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Soma Rudra Sarma vs Santanu Rudra Sarma on 26 November, 2019

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26.11.2019
Court No. 19
Item No. 24
CP
C.O. 3878 of 2019

SectionSoma Rudra Sarma
vs.
Santanu Rudra Sarma

Mr. Arif Ali.

…..for the petitioner.

Mr. Tapas Kumar Majumdar,
Mr. Partha Pratim Bhattacharya.

….for the opposite party

This revisional application is directed against Order No. 108, dated August

31, 2019 passed by the learned Additional District Judge 8th Court at Alipore in

Misc. Case No. 7 of 2017 arising out of Mat Suit No. 7 of 2017.

The petitioner/wife who is the respondent in the matrimonial suit is

aggrieved by the impugned order, inasmuch as, her application filed under

Section 151 of the Code of Civil Procedure praying for modification of the order

dated August 24, 2018 granting maintenance pendente lite was rejected on the

grounds that the wife had not withdrawn the amount deposited by the husband

in terms of the order under Section 125 Cr.P.C. and the application for

modification was filed after a year from the date of order. The court rejected the

application holding the same to be not maintainable and devoid of merits.
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It is urged on behalf of the petitioner that the order dated August 24, 2018

was defective, inasmuch as, although the learned Court below granted

maintenance pendente lite for an amount of Rs.25,000/- (Rs.15,000/- wife +

Rs.10,000/- son), the Court failed to mention the date from which such

maintenance pendente lite ought to have been given. It is further urged that it is

settled law that maintenance pendente lite ought to be given from the date of the

application. The petitioner filed an application under Section 151 of the Code of

Civil Procedure praying for modification of the order, directing the husband to

pay the amount of Rs. 25,000/- from the date of filing the application under

Section 24 of the Hindu Marriage Act, i.e., on the date of filing of Misc. Case No.

7 of 2017. Reliance is placed by the petitioner on the decision of an Hon’ble

Division Bench of this Court in the matter of SectionDebnarayan Halder vs. Anushree

Halder, reported in AIR 2005 Cal 251. It is further urged that the husband was

not paying the maintenance and the petitioner had prayed for stay of the suit

which was also rejected.

Mr. Majumdar, learned advocate appearing on behalf of the husband

admits that the Court was silent as to the date from which the maintenance

pendente lite should be paid by the husband. However, he submits that the

application for modification was filed at a belated stage. He further submits that

the allegation of non-payment of maintenance is baseless, inasmuch as, the

husband had tendered the balance amount of Rs. 5000/- to the wife which was

refused. The same was sent by electronic money order and he has evidence to

prove the same.

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It is submitted on behalf of the husband that already Rs.20,000/- was

being paid from January, 2017 in terms of the directions of this Hon’ble Court in

a 125 proceeding.

I agree with Mr. Majumdar that with regard to the maintenance pendente

lite his client is obliged to pay the balance amount which is Rs.25,000/-, as

directed by the learned Additional District Judge, less the amount being paid in

terms of the order of the Court in a proceeding under Section 125 of the Code of

Criminal Procedure. For the period when no maintenance was paid under the

directions of the court under Section 125 Cr.P.C. the entire amount of Rs.25,000

should be paid. But it is also a settled law that the maintenance pendente lite

should be awarded to the wife and the child from the date of the application

under Section 24 of the Hindu Marriage Act.

Under such circumstances, the order dated August 31, 2019 is set aside.

The husband is directed to pay the maintenance pendente lite as directed by the

Court below on and from the date of the filing of the application under Section 24

of the Hindu Marriage Act, i.e., from March 2014. Such arrears should be paid in

eight equal monthly instalments within 10th day of each month. First of such

instalments shall begin from the Month of January, 2020. The current amount

after adjustment will also be paid every month within 10th day of each month.

It is also made clear that the arrear maintenance paid in the 125

proceeding will also be adjusted with the arrears to be paid as directed by this

Court. The maintenance as directed herein should be tendered to the petitioner
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and it is expected that the petitioner will accept the same without causing any

further complications.

However, it is made clear that if there is any stoppage of payment, as

directed, then the petitioner will be at liberty to take appropriate steps in

accordance with law.

The revisional application is disposed of.

There shall be no order as to costs.

Urgent photostat certified copy of this order, if applied for, be given to the

parties as expeditiously as possible upon complying with all usual formalities.

(Shampa Sarkar, J.)

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