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.
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
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
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
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.
Urgent photostat certified copy of this order, if applied for, be furnished to the
parties on priority basis.
(Mir Dara Sheko, J.)