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Ajay Issar vs Komal Issar (Nee Kohli) on 2 March, 2020

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02.03.2020

srm

C.O. No. 662 of 2020

Ajay Issar

Vs.

Komal Issar (nee Kohli)

Mr. Mukul Lahiri,
Mr. Arirban Pramanick,
Ms. Subhashree dey,
Mr. Sabyasachi Bhattacharya,
Ms. Ahana Rakshit,
Mr. Rajarsi Kundu
…for the Petitioner.

This matter is taken out of turn in view of urgent mentioning.

This is an application filed by the husband aggrieved by an order

dated December 4, 2019 passed in Matrimonial Suit No.31 of 2013

pending before the learned Additional Principal Judge, Family Court,

Calcutta. By the order impugned dated December 4, 2019, the learned

Court below allowed the application under Section 24 of the Hindu

Marriage Act filed by the wife/opposite party and directed the husband

to pay Rs.15,000/‐ per month from date of filing of the application till the

disposal of the suit and litigation costs of rupees 1,00,000/‐.
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Aggrieved, the husband has preferred this revisional application

on the ground that the learned Court below has failed to consider the

income of the husband as also the wife while granting the amount of

Rs.15,000/‐ as maintenance pendente lite.

According to Mr. Lahiri, learned Senior Advocate appearing on

behalf of the husband, there are internet generated copies to show that

the wife was a life coach a form of Martial Arts. That the wife had a

fancy life style and was a member of Saturday Club and Tolly Club. That

the wife was residing at the premises jointly owned by the husband and

wife and the EMI was paid by the husband. That the learned Court

below ought to have considered the fact that the husband was suffering

from Glaucoma and as such his work had considerably reduced which

led to a considerable fall in the income. That the wife has an income of

her own from a salon/spa and other business and engagements and she

did not require any maintenance from the husband.

From the order impugned, it appears that the wife had produced

documents to show that the petitioner had worked as a contractor for

Sunsam Propertiers and Shapoorji Pallonji Builders. TDS certificates

issued by M/s. Sunsam Properties Pvt. Ltd. in favour of ‘Mahogony’, that

is, the proprietorship business of the husband in Interiors, Design,
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Project Management and Consultancy, was filed in Court. The

documents showing that the husband was the Power of Attorney holder

of a Saudia Arabian Construction Company and also engaged in many

construction and housing projects and oil and gas projects abroad have

been filed. Documents showing transfer of money to the petitioner’s son

living and studying in the USA was also filed.

On the other hand, the husband filed an internet generated copy

showing that the wife was a life coach in Krav Maga in Eastern India,

which is an Israeli form of Martial Art. The membership cards of

Saturday Club and Tolly Club and pictures of t2 magazine of the

Telegraph showing that the wife was engaged in teaching Martial Arts

were filed by the husband.

Upon perusal of the application under Section 24 of the Hindu

Marriage Act, it appears that the wife had categorically pleaded that the

husband had a proprietorship business for interior designs, projects and

consultancy and had an income to the tune of Rs.5 lakh to 6 lakh per

month. That she had no income of her own. That the husband had a

huge annual income and had an expensive life style. He paid

Rs.1,36,392/‐ per annum towards EMI for his own flat, rent of

Rs.3,60,000/‐ for a flat in Wood Street and his personal expenses were
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around Rs.18 lakhs per annum. The petitioner had been residing

separately for several years and thereafter filed for divorce. The wife

thus claimed maintenance pendente lite of Rs.1 lakh per month.

The learned Court below upon perusal of the documents and also

upon taking into consideration the depositions of the parties, came to the

conclusion that the husband has failed to prove his own income. The

learned court held that the husband had also failed to substantiate the

income of the wife as a life coach of Martial Art. Thus, the learned Court

below arrived at a finding that the wife did not have sufficient income to

maintain herself and awarded Rs.15,000/‐ per month maintenance

pendente lite along with litigation costs of Rs.1 lakh.

From the deposition of the wife and the cross‐examination, it

appears that the wife had denied that she had sufficient income for her

own maintenance by teaching Martial Arts. That the engagement in the

Spa was temporary. The fact that as the husband was a member of the

clubs, it was quite natural that the wife would also have a membership

with Saturday Club and the Tolly Club. Membership could not be a

proof that she earned sufficiently to maintain her club life, and bear her

personal expenses, when the wife deposed that the husband paid the

bills at the Clubs. It is also a fact that while granting maintenance the
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consideration should be that the wife would be able to continue to live in

the same status and lifestyle to which she was used to, prior to

separation from her husband. The averments made in the application

under Section 24 of the Hindu Marriage Act with regard to the

established business of the husband and his professional success have

not been disproved by the husband. The husband has not been able to

show anything before the learned Court below that to his income was

much less than what was stated by the wife. The husband has not been

able to prove that the wife had her own income.

Under such circumstances, the only document available before the

learned Court below was the income tax return of the husband for the

assessment year 2001‐02 in which the annual income of the husband was

stated as Rs.7,15,000/‐ per annum. One‐third to one‐fifth being the

amount awarded usually by the Courts, the Court awarded Rs.15,000/‐

per month, which is around one‐fourth of the income of the husband.

