1
1 12.9.2017
jb. CAN 3280 of 2017
in
F.A.T. 182 of 2017
+
CAN 3453 of 2017
with
F.A.T. 183 of 2017
+
CAN 3282 of 2017
+
CAN 3284 of 2017
Re: CAN 3280 of 2017
(Smt. Sharmistha Kar Purkayastha vs. Shri Surajit Kar
Purkayastha)
Mr. Aniruddha Chatterjee
Mr. Kushal Chatterjee
Mr. Surendra Kumar Sharma
…. For the Petitioner/Wife
Mr. Probal Mukherjee
Mr. Anirban Ray
Ms. Rituparna De
Ms. A. Singh
Ms. Micky Chowdhary
Mr. Debabrata Das
…. For the Respondent/Husband
Heard Mr. Aniruddha Chatterjee being assisted by
Mr. Kushal Chatterjee and Mr. Surendra Kumar Sharma,
learned counsel representing the petitioner-appellant on
the application being CAN 3280 of 2017 filed by the
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petitioner-wife praying for maintenance pendente lite
during pendency of this appeal at the rate of Rs.1,50,000/-
per month and litigation cost to the extent of Rs.6,00,000/-
in a lump.
Heard also Mr. Probal Mukherjee, learned senior
counsel representing the respondent-husband being
assisted by Mr. Anirban Ray, Ms. Rituparna De, Ms. A.
Singh, Ms. Micky Chowdhary and Mr. Debabrata Das,
learned counsel who opposed the application by filing
affidavit in opposition.
Mr. Chatterjee, learned counsel for the petitioner
submitted before us that in the suit for divorce filed before
the learned trial Court at the instance of the husband-
respondent, the application under Section 24 of the Hindu
Marriage Act was allowed in part by directing the
respondent-husband to pay maintenance pendente lite at
the rate of Rs.35,000/- per month taking note of the then
income of the husband, he being the D.G.P., West Bengal
while the petitioner-wife also had been earning Rs.45,000/-
per month, being a principal of an educational institution.
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Mr. Chatterjee also apprised us that the learned trial Court
awarded Rs.30,000/- as a lump sum amount in favour of
the petitioner-wife towards litigation cost in the suit.
Being assailed at the instance of the petitioner, the
High Court in C.O. no. 3142 of 2015 modified said order of
maintenance pendente lite by enhancing only the litigation
cost to the extent of Rs.80,000/- from Rs.30,000/- and of
course by keeping the maintenance amount unchanged.
The suit for divorce having been decreed, the instant
appeal is preferred by the wife-petitioner at whose instance
the instant application being CAN 3280 of 2017 under
reference is heard on merit.
Mr. Chatterjee, learned counsel virtually submitted
to allow the instant application for maintenance pendente
lite and cost of litigation cost to proceed with the appeal on
three eventualities, viz.
i) presently the wife is completely out of
employment;
i) there is increase in the salary of the husband
due to enforcement of 7th Pay Commission;
i) increase in all essential commodities.
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Further Mr. Chatterjee submitting about age of the
petitioner and also inviting our attention to the averments
as contended in the petition supported by documents,
prayed for allowing the amount as maintenance pendente
lite and litigation cost as sought for by taking adverse
inference, since salary slip and income tax statement were
not submitted by the opposite party. In support of his
contention, Mr. Chatterjee relied upon the following
decisions:-
i) 1998 Volume 2 Calcutta Weekly Notes 38 (Sudipta
Mukherjee v s. Dibyendu Mukherjee) at page 40;
i) (2001) 2 Calcutta Law Journal 393 (Smt Anamika
Sengupta vs. Biswajit Sengupta) at paragraph 1
i) (2003) 4 Calcutta High Court Notes 7 (Rousseau Mitra
vs. Shrimati Chandana Mitra) at paragraphs 5-9
i) (2010) 12 Supreme Court Casses 242 (Neeta Rakesh
Jain vs. Rakesh Jeetmal Jain) at paragraphs 9-10
i) AIR 2005 Calcutta 266 (Smt Pampa Das vs. Sanjib
Das) at paragraph 8.
i) 2012(2) Calcutta High Court Notes 828.
Mr. Mukherjee, learned senior counsel for the
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respondent inviting our attention to some of the documents
viz. bills and vouchers of medicines purchased for the
mother of the petitioner as annexed argued that the
husband of the petitioner should not be burdened to bear
medical expenses of his mother in law. He further argued
that yearly premiums as referred to in the application by
the petitioner which were paid by herself, those are
sufficient to prove her capability of having independent
means to maintain herself. Mr. Mukherjee submitted that
though his client did not hand over salary certificate for
submission before the Court yet admitted that there was
increase in the salary, but argued that it does not mean
that in the name of grant of maintenance pendente lite for
the purpose of attending the litigation cost and
maintenance the wife should be allowed to be enriched by
the order of the Court under Section 24 of the Hindu
Marriage Act.
Mr. Mukherjee, taking us to the averments of the
application filed by the petitioner tried to demonstrate that
since the petitioner suppressed some material facts, she
should not expect the equitable justice from the Court of
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equity. Specially inviting to the texts of paragraph 14 of the
application, he submits that while the petitioner herself
had given exposure of her need to the extent of Rs.30,000/-
per month for maintaining her status, social commitments
etc. the amount as sought for in excess to such assertion is
not only high and excessive but also false, frivolous and
without any basis.
