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Judgments of Supreme Court of India and High Courts

(Asish Saha vs Mrs. Tapati Saha) on 31 January, 2019



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.)

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