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Judgments of Supreme Court of India and High Courts

(Mahua Bhattacharya vs Kaushik Kumar Bhattacharya & … on 28 March, 2017

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28.3.2017
tg.
Sl. No.24
CO 503 of 2016

(Mahua Bhattacharya -vs- Kaushik Kumar Bhattacharya Ors.)

Mr. Binay Kumar Panda
Mr. Raju Mondal
Mr. Subham Kanti Bhakat….for the petitioner

None appears to represent the opposite party/husband, despite effective service

of notice, as it appears from the affidavit of service filed today. Let the same be

kept on record.

Heard Mr. Binay Kumar Panda, learned advocate representing the

petitioner/wife, who has filed the application under Article 227 of the Constitution

of India assailing the order no. 33 dated 14th July, 2015 in Misc. Case no. 12 of

2013 arising out of Matrimonial Suit no. 9 of 2013 passed by the learned Special

Judge-cum-Additional District and Sessions Judge, Durgapur.

The grievance of the petitioner is that learned Trial Judge though allowed the

prayer under Section 36 of the Special Marriage Act, 1954 granting maintenance

pendente lite @ Rs. 10,000/-but it is too meagre to maintain the wife herself as

well as her minor son and it was further ventilated

that such awarded sum towards maintenance pendente lite was not directed to be

paid month by month.
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Learned Trial Court directed the opposite party/husband to pay the

petitioner/wife Mahua Banerjee a sum of Rs. 7,000/- as maintenance pendente lite

for herself and Rs. 3,000/- for her minor son, in addition to a sum of Rs. 5,000/- as

litigation cost. Learned Trial Court also directed to pay such sum with effect from

the date of filing of the misc. case, i.e. on and from 26th September, 2013.

Mr. Panda submitted that since learned Trial Court observed that the husband

being an employee of railway, has drawn salary per month more than Rs. 61,000 –

74,000/- in view of salary certificate covering the period from October 2014 to

March 2015, the amount ought to have been considered to some more extent.

Admittedly, the husband is a railway employee and a monthly salaried person.

It is also apparent from the order impugned that under Section 125 of the Code of

Criminal Procedure, the respondent

was directed to pay maintenance @ Rs. 7,000/- per

month. It is needless to mention that Section 127 of the Code of Criminal

Procedure is available to seek relief for enhancing the amount, if the circumstance

so demands, specially when the minor son has been going to school by remaining

under custody of his mother.

However, within the ambit of Section 24 of the Hindu Marriage Act, 1955 or

Section 36 of the Special Marriage Act, 1954, the amount of maintenance pendente
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lite is available for the wife, so that she may not face any inconvenience to proceed

with the litigation as well as to maintain herself during pendency of the suit. Of

course, had there been any decree of divorce in favour of the husband, upon

application an appropriate order for final alimony can be directed, which also can

be modified on either side in view of any changed circumstance. In the process I

should mention once again that the amount of permanent alimony is permissible in

view of the provisions appended with Section 36 of the Special Marriage Act or

with Section 25 of the Hindu Marriage Act. Such provision for enhancement or

otherwise is not available within the ambit of Section 36 or 24 of the respective

Acts.

Be that as it may, since learned Trial Court took into consideration the

application under Section 36

of the Special Marriage Act allowing the amount as alimony pendente lite @ Rs.

7,000/- per month with effect from 26th September, 2013 as well as Rs. 3,000/- per

month for her minor son, presumably taking note of the order of maintenance as

granted in favour of the wife payable by the husband @ Rs. 7,000/- per month, this

Court at this stage does not find any laches in the decision making process,

meaning thereby, there is no need to interfere with the impugned order.

Though Mr. Panda ventilated his grievance about non-payment of maintenance

granted under Section 125 of the Criminal Procedure Code, the law available to the
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wife is clear and those provisions either under Section 126 of the Code of Criminal

Procedure or under Section 127 of the Code, as may be invoked, may be available

to the wife. In necessity the admissible portion of the salary of the husband can

also be attached under the order of the Court of competent jurisdiction, provided

the husband is noticed by the Court as an erring person and habitual defaulter,

having no respect to comply with the order of the Court.

However, before taking departure from this case, learned Trial Court for

convenience of all concerned upon application of either of the parties may record

appropriate order for direction to deposit the amount of maintenance pendente lite

as well as the amount payable by the husband as directed in the proceeding under

Section 125 of the Code of Criminal Procedure in the bank account of the wife

consolidatedly and for the purpose bank account number to be furnished by her to

the other side.

In view of the above observation, the order no. 33 dated 14th July, 2015 passed

by the Special Judge-cum-Additional District Judge, Durgapur in Misc. Case no.

12 of 2013 arising out of Matrimonial Suit no. 9 of 2013, is affirmed. Accordingly,

CO 503 of 2016 is disposed of.

The department is directed to send a copy of this order to the learned Trial

Court for information and necessary action.

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Urgent photostat certified copy of this order, if applied for, be furnished to the

parties on priority basis.

(Mir Dara Sheko, J.)

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