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2002 DIGILAW 190 (CAL)

Smriti Sil (Nee Laha) v. Shyamal Sil

2002-03-18

Bhaskar Bhattacharya

body2002
Judgment Bhaskar Bhattacharya, J. These two revisional applications are at the instance of a wife in a suit for divorce. By the first application the wife has challenged the order No. 12, dated March 13, 2000 passed by the learned District Judge, Hooghly in Matrimonial Suit No. 279 of 1999 thereby rejecting the prayer for grant of cost of litigation. By the second application the wife has challenged the order No. 19, dated March 13, 2001 by which an application for review of the earlier order being order No. 12, dated March 13, 2000 has been dismissed. 2. There is no dispute that the wife has a business of her own, and, as such, she did not claim any amount as alimony pendente lite. However, she came up with an application demanding cost of litigation on the only ground that litigation initiated by the husband is false and harassing one. 3. The aforesaid application was opposed by the husband and ultimately the learned trial Judge rejected such application. Instead of moving the higher forum, the wife filed another application for review of the said order and by the second order such application was also rejected. 4. Being dissatisfied these two revisional applications have been filed by the wife, the first one being accompanied by an application for condonation of delay under section 5 of the Limitation Act. 5. The only question that arises for determination in these revisional application is whether a wife having sufficient income of her own is entitled to get an order of cost of litigation on the allegation that the litigation is frivolous or harassing one. 6. After hearing the learned Advocates for the parties and after going through the provisions contained in section 36 of the Special Marriage Act, I am of the view that for the purpose of getting cost of litigation all that a wife is required to prove is that she has no independent income sufficient for meeting the necessary expenses for contesting the proceedings. At that stage, there was no scope of investigating whether litigation initiated by the husband is frivolous one or harassing one. I have already indicated that in the instant proceedings the wife has not claimed any amount as alimony pendente lite. She has also not disclosed what is her actual income every month. At that stage, there was no scope of investigating whether litigation initiated by the husband is frivolous one or harassing one. I have already indicated that in the instant proceedings the wife has not claimed any amount as alimony pendente lite. She has also not disclosed what is her actual income every month. Under such circumstances, in my view, the learned trial Judge rightly refused to pass any order of cost of litigation on the prayer of the wife. 7. Mr. Rakshit, learned Advocate for the petitioner in this connection relied upon a decision of Rajasthan High Court in the case of Ram Pal vs. Smt. Nisha, reported in A.I.R. 1994 Raj 204. In the said case the wife was employed as a teacher earning Rs.2,300/- a month. In the trial court she did not claim any amount as cost of litigation, but before the appellate court she claimed cost of litigation. In the fact of such case, the said court was of the view that the wife respondent should be paid Rs.5,000/- as litigation expenses for defending that very appeal. 8. In my view, the principles laid down in the said case cannot have any application to the fact of the present case. In the present case, the wife has not disclosed what is her income. Thus, the court was not in a position to adjudicate whether she was capable of paying cost of litigation. 9. The other case relied upon by Mr. Rakshit, namely, Anita Laxmi Narayan Singh vs. Laxmi Narain Singh, reported in A.I.R. 1992 S.C. 1184, also does not support his client in any way. In the said case as the wife was required to attend the Family Court by visiting Gaziabad from Bombay, in view of special fact of such case the wife was granted cost of litigation although she was in service. 10. In the absence of any materials placed before the learned trial court, the learned trial Judge, in my view, was quite justified in rejecting the prayer of cost of litigation. 11. I, thus, find no reason to interfere with the order passed by the learned courts below. The revisional application is thus dismissed. 12. In the facts and circumstances of the case, there will be no order as to costs. 13. The learned court below is directed to proceed with the hearing of the suit as expeditiously as possible. 14. 11. I, thus, find no reason to interfere with the order passed by the learned courts below. The revisional application is thus dismissed. 12. In the facts and circumstances of the case, there will be no order as to costs. 13. The learned court below is directed to proceed with the hearing of the suit as expeditiously as possible. 14. Let xerox-certified copy of this order be given to the parties within one week from the date of making of such application. Revisional application dismissed.