Court No. 19
C.O. 4106 of 2019
Jay Shankar Singh
Mr. Tanmay Mukherjee,
Mr. Anirudha Poddar,
Mr. Shashwat Nayak,
Mr. Mukesh Kr. Pandey.
…..for the petitioner.
Affidavit-of-service filed in Court today is taken on record. The opposite
party has been served. Delivery of the postal article is confirmed.
This revisional application has been filed by the respondent in Matrimonial
Suit No. 208 of 2018 pending before the learned Additional District Judge, 2nd
Court at Durgapur. The petitioner is aggrieved by the order dated August 31,
2019 by which maintenance pendente lite of Rs.2,000/- per month for the wife
and Rs.3,000/- per month for the minor children has been awarded by the
learned court below.
It is contended on behalf of the petitioner that the amount awarded for the
two children and the petitioner is excessively low, inasmuch as, the school
expenses of the children is itself beyond Rs.5,000/- each. It is further contended
that the amount of maintenance has been awarded from the date of the order
instead of the date of the application. Mr. Mukherjee contends that the learned
court below did not take into account the status of the husband as also the
income of the husband, vis-à-vis, the pleadings in the application under Section
24 of the Hindu Marriage Act. It has been specifically averred in the said
application that the husband had 12 bighas of land which was being cultivated
and he owned 4.5 cottahs of land as also a Fiat car, a motor cycle and a Scooty.
This according to Mr. Mukherjee, was the standard to which the wife was used to
and she and her children deserved a living condition akin to the husband as has
been disclosed in her application.
I have gone through the pleadings as also the impugned order, and I find
that the learned court below came to a conclusion that the husband was an
employee of Durgapur Transport Care Corporation earning salary of Rs.10,500/-
per month. The learned court also held that the petitioner failed to prove her
expenses as also the expenses of the children. No document was forthcoming
from her side to show that the husband was cultivating on 12 bighas of land and
earning therefrom. The husband’s income was accepted to be Rs.10,500/- per
month by the learned court below in the absence of any other document
produced in support of the contention of the wife.
Having considered the various aspects in this case, I find that the husband
proved his income on the basis of a letter or a certificate issued by the employer.
No documents were produced before the learned court below with regard to the
income tax returns, bank statements etc., from which the financial condition of
the husband could be ascertained. It is also true that the wife failed to produce
any document to indicate her expenses and the minimum amount of money that
would be required for sustenance of the wife and the two children in the same
standard to which they were used to before the separation.
I do not find that there is any evidence on record on the basis of which the
monthly expenses of the wife and the children could be assessed. I also do not
find any evidence on record which would show the financial condition of the
husband. A complete reliance on the certificate may not be a conclusive decision
as to the income of the husband.
Under such circumstances, the order dated August 31, 2019 is set aside
with a direction upon the learned Additional District Judge, 2nd Court at
Durgapur to hear the application under Section 24 of the Hindu Marriage Act
filed by the wife, afresh upon allowing the parties to adduce evidence and prove
the documents and also file additional documents in support of their contentions
and depose in support thereof. Upon considering the evidence on record as also
the oral evidence, the application under Section 24 of the Hindu Marriage Act
should be disposed of in accordance with law. In the meantime, the husband will
pay an amount of Rs.5000/- every month beginning January, 2020 within 15 of
every month till the application under Section 24 is disposed of by the learned
court below. Such amount will be adjusted with the amount as will be awarded
by the learned court below.
It is, however, made clear, that it is a settled law that maintenance should
be awarded from the date of filing of application and not from the date of the
order. Reference is made to the decision reported in (1997) 7 SCC 7 [Jasbir Kaur
Sehgal (Smt) vs. District Judge, Dehradun ors.], and the relevant paragraph is
set out below:
“9. The question then arises as to from which date the wife would be
entitled to claim the enhanced amount of maintenance pendente lite. If the
wife has no source of income it is the obligation of the husband to maintain
her and also the children of the marriage on the basis of the provisions
contained in the Hindu Adoptions and Maintenance Act, 1956. Her right to
claim maintenance fructifies on the date of the filing of the petition for divorce
under the Act. Having thus fixed the date as the filing of the petition for
divorce it is not always that the court has to grant the maintenance from that
date. The court has discretion in the matter as to from which date
maintenance under Section 24 of the Act should be granted. The discretion of
the court would depend upon multiple circumstances which are to be kept in
view. These could be the time taken to serve the respondent in the petition;
the date of filing of the application under Section 24 of the Act; conduct of the
parties in the proceedings; averments made in the application and the reply
thereto; the tendency of the wife to inflate the income out of all proportion and
that of the husband to suppress the same; and the like. There has to be
honesty of purpose in both the parties which unfortunately we find lacking in
this case. We are therefore of the opinion that the ends of justice would be met
if we direct that maintenance pendente lite as fixed by this judgment to be
payable from the date of impugned order of the High Court which is
16.10.1996. We order accordingly. The impugned judgment of the High Court
shall stand modified to that extent. All arrears of maintenance shall be paid
within a period of two months from today and then regularly every month.”
The revisional application is allowed.
There shall be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be given to the
parties as expeditiously as possible subject to compliance of all usual formalities.
(Shampa Sarkar, J.)