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1997 DIGILAW 252 (CAL)

SHYAMAL KUMAR DAS v. SABYASACHI BHATTACHARJEE

1997-06-23

BASUDEVA PANIGRAHI

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BASUDEV PANIGRAHI, J. ( 1 ) HEARD Mr. Bhattacharjee, the learned Advocate appearing for the petitioner. ( 2 ) THIS revision is directed against the order dated 28th February, 1997 passed by the learned Additional District Judge, 1st Court, Alipore arising out of a Matrimonial Suit No. 52/96 awarding maintenance to the opposite party/wife at the rate of Rs. 700/- per month within 15th of the following month. It has been also directed that the petitioner shall pay all arrears within 30th June, 1997. The petitioner who is the husband of the opposite party filed the present matrimonial suit for a decree of divorce under Section 13 (1) (ia) of the Hindu Marriage Act, 1955 which has been registered as Matrimonial Suit 610/94 and the same has been subsequently renumbered as Matrimonial Suit No. 52/96. The opposite party/wife following her appearance in the Court submitted an application under Section 24 of the Hindu Marriage Act for temporary alimony on the allegations that the petitioner has been earning @ Rs. 4,000/- per month approximately and she has been neglected and driven out from the matrimonial house for which she may be awarded temporary alimony @ Rs. 2,000/- per month and also Rs. 1,000/- per month as her legal expenses. The petitioner/husband filed his written objection to the said application disputing his own income but not specifically stated that the opposite party/wife has any independent source of income. ( 3 ) THE learned Additional District Judge on perusal of the case of both parties and evidence on record observed that the husband is earning Rs. 2,745/- as per his Pay Slip dated 18. 11. 1996 as net pay. Therefore, the learned Judge directed the petitioner to pay at the rate of Rs. 700/- per month from the date of application and also Rs. 800/- towards the litigation expenses. So far Rs. 800/- as litigation expenses awarded by the Trial Court is concerned, I don't think the petitioner can have any grievance and the same be directed to pay. ( 4 ) MR. Bhattacharjee, the learned Counsel appearing for the petitioner has strongly contended that the learned Additional District Judge without assigning any reason and without any speaking order has directed the petitioner to pay at the rate of Rs. 700/- per month. I find there is hardly any merit in the aforesaid submission. ( 4 ) MR. Bhattacharjee, the learned Counsel appearing for the petitioner has strongly contended that the learned Additional District Judge without assigning any reason and without any speaking order has directed the petitioner to pay at the rate of Rs. 700/- per month. I find there is hardly any merit in the aforesaid submission. From careful perusal of the written objection to the Section 24 application 1 found the revision-petitioner has not disputed any factual aspect. Therefore, the Court was bound to accept the case of the petitioner since there was a dispute with regard only to the income of the petitioner. The learned Judge was called upon to determine the actual income of the husband and assessed at the rate of Rs. 2,750/ -. Therefore, in the above background I must have to accept the income of the petitioner assessed by the learned Trial Court @ Rs. 2750/ -. Then on such basis it has to be now decided as to what amount should be payable to the opposite party/wife as her interim maintenance. It has been decided by a Bench decision in this Court where I was a party to it reported in 1995 (I) CHN page 260 in the case of Udayan Saha v. Smt. Srabani Saha that:"an order for maintenance pendente lite or for costs of the proceedings is conditional on the circumstances that the wife or husband who makes a claim for her or his support or to meet the necessary expenses of the proceeding. There is no inflexible rule or rigid formula on the basis of which the amount of maintenance could be assessed. Each case has to be decided on its own facts and circumstances. While determining the quantum of maintenance the Court has to bear in mind the social status of the parties, the economic viability and the family back-ground. Ordinarily, such fixation of amount should not exceed one fifth of the husband's average net income for three years preceding the date of the order. Regard being had to the facts and circumstances of this case that the petitioner was getting substantial amount of Rs. 10,000/- per month working as a Marine Engineer and also the family back-ground of the parties, the Court below has fixed the interim maintenance at the rate of Rs. 600/- per month. Assuming for a moment that the wife has been earning Rs. 10,000/- per month working as a Marine Engineer and also the family back-ground of the parties, the Court below has fixed the interim maintenance at the rate of Rs. 600/- per month. Assuming for a moment that the wife has been earning Rs. 1,250/- per month and her income is included with the income of the petitioner and one-fifth of the gross amount is payable to the wife for her interim maintenance, it also does not exceed the amount awarded by the Court below. " ( 5 ) IN view of this observation it has to be taken into account that normally one-fifth of the total income should be allowed as maintenance to be payable by the husband to the other spouse. In this case Rs. 2,800/- be taken as the normal net income of the husband/petitioner and one-fifth of which comes to Rs. 560/- per month. Therefore, the petitioner is directed to pay interim maintenance at the rate of Rs. 560/- per month from the date of the application. Mr. Bhattacharjee has submitted that it would work out hardship to his client to pay the arrear at a time, therefore, some instalment be granted to his client. Accordingly I direct the petitioner/husband to pay the arrears by four equal monthly instalments along with the current maintenance amount at the rate of Rs. 560/-, the first of such instalment shall commence on and from 10th July, 1997. I pass this order in terms of the order passed by the Division Bench of this Court quoted above just to save delay. In case the opposite party/wife is aggrieved by this order, she may file an application for review of the same within a month from the date of knowledge of this order. ( 6 ) ACCORDINGLY the revisional application is disposed of but in the circumstances without any order as to cost. ( 7 ) DEPARTMENT is directed to communicate this order to the Court below by a Special Messenger at the cost of the petitioner which shall be deposited within a week after it being estimated.