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2003 DIGILAW 284 (CAL)

Soma Dey v. Swapan Kr. Dey

2003-06-12

PRADIP KUMAR BISWAS

body2003
JUGDMENT Pradip Kumar Biswas, J. 1. Learned Advocate appearing for the petitioner is present. Affidavit-of-service filed by the petitioner be kept with the record. 2. From the affidavit-of-service itself, it appears that the opposite party No. 1 has received the notice by signing on the Acknowledgment Due Card but despite service, none has appeared on behalf of the opposite party No. 1. 3. In such situation, the matter is taken up for disposal on its own merit in the absence of opposite party No.1. Heard the learned Advocate appearing for the petitioner and also perused the impugned judgment and connected materials. 4. The instant application has been filed by the petitioner, Smt. Soma Dey, against her husband, Swapan Kumar Dey and the State of West Bengal praying for revision! modification of the order impugned dated 15.6.2002 passed by the learned Judicial Magistrate, 2nd Court, Howrah in connection with M.C. No.171 of 1995 (T.R. 193/96) whereby the learned Magistrate upon conclusion of the trial was pleased to award maintenance amount of Rs. 1000/- per month for the petitioner and Rs. 300/- per month for each of her two minor children and the effect of the order had been given almost from the date of the order. 5. Being aggrieved by such grant of maintenance and by the fact of giving effect to the aforesaid maintenance order almost from the date of the order, the petitioner has chosen this forum for ventilating her grievance as aforesaid. 6. Learned Advocate appearing for the petitioner, drawing my attention to the evidence on record and specially to the finding of the learned trial Judge with regard to the income of the opposite party No.1, which admittedly was to the tune of Rs. 6793/- for the month of December, 2001, has submitted that despite clear finding that the opposite party/husband had an income of more than Rs. 6000/-, the learned Magistrate has chosen to award maintenance to the petitioner to the tune of Rs. 6793/- for the month of December, 2001, has submitted that despite clear finding that the opposite party/husband had an income of more than Rs. 6000/-, the learned Magistrate has chosen to award maintenance to the petitioner to the tune of Rs. 1000/- per month only without assigning any appropriate reason, although he himself has found in his judgment that the opposite party/husband though claimed, yet the petitioner wife has no other income of her own and that being the position I am of the clear opinion that there has been miscarriage of justice and on the materials available, the amount of maintenance should be increased properly for the petitioner as well as for her two minor children. 7. I have gone through the evidence and relevant portion of the judgment with meticulous care and it is now settled position of law that in such maintenance cases, courts, on available materials, grant maintenance to the destitute wife ranging from 1/3 to 1/5 of the total income of the husband and also depending upon the facts and circumstances of the case itself. Applying the aforesaid ratio in the present case, I feel that in the instant case the proper amount has not been awarded by the learned Court below and upon consideration of the materials available, I am inclined to enhance the same to the tune of Rs. 1500/- per month for the petitioner and Rs. 400/- per month each, for the two minor children of the present petitioner. 8. Now, with regard to the effect of the order that has been given by the learned Magistrate in connection with the present case, it appears that the learned Magistrate although disposed of this matter by his order dated 15.6.2002, yet, he has given the effect of the order from the month of June, 2002 without assigning any reason whatsoever. 9. In view of the pronouncement made by the Division Bench of this Court reported in 1998 C.Cr. L.R. (Cal) 101 in the case of Shankar Prosad Ghosh Vs. Lakshmi Rani Ghosh proper reason has to be assigned by the learned trial Judge if he opts for granting maintenance from the date of the order but here in this case, no cogent reason has been assigned by the learned Magistrate as to why he has chosen for granting maintenance to the present petitioner from the month of June, 2002. 10. 10. In such view of the fact, upon ultimate analysis of the materials available, I am of the clear opinion that the ends of justice will be subserved if the effect of the maintenance order is given from the month of January, 2002. Now, to sum up, it is held that the opposite party/husband shall pay Rs. 1500/- per month to the present petitioner and Rs. 400/- per month each to the two minor children of the petitioner towards their maintenance from the month of January, 2002. But the other portion of the impugned order shall remain as usual and thus the revisional application is disposed of with the above modification. 11. Certified copy of this order, if applied for, be given to the parties expeditiously. Revisional application disposed of with modification.