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Judgments of Supreme Court of India and High Courts

Narayan Chandra Biswas vs Smt. Namita Biswas on 13 December, 2019

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IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE

Present:
Hon’ble Justice Manojit Mandal.

C.O. No. 1448 of 2019
Narayan Chandra Biswas
Vs.
Smt. Namita Biswas

For the petitioner : Mr. Siva Prosad Ghosh

Mr. Abhishek Shaw

For the opposite party: Mr. Pannalal Bandopadhyay

Heard on : 06.12.2019

Judgment on : 13.12.2019

Manojit Mandal, J.:-

This application is directed against the Order No. 13 dated February

08, 2019 passed by the learned District Judge, Hooghly in Misc. Case No.
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70 of 2017 whereby the learned District Judge allowed the application

under Section 24 of the Hindu Marriage Act, 1955.

2. The husband/petitioner filed the Matrimonial Suit No. 273 of 2016

praying for decree of divorce by dissolution of marriage against the

wife/opposite party. In that suit the wife/opposite party appeared and

filed an application under Section 24 of the Hindu Marriage Act, 1955

which was allowed by the order impugned granting alimony pendente lite

at the rate of Rs. 7,000/-(Rupees Seven Thousand) per month to the

wife/opposite party and Rs. 6,500/-(Rupees Six Thousand Five Hundred)

each for two daughters from the date of filing of Misc. Case i.e. 18.05.2017

and a sum of Rs.10,000/-(Rupees Ten Thousand) towards litigation costs.

Being aggrieved, the husband/petitioner has preferred this application.

3. Now, the question is whether the impugned order should be

sustained?

4. Having heard the learned advocate for the parties and on going

through the materials on record, I find admittedly the parties to the case

are husband and wife. Admittedly, the husband is a Railway employee

and he earned Rs. 86,680/-(Rupees Eighty Six Thousand Six Hundred

Eighty) for the month of January, 2019 and after deduction his net income

was Rs. 55,837/-(Rupees Fifty Five Thousand Eight Hundred Thirty

Seven). Admittedly, the wife/opposite party is residing separately and she

has no source of income.
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5. Mr. Ghosh, learned advocate for the husband/petitioner contended

that the wife/opposite party is leading an adulterous life and that has been

observed by the learned Judicial Magistrate, 3rd Court, Hooghly by passing

an order in connection with Misc. Case No. 60 of 2010 under Section 125

of the Code of Criminal Procedure and the learned trial Court did not

consider the same. He further contended that the order impugned should

not have been passed on the ground that the wife/opposite party is leading

an adulterous life. He further contended that the learned trial Court

should not have granted maintenance to the elder daughter when the

learned Magistrate of the Court below has not granted maintenance to the

elder daughter Arjoyita Biswas. As such order impugned cannot be

sustained in the eye of law. In support of his argument he has relied

upon a decision reported in 2016 (4) CHN (Cal) 569.

6. Mr. Bandopadhyay, the learned advocate for the wife/opposite party

contended that the learned trial Court has rightly passed the order

impugned and it does not call for any interference. He further contended

that the rejection of the earlier claim made by the wife/opposite party

under Section 125 of the Code of Criminal Procedure is not a bar to file an

application for grant of interim maintenance in the proceeding initiated by

the husband/petitioner.

7. Upon due consideration of the material on behalf of both the parties,

the learned District Judge observed that :-

“……..it is not possible for this Court to ascertain as to why
ld. Court below passed such order but merely on the ground
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that the wife is leading adulterous life, husband cannot be
exonerated from his liability to maintain his wife in cases
filed u/s 24 of H.M. Act. Furthermore, scope of granting
maintenance u/s 125 SectionCr.P.C. is absolutely different than that
of the scope u/s 24 H.M. Act. The purpose of incorporating
such provision is to make provision for the spouse who is
unable to maintain herself till the original matrimonial suit is
completed.

Furthermore, whether the wife is leading adulterous life or
whether she voluntarily left the matrimonial home can only be
decided at the time of hearing of the Mat suit after taking
evidence of both the parties.”

The reason given by the District Judge in allowing the prayer made

by the wife for interim maintenance is fully right and legal and should be

sustained. It has been held in a case reported in AIR 1999 Bombay 237

(SectionBijal Parag Dave v. Mr. Parag Labhashankar Dave) that while

considering the application for pendente lite maintenance, the only

consideration is inability of the person to maintain herself or himself for

want of financial means or inadequacy of financial means to maintain at

the social status of the other spouse from when interim maintenance is

sought and not the misconduct of the spouse. It has also been held in

another case reported in AIR 1988 Rajasthan 27 (SectionVirendra Kumar v.

Smt. Santhoshi Devi) that a decision rendered under Section 125 of the

Code of Criminal Procedure is not a bar in deciding an application under

Section 24 of the Hindu Marriage Act. In the light of the above principle, I

am of the view that petition filed by the wife /petitioner is maintainable in

law. In the circumstances, I hold that the rejection of the earlier claim
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made by the wife/opposite party under Section 125 of Criminal Procedure

Code is not a bar to file an application for grant of interim maintenance in

the proceeding initiated by the husband/petitioner. As regards the elder

daughter of the parties it appears from the materials on record that

husband/petitioner has admitted in his cross-examination dated

13.06.2015

before learned Judicial Magistrate that presently his elder

daughter is living with her mother. Therefore, I hold that learned Court

below has granted the maintenance to the elder daughter Arjoyita Biswas

properly. The judgment referred by the husband/petitioner being 2016 (4)

CHN (Cal) 569 is no assistance to the petitioner as because the wife has

not filed any application for maintenance pendente lite in the Court below

against the husband in that case.

8. Under these facts and circumstances and on the consideration of the

materials on record, I am of opinion that order of the learned Lower Court

does not call for any interference of this Court.

9. The revision application fails and the same is dismissed.

10. There will be no order as to costs.

11. Urgent Photostat certified copy of this order, if applied for, be given

to the parties on priority basis.

(Manojit Mandal, J.)

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