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
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.)