Smt. Gunjan Ray vs Sri Arindam Ray on 11 May, 2017

IN THE HIGH COURT AT CALCUTTA
11-05-2017 Civil Revisional Jurisdiction
Subrata
. C.O.No.2469 of 2016
Smt. Gunjan Ray

-vs-

Sri Arindam Ray

Mr. Supratik Basu …for the petitioner

Mr. Salman Hasan …for the opposite party

Since accommodation on two earlier occasions for
the purpose of settlement between the parties had gone
in vain, the matter is taken up for hearing and disposal
on merit.

2. Heard Mr Basu and Mr Hassan representing the
petitioner-wife and the opposite party-husband
respectively.

3. The application under Article 227 of the
Constitution of India has been directed assailing Order
No.45 dated June 7, 2016 passed by learned Principal
Judge-in-charge, Family Court, Calcutta in Matrimonial
Suit No.177 of 2012 rejecting an application under
section 151 of the Code of Civil Procedure proposing
enhancement of maintenance pendente lite from `35,000
to `60,000.

4. Mr Basu apprised this court that the suit for
divorce has been filed by the petitioner’s husband
seeking divorce where on the basis of an application
under section 36 of the Special Marriage Act, 1954
learned trial court awarded maintenance pendente lite in
favour of the wife at the rate of `20,000 per month
taking note of the petitioner’s claim that her husband
used to earn in excess of `1.5 lakh per month. He
further submitted that on being moved by the petitioner
in an earlier revisional application being CO No.2673 of
2014, this court modified the order of maintenance
pendente lite enhancing the sum to be payable by the
husband at the rate of `35,000 from the date as directed
by learned trial court with a rider which is as follows:-

“The wife will also be entitled to apply for enhancement of
the quantum obtaining sufficient material to support the same and by
relying on the fact that the present enhancement or modification has
been made by taking the husband’s income to be Rs.1.10 lakh per
month.”

Mr Basu submitted that in view of the liberty
granted by this court and since the amount of `35,000
was not sufficient, the petitioner filed an application
under section 151 CPC proposing further enhancement
in the amount of maintenance pendente lite from
`35,000 to `60,000. Grievance as ventilated by Mr Basu
is that in seisin of the matrimonial suit the trial court
failed to consider the prayer in proper perspective and on
merit, rather, dismissed the application only on the
grounds that due to filing of the likewise nature of
applications, the proceeding of the matrimonial suit was
being delayed. Mr Basu also submitted that the prayer
for enhancement was made in view of the liberty granted
by this court which ought to have been allowed on taking
proper consideration.

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5. Mr Hasan, on the other hand, supporting the
impugned order opposed the prayer of the wife and
prayed for dismissal of the revisional application
submitting that the application under section 151 CPC
for further enhancement is not maintainable.

6. As it appears from record that the matrimonial
suit was filed by the husband seeking divorce under the
Special Marriage Act, 1954 in the year 2012. The
petitioner in exercising her statutory liberty filed the
application praying for maintenance pendente lite and
she was awarded `20,000 as maintenance. Mr Basu, on
instructions, also apprised the court that an amount of
`50,000 in a lump has been paid by the husband
towards the litigation costs. Said amount of `20,000 has
been enhanced by the order of this court. Accordingly,
upto this stage the petitioner-wife has been getting
`35,000 as maintenance pendente lite from her husband
taking note of the husband’s monthly income of `1,10
lac. According to the rider mentioned in the order of CO
No.2673 of 2014, the petitioner was given liberty to apply
for enhancement of quantum upon obtaining sufficient
materials to support the same.

7. Now, in the section 151 CPC application filed by
the petitioner she claimed that “from credible source”
she learnt that current income of her husband “is now
not less than `2 lakh per month.” The petitioner,
however, has ventilated in the application from time to
time about her sufferings from some ailments.

8. Therefore, if the application under section 151
CPC under reference is properly construed, then save
and except surmise and conjecture in the name of
“credible source” she could not supply any “sufficient
material to support the same” for which liberty was given
by this court while disposing of the application being CO
No.2673 of 2014. On examining further, this court could
not find any substantial change in the circumstances
which can justify the impropriety of the order impugned
to caption that learned trial court has virtually
committed lapses in the decision-making process.

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9. Learned trial court on June 7, 2016 in rejecting
the further prayer of the petitioner proposing further
modification in the amount of maintenance pendente lite
observed as follows:-

“Both these petitions appear to have been filed after about
one year of passing of the above order by Hon’ble High Court,
Calcutta. Further proceedings of this suit as well as disposal of the
suit is being delayed due to filing of applications by the parties, one
after another. The parties should not be allowed to drag the
proceeding to some uncertain destiny without sufficient reason.”

10. It is obvious that the proceeding of the present
nature is desirable to be expedited as early as possible.
If reconciliation fails, then it is to be disposed of on
merit. If ultimately the suit for divorce ends with the
affirmative answer, then again upon application the wife
shall have the opportunity under the statute to opt for
permanent alimony under section 37 of the Special
Marriage Act, 1954; whereas within the scope of section
36
of the Special Marriage Act, 1954 of which section 24
of the Hindu Marriage Act, 1955 is a replica, there is no
provision to enhance the amount of maintenance
pendente lite’, once it is finalised upto any level.

11. Therefore, learned trial court rightly, with a view
to saving the proceeding for further delay in view of the
presentation of the application of likewise nature one
after another, rejected the impugned application under
section 151 CPC, specially when `35,000 as awarded as
an interim amount is not an insufficient amount to
maintain a housewife, who may have opportunity to get
the alimony at an enhanced rate, if she would have to
adopt the provision of section 37 of the Special Marriage
Act, 1954.

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12. Before departure, this court also desires to refer
the case decided in CO No.2486 of 2016 with CO
No.2913 of 2016 by which this court on March 16, 2017
already held that once upto any level the application
either under section 24 of the Hindu Marriage Act, 1955
or under section 36 of the Special Marriage Act, 1954
attains finality, then in the second application for
enhancement in the amount of maintenance during
pendency of the proceeding is not available in the
statute, while there is no occasion to observe that the
proceeding of the main suit is being delayed due to any
overt act or action of the husband.

13. Therefore, the impugned order dated June 7,
2016 passed by learned Principal Judge-in-charge,
Family Court, Calcutta in Matrimonial Suit No.177 of
2012 is affirmed and the revisional application is
dismissed with direction to learned Judge-in-charge to
expedite the proceeding of the matrimonial suit for its
disposal as early as possible, without granting
unnecessary adjournment to either of the parties.

14. No order as to costs.

15. Certified photostat copy of this order, if applied
for, shall be given to the parties.

[Mir Dara Sheko, J]

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