Pranab Mukherjee v. Pampa Mukherjee — 1993 DIGILAW 475 (CAL)

JUDGMENT BHAGABATI PRASAD BANERJEE, J. 1. These are two revisional applications under S. 115 of the Code of Civil Procedure against the order dated 5th February, 1991, passed by Sri S.S. Mukherjee, learned Judge, 9th Bench, City Civil Court at Calcutta in Matrimonial Suit No. 64 of 1988 partly allowing the application filed by the wife under S. 24 of the Hindu Marriage Act. By the said order the learned Trial Judge directed the husband to pay a sum of Rs. 1,000/- per month under S. 24 of the Hindu Marriage Act, 1955 to his wife month by month from April, 1990 and the litigation expenses of Rs. 1,500/- by three equal installments. The wife filed the said application under S. 24 of the said Act praying for monthly alimony of Rs. 4,700/- for maintenance of herself and her two daughters who are living with her and also prayed for a sum of Rs. 4,000/- on account of cost of litigation. Both the parties were aggrieved by the order dated 5th February, 1991 and filed two separate revisional applications. One application filed by the husband was registered as C.O. No. 796 of 1991, another filed by the wife was registered as C.O. No. 4340 of 1991. 2. In the instant case, the husband Pranab Mukherjee filed a suit for divorce against his wife Pampa Mukherjee on 26th March, 1988 under S. 13 of the Hindu Marriage Act. The said suit is contested by the wife/defendant Pampa Mukherjee. The marriage was solemnised between the parties and out of the said marriage two daughters were born in the year 1971 and 1979 respectively. For the purpose of this revisional application it is not necessary to go into the facts of this case in details, inasmuch as, the question involved in this revisional application, is with regard to the fixation of maintenance pendente lite under S. 24 of the Hindu Marriage Act, 1955. The admitted fact is that the husband and wife are living separately though the wife is occupying a part of the premises belonging to the father-in-law of the wife is staying with her two daughters. The elder daughter after graduation is doing computer course. In the application under S. 24 of the said Act it is alleged that the defendant/wife had no individual income for her to support and maintain herself and two of her daughters. The elder daughter after graduation is doing computer course. In the application under S. 24 of the said Act it is alleged that the defendant/wife had no individual income for her to support and maintain herself and two of her daughters. She in her petition claimed Rs. 2,000/- for food and daily household expenses, Rs. 500/- for clothing expenses Rs. 1200/- for study expenses of children and Rs. 1000/- for other misc. expenses. 3. Let us examine respective cases made by the parties. According to the husband, he took the wife on tour to Lucknow, Puri, Kashmir etc. for the purpose of maintaining peace of the family. It was alleged that on 24th December, 1985 he was forced to agree to pay a sum of Rs. 2,75,000/- as consideration for leaving the matrimonial home with two daughters and that it was alleged that the wife returned to the matermonial home on 12th March, 1986 and after returning the matrimonial home she in order to show her bona fide, wanted to pay back the entire amount of Rs. 2,75,000/- which was originally paid to her. But thereafter, she handed over a sum of Rs. 2,25,000/- to her husband retaining a sum of Rs. 50,000/- which according to the husband she forcibly retained but according to the wife, the husband compelled the wife to keep Rs. 50,000/- in fixed deposit in her account. According to the husband he had gross income of only Rs. 11,700/- from his house property but it is stated that he had to spend a total sum of Rs. 11,592/- for the purpose of maintenance or the said building and for the purpose of payment of taxes and other expenses for the said house and that after deduction his net income from house property is only Rs. 108/- and that even though he is practicing Advocate for more than 20 years, but he has no income and on the contrary, because of his mental condition for which the wife and elder daughter were responsible, he was incurring a loss of more than Rs. 5,000/- per year on account of maintaining staff. According to him save and except the income from house property he had no other income. It was further alleged by him that wife had substantial income. 