Agnimitra Sadhukhan vs 7 Sanjoy Sahdukhan on 13 June, 2017

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Ct-30 13.6.2017 CO 1882 of 2016

Agnimitra Sadhukhan
Vs.

7 Sanjoy Sahdukhan

Mr. Sabyasachi Bhattacharya
Mr. Hiranmoy Bhattacharya
Mr. Bratin Kumar Dey
ar … For the Petitioner/Wife

Mr. Arijit Bardhan
Mr. Debanik Banerjee

… For the Opposite Party/Husband

Heard Mr. Sabyasachi Bhattacharya, learned
senior counsel, being assisted by Mr. Hiranmoy
Bhattacharya and Mr. Bratinn Kumar Dey
representing the petitioner/wife and also Mr.
Arijit Bardhan, learned advocate, being assisted
by Mr. Debanik Banerjee representing the
opposite party/husband.

Perused the materials on record.

Mr. Bhattacharya submits that the instant
C.O requires disposal since its merit is based on
subsequent event regarding present net salary of
the husband/opposite party by applying under
Right to Information Act.

Leave is granted accordingly to submit
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supplementary affidavit by the petitioner/wife.

Mr. Bardhan in his usual fairness submitted
that his client need not submit any opposition in

reply to the supplementary affidavit filed by the
petitioner/wife since it has been gathered by
applying under Right to
Information Act.

The application under Article 227 of the
Constitution of India has been directed by the
wife assailing the order dated 19.04.2016 passed
by learned Additional District Judge, 14th Court,
Alipore in allowing the application under Section
151 of the Code of Civil Procedure in part by
which the wife prayed for further enhancement of
maintenance pendente lite as was granted
earlier.

This Court has been apprised as an admitted
situation that on the basis of the initial prayer
under
Section 36 of the Special Marriage Act
learned Trial Court granted maintenance
pendente lite for the wife/petitioner @ Rs.6280/-
and the maintenance for the daughter of the
parties @Rs.6280/-. Admittedly, the daughter,
born out of wedlock of the parties, has been
studying the course of Chartered Accountancy by
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remaining under care and custody of her mother.

Before this occasion, at the instance of the
opposite party/husband, while the quantum of
maintenance pendente lite as well as the
maintenance for the daughter was granted by
learned trial Court at the above rate was
challenged, this Court rather enhanced the
amount by judgment dated 15.11.2011 in C.O
no. 910 of 2008 directing the opposite
party/husband to pay @ Rs.12,000/- each
instead of Rs.6280/- each.

During course of hearing learned counsel of
both sides also apprised that against the order of
this Court passed in said CO 910 of 2008 S.L.P
was moved before the Hon’ble Apex Court at the
instance of the husband, which was dismissed.

Thus facts remain that till before the
impugned order as passed subsequently by the
learned Trial Court on an application under
Section 151 of the Code of Civil Procedure of the
wife at the instance of the petitioner/wife, the
rate of maintenance pendente lite vis-a-vis the
maintenance for the wife and daughter were
@Rs.12,000/- each, which had attained finality
up to the Supreme Court.

READ  Tarun Alias Gautam Mukherjee vs State Of W.B. on 4 May, 2000

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In the second round the petitioner/wife
submitted the aforesaid application under
Section 151 of the Code of Civil Procedure
praying for further enhancement in the amount
of maintenance @Rs.20,000/- each. After
contested hearing learned Trial Court allowed the
application in part and made an order enhancing
the amount for maintenance pendente lite for the
wife/petitioner @Rs.15,000/- per month and also
maintenance for the daughter @Rs.15,000/-

It is also admitted that the daughter, Suchira
Sadhukhan, was born on 10th January, 1993.
Therefore, in the impugned order, it may be that
it was not pointed out before the learned Trial
Court, the said daughter has been wrongly
described as minor daughter. However, since the
said daughter is still unmarried her right to seek

maintenance under law still prevails.

Mr. Bhattacharya of course being conscious
about the judgment already delivered by this
Court on the point of seeking enhancement in
the amount of maintenance pendente lite by the
wife for second time canvassed the merit of the
application on the basis of the text and
documents annexed with the supplementary
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affidavit, since according to Mr. Bhattacharya
said prayer under Section 151 of the Code of
Civil Procedure was filed in view of information,
as gathered subsequently about present net
monthly salary of the husband. Submitted that
the earlier order of maintenance for the wife and
daughter was allowed while the net salary of the
husband was only Rs.70,000/-, whereas as per
the information supplied by the department to
the petitioner/wife, the present net salary is
Rs.1,53,634/-. Submitted, since learned Trial
Court failed to appreciate the reason for
submitting prayer for further enhancement the
instant revisional application is filed.

