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Item No. 78
13.12.2023
Court. No. 19
GB
C.O. 3735 of 2022
Smt. Tripti Chakraborty
Vs.
Sri Anjan Chakraborty
With
C.O. 3452 of 2022
Sri Anjan Chakraborty
Vs.
Smt. Tripti Chakraborty
Mr. Amal Krishna Saha,
Mr. Sankar Biswas,
Ms. Ananya Adhikary
… for the Petitioner.
Mr. Sukanta Chakraborty,
Mr. Anindya Halder
… for the Opposite Party.
C.O. 3735 of 2022 is allowed. Till the pending
applications, one filed by the husband for reduction of the
maintenance pendente lite and the other filed by the wife for
enhancement of the maintenance pendente lite, are decided
finally, the suit shall remain stayed. Once the husband pays
the amount directed, after disposal of the applications, the
suit will continue.
The law is settled. When applications for maintenance
are pending, the suit should not proceed. When the husband
fails to pay the maintenance also, the suit remains stayed. In
this case, the petitioner in C.O.3452 of 2022 has been paying
an amount of Rs.25,000/- per month on and from July 2022,
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that is, after his retirement. This Court finds that there are
arrears and there are issues to be adjudicated.
Under such circumstances, it is justified that the
Matrimonial Suit No.3 of 2019 which is pending before the
learned Additional District Judge, Fast Track, 2nd Court at
Alipore, remains stayed till the disposal of the pending
applications.
C.O.3452 of 2022 is an application filed by the
husband challenging an order dated September 26, 2022
passed by the learned Additional District Judge, Fast Track,
2nd Court at Alipore in Matrimonial Suit No.3 of 2019. By the
said order, the application under Section 151 of the Code of
Civil Procedure, filed by the husband/petitioner on June 28,
2022, was rejected. The husband prayed for modification of
the maintenance pendente lite, which was granted in favour
of the wife, on account of changed circumstances.
According to the husband/petitioner, his monthly
pension is Rs.1,08,300/- and it would be impossible for him
to pay Rs.45,000/- per month for maintenance towards the
wife and the child after meeting his regular monthly
expenses. According to the petitioner, a sum of Rs.25,000/-
would be a reasonable amount which he would be
comfortable to pay, considering his financial situation after
superannuation.
The learned court was of the view that as the amount
of maintenance awarded to the wife and the child at the rate
of Rs.45,000/- per month from the date of filing of the
application under Section 24 of the Hindu Marriage Act had
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been affirmed by the Hon’ble Supreme Court, the said
amount could not be modified.
This Court is of the view that the learned court
proceeded on a misconception. Changed circumstances
would always entitle any party to pray for modification of the
amount of maintenance granted in a proceeding, be it
enhancement or reduction. Of course, it is for the court to
decide whether to modify the amount, on the merits of the
contentions of the parties. It also appears that the wife has
filed an application for enhancement of the amount of
maintenance pendente lite on various grounds, including
subsequent development and sale of valuable property.
Having considered the rival contentions, this Court is
of the view that the order dated September 26, 2022 requires
modification to the extent that the application filed by the
husband under Section 151 of the Code and the application
filed by the wife for enhancement, should be disposed of
analogously, upon granting opportunity to all the parties to
file their documentary evidence and also adduce oral
evidence. Till the disposal of the said applications, the
Matrimonial Suit No.3 of 2019 shall remain stayed. The
petitioner/husband will pay a sum or Rs.2.5 lakhs to the wife
and the child towards arrears in two equal monthly
instalments, which shall be adjusted with the final quantum
fixed by the learned trial court, upon adjudication of the two
applications. First of such instalment shall be paid within
January 10, 2024 and the second instalment shall be paid
within February 15, 2024. All payments and acceptance will
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be without prejudice to the rights and contentions of the
parties.
Needless to mention, the petitioner shall continue to
pay a sum of Rs.25,000/- per month as current maintenance,
till the disposal of the applications.
This Court has not gone into the merits and demerits
of the claims and counter-claims of the parties. The learned
court shall mandatorily dispose of the two applications
within a period of three months from the next date fixed, on
their merits.
Accordingly, both the revisional applications are
disposed of.
All the parties are directed to act on the basis of the
server copy of this order.
(Shampa Sarkar, J.)