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2006 DIGILAW 134 (CAL)

SUKHADA SANKAR CHAKRABORTY v. SIKHA CHAKRABORTY

2006-03-03

BHASKAR BHATTACHARYA, SADHAN KUMAR GUPTA

body2006
BHATTACHARYA, J. ( 1 ) THIS is an application for review of an order dated 7th april, 2005 passed by us by which we disposed of an application for enhancement of alimony filed by the wife by enhancing the amount of alimony pendente lite from Rs. 7,750. 00 to Rs. 10,000. 00 a month with effect from 1st April, 2005. ( 2 ) THE husband filed a suit for divorce on the ground of cruelty. Such suit was dismissed. Being dissatisfied, the husband preferred the present first appeal before this Court and a Division Bench of this Court on March 29, 2000 disposed of an application for alimony pendente lite filed by the wife by directing the husband to pay a sum of Rs. 7,750. 00 a month. ( 3 ) IT may not be out of place to mention here that during the pendency of the suit in the trial Court, the husband used to pay Rs. 7,000. 00 a month as alimony pendente lite. ( 4 ) THE alimony was claimed not only for the maintenance of the wife but also for the three children (two sons and a daughter) born in the wedlock of the parties. There is no dispute that all the three children are staying with their mother. ( 5 ) WHEN we disposed of the application for enhancement of alimony on 7th April, 2005, the elder son was a student of degree course of Engineering, the second child, the daughter was a student of Economics (Honours) and the third one, the younger son was just promoted to class XII in that year. ( 6 ) IT is not in dispute that the husband has a gross income of Rs. 21,000. 00 a month. On consideration of the materials on record we came to the conclusion that the wife had an average income of Rs. 3,500. 00 a month. It further appeared that, the elder son and daughter earned a negligible amount by acting as an agent of one Golden Trust Finance Services. 21,000. 00 a month. On consideration of the materials on record we came to the conclusion that the wife had an average income of Rs. 3,500. 00 a month. It further appeared that, the elder son and daughter earned a negligible amount by acting as an agent of one Golden Trust Finance Services. ( 7 ) WHILE enhancing the amount of maintenance, we took into consideration the well settled principle of law that, the alimony payable to a wife should vary between 1/3rd and 1/5th of the gross income of the husband according to the facts and circumstances of each case and if the wife had any independent income, that amount should be deducted from the sum assessed. By applying the said principle, we were of the view that the husband having an income of Rs. 21. 000. 00 a month and odd, the alimony of the wife should be assessed at the rate of Rs. 5,000. 00 a month and from that amount, we deducted rs. 3,500. 00 earned by the wife and thus, it came to Rs. 1,500. 00. ( 8 ) SO far as the three children were concerned, we found that they were all students and were really good students and in the fact of the said case, we assessed Rs. 3,000. 00 a month for each of the children as maintenance. Therefore, the total amount came to Rs. 10,500. 00, but made it a round figure of rs. 10,000. 00. ( 9 ) WE, therefore, modified the earlier order of maintenance passed by another Division Bench in the year 2000 by enhancing the amount to Rs. 10,000. 00 a month with effect from 1st April, 2005. ( 10 ) BY this application for review, the husband has drawn attention of this Court to the fact that at the time of passing of our order dated 7th April, 2005, the elder son admittedly crossed the age of 18 years and accordingly Mr. Sanyal, the learned Advocate appearing on behalf of the applicant contended that there was an error apparent on the face of record in awarding maintenance of Rs. 3,000. 00 for the elder son who has attained majority. ( 11 ) MR Sanyal, thus, contends that, we should deduct the amount of rs. 3,000. 00 from the amount of Rs. 10,000. 00 assessed by us and refix the amount at Rs. 7,000. 00. 3,000. 00 for the elder son who has attained majority. ( 11 ) MR Sanyal, thus, contends that, we should deduct the amount of rs. 3,000. 00 from the amount of Rs. 10,000. 00 assessed by us and refix the amount at Rs. 7,000. 00. ( 12 ) MRS. Chandreyee Alam, the learned Advocate appearing on behalf of the wife has seriously resisted the aforesaid contention on behalf of the husband. According to Mrs. Alam, although the elder son has crossed the age of 18 years, it will be a cruelty on the part of the father to stop maintenance on the ground of attaining majority of the son who is an engineering student and has no independent income of his own. In this. connection, she relies upon a decision of the Supreme Court in the case Rita Dutta v. Subhendu Dutta reported in AIR 2006 Supreme Court 189 : (2005)2 WBLR (SC) 1027. By relying upon the said decision, Mrs Alam contends that the Supreme Court in the said case directed the father to pay maintenance in the proceedings under Hindu Marriage Act even for the son who was a student of law, which necessarily follows that he had crossed the age of 18 years. Mrs. Alam also relies upon the Central Government pension Rules, which has been amended the definition of child to include even a son who has not attained the age of 25 years. By relying upon those provisions, mrs. Alam contends that so long the son does not cross the age of 25 years and at the same time, if he has no independent income of his own, he should be entitled to get maintenance in proceedings under Section 26 of the Hindu Marriage act. ( 13 ) MR Sanyal, the learned Advocate appearing on behalf of the husband, however, points out that in the said decision of the Supreme Court, namely, rita Dutta (supra), the Supreme Court merely exercised its power under Article 142 of the Constitution of India but did not lay down as a proposition of law that even a son, above the age of 18 years, is entitled to get maintenance as a matter of right in the proceedings under the Hindu Marriage Act. He, therefore, submits that the said decision, relied upon by Mrs. Alam, is not a precedent. He, therefore, submits that the said decision, relied upon by Mrs. Alam, is not a precedent. Mr sanyal further contends that the Central Government Pension Rules