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Sarmistha Chakraborty (Nee … vs Abhijit Chakraborty on 5 January, 2018

1

(234)
05.01.2018

(p.j.)

IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION

C.O. No. 1863 of 2013

Sarmistha Chakraborty (Nee Debnath)

-versus-

Abhijit Chakraborty

Mr. Tanmoy Mukherjee
… for the petitioner

On call none appeared on behalf of the opposite party. Affidavit of service has been filed

pursuant to order dated 12.5.2017, but in spite of none appeared. It would appear from the order

dated 22.11.2013 that one Mr. Sounavo Basu, learned advocate, had appeared on behalf of the

opposite party. It also appears from the order dated 17.5.2013 that pursuant to the caveat lodged by

one Sri Dipak Kumar Mukhopadhyay, learned advocate, a copy of the revisional application was

served upon him. The listing of a case in the cause list is notice to all the parties but since none

appeared on behalf of the opposite party, it is imperative for this Court to take up this matter on its

merit upon hearing learned advocate for the petitioner. The opposite party Abhijit Chakraborty

filed a suit for decree of divorce by dissolving the marriage with the petitioner. Admittedly, the

petitioner is a legally married wife and out of their wedlock two children were born to them. The

matrimonial suit being MAT Suit No. 91 of 2009 was filed and on receipt of the summons the
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petitioner entered appearance and filed an application under Section 24 of the Hindu Marriage Act,

1955 for the maintenance pendente lite which was registered as Misc. Case No. 945 of 2009 in the

Court of 11th Additional District Judge at Alipore. In the said Misc. Case the petitioner prayed for

direction upon the opposite party to pay to the petitioner a sum of Rs. 3,000/- per month towards

the maintenance of the petitioner and Rs. 6,000/- per month towards the maintenance of the

children and further to pay a sum of Rs. 15,000/- towards costs of litigation. The learned District

Judge upon hearing the learned advocate for the parties to the suit allowed the Misc. Case under

Section 24 of the Hindu Marriage Act, 1955 with the direction to the opposite party husband to pay

to the petitioner an amount of Rs. 6,500/- per month for her maintenance and for the maintenance

of her children under her care but a condition was imposed that such alimony pendente lite would

be payable with effect from the date when she vacates and makes over vacant possession of one of

the two accommodations presently under the control of the petitioner which shall be payable till the

disposal of the suit unless the order is earlier modified vide the order No. 58 dated 01.4.2013.

This is the order impugned by the petitioner in this revisional application, inter alia, on the

grounds that the learned Judge has committed an error in law with the material irregularities in not

directing the opposite party to pay maintenance pendente lite with effect from the date of filing of

the application under Section 24 of the Hindu Marriage Act and secondly that the learned Judge

committed irregularity in exercise of its jurisdiction by imposing a condition that the wife petitioner

will have to vacate and make over vacant possession of one of the accommodations under her

control in order to get maintenance pendente lite as pre condition.

Heard the learned advocate for the petitioner and gone through the order impugned.

I am of the considered view, bearing in mind the provision of Section 24 of the Hindu

Marriage Act, 1955 that the alimony pendente lite ought to have been granted from the date of
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application under Section 24 of the said Act and there is no such provision that for obtaining

alimony pendente lite, the learned Court has to pass any pre condition for getting alimony pendente

lite as passed in the impugned order which really frustrated the order impugned passed by the

learned Trial Court and such pre condition imposed cannot be sustained in law.

Therefore, the order impugned is liable to be modified to this extent that the petitioner wife

shall be entitled to alimony pendente lite from the date of filing of the application under Section 24

of the Hindu Marriage Act, 1955 and the opposite party husband is directed to make payment of

Rs. 6,500/- per month for the maintenance of the petitioner and her children by 15th day of each

succeeding month till the disposal of the suit and is further directed to pay the arrear maintenance

falling due by easy instalments which may be fixed by the trial Court.

Thus, this revisional application being CO 1863 of 2013 is allowed. However, there shall

be no order as to costs.

Certified website copy of the order, if applied for, be urgently made available to the party,

subject to compliance with all requisite formalities.

(Shivakant Prasad, J.)

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