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Prithwiraj Bhattacharya vs Chandrima on 19 February, 2020

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Sn 19.2.2020 C.O. 293 of 2020
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PRITHWIRAJ BHATTACHARYA VS. CHANDRIMA
BHATTACHARYA

Mr. Saunak Bhattacharya
..for the petitioner
Mr. Ashimes Goswami
Ms. Paulomi Banerjee
..for the opposite party

The husband in a Mat Suit No. 57 of 2017 pending

before the learned Additional District Judge, 2nd Fast Track

Court, Alipore, South 24 Parganas is the petitioner before this

Court. He is aggrieved by an order dated November 27, 2019

passed in Misc. Case No. 13 of 2017 which was instituted by

the opposite party/wife for maintenance pendente lite and

litigation costs under Section 36 of the Special Marriage Act.

The petitioner is aggrieved by the quantum of maintenance

penente lite @ Rs.10,000/‐ per month which was awarded, to be

paid within 10th of every month from the date of filing of the

application. The petitioner was awarded litigation costs of

Rs.15,000/‐. Aggrieved, the petitioner is before this Court.

It is the contention of the petitioner that the learned
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Court below passed the order without arriving at a proper

finding about the income of the petitioner. That the petitioner

did not have any other income apart from Rs.3,000/‐ per month

which he earned as a guitarist playing cultural function. The

learned Court below erred in coming to the conclusion that, as

the petitioner was an able bodied man, he was bound to pay

maintenance to the wife and thereby pay Rs.10,000/‐ per month

for maintenance pendente lite.

It is also submitted that Rs.10,000/‐ per month was

not necessary for the wife, who was an only child of her

parents. It is further stated that once the Court did not accept

that the petitioner had a catering business and was a proprietor

of a marriage hall, the question of payment of Rs.10,000/‐ per

month as maintenance pendente lite did not arise.

Mr. Goswami, learned Advocate for the opposite

party/wife submits that visiting card of the husband was on

record in which the petitioner depicted himself as the

proprietor of a food and catering business. In the application,

the wife/opposite party had categorically stated that the

petitioner was a guitarist and also earned from tuition. It was
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further categorically stated that the husband earned of Rs.2

lakh per month from his business, music tuition and musical

performance. He further submits that there are criminal cases

as also civil suits filed by the husband and his family against

the opposite party and her family, which they are contesting.

He further submits that it is mentioned in the application that

the father is a retired employee of a private company and she

was living in difficulty, being dependent on her father.

I have considered the documents submitted before

this Court as also submitted before the learned Court below. It

is on record that the husband has described himself as a

proprietor of the catering business. The averments made in the

application for maintenance are all on record wherein the wife

has categorically mentioned several sources of income of the

husband. There is no denial to the fact that several litigations

have been initiated by the husband and his family against the

wife and her family members for cheating, defamation and

theft etc. It is also true that the wife is entitled to a quality life,

at par with that which was available at her in‐laws house. The

husband’s family as it appears from the record, belongs to a
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middle class strata of the society. The wife is undoubtedly

entitled to live in the same status.

Moreover, while calculating the maintenance, the

Court is to consider the financial capacity of the husband, the

reasonable expenses which may be incurred by the wife if she

has to live on her own, the rent, utility bills, food, clothing, are

some of the factors which are to be considered by the Court.

while awarding maintenance pendente lite.

The Delhi High Court in Radhika Narang v. Karun

Raj Narang reported at 2009 (1) DMC 814 (Delhi) held that the

purpose of providing maintenance is to secure a wife as far as

possible the status and facilities enjoyed by her prior to her

separation from her husband. The determination of the

maintenance allowance not being governed by any rigid or

inflexible rule but it gives wide power and discretion to the

Court to do justice. For the purpose of fixation of quantum the

status of the husband as well as the status of the wife are to be

taken into consideration. Perceptibility of the income is not the

test. The requirement is potentiality. In spite of absence of any
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documentary evidence to prove the monthly income of the

husband, the Court can award maintenance allowance in order

to do justice keeping in mind the social reality and the nature

of the work of the husband. Moreover, there can be an

enhancement of maintenance allowance due to change in the

circumstance which includes rise in the cost of living and

increase of earning of the husband. (Narayan Chandra

Das v. Geeta Rani Das reported at 2006 (2) CLT 85 (HC).

The Act does not prescribe any formula to be

applied in determining the quantum of alimony pendente lite.

In Soma Chowdhury (Sarkar) v. Pradip Kumar

Chowdhury reported at 2009 (1) CHN 282 it was observed:‐

“It is now settled law that the amount of alimony
pendente lite should vary between one‐third and one‐fifth of the
income of the earning spouse depending upon the facts and
circumstances of the case.”

