REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5369 OF 2017
(Arising out of SLP(C) No. 34653 of 2016)
KALYAN DEY CHOWDHURY …..Appellant
Versus
RITA DEY CHOWDHURY NEE NANDY …..Respondent
J U D G M E N T
R. BANUMATHI, J.
Leave granted.
2. Challenge in this appeal is to the order dated 15.09.2016 passed by
the High Court at Calcutta in RVW No.85 of 2016 in C.O. No.4228 of 2012,
reviewing an order dated 02.02.2015 passed earlier in an application filed
under Section 25(2) of the Hindu Marriage Act, 1955, thereby enhancing the
amount of maintenance from Rs.16,000/- per month to Rs.23,000/- per month.
3. Parties are entangled in several rounds of litigation. Background
facts in a nutshell are as follows: The marriage of the appellant and the
respondent was solemnized on 10.08.1995 as per Hindu rites and customs at
the appellant’s residence at Kalna. A male child was born on 04.10.1996 at
Chandannagore who is now a major pursuing his college education. After the
birth of child, it is alleged that the respondent continued in her parent’s
house. The appellant-husband requested the respondent to return to the
matrimonial home at Kalna alongwith the child. It is alleged that instead
of acceding to the request of the appellant-husband and returning back to
the matrimonial home, the respondent-wife insisted that the appellant-
husband shifts to her father’s place at Chandannagore.
4. Appellant filed an application under Section 9 of the Hindu Marriage
Act, 1955 for restitution of conjugal rights against the respondent-wife in
Matrimonial Suit No.370 of 1997 before the District Judge, Burdwan on
23.12.1997. On receipt of summons in the above matrimonial suit on
9.02.1998, the respondent-wife lodged an FIR bearing P.S. Case No.25 dated
13.02.1998 under Sections 498A and 406 IPC against the appellant and his
parents at P.S. Chandannagore. The appellant and his parents were granted
anticipatory bail by the Sessions Judge, Burdwan on 20.05.1998 in the FIR
filed by the respondent-wife. The respondent-wife also filed a maintenance
case being Misc. Case No.24/98 under Section 125 Cr.P.C. against the
appellant-husband claiming maintenance for herself and the minor son.
5. On 10.08.2000, the Additional District Judge, Burdwan passed decree
of restitution of conjugal rights in favour of the appellant-husband.
However, the respondent did not reconcile and preferred an appeal against
the said decree of restitution of conjugal rights before the High Court
being F.A. No.198 of 2001. In the High Court, by an order dated 24.05.2001
an interim arrangement was made directing the appellant herein to go to the
parental home of the respondent-wife at Chandannagore and take back the
wife and the child to his residence at Kalna and make necessary arrangement
for living with his wife and child separately from the parents of the
husband in the first floor of the matrimonial home. Subsequently, the
interim arrangement was recalled. The interim arrangement did not work and
the appeal filed by the respondent-wife was allowed on 13.08.2003.
6. In the year 2003, respondent-wife filed a Matrimonial Suit No.533 of
2003 before the District Judge Hooghly against the appellant-husband under
Section 10 of the Act for judicial separation. According to the appellant,
though he filed written objections denying allegations made against him, he
could not attend the hearing and it is alleged that he was manhandled in
the court premises by some men of the respondent-wife. Ex parte decree for
judicial separation was ordered on 19.05.2006, as a consequence of which
decree for permanent alimony was also ordered under Section 25 of the Hindu
Marriage Act to the respondent-wife amounting to Rs.2,500/- per month and
Rs. 2,000/- per month to the minor son.
7. In the meanwhile, the appellant-husband and his parents were
acquitted of all the charges by the Additional District and Sessions Judge,
2nd Fast Track Court, Serempore on 20.07.2006 in the case filed alleging
dowry harassment. Being aggrieved by the order hereinabove, the respondent-
wife filed a revision petition being CRR No. 3087 of 2006 before the High
Court at Calcutta which came to be dismissed on 21.03.2011.