Mr. Bardhan relying upon the decision of this
Court submitted that while the amount under
the head of maintenance pendente lite was
settled finally and in a separate CO 3528 of 2013
order dated 29.11.2013 there was direction upon
the learned Trial Court to expedite the
proceedings of the matrimonial suit on day today
basis seeking further enhancement in the
amount under Section 151 of the Code of Civil
Procedure ought to have been discouraged.

Upon such submission Mr. Bardhan prayed for
dismissal of the revisional application.

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The judgment on maintainability of second
application to enhance amount of maintenance
of pendente lite, as was referred to, was delivered
by this court in CO 2486 of 2016 with CO 2913
of 2016 and also CO 1598 of 2016 on 24th
March, 2017.

READ  Selvarasu-vs-State Of Tamilnadu on 31 August, 2010

This Court in those judgments held about the
scope of Section 24 of the Hindu Marriage Act
and/or
Section 36 of the Special Marriage Act,
which need not be reiterated. Save and except to
mention once again that within the scope of law
in the matter of grant of maintenance pendente
lite once the matter attains finality up to
whatever level it may be the same is to be
maintained till disposal of the matrimonial suit
since further scope for getting further order
towards permanent alimony is very much
available either under
Section 25 of the Hindu
Marriage Act or
Section 36 of the Special
Marriage Act upon disposal of suit and on being
approached in writing.

So far as the fact of the instant case the
quantum of maintenance pendente lite for the
wife as well as maintenance for the daughter has
been fixed to the tune of Rs.12,000/- each,
which had attained finality as a consequence of
dismissal of the S.L.P. However, since
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maintainability of such application under Section
151 of the Code of Civil Procedure was not taken

into account, may be for the reason of not
offering sufficient submissions to that tune, and,
since in strict sense the amount under
Section
24 of the Hindu Marriage Act or
Section 36 of the
Special Marriage Act relates basically to the
defending wife in a matrimonial suit, this Court
does not incline with the finding of the learned
Trial Court which has further enhanced the
amount of maintenance pendente lite for the wife
from the amount of Rs.12,000/- to Rs.15,000/-
per month till disposal of the suit, specially
because the instant revisional application is at
the instance of the wife/petitioner only, on which
the husband/opposite party cannot except
otherwise order questioning maintainability of
said second application. The need of
consideration of application for maintenance
pendente lite is to lend proper assistance to the
defending wife so that she may maintain herself
with befitting status, adequate dignity and
prestige in addition to engaging lawyer of her
own choice to represent her in the matrimonial
suit. Therefore, the amount as considered by
learned trial Court is set at rest since the
husband also has accepted and has been praying
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to his wife.

But while it is an admitted position that the
daughter born out of the wedlock of the parties is
still unmarried and has been undergoing with
the Chartered Accountancy course, where the
monetary requirement is obviously involved to a
a great extent, and, since as a corollary to the
prayer of maintenance pendente lite for the wife

READ  Usmanbhai Mohammadbhai Chauhan & vs State Of Gujarat on 29 May, 2017

in the same proceeding, the point of maintenance
either for the minor son or minor daughter, or
unmarried daughter is taken care of, learned
Trial Court ought to have been considerate to
some further extent so far as the maintenance
amount for the unmarried daughter who has
been undergoing with the course of Chartered
Accountant to the extent of Rs.20,000/-, as was
reasonably sought for by filing the application
under Section 151 of the Code of Civil Procedure.

However, since under Right to Information
Act the present net monthly salary of the
husband/opposite party came into light as
Rs.1,53,634/- and as this court has been
apprised of that the opposite party/husband is
also to look after his parents, affording
Rs.20,000/- per month by such the well-salaried
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opposite party will not be in hardship, which was
sought for assigning adequate reason, and
payment of maintenance for such a daughter in
need cannot be equated with the need of mother,
or vice versa. Therefore, restricting the
wife/petitioner to the amount of Rs.15,000/- as
maintenance pendente lite as directed in the
impugned order, the opposite party/husband is
accordingly directed to pay maintenance for their
unmarried daughter undergoing with the course
of Chartered Accountant for Rs.20,000/- payable
with effect from 1st April, 2017, which shall be
continued till disposal of the matrimonial suit.

In view of above, the opposite party/husband
is directed to clear the arrears as to be calculated

in view of modification within one month from
this day following the method already adopted by
him.

The Revisional Application is allowed in part
in modifying the impugned order passed by the
learned Trial Court.

Before departure and since it has been
pointed out by Mr. Bardhan that there is earlier
direction of this Court to expedite the trial of the
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matrimonial suit on day today basis and since
said direction is being frustrated due to filing of
application of above nature learned Trial Court
once again is directed to expedite the trial of the
suit, which is going on at the evidence stage,
within a maximum period of six months from the
date of communication of this order keeping in
mind about the earlier direction of this Court so
that Learned Trial Court shall discourage grant
of unnecessary adjournment to either of the
parties.

No order as to cost.

Urgent photostat certified copy of this order,
if applied for, be given to the parties on usual
undertaking.

(Mir Dara Sheko, J.)
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