5,000/- per year on account of maintaining staff. According to him save and except the income from house property he had no other income. It was further alleged by him that wife had substantial income. In the affidavit-in-reply the husband stated that from the copy of the accounts maintained by him it appears that at present his professional gross receipt is not more than Rs. 5,000/- per year and he has to spend a total sum of Rs. 10,000/- per year towards his professional expenses. It was also alleged by him that the wife had income more than Rs. 12,000/- per year. The particulars given by the husband are – (a) Annual interest credited to Bagbazar Post office Savings Bank A/c No. 361808 to the tune of Rs. 1,183/- (b) Monthly dividend of Unit Trust of India credited to Savings Bank A/c lying with United Bank of India. Bagbazar Branch, Rs. 450/- per month, amounting to Rs. 5,400/- per year. (c) Monthly interest of Fixed Deposit credited to United Bank of India, Bagbazar Branch Savings Bank Rs. 450/- per month, amounting to Rs. 5,400/- yearly. It was further alleged that the aforesaid interest accrued upon the total sum of Rs. 50,000/- which is lying in Fixed Deposit with the United Bank of India, Bagbazar Branch. It is also an undisputed position that the husband used to send a sum of Rs. 1,000/- per month to his wife up to the month of March, 1990. But thereafter, according to the husband the wife refused to accept the said sum from the month of April, 1990. 4. The case of the wife which is borne out of the records is that the wife in order to meet the household expenses had permaturely encashed Rs. 10,000/- on 12th June, 1991 which was invested in the Fixed Deposit at Bagbazar Post office in 1989 for five years. The entire amount had been spent to meet the household expenses. It was further stated that after maturity of the investment in the Unit Trust of India Monthly Income Scheme she deposited Rs. 48,150/- in her account of United Bank of India, Bagbazar Branch, a xerox copy of the pass book is annexed and that the balance at the Saving Bank Account, Bagbazar Post office is only Rs. 214/-. It was further stated that after maturity of the investment in the Unit Trust of India Monthly Income Scheme she deposited Rs. 48,150/- in her account of United Bank of India, Bagbazar Branch, a xerox copy of the pass book is annexed and that the balance at the Saving Bank Account, Bagbazar Post office is only Rs. 214/-. From the xerox copy of the Bank Pass Book, Bagbazar Branch, it appears that from that account she had to spend Rs. 19,300 on account of her elder daughter's education and had to spend considerably on the household expenses. From the xerox copies of all accounts, bank accounts, postal accounts etc., it was sought to be established that her net monthly income from all these accounts, is Rs. 283.01 p. It was further alleged that for meeting household expenses, educational and medical expenses for her two daughters and for herself, she had to sell a part of gold ornaments for Rs. 15,000/-. From the particulars supported by records and documents, it is clearly evident that she had no income to maintain herself and her two daughters. 5. Mr. Sudhish Dasgupta learned Advocate for the wife pointed out that in 1986 the wife returned back Rs. 2,25,000/- to her husband and that how and in what manner the said money had been invested and what was the income from that investment since 1986, had not been disclosed by the husband. Mr. Dasgupta further submitted that it is very difficult to accept the case made out by the husband that the husband was incurring a loss in the legal profession. Mr. Dasgupta further submitted that no evidence had been produced by the husband except by making some assertions. The income has been disclosed but the income tax assessment orders in respect of the relevant years in question had not been disclosed. Under such circumstances, Mr. Dasgupta relied on a statement of accounts admittedly prepared by the husband in which it is disclosed Allahabad Bank, Bagbazar Branch Savings Deposit Rs. 374.97. He disclosed 6 year National Savings Certificate for a sum of Rs. 10,000/- which was invested in the year 1988. It was also disclosed that a sum of Rs. 5,000/- was invested in the year 1989 in Kishan Vikas Patra for 5½ years. 6. Mr. 374.97. He disclosed 6 year National Savings Certificate for a sum of Rs. 10,000/- which was invested in the year 1988. It was also disclosed that a sum of Rs. 5,000/- was invested in the year 1989 in Kishan Vikas Patra for 5½ years. 