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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
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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
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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
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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
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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.)
