IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
Hon’ble Justice Manojit Mandal.
C.O. No. 1448 of 2019
Narayan Chandra Biswas
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.
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
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.
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
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
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
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
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
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.)