(Smt. Sharmistha Kar Purkayastha vs Shri Surajit Kar on 12 September, 2017

1

1 12.9.2017
jb. CAN 3280 of 2017
in
F.A.T. 182 of 2017
+
CAN 3453 of 2017
with
F.A.T. 183 of 2017
+
CAN 3282 of 2017
+
CAN 3284 of 2017

Re: CAN 3280 of 2017
(Smt. Sharmistha Kar Purkayastha vs. Shri Surajit Kar
Purkayastha)

Mr. Aniruddha Chatterjee
Mr. Kushal Chatterjee
Mr. Surendra Kumar Sharma
…. For the Petitioner/Wife

Mr. Probal Mukherjee
Mr. Anirban Ray
Ms. Rituparna De
Ms. A. Singh
Ms. Micky Chowdhary
Mr. Debabrata Das
…. For the Respondent/Husband

Heard Mr. Aniruddha Chatterjee being assisted by

Mr. Kushal Chatterjee and Mr. Surendra Kumar Sharma,

learned counsel representing the petitioner-appellant on

the application being CAN 3280 of 2017 filed by the
2

petitioner-wife praying for maintenance pendente lite

during pendency of this appeal at the rate of Rs.1,50,000/-

per month and litigation cost to the extent of Rs.6,00,000/-

in a lump.

Heard also Mr. Probal Mukherjee, learned senior

counsel representing the respondent-husband being

assisted by Mr. Anirban Ray, Ms. Rituparna De, Ms. A.

Singh, Ms. Micky Chowdhary and Mr. Debabrata Das,

learned counsel who opposed the application by filing

affidavit in opposition.

Mr. Chatterjee, learned counsel for the petitioner

submitted before us that in the suit for divorce filed before

the learned trial Court at the instance of the husband-

respondent, the application under Section 24 of the Hindu

Marriage Act was allowed in part by directing the

respondent-husband to pay maintenance pendente lite at

the rate of Rs.35,000/- per month taking note of the then

income of the husband, he being the D.G.P., West Bengal

while the petitioner-wife also had been earning Rs.45,000/-

per month, being a principal of an educational institution.
3

Mr. Chatterjee also apprised us that the learned trial Court

awarded Rs.30,000/- as a lump sum amount in favour of

the petitioner-wife towards litigation cost in the suit.

Being assailed at the instance of the petitioner, the

High Court in C.O. no. 3142 of 2015 modified said order of

maintenance pendente lite by enhancing only the litigation

cost to the extent of Rs.80,000/- from Rs.30,000/- and of

course by keeping the maintenance amount unchanged.

The suit for divorce having been decreed, the instant

appeal is preferred by the wife-petitioner at whose instance

the instant application being CAN 3280 of 2017 under

reference is heard on merit.

Mr. Chatterjee, learned counsel virtually submitted

to allow the instant application for maintenance pendente

lite and cost of litigation cost to proceed with the appeal on

three eventualities, viz.

i) presently the wife is completely out of

employment;

i) there is increase in the salary of the husband

due to enforcement of 7th Pay Commission;

i) increase in all essential commodities.
4

Further Mr. Chatterjee submitting about age of the

petitioner and also inviting our attention to the averments

as contended in the petition supported by documents,

prayed for allowing the amount as maintenance pendente

lite and litigation cost as sought for by taking adverse

inference, since salary slip and income tax statement were

not submitted by the opposite party. In support of his

contention, Mr. Chatterjee relied upon the following

decisions:-

i) 1998 Volume 2 Calcutta Weekly Notes 38 (Sudipta

Mukherjee v s. Dibyendu Mukherjee) at page 40;

i) (2001) 2 Calcutta Law Journal 393 (Smt Anamika

Sengupta vs. Biswajit Sengupta) at paragraph 1

i) (2003) 4 Calcutta High Court Notes 7 (Rousseau Mitra

vs. Shrimati Chandana Mitra) at paragraphs 5-9

i) (2010) 12 Supreme Court Casses 242 (Neeta Rakesh

Jain vs. Rakesh Jeetmal Jain) at paragraphs 9-10

i) AIR 2005 Calcutta 266 (Smt Pampa Das vs. Sanjib

Das) at paragraph 8.

i) 2012(2) Calcutta High Court Notes 828.

Mr. Mukherjee, learned senior counsel for the
5

respondent inviting our attention to some of the documents

viz. bills and vouchers of medicines purchased for the

mother of the petitioner as annexed argued that the

husband of the petitioner should not be burdened to bear

medical expenses of his mother in law. He further argued

that yearly premiums as referred to in the application by

the petitioner which were paid by herself, those are

sufficient to prove her capability of having independent

means to maintain herself. Mr. Mukherjee submitted that

though his client did not hand over salary certificate for

submission before the Court yet admitted that there was

increase in the salary, but argued that it does not mean

that in the name of grant of maintenance pendente lite for

the purpose of attending the litigation cost and

maintenance the wife should be allowed to be enriched by

the order of the Court under Section 24 of the Hindu

Marriage Act.

Mr. Mukherjee, taking us to the averments of the

application filed by the petitioner tried to demonstrate that

since the petitioner suppressed some material facts, she

should not expect the equitable justice from the Court of
6

equity. Specially inviting to the texts of paragraph 14 of the

application, he submits that while the petitioner herself

had given exposure of her need to the extent of Rs.30,000/-

per month for maintaining her status, social commitments

etc. the amount as sought for in excess to such assertion is

not only high and excessive but also false, frivolous and

without any basis.

