C.O. 73 of 2016
(Asish Saha Vs. Mrs. Tapati Saha)
Mr. Mrinal Kanti Ghosh
……For the petitioner
The instant revision is directed against Order No. 32
dated 20th August, 2015 passed by the learned Additional
District Judge, 6th Court at Alipore in Misc. Case No. 29 of
2013 arising out of a Matrimonial Suit No. 5 of 2013. The
aforesaid Misc. Case is presented under Section 24 of the
Hindu Marriage Act (hereafter the ‘Act’).
Mr. Mrinal Kanti Ghosh, learned advocate for the
husband/petitioner submits that the learned Trial Judge
disposed of the application under Section 24 of the said Act
directing the petitioner to pay maintenance pendente lite @
Rs.5,000/- per month. It is further urged by Mr. Ghosh that
the petitioner is compelled to leave his own house and stay
elsewhere being forcibly driven out by the wife/opposite party.
It is not disputed that the opposite party/wife has been
residing with her children in the house of her
husband/petitioner and the petitioner does not reside in his
house. Whether he has been driven out or he voluntarily left
his house to dissociate his wife and children is a question of
facts to be decided in the suit.
At this stage, it was for the consideration of the learned
Trial Judge as to whether the wife/opposite party is entitled to
any alimony during the pendency of the suit. On perusal of
the impugned order, it is found that admittedly the opposite
party has no source of income. It is the legal and moral duty
of the husband to maintain his wife. It cannot be a ground for
rejection of the prayer for alimony pendente lite on the ground
that the wife has been residing in the house of her husband.
From the impugned order it is further found that admittedly
the opposite party filed the income tax return during the
financial year 2014-15 to tune of Rs.2,25,000/-. In his cross-
examination, he admitted that he could earn Rs.15,000/- per
month. It is not specifically pleaded anywhere by the
petitioner that he is absolutely unemployed and does not earn
anything or that he has no financial capacity to maintain his
wife. Even assuming that the petitioner has no financial
capacity, he is under obligation to maintain his wife and pay
alimony during the pendency of matrimonial suit.
There is nothing in the record that the opposite party
filed any case praying for maintenance under Section 125 of
the Code of Criminal Procedure. Therefore, I can safely hold
that the application under Section 24 of the Hindu Marriage
Act is the only proceeding where the petitioner has prayed for
alimony during the pendency of the matrimonial suit.
On due consideration of the present day market price as
well as the basic need of sustenance, I am of the view that the
learned Trial Judge did not commit any irregularity, far less
illegality, in passing the order of alimony @ Rs.5,000/- per
month during pendency of the matrimonial suit.
For the reasons aforesaid, I do not find any scope to
interfere with the order impugned.
The revisional application is devoid of any merit and
accordingly, stands rejected. There shall, however, be no
order as to costs.
Urgent photostat certified copy of this order, if applied
for, be given to the parties as expeditiously as possible.
(Bibek Chaudhuri, J.)