8. The appellant-husband filed a divorce petition being Matrimonial Suit
No.71 of 2007 which was renumbered as Suit No.193 of 2010 under Section
13(1)(ia) of the Hindu Marriage Act for dissolution of marriage. In the
said divorce petition, the respondent-wife filed an application for
permanent alimony under Section 25 of the Act. By an order dated
19.05.2006, passed by the Additional District Judge, 1st Court, Hooghly in
Matrimonial Suit No.533 of 2003, enhanced the amount of maintenance to Rs.
8,000/- per month in F.A. No. 193 of 2008.
9. On 10.10.2010, the respondent filed an amendment application before
the Court being Misc. Case No.2 of 2010 in Matrimonial Suit No.533 of 2003
under Section 25(2) of the Act praying for enhancement of maintenance
amounting to Rs.10,000/- per month for herself and Rs. 6,000/- for her
minor son. Vide order dated 10.10.2012, the said application was allowed
and maintenance at the rate of Rs.6000/- each was ordered for the
respondent and her minor son.
10. Aggrieved by this order, respondent-wife preferred a revision
petition under Article 227 of the Constitution of India before the High
Court being C.O. No.4228 of 2012. During its pendency, the Matrimonial
Suit No.193 of 2010 was decreed and the marriage between the parties came
to be dissolved by the order of the Additional District Judge, 1st Fast
Track Court, Serampore on 30.11.2012. Post-divorce, the appellant herein
re-married and has a male child born out of the second wedlock.
11. By an order dated 02.02.2015, the High Court disposed of the above
revision petition by directing the appellant-husband to pay a sum of
Rs.16,000/- towards the maintenance of the respondent-wife as well as her
minor son. Aggrieved by this order, the respondent-wife preferred a
Special Leave Petition (C) No.12968 of 2015 which was disposed of as
withdrawn with liberty to approach the High Court by way of review.
Pursuant to the above order, respondent-wife filed a review application
being RVW No.85 of 2016 arising out of CO NO.4228 of 2012. Upon hearing
both the parties, by order dated 15.09.2016, the learned Single Judge of
the High Court modified the order under review and enhanced the amount of
maintenance from Rs.16,000/- to Rs.23,000/- which is the subject matter of
challenge in this appeal.
12. Learned counsel for the appellant Mr. Pijush K. Roy submitted that in
exercise of review jurisdiction, the High Court ought not to have enhanced
the maintenance amount from Rs.16,000/- to Rs.23,000/-. It was further
submitted that the appellant-husband is posted at Malda Medical College,
Malda, West Bengal and gets a net salary of Rs.87,500/- per month and
while so, the appellant would find it difficult to pay enhanced maintenance
amount of Rs.23,000/- per month to the respondent-wife. It is also
submitted that the respondent is a qualified beautician and Montessori
teacher and earns Rs.30,000/- per month and the son has also attained
eighteen years of age and hence the enhanced maintenance amount of
Rs.23,000/- per month is on the higher side and prayed for restoring the
original order of Rs.16,000/- per month.
13. Per contra, learned counsel for the respondent-wife Ms.
Supriya Juneja submitted that the High Court on perusal of the pay slip and
the expenditure of appellant-husband has arrived at the right conclusion of
granting Rs.23,000/- as maintenance to the respondent. The learned counsel
has also further submitted that even though the son has attained majority
and since the son is aged only eighteen years and is presently studying in
a college and for meeting the expenses of higher education and other
requirements, enhanced maintenance amount of Rs.23,000/- per month is a
reasonable one and the impugned order warrants no interference.
14. We have considered the rival contentions and perused the impugned
judgment and other materials on record.
