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Smt. Ruchika Agarwal vs Sri Vikas Agarwal on 18 April, 2017

IN THE HIGH COURT AT CALCUTTA
18-04-2017 Civil Revisional Jurisdiction
Subrata
. C.O.No.1713 of 2016
Smt. Ruchika Agarwal
-vs-
Sri Vikas Agarwal

Mr. Aniruddha Chatterjee
Ms. Alotriya Mukherjee ….for the petitioner

Mr. Saptangsu Basu
Mr. Debjit Mukherjee
Ms. Susmita Chatterjee …for the opposite party

The revisional application under Article 227 of the
Constitution of India has been directed assailing an order
dated April 20, 2016 passed by learned District Judge,
Hooghly in Misc. Case No.142 of 2015 (Smt. Ruchika
Agarwal v. Sri Vikas Agarwal) arisen out of Matrimonial Suit
No.2727 of 2014 filed by the wife-petitioner under section
13 of the Hindu Marriage Act, 1955 seeking divorce.

2. Learned trial court by the order impugned directed
the opposite party-husband to start making payment of the
maintenance pendente lite as fixed from the date of the
order i.e. w.e.f. April 20, 2016.

3. Let it be reiterated that by the order impugned
learned trial court has fixed `60,000 per month as
maintenance pendente lite payable by the husband in
favour of his wife apart from the litigation costs of `30,000,
and the opposite party has been directed to start making of
such payment from the date of order and not from the date
of application. The grievance of the petitioner-wife in this
revisional application has been mounted over the issue that
learned trial court ought to have given effect of such order
from the date of application filed under section 24 of the
Hindu Marriage Act, 1955 Act on July 17, 2015, and not
from the date of passing of the order.

4. Before ventilating about the arguments advanced
before this court, let me set out the backdrops prior to
passing of this impugned order by learned trial court –
(a) The matrimonial suit under reference seeking divorce
has been filed by the petitioner-wife on November 20, 2014.
(b) After entering appearance of the husband, one
application under section 24 of the Hindu Marriage Act,
1955 has been filed by the wife on July 17, 2015.
(c) By its first round disposal on October 5, 2015
maintenance pendente lite was fixed by learned trial court
at the rate of `80,000 per month by making it enforceable
from the date of order.
(d) CO No.4160 of 2015 was filed at the instance of the
husband challenging propriety of that order, and this court
setting aside said order disposed of the CO on February 3,
2016 remanded back to learned trial court for hearing
afresh by imposing interim maintenance pendente lite
payable by the husband at the rate of `10,000 per month
with effect from December 2015 till disposal of Misc. Case
No.142 of 2015.
(e) In turn, learned trial court upon hearing both sides and
on examining the evidence adduced before him passed the
impugned order as mentioned above directing the husband
to pay maintenance pendente lite at the rate of `60,000 with
effect from the date of order.

Mr Chatterjee assisted by Ms Mukherjee, learned
counsel appearing for the petitioner, argued that though
against the order dated October 5, 2015 no application was
preferred before this court assailing any part of that order;
but when the matter was sent back on remand, then it shall
be deemed that the said order, except the interim direction,
had no more force, meaning thereby, either of the parties
would not get any benefit of the order dated October 5,
2015 which was set aside by this court in CO No.4160 of
2015 save and except carrying out the directions passed by
this court.

Second limb of submission of Mr Chatterjee is that
the husband was always with the motive to suppress his
actual income and for that reason the conduct of her
husband should be looked into and since delay had taken
place in view of such conduct and since the petitioner-wife
had also undertaken a separate proceedings under the
Domestic Violence Act, the effect of the order of
maintenance pendente lite ought to have been given effect
from the date of application and not from the date of order.

Mr Chatterjee concluded his submission with a
prayer to allow the revisional application modifying the
order impugned to make it enforceable from the date of
application, since the provision under section 24 of the
Hindu Marriage Act, 1955 is one of the other beneficial
legislations.

6. Per contra, Mr Basu, learned senior advocate,
assisted by Mr Mukherjee and Ms Chatterjee, learned
counsels appearing for the opposite party-husband,
submitted that while the initial order dated October 5, 2015
was passed by learned trial court directing the husband to
pay maintenance pendente lite by making it enforceable not
from the date of application but from the date of order, said
order was set aside and the matter was sent back on
remand at the instance of the husband, there was no
application challenging any part of that order, though there
was specific indication about the date of enforcement in the
said order of maintenance pendente lite. Mr Basu
submitted that though there is no yardstick or specific rule
of law giving mandate about the date of enforcement of any
such order of maintenance pendente lite, but generally as a
usage the court may grant such maintenance by giving its
effect from the date of application. According to Mr Basu, if
it is not so made and if effect is so given from the date of
order itself, it means that learned trial court in exercise of
its discretion chose not to give its effect from the date of
application, which should not be interfered in the revisional
jurisdiction, provided there is no lapse or error of law in the
decision-making process.

7. In support of the contention Mr Basu relied upon
the following decisions – i) Smt. Jasbir Kaur Sehgal v. District
Judge, Dehradun Ors. reported in AIR 1997 SC 3397; ii)
Rousseau Mitra v. Shrimati Chandana Mitra reported in AIR 2004
Calcutta 61; and iii) Smt. Kakali Gupta v. Tushar Gupta Anr.
reported in 2011 (2) CLJ (Cal) 372.

Mr Basu concluded his argument by submitting that
in the matrimonial suit there was no proof of causing delay
at the instance of the husband, rather the husband has
been paying not only the interim maintenance directed by
this court but also the maintenance as directed in the
pending proceeding under the Domestic Violence Act.
Therefore, he submitted, when taking note of the conduct of
the parties learned trial court exercised its discretion by
making the order impugned enforceable from the date of
order consciously, then the same need not be interfered
with.

