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Asim Bhattacharya-vs-Smt. Saswati Bhattacharya on 25 June, 2004

Calcutta High Court Asim Bhattacharya-vs-Smt. Saswati Bhattacharya on 25 June, 2004
Equivalent citations:(2004) 3 CALLT 243 HC
Author: A Bhattacharya
Bench: A K Bhattacharya

JUDGMENT

A.K. Bhattacharya, J.

1. The hearing stems from an application filed by the petitioner praying for revision of the order being No. 25 dated 07.03.2003 passed by the learned Additional District Judge, 3rd Court, Alipore in Misc. Case 3 of 2002 arising out of MAT Suit No. 28 of 2001.

2. The circumstances leading to the present revision are that the O.P./ wife instituted the said suit for divorce and filed an application under section 24 of the Hindu Marriage Act, 1955, being registered as Misc. Case 3 of 2002, on 15.01.2002 praying for alimony pendente lite @ Rs. 3,000/- p.m. and litigation cost of Rs. 5,000/-. After considering the facts, circumstances and evidence on record, the learned Court below, by the impugned order, granted Rs. 2,000/- p.m. as alimony pendente lite and Rs. 5,000/- as litigation cost.

3. Being aggrieved by and dissatisfied with the said order, petitioner/ husband has preferred the present revision.

4. Mr. S.P. Roy Chowdhury, learned counsel for the petitioner, on referring to the pay slip and rent certificate issued by the landlord contended that when his client being an U.D.C. in the Ministry of Defence, Delhi and drawing a take home salary of Rs. 6,649/- only after all deductions, has to maintain an establishment at Delhi and pay Rs. 1,500/- p.m. towards rent and has to spend a considerable amount towards litigation in connection with three proceedings viz the said suit for divorce, suit for restitution of conjugal rights and criminal case under section 498A IPC initiated against him and others at the instance of O.P./wife, the alimony @ Rs. 2,000/-p.m. as granted by the learned Court below is excessive and will cause hardship to his client. Mr. Sabyasachi Bhattacharya, learned counsel for the O.P., on the other hand, on referring to the Written Objection against the application under section 24 contended that there being no whisper about the petitioner’s residing in a rented accommodation at Delhi and payment of rent @ Rs. 1,500/- p.m., there is no scope for considering the above rent certificate produced before this Court for the first time and that the amount of alimony @ Rs. 2,000/- p.m. being reasonable for the existence of a person in these hard days, there is no material to upset the decision of the learned Court below.

5. To start with, in revisional jurisdiction Court has to consider not what could be believed by the trial Court but whether or not the view taken by the trial Court on a question of fact is also a possible view on the basis of the materials on record.

6. In order to award maintenance pendente lite to the wife or husband,-as the case may be, the Court has merely to consider whether he or she has any independent income for his or her support. The object of granting maintenance to the wife is to see that she may be able to live in a manner which is commensurate with the social status of her husband. The word “maintenance” is not to be narrowly interpreted, as it means the most reasonable requirements for the existence of a person to live separate.

7. There is no hide bound formula as to the quantum the Court is to award as alimony pendente lite. Under the Indian Divorce Act, the proportion of one-fifth is fixed as the maximum, but such a provision has been consciously and deliberately avoided in the Hindu Marriage Act. Each case is to be determined on its own facts. In some cases, one-third of the income has been allowed, in some cases, one-fifth of the income and in some cases one-half of the income has been allowed. In fact, all the circumstances of the case have to be taken into account and then to arrive at a proper solution having particular regard to the factors mentioned in the section. In Pratima v. Kamal Kumar (68 CWN 316) it was observed that the husband’s income shall be taken as a relevant fact and the maintenance shall be fixed regard being had to the social status, age, education and other requirements of the applicant for maintenance. In my view, the number of dependent members and other obligation, if any, of the husband should not be ignored in assessing the quantum of maintenance. In the present case, of course, the O.P./husband who resides at Delhi in connection with his service has his retired parents and brothers at New Barrackpore, none of whom is dependent on him.

8. In the matter of fixing the monthly allowance, if the Court finds that the applicant has no independent income sufficient for his or her support, the gross income of the respondent has to be kept in view for judging the standard of living of the applicant. In calculating the amount, the disposable income is to be determined by deducting from the gross income only such expenses over which the respondent has no control e.g. income tax, professional tax, compulsory provident fund contribution etc., but not insurance premium or voluntary savings since if these are allowed to be deducted. apart from the fact that it will go to the benefit of the respondent, it may cause great hardship as by making larger contribution from pay to the said savings the respondent can seek to deprive the applicant of his/her share in the income. In this connection, the decisions , Sangeeta

Sharma v.Rajib Sharma (1994) 2 Civ. LJ 921 (Del), Chandrikaban C. Patel v. Ramesh Chandra (1986) 1 DMC 232 (Guj) may be referred to. In working out the disposable income, no deduction is permissible from the gross income in respect of running the household or payment of house rent or electricity or salaries of domestic servants. In this connection, the Division Bench decision of Punjab & Haryana High Court in Usha v. Sudhir Kumar (1974 PLR 195 : 1975 HLR 252) may be referred to. It is to be borne in mind that apart from maintaining himself and the duty to maintain the wife the husband has certain other obligations which he has to discharge, and the order of maintenance should not work out as a penalty. Likewise, apart from entitlement to have the same status as her husband, the wife is entitled to have necessary medical facility, food, clothing etc. So taking into consideration the inflation and cost of living, asking the husband to part with one-fourth of his disposable income appears to be reasonable and justified which brings the amount to about Rs.1,662/-, say Rs.1,700/-.

9. As regards the contention of Mr. Roy Chowdhury regarding hardship of his client for granting of maintenance from the date of application i.e. 15.01.2002, the well known rule that the petitioner should be allowed maintenance pendente lite from the date of commencement of the proceeding should not be departed from.

10. Lastly, Mr. Roy Chowdhury submitted that as the time for payment of arrear maintenance allowance has expired, his client may be granted extension of time which appears to be appreciable.

11. In the premises, in the light of the above discussion, the revisional application be allowed on contest in part but without any cost in the circumstances.

12. The O.P./husband is directed to pay alimony pendente lite @ Rs. 1,700/- p.m. to the petitioner/wife from the date of commencement of the proceeding i.e. 15.01.2002 month by month payable by 10th day of English calendar month and also the arrear maintenance allowance payable along with the current alimony within six months from date. In default of payment of the arrear maintenance within the stipulated period for two consecutive months the entire balance shall fall due at once and the petitioner /wife shall be at liberty to recover the same in due course of law. The impugned order dated 07.03.2003 stands modified to that extent, the balance portion of the order remaining unaltered.

Let a copy of this order be sent down at once to the learned Court below.

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