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Sri Jayanta Saha vs Smt. Sumitra Saha on 17 December, 2019


S/L 7
Ct. No. 19

C.O. 4072 of 2019

Sri Jayanta Saha

Smt. Sumitra Saha

Mr. Rejaul Alam,
Mr. S.M. Hassan.

…. for Petitioner.

The husband/petitioner in Mat Suit No.57 of 2017 pending before the learned

Additional District Judge, 1st Court at Alipore, District 24 Parganas (South) is the

petitioner before this Court.

He is aggrieved by an order dated September 9, 2019 passed in Misc. Case No.246

of 2018. The misc. case was filed by the wife/opposite party under Section 36 of the

Special Marriage Act, 1954. The opposite party/wife claimed for maintenance pendente

lite at the rate of Rs.35,000/- per month and litigation cost of Rs.50,000/- per month. It

was the specific case of the opposite party/wife in the application that the husband earned

around Rs.80,000/- per month as salary being an employee of National Small Industries

Corporation Limited. Apart from that, the father of the husband/petitioner was an

employee of the Central Government who was earning pension and thus the parents were

not dependent on the petitioner. It has been further stated that the husband had a big

garage space at Garfa Main Road, Kolkata and he earned Rs.10,000/- per month as rent

and the ground floor of the residential house was let out for rent of Rs.21,000/-. The

husband filed an objection to the said application denying the statements of the wife but

did not produce any document in support of his contention. However, accordingly the

learned Judge held that as the petitioner did not deny the facts pleaded by the opposite

party that he was earning Rs.80,000/-, that the garage space was let out for Rs.10,000/-,

that his father was earning pension and had failed to produce documents before the

learned Court below, in support of his contention with regard to the expenses incurred for

the medical treatment of his mother and the sister, the contentions of the wife could not

be disbelieved. Thus, the learned Court below came to a finding that the husband had

failed to establish that the contentions of the wife were not correct. The learned court

below further held that the petitiner failed to prove the reasonable expenses incurred by

him for the maintenance of his family members. The learned advocate for the petitioner

has produced a salary slip of the husband for the month of October, 2019 before this Court

from which it appears that the total earning of the husband was Rs.96,931/- and after the

deductions made with regard to the professional tax, income tax, TTA recovery, the net

take home salary of the husband in October, 2019 was Rs.70,573/-.

It has been settled by various decisions of the Hon’ble Apex Court and also of this

Court that the maintenance of the wife should be something between one-third or one-

fifth of the salary of the husband. In this case one-third of the take home/net income of

the husband per month comes to something around of Rs.23,000/- approximately and

one-fifth of the salary comes to around Rs.14,100/- approximately. Thus, the decision of

the Court to award Rs.20,000/- on the basis of the facts and circumstances as pleaded by

the wife and failure of the husband to prove that his income was not sufficient to award

such maintenance to the opposite party/wife, seems reasonable. I do not find any reason

to interfere with the order impugned. Moreover, status of the wife must commensurate

with the status she was used to in her matrimonial home and grant of Rs.20,000/- to the

wife for her maintenance is not excessive. I do not find any illegality or irregularity with

the order impugned.

In the decision of SectionJasbir Kaur Sehgal (Smt.) vs. District Judge, Dehradun Ors.,

reported in (1997) 7 SCC 7 the Hon’ble Apex Court held that no set formula can be laid

down for fixing the amount of maintenance. It must, in the very nature of things, depend

on the facts and circumstances of each case. Some scope for leverage can, however, be

always there. The court has to consider the status of the parties, their respective needs, the

capacity of the husband to pay having regard to his reasonable expenses for his own

maintenance and for the maintenance of those he is obliged under the law to maintain,

including statutory deductions. The amount of maintenance fixed for the wife should be

such as she can live in reasonable comfort, considering her status and the mode of life she

was used to when she lived with her husband and also that she does not feel handicapped

in the prosecution of her case. At the same time, the amount so fixed cannot be excessive

or extortionate.

The Delhi High Court in SectionRadhika 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, gives wide power and discretion to the Court to do justice. For the

purpose of fixation of the 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. In spite of absence of any documentary evidence to prove the

monthly income of the husband, the Court can award maintenance allowance in order to

do justice keeping in mind the social reality and the nature of the work of the husband.

Moreover, there can be an enhancement of maintenance allowance due to change in the

circumstance which includes rise in the cost of living and increase of earning of the

husband. (SectionNarayan Chandra Das v. Geeta Rani Das reported at 2006 (2) CLT 85 (HC).

SectionThe Act does not prescribe any formula to be applied in determining the quantum of

alimony pendente lite. SectionIn Soma Chowdhury (Sarkar) v. Pradip Kumar

Chowdhury reported at 2009 (1) CHN 282 it was observed:-

“It is now settled law that the amount of alimony pendente lite should vary between
one-third and one-fifth of the income of the earning spouse depending upon the facts
and circumstances of the case.”

The Hon’ble Supreme Court in the case of SectionDr. Kulbhushan Kunwar v. Raj Kumari,

AIR 1971 Supreme Court 234 approved the principle enunciated in SectionMt.

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. The Hon’ble Supreme Court in the case

of SectionMangat Mal v. Punni Devi, 1995 (3) RRR 632: (1995) 6 SCC 88 held as follows:-

“Maintenance, necessarily must encompass a provision for residence.
Maintenance is given so that the lady can live in the manner, more or less, to
which she was accustomed. The concept of maintenance must, therefore, include
provision for food and clothing and the like and take into account the basic need
of a roof over the head.”

The Hon’ble Supreme Court in the case of Maharani Kesarkunverba v. I.T.

Commissioner, AIR 1960 Supreme Court 1343, held that maintenance must vary

according to the position and status of a person. It does not only mean food and raiment.

In view of the above principles of law as settled by several judicial decisions, I do

not find that the award of maintenance pendente lite at the rate of Rs.20,000/- and award

of litigation of Rs.25,000 as one time payment for litigation cost as excessive and harsh.

The revisional application is dismissed.

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

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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