15. Section 25 of the Hindu Marriage Act, 1955 confers power upon the
court to grant a permanent alimony to either spouse who claims the same by
making an application. Sub-section (2) of Section 25 of Hindu Marriage Act
confers ample power on the court to vary, modify or discharge any order for
permanent alimony or permanent maintenance that may have been made in any
proceeding under the Act under the provisions contained in sub-section (1)
of Section 25. In exercising the power under Section 25 (2), the court
would have regard to the “change in the circumstances of the parties”.
There must be some change in the circumstances of either party which may
have to be taken into account when an application is made under sub-section
(2) of Section 25 for variation, modification or rescission of the order as
the court may deem just.
16. The review petition under Order XLVII Rule 1 CPC came to be filed by
the respondent-wife pursuant to the liberty granted by this Court when the
earlier order dated 02.02.2015 awarding a maintenance of Rs.16,000/- to the
respondent-wife as well as to her minor son was under challenge before this
Court. As pointed out by the High Court, in February 2015, the appellant-
husband was getting a net salary of Rs.63,842/- after deduction of
Rs.24,000/- on account of GPF and Rs.12,000/- towards income-tax. In
February, 2016, the net salary of the appellant is stated to be Rs.95,527/-
. Following Dr. Kulbhushan Kumar vs. Raj Kumari and Anr. (1970) 3 SCC 129,
in this case, it was held that 25% of the husband’s net salary would be
just and proper to be awarded as maintenance to the respondent-wife. The
amount of permanent alimony awarded to the wife must be befitting the
status of the parties and the capacity of the spouse to pay maintenance.
Maintenance is always dependant on the factual situation of the case and
the court would be justified in moulding the claim for maintenance passed
on various factors. Since in February, 2016, the net salary of the husband
was Rs. 95,000/- per month, the High Court was justified in enhancing the
maintenance amount. However, since the appellant has also got married
second time and has a child from the second marriage, in the interest of
justice, we think it proper to reduce the amount of maintenance of
Rs.23,000/- to Rs.20,000/- per month as maintenance to the respondent-wife
and son.
17. In the result, the maintenance amount of Rs.23,000/- awarded to the
respondent-wife is reduced to Rs.20,000/- per month and the impugned
judgment is modified and this appeal is partly allowed. The maintenance of
Rs.20,000/- per month is payable to the respondent-wife on or before 10th
of every succeeding english calendar month. No costs.
..….…………..……………………….J.
[R. BANUMATHI]
…………………………………………..J.
[MOHAN M. SHANTANAGOUDAR]
New Delhi;
April 19, 2017
ITEM NO.1A COURT NO.7 SECTION XVI
(For judgment)
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
CIVIL APPEAL NO.5369/2017 @
Petition(s) for Special Leave to Appeal (C) No(s). 34653/2016
(Arising out of impugned final judgment and order dated 15/09/2016 in CO
No. 4228/2012 15/09/2016 in RVW No. 85/2016 passed by the High Court Of
Calcutta)
KALYAN DEY CHOWDHURY Petitioner(s)
VERSUS
RITA DEY CHOWDHURY NEE NANDY Respondent(s)
Date : 19/04/2017 This matter was called on for pronouncement of judgment
today.
For Petitioner(s) Mr. Rajan K. Chourasia,Adv.
For Respondent(s) Mrs Sarla Chandra,Adv.
Ms.Supriya Juneja,Adv.
Ms. Mehaak Jaggi, Adv.
Hon’ble Mrs. Justice R. Banumathi pronounced the reportable
judgment of the Bench comprising Her Lordship and Hon’ble Mr. Justice
Mohan M. Shantanagoudar.
Leave granted.
The appeal is partly allowed. The maintenance of Rs.20,000/-
p.m. is payable to the respondent-wife on or before 10th of every
succeeding English Calendar Month.
No costs.
Application, if any, also stands disposed of.
(USHA BHARDWAJ) (RENU DIWAN)
AR-CUM-PS ASSISTANT REGISTRAR
Signed reportable judgment is placed on the file.