cannot be taken recourse to for the purpose of interpreting the provisions contained in the hindu Marriage Act or the Hindu Adoption and Maintenance Act which restrict the liability of a father to pay maintenance to a son till he attains the age of 18 years. He, therefore, prays for modification of the order passed by us by deleting the amount payable to the elder son. ( 14 ) AFTER hearing the learned Counsel for the parties and after going through the materials on record we find that the Supreme Court in the past specifically laid down a law that even if a daughter has crossed the age of 18 years but has not been married, the liability of the father to pay maintenance continues even in the proceedings under the Hindu Marriage Act by relying upon the principles of the Hindu Adoption and Maintenance Act (See: Jasbir kaur Sehagal v. District Judge, Dehradun reported in AIR 1997 SC 3397 ); but there is no decision compelling a father to pay maintenance for a son who has crossed the age of 18 years ignoring the provisions contained in Section 21 (iv)of the Hindu Adoption and Maintenance Act. It is true that unless the Apex court, as a proposition of law lays down a particular proposition, the same cannot be relied upon as a precedent. In other words, what logically follows from a decision cannot be inferred as a precedent and in that sense, the decision relied upon by Mrs. Alam cannot be construed to be a precedent for the proposition of law that even a son, more than 18 years of age, is entitled to get maintenance from his father if he has no independent income of his own. We also find substance in the contention of Mr Sanyal that the Central Government pension Rules cannot be taken as a guidance for the purpose of interpreting hindu Marriage Act which compels the spouse to pay maintenance to "minor" children and at the same time, the Hindu Adoption and Maintenance Act does not recognise a major son as a dependent. We also find substance in the contention of Mr Sanyal that the Central Government pension Rules cannot be taken as a guidance for the purpose of interpreting hindu Marriage Act which compels the spouse to pay maintenance to "minor" children and at the same time, the Hindu Adoption and Maintenance Act does not recognise a major son as a dependent. ( 15 ) THEREFORE, we find substance in the contention of Mr Sanyal that in view of the admitted fact that the son was more than 18 years of age, we could not have legally granted alimony pendente lite in his favour. ( 16 ) IN ourview, however, even if we accept the contention of Mr Sanyal that we are unable to grant alimony to the elder son, the ultimate conclusion that the wife in the facts of the present case should be entitled to get Rs. 10,000. 00 a month will remain unchanged. While assessing the alimony to the children and the wife, we took into consideration the fact that in this case the husband was required to pay maintenance for three children in full and to the wife, partially. Accordingly, we considered Rs. 5,000. 00 to be the maintenance of the wife and Rs. 3,000. 00 each, for the maintenance of the children. But the moment we find that the husband is not required to pay any amount for the elder son, it should be our duty to enhance the maintenance payable to the other two children as well as the wife. In such a changed situation, we are of the view that the wife should be entitled to get Rs. 6,000. 00 as alimony pendente lite and she having an income of Rs. 3,500/ a month, the husband should pay the balance amount of Rs. 2,500. 00. Similarly, the two children should get Rs. 4,000/- each in place of Rs. 3,0001- and thus, the amount remains the same. It is a settled law that while assessing the amount of alimony, the Court is duty bound not only to take into account the monthly income of the spouse but also to consider the number of his dependent. 00. Similarly, the two children should get Rs. 4,000/- each in place of Rs. 3,0001- and thus, the amount remains the same. It is a settled law that while assessing the amount of alimony, the Court is duty bound not only to take into account the monthly income of the spouse but also to consider the number of his dependent. ( 17 ) WE, therefore, find that although there was an error apparent on the face of our order dated 7th April, 2005 by directing the father to pay maintenance to a major son, after excluding the said son from our consideration, we modify the earlier order by reassessing the amount payable to the wife and the other two children after taking into consideration the fact that, the husband had an income of Rs. 21,000. 00 a month and that the number of his dependent is not four but three. ( 18 ) WE, thus, review our order dated 7th April, 2005 and pass a fresh order holding that the wife should be entitled to get Rs. 2,500. 00 a month and the second and the third child at the rate of Rs. 4,000. 00 a month each with effect from 1st April, 2005. ( 19 ) MR Sanyal further contended that an excess amount has been paid by his client towards the arrears and as such, no amount is due and payable at this moment and in such a situation, we should fix the appeal for hearing. In our order dated 7th April, 2005 we indicated that the appeal will not come up for hearing so long the entire arrears of alimony are paid off by the husband. ( 20 ) SINCE already an execution case has been started by the wife for realisation of the arrears, it is the duly of the husband to approach the Executing court under Section 47 of the Code of Civil Procedure for adjudication whether he has paid excess amount or not. ( 21 ) WE, thus, instead of entering into such disputed question of fact, permit the husband to file appropriate application before the Executing Court for deciding such question of excess payment, if at all, and the Executing Court is directed to dispose of the matter within two months from the date of filing of the application without granting any adjournment to either of the parties. In the event, the Executing Court finds that the husband has cleared all the dues, the husband will be free to mention the matter before us for inclusion of the appeal for hearing. ( 22 ) WE, thus, dispose of the application for review with the above order. In the facts and circumstances, there will be, however, no order as to costs.