6. Mr. Bhaskar Bhattacharjee learned Advocate on behalf of the husband strenuously argued that under S. 24 of the Hindu Marriage Act the amount of maintenance pendente lite has to be determined on the basis of the income of the husband because of use of the expression having regard to the petitioner's own income and the income of the respondent, it may be seen to the court to be reasonable. It was firstly contended by Mr. Bhattacharjee that the wife had sufficient means to support her and that when the husband had no income, in that event, the court cannot pass any order for maintenance pendente lite. It was next submitted by Mr. Bhattacharjee that under S. 24 of the said Act the maintenance of the daughters could not be considered. But in view of the provision of S. 24 of the said Act, the minor daughter is entitled to maintenance from the father. In view of the fact that S. 24 of the said Act provides for power upon the court to pass order regarding custody, maintenance and education of such children. The expenses for maintenance and education of minor child comes within the scope of S. 26 of the said Act and that Mr. Bhattacharjee submitted that the court has jurisdiction to pass such order. But in the instant case, it was submitted that the father has no income and the father is not liable to pay any sum for the maintenance of the wife and the minor daughter. So far as the elder daughter is concerned, who has just attained the majority, is not entitled to any maintenance from her father under the provisions of the Hindu Marriage Act and it was submitted that the elder daughter may initiate proceeding under the provisions of Hindu Adoptions and Maintenance Act, 1956 for the purpose of her maintenance. 7. Mr. So far as the elder daughter is concerned, who has just attained the majority, is not entitled to any maintenance from her father under the provisions of the Hindu Marriage Act and it was submitted that the elder daughter may initiate proceeding under the provisions of Hindu Adoptions and Maintenance Act, 1956 for the purpose of her maintenance. 7. Mr. Dasgupta learned Advocate on behalf of the wife submitted that this court has power to pass order for maintenance of the elder daughter in this proceeding in order to avoid multiplicity of the proceeding and in view of the fact the elder daughter who has just attained the majority and admittedly she has no income of her own. She is still a student. Under S. 20(3) of the Hindu Adoption and Maintenance Act, 1955 the obligation of the father to maintain his daughter is concerned, so long she is not able to maintain herself excepting depending on her mother. It is not in dispute that the mother has to maintain not only herself but her two daughters, one is a major another is a minor. So the obligation to maintain the elder daughter is there by virtue of the provisions of S. 20(3) of the Hindu adoptions and Maintenance Act, 1956. It is firmly established principle that the obligation of the Hindu father includes the obligations to maintain his unmarried daughter not only for the purpose of her day to day expenses but also in respect of the reasonable expenses of her marriage. The amount of such maintenance shall be determined at the discretion of the Court and that while determining the amount of maintenance to the wife and the children under the Hindu Adoptions and Maintenance Act, regard shall be had to inter alia (a) the position and status of the parties, (b) reasonable wants of the claimant and other relevant factors. The right of Hindu father to maintain the daughter, who is unmarried, is a social obligation under the law. The provisions of S. 24 of the Hindu Marriage Act and 20(3) of the Hindu Adoptions and Maintenance Act are designed to remedy the social mischief. The right of Hindu father to maintain the daughter, who is unmarried, is a social obligation under the law. The provisions of S. 24 of the Hindu Marriage Act and 20(3) of the Hindu Adoptions and Maintenance Act are designed to remedy the social mischief. The provisions of S. 24 of the Hindu Marriage Act and S. 20(3) of the Hindu Adoptions and Maintenance Act as it is designed to remedy social mischief, must receive a construction which advances social justice and in the manner beneficial to the person concerned for whom such legislation had been made. 8. Mr. Dasgupta relied upon the decision of the Division Bench or this Court in the case of Somen Ghosh vs. Bani Ghosh (nee Sen)-90 CWN 816, wherein it was held that even If the husband had no means he has to pay a reasonable sum to his wife. Reference was also made to another decision of a Division Bench of this Court in the case of Monoj Kumar Jaiswal vs. Lila Jaiswal, AIR 1987 Cal. 230 , wherein the Division Bench presided over by A.M. Bhattacharjee, J., held that Court can grant interim maintenance to children also even in absence of separate application under S. 24 of the Hindu Adoptions and Maintenance Act, on an application under S. 24 of the said Act filed by the wife. The expression having regard to means that while ascertaining the quantum of maintenance, the court should also take into consideration the income of the husband, but it cannot be said that the court has no discretion to fix a reasonable amount of compensation. In our view, the expression having regard to does not restrict the hands of the Court and cannot be said to compel the court