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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.)
