Calcutta High Court (Appellete Side)
8 April, 2009
Author: Tapas Kumar Giri
C.O. No.2362 of 2007
Kalyan Bose
Versus
Sadhana Bose (Raha)
Mr. U.S. Chattopadhyay …For the petitioner
Mr. Sanat Chowdhuri …For the opposite party
This application under Article 227 of the Constitution of India is filed by the petitioner/husband challenging the order dated 11th June, 2007 passed by the learned Additional District Judge Fast Track-III Court at Barrackpore in Matrimonial Suit No.1386 of 2006 under Section 24 of the Hindu Marriage Act, 1955. The fact of the present application is that the O.P./wife is the legally married wife of the petitioner/husband. After passing a few years the dispute arose in between them and the petitioner has filed the above matrimonial suit before the learned District Judge, North 24 Parganas at Barasat for dissolution of marriage against the O.P./wife who is a working lady and she deserted the matrimonial home without any reasonable cause.
During the pendency of the above matrimonial suit before the Court of learned Additional District Judge, Fast Track Court-III at Barrackpore the opposite party/wife filed an application under Section 24 of the Hindu Marriage Act for alimony pendentilite as well as the litigation cost. Learned Additional District Judge Fast Track Court-III after hearing of both sides allowed the said application and directed the petitioner/husband to pay Rs.1,500/- per month for wife and Rs.1,500/- per month for the minor child as alimony pendentilite and also directed to pay the litigation cost of Rs.3,000/- to the opposite party/wife.
Being aggrieved and dissatisfied against the order dated 11.6.2007 the petitioner has filed the present application for setting aside the same.
Learned Advocate Mr. U.S.
Chattopadhyay appearing on behalf of the petitioner pointed out that the opposite party/wife is a school teacher and she has the financial capacity not only to maintain herself but also to maintain her child and at the time of hearing of the said application the petitioner failed to produce any document about the income of the wife and as such learned Additional District Judge allowed the application for alimony as well as the litigation cost. Learned Advocate Mr. Chattopadhyay tried to impress about the employment of the wife as a school teacher as well as her income at the time of hearing of the application though those papers were not produced before the learned Additional District Judge at the time of hearing. Therefore, the present application may be allowed after setting aside the said order dated 11.6.2007.
Mr. Sanat Chowdhuri learned Advocate appearing on behalf of the O.P./wife pointed out that no documents were produced before the learned Additional District Judge at the time of hearing of the application under Section 24 of the Hindu Marriage Act regarding her service as a school teacher as well as her income and as such learned Additional District Judge rightly passed the order for allowing the alimony pendentilite as well as the litigation cost. There is no scope to interfere in the said order and the present revisional application is liable to be dismissed.
In support of the contention Mr. Chowdhuri cited a case law reported in (2004) 1 CAL LT 234 (HC) (Smt. Chandana Guha Roy v. Sri Goutam Guha Roy).
Heard both sides.
From the averment of the application filed by the petitioner under Section 24 of the Hindu Marriage Act the opposite party/wife claimed the alimony for herself and her female child as well as the litigation cost. In the written objection against the said application the petitioner/husband mentioned that his wife/O.P. is an assistant teacher of Government sponsored Chowrashi High School and she earns Rs.15,326/- per month and she has the sufficient means to maintain herself and her daughter. In the relevant order dated 11.6.2007 learned Additional District Judge came to the findings that the petitioner/husband failed to produce any document about the source of income as well as her employment as a school teacher and as such the petitioner/husband could not be exempted. In the relevant documents produced on behalf of the petitioner/husband it is seen that the opposite party/wife is a teacher of Higher Secondary Section Chowrashi High School as full timer. As such she has the income to maintain herself. The case law cited by learned Advocate on behalf of the O.P. is not squarely applicable in the present facts of this case. However, as the petitioner filed the documents to show the employment of the O.P./wife as a school teacher in the Higher Secondary Section and she has sufficient means to maintain herself and as such she is not entitled to get any alimony pendentilite. On the other hand the petitioner is bound to pay the alimony for his daughter as well as the litigation cost assessed by the learned Additional District Judge, Fast Track Court-III by such order. The order dated 11.6.2007 passed by the learned Additional District Judge, Fast Track Court-III at Barrackpore is modified. The O.P./wife is not entitled to get any alimony pendentilite as per order dated 11.06.2007 but her daughter is entitled to get the alimony pendentilite as well as the litigation cost as per order of the learned Additional District Judge.
The said application is disposed of accordingly.
There is no order as to costs.
Urgent xerox certified copy of the order be supplied to the party, if applied for.
(TAPAS KUMAR GIRI, J.)