to fix the amount of maintenance solely on the basis of the income. If this contention is accepted, in that event, the provision of S. 24 would become nugatory. Section 24 of the said Act cannot be interpreted to mean that court has no jurisdiction to pass an order for maintenance of the wife when the wife fails to prove the income of the husband. If this contention is accepted, in that event, the provision of S. 24 would become nugatory. Section 24 of the said Act cannot be interpreted to mean that court has no jurisdiction to pass an order for maintenance of the wife when the wife fails to prove the income of the husband. The condition for obtaining maintenance by wife under the provision of S. 24 is to establish that she has no independent income sufficient for her support and that while determining the amount of compensation, the court shall have regard to the income of the wife as well as the income of the husband and the court will imagine that S. 24 of the said Act does not confer any power upon the Court to pass any order for maintenance of the wife when the husband has no income. 9. In our view, it cannot be said merely on the ground that the husband has no income the court loses its power to award any maintenance and fix a reasonable amount of maintenance. In the instant case, the court below simply fixed Rs. 1,000/- as maintenance on the ground that her husband voluntarily paid that amount till March, 1990, such payment of Rs. 1,000/- upto March, 1990 is also a sufficient indication that he had means and the capacity to pay that amount. The husband has not disclosed the income from the said sum of Rs. 2,25,000/- whether kept in Fixed Deposit or not. The break-up of the income and expenditure from household property does not appear to be convincing. No evidence has been produced regarding income from his profession and no copy of the income assessments for the current year have been produced before the court. The husband is an advocate practicing in the Income Tax Department and it is not understood why the income tax assessments were not tendered in evidence. Accordingly, we are unable to accept the contention of Mr. Bhattacharjee that in the facts and circumstances of the case, the husband has no obligation to pay when it was alleged on behalf of the husband that the husband has no income. The family background of the husband had been disclosed. Accordingly, we are unable to accept the contention of Mr. Bhattacharjee that in the facts and circumstances of the case, the husband has no obligation to pay when it was alleged on behalf of the husband that the husband has no income. The family background of the husband had been disclosed. But it is not necessary to go into the question, but it is sufficient indication that the parties come from respectable family and they have a particular status in the society and under the peculiar circumstances, the court has to decide this question. 10. With regard to the submission of Mr. Dasgupta, under the provisions of Hindu Marriage Act, the unmarried daughter who has just attained majority, cannot be paid any maintenance, but under a different Act, the liability to pay is there and that in order to avoid multiplicity of the proceeding, the elder daughter who is a student and staying with her mother is also be entitled to maintenance under S. 24 of the Hindu Marriage Act, when the wife is living with two daughters and when the elder unmarried daughter has no income whatsoever and she is a student. It would be contrary to the spirit of such social legislation to drag her to file a separate proceeding incurring huge costs against her father for the purpose of her subsistence. Spirit of law has to be upheld, not the mere letters of the law and technicality should not stand in the way of rejecting the claim of the wife to get maintenance of her daughter from a proceeding under S. 24 of the said Act. 11. After the hearing of the revision appeal was over and the judgment was reserved, a supplementary affidavit was filed drawing our attention to the fact that the wife was earning some money by serving in some school. At this stage we cannot entertain such a new fact. Further whether the said service was permanent one or the service was approved are not disclosed. On that score, we cannot outright reject the claim of wife for getting maintenance from the husband. In these days of high price of every commodity it is difficult to have two square meals for the wife and two daughters. The facts disclosed in such affidavit have been looked into by us. But we are unable to reject the claim of the wife. In these days of high price of every commodity it is difficult to have two square meals for the wife and two daughters. The facts disclosed in such affidavit have been looked into by