Admittedly out of the wedlock the parties have a
school going daughter now aged about 10 years living with
the father i.e. the respondent-husband. From the
documents as have been placed before us, let us take it as
granted without pursuing to traverse as to how and why it
was caused that the petitioner who was a principal of an
educational institution had been removed from her service
with effect from 30th October, 2015. Let us also take it
granted that immediately after removal from service some
amount in lieu of salary for some period what were received
by her from that institution she had managed the annual
premiums of the insurance policy referred to in her
application. If the very language of Section 24 of the Hindu
Marriage Act is construed in its true letter and spirit, then,
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it reveals that the Court shall lend assistance to either of
the spouse in need who would not be able to pursue with
the litigation on his/her own under the Act by maintaining
herself/himself during the proceeding. Certainly the order
of the Court for rendering financial assistance shall remain
in vogue during the proceeding. Meaning thereby, the force
of the order of maintenance pendente lite shall have a go by
on the date when the proceeding shall end. In the case on
hand the order of the learned trial Court which was
modified by the order of this Court as referred to above
thereby ended while the suit ended with the decree of
divorce. Therefore, the instant application has come up
with the new cause of action with the preference of the
instant appeal as filed by the wife-petitioner against decree
of divorce. But the principles shall be followed in the same
and similar manner in the matter of considering the prayer
under Section 24 of the Act. In the present circumstances
virtually subsequent events have come up, i.e.
i) There is increase in the salary of the husband;
i) The wife is now unemployed.
i) There is increase in essential commodities.
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It is obvious that increase in the salary may
encourage the other spouse to submit prayer to get amount
of maintenance pendente lite at some enhanced rate. But
equally the Court in passing the order is to consider as to
whether the amount so to be directed for payment would be
fit and proper for the petitioner as the amount of
maintenance pendente lite within the ambit of the said
Section. The purpose of the Section obviously is not to
make the other one enriched by the order of the Court since
the scheme is not permitted to be allowed as a profit
earning unit. Equally it is to be looked into so that to
comply with the order one may not be put into
unmanageable disadvantageous position. We took note the
ratio of the decisions cited by Mr. Chatterjee which are
basically as the guidelines and duty of the Court while
considering the application for maintenance pendente lite
on which principally there can be no reservations.
We are apprised of that the opposite party-husband
is holding the highest post in the police department in the
State. Eventually it must be, that his salary amongst the
officers of the department would be the maximum. Mr.
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Chatterjee submitted before us that though the opposite
party did not furnish salary slip or income tax statement of
the current year but his gross monthly salary income would
be around Rs.2,25,000/-. In considering the prayer under
Section 24 of the Act we should not be unmindful that the
opposite party while is holding the highest post amongst
the higher officers of his department, he is to maintain
also his personal and official status in befitting manner. He
is to maintain his school going daughter equally by
providing befitting status to her, so that, the ward may not
feel any deficiency in her proper upbringing, specially
when, she is now amidst the marital dispute of her parents.
The opposite party must be also taxpayer at the maximum
slab of 30% from his salary income per month. The Court
also took note that amidst the proceeding of the appeal,
which is otherwise ready for hearing, since preparation of
paper book has already been directed, the petitioner should
not feel distressed financially, more so when, of course,
under order of this Court the opposite party has satisfied
the amount in the name of maintenance at the old rate of
Rs.35,000/- since after disposal of the suit till August,
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2017. Another aspect also is not out of our sight that while
the petitioner is aged 55 years, the opposite party also has
been advancing towards age of his superannuation, and
the petitioner being an well qualified lady may have utilised
her time and resources for taking coaching classes to
educate the students in lieu of remuneration for her own
gain. Therefore, the Court also is to consider as to how far
financial burden should be imposed on the husband at this
stage. Nonetheless of increase in the price of essential
commodities the amount of Rs.35,000/- is not a negligible
amount. Equally considering the stage of appeal before this
Bench which is otherwise ready for hearing and, since after
removal from service the petitioner did not bring out any
noticeable hardship, rather the amount of Rs.35,000/-
though is substantial one for living with due honour and
dignity, however, considering the age of the petitioner and
since the need of her own medical treatment due to age-old
ailment is also not ruled out, assessing the need of her
medical expense to the tune of Rs.10,000/-, for her own
maintenance to the tune of Rs.25,000/- and also under
miscellaneous head providing an amount of Rs.3,000/- for
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the present, and, in such way if the total amount of
maintenance pendente lite pending the appeal is fixed to
the tune of Rs.38,000/- with direction for its payment from
the date of filing of the application being CAN 3280 of 2017,
the purpose of the application will be sub-served.
Be it mentioned that since by this time the opposite
party has paid the amount of maintenance to the petitioner
at the earlier rate of Rs.35,000/- the monthly amount, so
fixed by this order shall be adjustable with the amount
payable only from the date of filing of the CAN application
under reference and not with the amount, if any paid
covering the period prior to the date of filing of the CAN
3280 of 2017.
Be it mentioned that for convenience of all parties,
learned counsel for the petitioner shall submit the bank
account number of the petitioner within 7 days so that the
amount of maintenance pendente lite can be deposited by
the respondent-husband directly in the said bank account.
Now as regard litigation cost, since the proceeding is
an appeal, which is otherwise ready for hearing, and may
be disposed of expectedly by one or two hearing, we direct
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the respondent-husband to make one time payment to the
extent of Rs.1,50,000/- as litigation cost which shall be
paid within ten days from date in the same manner.
The application being CAN 3280 of 2017 is
accordingly allowed in part.
(Rakesh Tiwari, J.)
(Mir Dara Sheko, J.)