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2002 DIGILAW 214 (CAL)

Badal Ghosh v. Suparna Ghosh

2002-03-27

BHASKAR BHATTACHARYA

body2002
JUDGMENT The civil revisional application being C.O. No. 3718 of 2001 is at the instance of a husband in a suit for divorce and is directed against order No.10 dated June 27, 2001 and order No. 14 dated September 28, 2001 both passed by the learned Additional District Judge, 5th Court, Barasat in Matrimonial Suit No. 77 of 2001. 2. By first order the learned Trial Judge disposed of an application under Section 36 of the Special Marriage Act filed by the wife by directing the husband to pay a sum of Rs. 2,000/- as alimony pendente lite. By second order the learned Trial Judge modified the earlier order No.10 and reduced the amount to Rs. 1500/- a month on the basis of an application under Section 151 of the Code filed by the husband. 3. While entertaining such application this Court issued a suo motu rule under Article 227 of the Constitution of India against the petitioner to show cause why the order No. 14 should not be set aside in its entirety. 4. Both the matters are heard together. 5. After hearing the learned Counsel for the parties and after going through the materials-on-record, I find that although by order No. 10 the application under Section 36 of the Special Marriage Act was disposed of on contest, the husband filed an application under Section 151 of the Code of Civil Procedure for modification of such order on September 5, 2001. The sum and substance of the grounds for modification stated in the application was that there was an error apparent on the face of record, inasmuch as, the learned Trial Judge wrongly held that the gross income of the husband was Rs. 10,000/- a month. According to the petitioner, the gross income was Rs. 6328/- as would be reflected from the salary certificate produced before the Court. 6. By order No. 14 the learned Trial Judge has treated the said application, under Section 151 as one under Section 152 of the Code and has nodified the earlier order No. 10. 7. In my view, the procedure adopted by the learned Trial Judge is wholly without jurisdiction. If the husband is aggrieved by an order passed by the Court, he can approach the higher forum for his remedy. 7. In my view, the procedure adopted by the learned Trial Judge is wholly without jurisdiction. If the husband is aggrieved by an order passed by the Court, he can approach the higher forum for his remedy. If any of the conditions mentioned in Order 47 Rule 1 of the Code exists, such party can also approach the same Court for review of the order, but such application must 'be filed within a period of thirty days from the date of passing of the order. In the instant case, long after the expiry of thirty days, the petitioner came up with an application under Section 151 of the Code for review of the earlier order. The learned Trial Judge treated such application as one under Section 152 of the Code and reduced the amount to As. 1500/- as mentioned earlier. According to Section 152 of the Code, clerical or arithmetical mistakes in judgments, decree or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its .... motion or on the application of any of the parties. In the instant case, the petitioner has not prayed for amendment of the order on the ground of such clerical or arithmetical mistakes or on the ground of errors arising from any accidental slip or omission. He has prayed for modification of the earlier order on the ground of error on the part of the learned Trial Judge in construing the salary certificate. In such a situation, in my view, the learned Trial Judge acted illegally and with material irregularity in invoking Section 152 of the Code. The period of limitation for filing application for review having expired, there was no scope of filing any application under Section 151 of the Code for the purpose of overcoming the rigour of the limitation. So far the original order being order No. 10 is concerned, in my view, it cannot be modified by the learned Trial Judge, who passed such order on the basis of an application filed about three months after passing of such order. I thus set aside the order No. 14 dated September 28, 2001 passed by the learned Trial Court. 8. I thus set aside the order No. 14 dated September 28, 2001 passed by the learned Trial Court. 8. The learned Advocate on behalf of the husband tried to convince this Court that the order No. 10 passed by the learned Trial Judge was not in conformity with the well settled principles which are required to be followed while disposing of an application for alimony pendente lite. After going through the said order, I find that the learned Trial Judge although has wrongly mentioned the gross salary as Rs.10,000/-, but in the fact of the present case, where the gross salary is Rs.6328/- and the husband has deducted Rs.2,600/- towards P.F., the learned Trial Judge was justified in passing an order of alimony at the rate of Rs. 2000/- a month to the wife. If the husband can deduct Rs. 2,600/- towards P.F., there is no reason why he should not be directed to pay Rs. 2000/- to his wife. I thus find no reason to interfere with the order No. 10 passed by the learned Trial Judge. 9. The applications are thus disposed Let xerox certified copy.... this order be supplied to the learned Counsel for the parties within one week from date.