The Delhi High Court in Radhika Narang v. Karun Raj

Narang reported at 2009 (1) DMC 814 (Delhi) held that the purpose of

providing maintenance is to secure a wife as far as possible the status

and facilities enjoyed by her prior to her separation from her husband.

The determination of the maintenance allowance not being governed by
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any rigid or inflexible rule but it gives wide power and discretion to the

Court to do justice. For the purpose of fixation of quantum the status of

the husband as well as the status of the wife are to be taken into

consideration. Perceptibility of the income is not the test. The

requirement is potentiality. In spite of absence of any documentary

evidence to prove the monthly income of the husband, the Court can

award maintenance allowance in order to do justice keeping in mind the

social reality and the nature of the work of the husband. Moreover, there

can be an enhancement of maintenance allowance due to change in the

circumstance which includes rise in the cost of living and increase of

earning of the husband. (Narayan Chandra Das v. Geeta Rani Das reported

at 2006 (2) CLT 85 (HC).

The Act does not prescribe any formula to be applied in

determining the quantum of alimony pendente lite. In Soma Chowdhury

(Sarkar) v. Pradip Kumar Chowdhury reported at 2009 (1) CHN 282 it was

observed:‐

“It is now settled law that the amount of alimony pendente lite should
vary between one‐third and one‐fifth of the income of the earning spouse
depending upon the facts and circumstances of the case.”
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It does not enact any mathematical formula of one‐third or any

other proportion. It gives wide power flexible and elastic to do justice in

a given case.

The Delhi High Court in Dev Dutt Singh v. Smt. Rajni

Gandhi reported at AIR 1984 Del 320 held that:‐

“30. A word of caution. On Sections 24 and 25 of the Act there is a
“wagon‐load of cases”, to use a phrase of Lord Atkin (See Harris v. Associated
Portland Cement Manufacturers Ltd., (1939) AC 71, 78). But they do not
lay down any proposition of law. They are decisions on the particular facts of
those cases. “We ought to be beware of allowing tests or guides which have been
suggested by the Court in one set of circumstances, or in one class of cases to be
applied to other surroundings”, and thus by degrees to turn that which is at
bottom a question of fact into a proposition of law. If we allow this to happen we
will be crushed under the weight of our own reports. (See Qualcast
(Wolverhampton) Ltd. v. Haynes, (1959) AC 743 761 (per Lord Denning).)

But it must not be forgotten that the award of maintenance pendente lite
has to be reasonable, having regard to the income of the parties. On the facts of
this case and having regard to the income of husband and wife I have no
hesitation in holding that the Judgeʹs award is eminently just.”

The Honʹble Supreme Court in Jasbir Kaur Sehgal v. District Judge,

Dehradun, 1997 (4) RCR (Civil) 65: (1997) 7 SCC 7 observed:‐

“No set formula can be laid for fixing the amount of maintenance. It has,
in the very nature of things, to depend on the facts and circumstances of each
case. Some scope for leverage can, however, be always there. The court has to
consider the status of the parties, their respective needs, the capacity of the
husband to pay having regard to his reasonable expenses for his own
maintenance and of those he is obliged under the law and statutory but
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involuntary payments or deductions. The amount of maintenance fixed for the
wife should be such as she can live in reasonable comfort considering her status
and the mode of life she was used to when she lived with her husband and also
that she does not feel handicapped in the prosecution of her case. At the same
time, the amount so fixed cannot be excessive or extortionate.”

The Honʹble Supreme Court in the case of Dr. Kulbhushan

Kunwar v. Raj Kumari, AIR 1971 Supreme Court 234 approved the

principle enunciated in Mt. Ekradeshwari v. Homeshwar, AIR 1929 PC

128 that Maintenance depends upon a gathering together of all the facts

of the situation, the income of the parties, a survey of the conditions and

necessities, regard being had to the scale and mode of living, and to the

age, habits wants and class of life of the parties. The Honʹble Supreme

Court in the case of Mangat Mal v. Punni Devi, 1995 (3) RRR 632: (1995) 6

SCC 88 held as follows Maintenance, necessarily must encompass a

provision for residence. Maintenance is given so that the lady can live in

the manner, more or less, to which she was accustomed. The concept of

maintenance must, therefore, include provision for food and clothing

and the like and take into account the basic need of a roof over the head.

The Honʹble Supreme Court in the case of Maharani Kesarkunverba v. I.T.

Commissioner, AIR 1960 Supreme Court 1343, held that Maintenance
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must vary according to the position and status of a person. It does not

only mean food and raiment.

In this case the wife resides in a flat, the EMI of which is paid by

the husband. The club’s bills of the wife is paid by the husband. Even if

the wife had some income from her amateur coaching of martial arts and

as a consultant to ‘Prana’ a Spa, considering the status of the parties

award of Rs.15,000/‐ per month as maintenance of the wife is reasonable.

I do not find any illegality or irregularity in the order impugned.

The revisional application is dismissed. The order dated December 4,

2019 is upheld.

The husband is directed to pay to the wife the maintenance

pendente lite and litigation costs, as directed by the learned Court below.

Such payment should commence from the month of March, 2020.

There will be, however, no order as to costs.

Urgent photostat certified copy of this order, if applied for, be

given to the parties on priority basis.

(Shampa Sarkar, J.)

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