8) Perused the cases cited by Mr Basu.

In Smt. Jasbir Kaur Sehgal’s case (supra), para.8, the
cardinal principles have been ventilated by Their Lordships
of the Supreme Court to remind all concerned once again
that in the matter of determination of the quantum of
maintenance in a proceeding of the present nature the
court has to consider the status of the parties, their
respective needs, capacity of the husband to pay having
regard to his reasonable expenses for his own maintenance
and those he is obliged under the law and statutory or
involuntary payments or deductions, if any. Therefore, the
amount of maintenance pendente lite should be fixed for the
wife in such a manner so that she can live with reasonable
comfort in view of her status and the mode of life she was
used to when she would live with her husband so that she
could not feel herself handicapped in prosecuting her case.

The relevant portion from para.9 of the aforesaid
judgment is set out below:-
“The question then arises as to from which date the wife would
be entitled to claim the enhanced amount of maintenance pendente lite.
If wife has no source of income it is the obligation of the husband to
maintain her and also children of the marriage on the basis of the
provisions contained in the Hindu Adoptions and Maintenance Act, 1956.
Her right to claim maintenance fructifies on the date of the filing of the
petition for divorce under the Act. Having thus fixed the date as the
filing of the petition for divorce it is not always that the court has to
grant the maintenance from that date. The Court has discretion in the
matter as to from which date maintenance under S.24 of the Act should
be granted. The discretion of the court would depend upon multiple
circumstances which are to be kept in view. These could be the time
taken to serve the respondent in the petition; conduct of the parties in the

proceedings; averments made in the application and the reply thereto;
the tendency of the wife to inflate the income out of all proportion and
that of the husband to suppress the same; and the like. There has to be
honesty of purpose for both the parties which unfortunately we find
lacking in this case. We are therefore of the opinion that ends of justice
would be met if we direct that maintenance pendente lite as fixed by this
judgment to be payable from the date of impugned order of the High
Court which is October 16, 1996………”

Considering Smt. Jasbir Kaur Sehgal’s case (supra) this
court in the case of Rousseau Mitra (supra) also observed “the
court has discretion in the matter as to from which date
maintenance under section 24 of the Hindu Marriage Act,
1955 should be granted.”

In Smt. Kakali Gupta’s case (supra) though within the
criminal revisional jurisdiction, this court took note of the
conduct of the party/husband who was found very much
regular in making payment of interim maintenance as well
as payment of current maintenance to the wife and also
taking note of financial condition as a junior lawyer in the
Bar, the order of maintenance as was enforced by learned
trial court with effect from the date of order was not
interfered with.

9. Now coming back to the scenario of the case this
court appreciates the earlier conduct of the wife while she
did not challenge any part of the order passed by learned
trial Judge bearing the amount of maintenance pendente
lite at the rate of `80,000, where and when effect of its
enforceability was given from the date of its order and not
from the date of application. Further, admittedly, there was
a separate proceeding pending against the husband under
the Domestic Violence Act where the husband has been
paying maintenance at the rate of `5000 in favour of his
wife. That apart, while by setting aside the earlier order
dated October 5, 2015, the matter was sent back on
remand with direction to pay maintenance pendente lite as
an interim measure till disposal of the Misc. case under
section 24 of the Hindu Marriage Act, 1955 at the rate of
`10,000 per month, there is no complaint that the husband
did not comply with the same. Therefore, in effect, the
husband was paying `15,000 per month in favour of his
wife. It has already been observed that the matrimonial
suit for divorce has been filed by the wife, not the husband.
Rather, it is the husband who has been contesting in that
matrimonial suit, presumably, for the reason that he may
want to resume the marital relationship, which may, of
course, be the subject matter for consideration during trial.
There is no indication in the impugned order that due to
lapse or any untoward conduct of the husband the
proceeding of the matrimonial suit itself is being dragged or
delayed or in other way the petitioner is being harassed due
to any conduct on record of the husband.

10. It is pertinent to mention that the process of
maintenance pendente lite should not be allowed to be a
platform of profit earning unit. When it is allowed date of
its effect may be either from the date of application or from
the date of order depending upon the facts and
circumstances of the case. Its legislation has been made to
lend adequate support to the spouse weaker than the other,
so that, the petitioner seeking maintenance does not suffer
from financial crisis to be maintained on one hand, and, to
combat in the proceeding, on the other hand, by engaging
legal advisor of own choice. This adequacy or sufficiently in
the quantum in dependant upon the factors noted above.
Till before the date of impugned order the petitioner would
get in all `15,000, which might not be sufficiently befitting
to her status but there was no complaint on its inadequacy,
which however subsequently enhanced by disposing of the
application finally, which again may be modified on either
side during settlement of permanent alimony if so pressed
upon application in the event of success in the matrimonial
suit.

11. Now, looking at all the relevant factors, while
learned trial court by imposing a reasonable amount of
maintenance pendente lite along with a considerable
amount of litigation costs as directed, that date of its
enforcement would be from the date of its order and not
from any earlier date, this court within the revisional
jurisdiction does not find any lapses or error of law in such
decision-making process, because the discretion as has
been exercised by learned trial court in the backdrop of the
case is not found as whimsical or irrational. So, this court
is not inclined to make any interference. So far as the date
of enforcement is concerned, since this court is not inclined
to alter or to make any modification thereof, the revisional
application stands dismissed.

12. Be it made clear that learned trial court while will
take up the matrimonial suit for its disposal on merit shall
not be swayed by or influenced with any observation made
by this court in disposing of this revisional application.

13. No order as to costs.

14. The department is directed to communicate a copy
of this order to learned trial court at once for information.

15. Certified photostat copy of this order, if applied for,
shall be given to the parties.

(Mir Dara Sheko, J)

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