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Dr. Rajarshi Ghosh vs Mrs. Soma Ghosh on 19 December, 2019

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19.12.2019

srm

C.O. No. 4173 of 2019

Dr. Rajarshi Ghosh
Vs.

Mrs. Soma Ghosh

Mr. Kallol Basu,
Mr. Bratin Kumar Dey,
Mr. Gaurav Singh
…for the Petitioner.

Supplementary affidavit filed by the petitioner is taken on record.

This is an application filed by the petitioner in Matrimonial Suit

No.220 of 2018, pending before the learned Additional District Judge, 7th

Court, Barasat, being the husband. The petitioner is aggrieved by an

order dated September 23, 2019 passed by the learned Additional

District Judge, 7th Court at Barasat by which the maintenance pendente lite

of Rs.15,000/‐ per month was granted to the wife from the date of filing

of the application under Section 36 of the Special Marriage Act, 1954,

which was registered as Misc. Case No.07 of 2018. No litigation case was

awarded.

The wife prayed for Rs.50,000/‐ per month for maintenance and

Rs.30,000/‐ as litigation cost. The wife’s contention was that the husband

was an Eye Specialist and he had a substantial income of Rs.2,50,000/‐
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per month. He has a double storied house in Salt Lake. The

husband/petitioner filed an objection to the application for maintenance

and stated that his income was Rs.40,500/‐ as he was a salaried Doctor in

Anandalok Hospital and the house in Salt Lake was his mother’s

property. He did not have means to provide for his wife, due to other

expenses incurred for looking after his parents.

The learned Court below upon considering the various factors

came to the finding that the income of the husband of Rs.40,500/‐ per

month as remuneration, which was sought to be substantiated by the

husband on the basis of a certificate issued by the Secretary of the

Anandalok Hospital, could not be completely relied on. The learned

Court below further came to a finding that admittedly the wife did not

have any income of her own and she was living under the shelter of her

elder brother. The court held that amount of maintenance pendente lite

should be calculated on the ability of the husband, the need of wife, the

social status, age, education, etc. Considering the present market value

of essential commodities and status of the parties, the learned Court

below deemed it fit to award Rs.15,000/‐ per month as maintenance

pendente lite.

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I have gone through the order impugned and I find that the

learned Court below has considered the various aspects necessary to

determine the quantum of maintenance on the basis of the documents

and pleadings before the learned court. Admittedly, no formula has

been fixed by the Statute to determine the maintenance pendente lite. The

maintenance awarded should not be excessive or extortionate. In this

case it is the husband’s own submissions that he earns Rs.40,500/‐ per

month from the Anandalok Hospital as Eye Specialist.

From the supplementary affidavit annexing the income tax return

of the petitioner, it appears that the gross total income was Rs.6,22,533/‐.

The deductions under Chapter VI‐A has been quantified at Rs.1,60,000/‐

which means that the petitioner has the potential to invest Rs.1,60,000/‐

every year. These deductions are not statutory deductions. These are

deductions which are available to the petitioner for making certain

investments. The petitioner was living in a stand alone family residential

house in Salt Lake, which was constructed over an area of 4 cottahs. The

petitioner is a highly qualified Eye Specialist (Surgeon). He is attached to

the Anandalok Hospital.

This was the social status to which the opposite party/wife was

used to in her matrimonial home. After the separation, she is at the
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mercy of her elder brother, which is recorded in the order impugned. As

such in calculating the maintenance pendente lite the requirement of the

wife, the market condition, social status and consideration for a roof

above her head should be taken into account by the learned Court

below. Thus Rs.15,000/‐ per month as awarded does not seem to

excessive. The husband could not prove before the learned court that he

incurred huge expenses for maintenances of his parents.

In the decision of SectionJasbir Kaur Sehgal (Smt.) vs. District Judge,

Dehradun Ors., reported in (1997) 7 SCC 7 the Hon’ble Apex Court held

that no set formula can be laid down for fixing the amount of

maintenance. It must, in the very nature of things, 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 for the maintenance of

those he is obliged under the law to maintain, including statutory

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
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does not feel handicapped in the prosecution of her case. At the same

time, the amount so fixed cannot be excessive or extortionate.

The Delhi High Court in SectionRadhika 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 any

rigid or inflexible rule, gives wide power and discretion to the Court to do

justice. For the purpose of fixation of the 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. (SectionNarayan Chandra Das v. Geeta Rani Das reported

at 2006 (2) CLT 85 (HC).

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SectionThe Act does not prescribe any formula to be applied in determining

the quantum of alimony pendente lite. SectionIn 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.”

The Honʹble Supreme Court in the case of SectionDr. Kulbhushan

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

principle enunciated in SectionMt. 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 SectionMangat 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.”

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The Honʹble Supreme Court in the case of SectionMaharani

Kesarkunverba v. I.T. Commissioner, AIR 1960 Supreme Court 1343, held

that maintenance must vary according to the position and status of a

person. It does not only mean food and raiment.

Under such circumstances, the order impugned does not merit

any interference and the same is upheld.

The revisional application is, thus, dismissed.

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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