It does not enact any mathematical formula of one‐

third or any other proportion. It gives wide power flexible and

elastic to do justice in a given case.

The Delhi High Court in Dev Dutt Singh v. Smt.
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Rajni Gandhi reported at AIR 1984 Del 320 held that:‐

“30. A word of caution. On Sections 24 and 25 of
the Act there is a “wagon‐load of cases”, to use a phrase of Lord
Atkin (See Harris v. Associated Portland Cement
Manufacturers Ltd., (1939) AC 71, 78). But they do not lay
down any proposition of law. They are decisions on the particular
facts of those cases. “We ought to be beware of allowing tests or
guides which have been suggested by the Court in one set of
circumstances, or in one class of cases to be applied to other
surroundings”, and thus by degrees to turn that which is at
bottom a question of fact into a proposition of law. If we allow this
to happen we will be crushed under the weight of our own reports.
(See Qualcast (Wolverhampton) Ltd. v. Haynes, (1959) AC
743 761 (per Lord Denning).

But it must not be forgotten that the award of
maintenance pendente lite has to be reasonable, having regard to
the income of the parties. On the facts of this case and having
regard to the income of husband and wife I have no hesitation in
holding that the Judgeʹs award is eminently just.”

The Honʹble Supreme Court in Jasbir Kaur

Sehgal v. District Judge, Dehradun, 1997 (4) RCR (Civil) 65: (1997)

7 SCC 7 observed:

“No set formula can be laid for fixing the amount of
maintenance. It has, in the very nature of things, to depend on the
facts and circumstances of each case. Some scope for leverage can,
however, be always there. The court has to consider the status of the
parties, their respective needs, the capacity of the husband to pay
having regard to his reasonable expenses for his own maintenance
and of those he is obliged under the law and statutory but
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involuntary payments or deductions. The amount of maintenance
fixed for the wife should be such as she can live in reasonable comfort
considering her status and the mode of life she was used to when she
lived with her husband and also that she does not feel handicapped in
the prosecution of her case. At the same time, the amount so fixed
cannot be excessive or extortionate.”

The Honʹble Supreme Court in the case of Dr. Kulbhushan

Kunwar v. Raj Kumari, AIR 1971 Supreme Court 234 approved the principle

enunciated in Mt. Ekradeshwari v. Homeshwar, AIR 1929 PC 128 that

Maintenance depends upon a gathering together of all the facts of the

situation, the income of the parties, a survey of the conditions and

necessities, regard being had to the scale and mode of living, and to the age,

habits wants and class of life of the parties. The Honʹble Supreme Court in

the case of Mangat Mal v. Punni Devi, 1995 (3) RRR 632: (1995) 6 SCC 88 held

as follows Maintenance, necessarily must encompass a provision for

residence. Maintenance is given so that the lady can live in the manner,

more or less, to which she was accustomed. The concept of maintenance

must, therefore, include provision for food and clothing and the like and

take into account the basic need of a roof over the head. The Honʹble

Supreme Court in the case of Maharani Kesarkunverba v. I.T.

Commissioner, AIR 1960 Supreme Court 1343, held that Maintenance must

vary according to the position and status of a person. It does not only mean

food and raiment.

It is not for the wife to prove the income of the

husband. When the husband himself has described himself as
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a proprietor of the catering business and the visiting card is on

record, the contention of the wife that the petitioner has a

catering business, is accepted. Whether the marriage hall

belongs to the husband is not to be decided in this case. Yet,

records and averments reveal that there is a marriage hall,

which at least is run by the family if not by the husband

exclusively.

Under such circumstances, by mere denial of the

income as alleged and by making a statement that his income

was Rs.3000/‐ but without leading evidence controverting

allegations made by the wife, the contention of the husband

cannot be accepted. The award of Rs.10,000/‐ as maintenance

pendente lite per month from the date of application is not

unreasonable. The award of litigation costs of Rs.15,000/‐ on

the whole is not unreasonable in view of the number of

proceedings that have been initiated by the husband and his

family against the wife and her family.

The order impugned does not call for any

interference.

The revisional application is dismissed.

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The petitioner will pay maintenance as directed by

the learned Court below. The first payment of Rs.10,000/‐ will

be made on March 15, 2020 and by 15th of every succeeding

month. The litigation costs of Rs.15,000/‐ should be paid

within April 30, 2020. The arrear maintenance, that is, the

unpaid amount from the date of application upto February,

2020 shall be paid in four equal monthly instalments. First of

such instalment shall be paid within June 30, 2020, the second,

third and fourth instalments shall be paid on September 30,

2020, November 30, 2020 and December 31, 2020, in default, the

opposite party will be at liberty to take appropriate steps.

There will be however no order as to costs.

Urgent photostat certified copy of this order be

given to the parties on priority basis, if the same is applied for.

(Shampa Sarkar,J.)
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