Admittedly out of the wedlock the parties have a

school going daughter now aged about 10 years living with

the father i.e. the respondent-husband. From the

documents as have been placed before us, let us take it as

granted without pursuing to traverse as to how and why it

was caused that the petitioner who was a principal of an

educational institution had been removed from her service

with effect from 30th October, 2015. Let us also take it

granted that immediately after removal from service some

amount in lieu of salary for some period what were received

by her from that institution she had managed the annual

premiums of the insurance policy referred to in her

application. If the very language of Section 24 of the Hindu

Marriage Act is construed in its true letter and spirit, then,
7

it reveals that the Court shall lend assistance to either of

the spouse in need who would not be able to pursue with

the litigation on his/her own under the Act by maintaining

herself/himself during the proceeding. Certainly the order

of the Court for rendering financial assistance shall remain

in vogue during the proceeding. Meaning thereby, the force

of the order of maintenance pendente lite shall have a go by

on the date when the proceeding shall end. In the case on

hand the order of the learned trial Court which was

modified by the order of this Court as referred to above

thereby ended while the suit ended with the decree of

divorce. Therefore, the instant application has come up

with the new cause of action with the preference of the

instant appeal as filed by the wife-petitioner against decree

of divorce. But the principles shall be followed in the same

and similar manner in the matter of considering the prayer

under Section 24 of the Act. In the present circumstances

virtually subsequent events have come up, i.e.

i) There is increase in the salary of the husband;

i) The wife is now unemployed.

i) There is increase in essential commodities.
8

It is obvious that increase in the salary may

encourage the other spouse to submit prayer to get amount

of maintenance pendente lite at some enhanced rate. But

equally the Court in passing the order is to consider as to

whether the amount so to be directed for payment would be

fit and proper for the petitioner as the amount of

maintenance pendente lite within the ambit of the said

Section. The purpose of the Section obviously is not to

make the other one enriched by the order of the Court since

the scheme is not permitted to be allowed as a profit

earning unit. Equally it is to be looked into so that to

comply with the order one may not be put into

unmanageable disadvantageous position. We took note the

ratio of the decisions cited by Mr. Chatterjee which are

basically as the guidelines and duty of the Court while

considering the application for maintenance pendente lite

on which principally there can be no reservations.

We are apprised of that the opposite party-husband

is holding the highest post in the police department in the

State. Eventually it must be, that his salary amongst the

officers of the department would be the maximum. Mr.
9

Chatterjee submitted before us that though the opposite

party did not furnish salary slip or income tax statement of

the current year but his gross monthly salary income would

be around Rs.2,25,000/-. In considering the prayer under

Section 24 of the Act we should not be unmindful that the

opposite party while is holding the highest post amongst

the higher officers of his department, he is to maintain

also his personal and official status in befitting manner. He

is to maintain his school going daughter equally by

providing befitting status to her, so that, the ward may not

feel any deficiency in her proper upbringing, specially

when, she is now amidst the marital dispute of her parents.

The opposite party must be also taxpayer at the maximum

slab of 30% from his salary income per month. The Court

also took note that amidst the proceeding of the appeal,

which is otherwise ready for hearing, since preparation of

paper book has already been directed, the petitioner should

not feel distressed financially, more so when, of course,

under order of this Court the opposite party has satisfied

the amount in the name of maintenance at the old rate of

Rs.35,000/- since after disposal of the suit till August,
10

2017. Another aspect also is not out of our sight that while

the petitioner is aged 55 years, the opposite party also has

been advancing towards age of his superannuation, and

the petitioner being an well qualified lady may have utilised

her time and resources for taking coaching classes to

educate the students in lieu of remuneration for her own

gain. Therefore, the Court also is to consider as to how far

financial burden should be imposed on the husband at this

stage. Nonetheless of increase in the price of essential

commodities the amount of Rs.35,000/- is not a negligible

amount. Equally considering the stage of appeal before this

Bench which is otherwise ready for hearing and, since after

removal from service the petitioner did not bring out any

noticeable hardship, rather the amount of Rs.35,000/-

though is substantial one for living with due honour and

dignity, however, considering the age of the petitioner and

since the need of her own medical treatment due to age-old

ailment is also not ruled out, assessing the need of her

medical expense to the tune of Rs.10,000/-, for her own

maintenance to the tune of Rs.25,000/- and also under

miscellaneous head providing an amount of Rs.3,000/- for
11

the present, and, in such way if the total amount of

maintenance pendente lite pending the appeal is fixed to

the tune of Rs.38,000/- with direction for its payment from

the date of filing of the application being CAN 3280 of 2017,

the purpose of the application will be sub-served.

Be it mentioned that since by this time the opposite

party has paid the amount of maintenance to the petitioner

at the earlier rate of Rs.35,000/- the monthly amount, so

fixed by this order shall be adjustable with the amount

payable only from the date of filing of the CAN application

under reference and not with the amount, if any paid

covering the period prior to the date of filing of the CAN

3280 of 2017.

Be it mentioned that for convenience of all parties,

learned counsel for the petitioner shall submit the bank

account number of the petitioner within 7 days so that the

amount of maintenance pendente lite can be deposited by

the respondent-husband directly in the said bank account.

Now as regard litigation cost, since the proceeding is

an appeal, which is otherwise ready for hearing, and may

be disposed of expectedly by one or two hearing, we direct
12

the respondent-husband to make one time payment to the

extent of Rs.1,50,000/- as litigation cost which shall be

paid within ten days from date in the same manner.

The application being CAN 3280 of 2017 is

accordingly allowed in part.

(Rakesh Tiwari, J.)

(Mir Dara Sheko, J.)

Leave a Comment

Your email address will not be published. Required fields are marked *