us. But we are unable to reject the claim of the wife. With the sum of Rs. 1,000/- a family of three having some social status cannot maintain themselves properly and if she had earned anything more, that would at least enable her to run a family of three to pass on the days any how. 12. Accordingly, in order to avoid multiplicity of proceeding and considering the fact that this is a social legislation and the elder daughter has no income of her own and it is a matter of common knowledge that one has to spend some money to file a separate proceeding in a Court of law, we cannot compel the elder daughter to file a proper suit or proper proceeding. When the two daughters are living with their mother, can the court deny in the facts and circumstances of the case, merely on the technical pleas that the court has no power to grant such maintenance? When the court has got power under a different Act and when the statutory obligation is upon the father to maintain the daughter under the Hindu Adoptions and Maintenance Act, we arc of the view that the court has power in order to do social and economic justice to an unmarried daughter who has just attained the majority to raise her claim through her mother for maintenance as she is independently entitled to such maintenance from her father even though under the provision of different Act namely Hindu Adoptions and Maintenance Act, 1956. It would be contrary to the principles of justice and fair play and against the social order to compel a daughter to file a suit for maintenance under the Hindu Adoptions and Maintenance Act, 1956 when she is residing with her mother. Father cannot escape from his legal and moral obligation to maintain her, unmarried daughter. A dispute and difference may go on between the husband and wife. But unfortunate victims of such fight between the couple are the sons and daughters of such unfortunate parents, when obligation to maintain daughter is there under different Act. Father cannot escape from his legal and moral obligation to maintain her, unmarried daughter. A dispute and difference may go on between the husband and wife. But unfortunate victims of such fight between the couple are the sons and daughters of such unfortunate parents, when obligation to maintain daughter is there under different Act. In order to avoid multiplicity of proceeding and for doing social and economic justice to the said daughter we are of the view that she also is entitled to be maintained by the father. There is no dispute and difference between the daughter and the father and a daughter cannot be penalised for faults if any of her parents, and for living with the mother. 13. Accordingly, we are of the view that the court is not powerless to grant maintenance traveling beyond the provisions of Hindu Marriage Act, when we find that such a provision is there under the Hindu Adoptions and Maintenance Act, 1956. Such a view is constructive and not destructive to justice. 14. Accordingly, considering the facts and circumstances of the case and the status and income of the parties and conduct, we are of the view that sum of Rs. 1,000/- per month for a family of three members would be wholly inadequate to meet their requirements and we are of the view that the wife should be entitled to maintenance @ Rs. 1500/- per month for herself and Rs. 500/- per month for the maintenance of the major daughter and a further sum of Rs. 300/- per month for the maintenance of the minor daughter making a total of Rs. 2300/- (1500+500+300) per month, to be effective from April, 1990 and the arrears amount shall be paid by monthly installments of Rs. 1000/- over and above the current dues. The maintenance for the month of October, 1993 is to be paid by 31st of October, 1993, and the maintenance for each subsequent month is to be paid on or before the expiry of each subsequent English calendar month. The installment for the arrears aforesaid will be paid along with the maintenance for each month commencing from the month of October, 1993. The installment for the arrears aforesaid will be paid along with the maintenance for each month commencing from the month of October, 1993. In the facts and circumstances of the case, we do not propose to increase the litigation expenses of 1500/- fixed by the court below which should be paid, if not already paid, by three equal monthly installments along with the maintenance for October 1993 & December 1993. The revision application filed by the husband is dismissed and the revision application filed by the wife is allowed in part. There will be no order as to costs. 15. Let a xerox copy of the above order be given to the parties on usual undertaking. I agree. Revisional application filed by the husband is dismissed and the wife's application allowed in part.