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Himanshu Srivastava vs K. Diksha on 26 February, 2024

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Calcutta High Court (Appellete Side)

Himanshu Srivastava vs K. Diksha on 26 February, 2024

Author: Shampa Sarkar

Bench: Shampa Sarkar

26.02.2024
Sl. No.9(DL)
srm

C.O. No. 4306 of 2023

Himanshu Srivastava

Versus

K. Diksha

Mr. Kallol Mondal,
Mr. Krishan Ray,
Mr. Souvik Das,
Ms. Anamitra Banerjee
…for the Petitioner.

Mr. Probal Mukherjee, Sr. Advocate
Ms. Kanchan Roy,
Mr. Swaraj Naskar
…for the Opposite Party.

1.

Supplementary affidavit is taken on record.

2. The revisional application arises out of an order

dated September 4, 2023 passed by the learned

District Judge at Alipore, South 24-Parganas, in Misc.

Case No.238 of 2023 arising out of Mat Suit No.944 of

2023.

3. An application under Section 24 of the Hindu

Marriage Act filed by the wife was allowed on

consent. Both the parties settled before the learned

court that the husband would pay Rs.45,000/- per

month to his wife, i.e., the opposite party with effect

from month of May, 2023. Any amount which was
2

being paid or had been paid towards maintenance in

any other proceeding would be adjusted. The

payment was directed to be made within 10th of each

succeeding month.

4. Mr. Mondal, learned Advocate for the

petitioner/husband challenges the order impugned

on the following grounds:-

(a) Consent was wrongly recorded.

(b) The wife earns Rs.40,000/- per month and the

husband earns a little over a lakh. There was no

reason why Rs.45,000/- should be awarded as

maintenance pendente lite, when the wife was

capable of maintaining herself.

(c) Steps were taken by the petitioner to bring it to

the knowledge of the court about the wrong

recording of consent, but the said application is

yet to be disposed of.

5. In the meantime, the wife had filed an application for

stay of all further proceedings in the matrimonial

suit and also for an order of attachment of the salary

of the husband.

6. Mr. Mukherjee, learned Senior Advocate appearing

on behalf of the wife submits that the consent order
3

cannot be challenged in this revisional application. It

is next submitted that in the proceeding under

Protection of Women from Domestic Violence Act

(hereinafter referred to as the Domestic Violence Act)

also, Rs.40,000/- per month had been awarded by the

learned appeal court. The order of the Hon’ble

Supreme Court staying the proceedings under the

Domestic Violence Act would not operate as a stay of

the order of maintenance allowed by learned appeal

court. The proceedings in Case No.AC-801 of 2023

titled as K. Diksha vs. Himanshu Srivastava Ors.

which is pending before the learned 1st Class Judicial

Magistrate, 9th Court at Alipore, had been stayed,

pending adjudication of the transfer application.

Whereas, the appeal court, i.e. the Court of the

learned District and Sessions Judge, Alipore had

passed the order on July 7, 2023 in the appeal

preferred by the husband, directing that the wife was

to be paid Rs.30,000/- per month as maintenance and

Rs.10,000/- for her alternative residence.

7. Mr. Mondal contends that when the proceedings

under the Domestic Violence Act had been stayed by

the Hon’ble Apex Court, the same amounts to
4

automatic stay of the order of the learned District

and Sessions Judge at Alipore dated July 7, 2023. I do

not find from the records that such order of District

and Sessions Judge, has been stayed. However, the

proceedings under the Domestic Violence Act are not

amenable to the jurisdiction of this court. This

proceeding is restricted to the order passed in the

Misc. Case arising out of MAT Suit No.44 of 2023.

8. When a consent order had been recorded and

maintenance of Rs.45,000/- per month had been

awarded on consent, the same cannot be interfered

with. This Court is of the view that the objection

raised to the recording of consent and the application

for recalling of the order impugned, should be

disposed of for the ends of justice.

9. Under such circumstances, the learned court is

directed to dispose of the application filed by the

husband for recalling in accordance with law, within

a period of one month from the date of

communication of this order.

10. However, it is settled law that if the amount

awarded by the court is not paid, the wife can

approach the court for execution. The modes of
5

execution provided under the Code of Civil

Procedure, will govern the field.

11. In order to avoid attachment of the salary, the

husband will pay an ad hoc amount of Rs.1,50,000/- to

the wife within two weeks from date. Failure on the

part of the husband to pay such amount, shall entitle

the wife to proceed with the execution and pray for

attachment of salary. If such amount is paid, the

execution shall be stayed till the disposal of the

application filed by the husband praying for

recalling of the order by which consent was

recorded.

12. The revisional application is, thus, disposed of.

13. There shall be no order as to costs.

14. Parties are to act on the basis of the server copy of

this order.

(Shampa Sarkar, J.)

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