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Sri Chiranjib Bhattacharjee vs Smt. Sangita Bhattacharjee Nee … on 4 March, 2020

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M/L 663
04.03.2020
Ct. No. 19

GB
C.O. No. 2463 of 2019

Sri Chiranjib Bhattacharjee
Vs.

Smt. Sangita Bhattacharjee nee Ghosal

Mr. Uday Chandra Jha,
Mrs. Maheswari Sharma,
Mrs. Tulika Roy
…for the Petitioner/Husband.

On the last occasion, that is, on December 12, 2019 none appeared on behalf of the

opposite party despite service. The affidavit-of-service was taken on record. Learned

advocate for the petitioner was asked to serve a copy of the order once again upon the

opposite party by registered speed post and file an affidavit-of-service. The affidavit-of-

service is taken on record. Even today, none appears on behalf of the opposite party.

The letter dated January 3, 2020, annexed to the affidavit-of-service indicates that

the learned advocate on record addressed a letter to the opposite party to her residential

address, annexing the copy of the order dated December 12, 2019, passed by this Court.

The matter has been running in the combined monthly list of February, 2020 as also

March, 2020. This is also sufficient notice. It appears to the Court that the wife/opposite

party is not interested to contest the proceeding herein. Hence, the matter is taken up in

the absence of the opposite party.

The petitioner is the husband in a suit for divorce being Mat. Suit No.8 of 2017. The

petitioner is aggrieved by an order dated May 27, 2019 passed by the learned Additional

District Judge, 15th Court at Alipore, South 24-Parganas in Misc. Case No.433 of 2017, by

which an application filed by the wife/opposite party under Section 36 of the Special

Marriage Act, 1954 was disposed of with a direction upon the husband to pay Rs.5,000/-

per month along with litigation costs of Rs.10,000/- from the date of filing of the Misc.

case and the arrears of alimony were directed to be paid within three months from the

date of the order.

It is contended by the petitioner that it is an admitted position, as recorded by the

learned Court below, that the wife was earning Rs.50,000/- to Rs.60,000/- per month
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being an Assistant Professor in an engineering college and the husband earned around

rupees 1,00,000/-. It is also submitted that the entire expenses of the daughter was borne

by the husband/petitioner. Thus, there could not be any direction for payment of

maintenance, as the wife had sufficient income to maintain herself. Moreover, there is no

finding why such sum was required by the wife.

Admittedly, the opposite party is an assistant professor in heritage institute in the

department of Chemical Engineering and the opposite party is an ex employee of SAIL

and has taken voluntary retirement. This averment also finds place in the application

under Section 36 of the Special Marriage Act, 1954. It is an admitted position that the

couple had given birth to a daughter, who is now above 21 years and studying abroad after

completing engineering in India. The daughter has also filed an affidavit before the

learned court below stating that the father bears all her expenses. The father has also

stood as a guarantor for the education loan taken for the education of the daughter

abroad. It is also factually recorded by the learned court below that the opposite

party/wife earns Rs.50,000/- to Rs.60,000/- per month as take home salary and the

husband’s take home salary was Rs.1,00,000/-. Salary slip of the opposite party/wife was

filed in the learned court below and the income of the wife is an admitted position, which

the wife herself has also mentioned in the application. The parameters for grant of

maintenance pendente lite as held in different decisions are as follows:-

“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 of the parties. In this case the wife’s income

permits her to live in the same status as the husband and she does not require any

financial support.

The Delhi High Court in Dev Dutt Singh v. Smt. 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
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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).)
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

Judge’s award is not just as the wife has adequate means to maintain herself. The learned

court below has failed to justify as to why an additional Rs.5000/- was required by the

wife.

The Hon’ble 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.

Under such circumstances, I am of the opinion that as the petitioner is bearing all

the expenses for the daughter and the wife has means to maintain herself as the admitted

take home salary of the wife was between Rs.50,000/- to Rs.60,000/- per month and

there being no other evidence of any other responsibility of the wife and any further

expenses incurred by her for maintaining her own life and status, the order dated May 27,

2019 is set aside and quashed. The litigation cost has already been paid by the husband

pursuant to a direction of this Court. It goes without saying that all expenses of the

daughter, who is an adult now, will be borne by the father as undertaken before this Court.

As the matrimonial suit is of the year 2017, the learned court below is requested to

dispose of the suit as expeditiously as possible without granting unnecessary

adjournments to either of the parties preferably within a period of six months from date of

communication of this order.

The revisional application is allowed.

There will be, however, no order as to costs.

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

on priority basis.

(Shampa Sarkar, J.)

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