereto. It further provides that the Court shall pass an order of maintenance and support granting such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant.

25. There is no doubt that the Court may grant permanent maintenance/ alimony to a party even if no proper application has been moved.

26. A glance at the provisions under section 25 of the Act reveal that while making an order of permanent maintenance/ alimony the Court shall have due regard to the respondent's own income and other property, if any, as well as the income and other property of the applicant. The conduct of the parties and other circumstances of the case are also relevant considerations which shall be taken note of by the Court before passing an order under section 25 of the Act.

27. In the present proceeding parties have filed several affidavits including their respective affidavits in the format as indicated in “Rajnesh v. Neha” (2021) 2 SCC 324 .

28. The appellant has filed an affidavit on 6th June 2022 stating as under:

“5. That with regard to the statements made at paragraph 4 of the Supplementary Affidavit under reply it is stated that the Residential House of the Respondent is situated at 2" Phase, Plot No- 46, Road No. 3, Prabha Kunj, Aditya Garden, Post Adityapur, Police Station Adityapur, District Seraikella Kharsawan and the Build Up Area of the said House is Approx 4,000 Square Feet. The present Market Value of the said House would be Rs. 1,28,000,00/- approximately.

Apart from the above mentioned Residential House, a business of packaged drinking water was running under the name and style of 'Dhanprabha Enterprises' by the respondent. The said land is situated at Plot No- 1092 and 1093, Mauza Vijay, Post Narayanpur, Near Dugni, District Seraikella Kharsawan comprising of Total Area 1.35 Acres.

The present Market value of the said Plot is Rs. 80,00,000/- approximately. Furthermore, at present the said plant has been given on Lease basis to one Mr. Sudhir Kumar upon an annual rent to the tune of upto Rupees Five Lakhs per annum.

Apart from the above mentioned Industrial Plots, the father of the present respondent has a Residential Plot situated at Village Chapra, State Bihar comprising of Total Area 2626 Square Feet and agricultural land at Chapra comprising of Total Area 37000 Square Feet. The present Market Value of the said Plots are approximately between Rupees Fifty to Sixty Lakhs. The said details have purposely been not brought on record by the respondent in spite of the specific order passed by this Hon'ble High Court.

A Sumo Grand Car is also registered on the name of the father of the Respondent which has surprisingly not been brought on record by the Respondent in his Affidavit.

6. That it is stated that with regards to the statements made at paragraph 5 of the Supplementary affidavit it is stated that the same has no concern with the instant case. The Plots over which the Drinking Water Plant was been run by the respondent is presently given on Lease basis to one Mr. Sudhir Kumar upon an annual rent to the tune of upto Rupees Five Lakhs per annum.”

29. The appellant has also filed a supplementary affidavit dated 31st July 2022 providing informations as mentioned in Enclosure-I (Annexure-A). She has stated that she is staying in a rental accommodation paying per month Rs.15,000/-; she is a teacher in Sheyn International School, Jamshedpur and getting salary of Rs.13,000/- per month; she has taken gold loan of Rs.60,000/- and paying monthly installments for laptop worth Rs.48,000/- and mobile phone worth of Rs.20,000/-, besides expenses on education and other necessities of the children.

30. According to her, the following are the description of the properties of her husband:

“(i) Residential house “Aditya Garden”, Adityapur, District: Saraikela-Kharsawan – total built up area 4000 sq. ft.– market value- 1 crore 28 lakhs approx; (ii) business of packaged Drinking Water, Dhanprabha Enterprises, Dugni, Saraikela –total land- 1.35 acres – market value- 80 lakhs approx;

(iii) agricultural land at Chapra – area 37,000 sq. ft and residential plot at Chapra – area 2626 sq. ft. – total value of both land Rs. 50-60 lakhs.”

31. In the application under section 125 CrPC the appellant gave the details of occupation of her husband which read as under:

5. That, at the time of marriage the Opp. Party was working in “ROTOMAC” Company and later on time to time he served his service in several organization which is as follows:

Sl. No.	Name of the Company	Year
a)	Todays Pen	2002
b)	Rotomac Company	2003
c)	Dev Company	2004
d)	Worked as Teacher at Bermo	2005
e)	Birla Sun Life	2006
f)	H.D.F.C. Insurance	2008
g)	Mutual Fund	2010
h)	Mineral Water Plant	2012

32. The appellant has further asserted that her husband was working in his own small scale industry “Dhanprabha Enterprises” which is a manufacturing unit of mineral water owned by the family and presently the said unit has been given on lease to a private party for annual rental of Rs.5,00,000/-.

33. The respondent has filed as many as three affidavits but there is no rejoinder to the affidavit dated 13th June 2022 filed by the wife. He has stated that he possesses degree of M.Sc. and LL.B. but he is unemployed. He has monthly income of Rs.12,000/- to Rs.13,000/- and he incurs about Rs.5,55,040/- on yearly expenses towards school/college fee and books/ stationery purchased for his children. It appears that in his anxiety to avoid payment of alimony to his wife, the respondent tried to create some documents as regards his income – the respondent has filed income tax returns for three years, all in the year 2022 itself. The income tax return for the assessment year 2020-21 was filed on 25th February 2022; assessment year 2021-22 on 31st March 2022, and; assessment year 2022-23 on 20th July 2022.

34. We may indicate that the elder daughter of the couple is approaching the age of majority and the son who is also staying with the mother is aged about 10 years – 2 children are staying with mother and one son is with the father. This is also relevant to record that the respondent is on affidavit stating that he incurs more than 5.50 lakhs on education of the children, and he is ready to bear all expenses for his children.

35. Besides the statutory provisions under sections 24 and 25 of the Hindu Marriage Act, the Legislature decided to incorporate section 125 in the Code of Criminal Procedure as a measure of social justice for wife, minor children and old parents to ensure that they do not suffer in a state of destitution. In this context, this is of some importance to notice that in Misc. Case No. 37 of 2015 the wife claimed maintenance of Rs.35,000/- for herself and two children. Misc. Case No. 37 of 2015 was dismissed and the criminal revision petition filed by the appellant is pending. It is agreed by the learned counsel for the appellant that no further prayer for maintenance shall be made on behalf of the appellant, if she is awarded permanent alimony in the present proceeding.

36. Having regard to the aforesaid facts and circumstances in the case, the respondent shall pay Rs.20,00,000/- to the appellant in four installments of Rs.5,00,000/- each, through demand drafts, first installment of which shall be paid by 15th of September 2022 and the remaining three installments of Rs. 5,00,000/- each shall be paid by the respondent after every two month by 15th day of the month. It is further ordered that the respondent shall keep Rs.10,00,000/- in fixed deposit in the name of the daughter, namely, Tanisha Singh for her future marriage expenses. This deposit shall be made by the respondent by 15th of October 2022 in a joint account in the name of the daughter with the mother.

37. The aforesaid amount of maintenance/ alimony has been fixed by this Court setting off the earnings of the wife.

38. FA No. 44 of 2020 is disposed of, in the aforesaid terms.