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2006 DIGILAW 257 (GAU)

Mamata Debnath v. Mohan Lal Debnath

2006-03-20

A.B.PAL

body2006
JUDGMENT A.B. Pal, J. 1. By this civil revision petition, the Petitioner has called in question the order dated 17.5.01 passed by the learned Addl. District Judge, West Tripura, Agartala (Court No. 2) in Civil Misc. Case No. 291 of 98 (arising out of TS (Divorce) No. 15 of 98) allowing partly her prayer for maintenance pendente lite under Section 24 of the Hindu Marriage Act (for short, 'the Act') only for paltry amount of Rs. 1,000/- against her claim of Rs. 3,000/- per month from her estranged husband. 2. The short facts giving rise to the present proceeding originate from a matrimonial dispute between the husband and the wife which culminated into a divorce proceeding instituted by the husband, the Respondent herein. In the said proceeding registered as T.S. (Divorce) No. 15/98 in the court of learned Addl. District Judge, West Tripura, Agartala, he sketched the background of the discord within a short period after their marriage on 11.12.96. He is a teacher in a senior basic school under the State Government. It is his allegation that soon after the marriage she proposed him to live separately from other members of his family consisting of his old aged mother, helpless sister deserted by her husband and elder brother with wife and three daughters. His refusal to the said proposal soured the matrimonial relation prompting her to treat him with cruelty in the form of refusal to co-habit and indecent and cruel treatment to other family members. When the bitterness was gradually getting momentum, the mother of the Petitioner-wife visited the Respondent-husband's house and with their permission took her to her parents' house and since then she did not come back to the marital tie. On the part of the husband to bring her back having been failed, he sent a lawyer's notice on 21.1.98 which was sternly replied by her through her lawyer on 6.2.98. He further alleged that on 31.1.98 and 2.2.98 her two brothers went to the school where he was serving and threatened to physically assault him. All facts taken together damaged the conjugal relation and eventually he filed the Divorce suit on the ground of wilful withdrawal from the marital tie and cruelty. 3. He further alleged that on 31.1.98 and 2.2.98 her two brothers went to the school where he was serving and threatened to physically assault him. All facts taken together damaged the conjugal relation and eventually he filed the Divorce suit on the ground of wilful withdrawal from the marital tie and cruelty. 3. During pendency of the said proceeding, the Petitioner herein filed a petition for maintenance pendente lite under Section 24 of the Act seeking a direction to the Respondent-husband to pay her monthly maintenance of Rs. 3,000/- and a further sum of Rs. 15,000/- towards expenses of the proceeding. She claimed that her husband was earning Rs. 9,000/- per month as a regular teacher in the graduate scale and from other income from agricultural lands. This prayer was, however, contested by the Respondent-husband on several grounds narrated in the objection petition. In para 5 of the objection petition, the statement of the Petitioner as recorded is that he was earning only Rs. 3,000/- per month to support a large family and, therefore, he was not in a position to pay any amount of maintenance. It is his specific stand, as she had wilfully withdrawn from the marital tie and as all his attempts to bring her back were foiled by her stubbornly, she was not entitled to claim any maintenance from him. He denied her statement that he was earning extra amount from his paddy land apart from his salary as Asst. Teacher under the Education department. 4. In the impugned order, the learned trial court while awarding Rs. 1,000/- per month as maintenance pendente lite and Rs. 3,000/- as cost of litigation failed to take into account the fact that she had no source of income and her retired father aged 65 was unable to maintain her. In the memo of appeal assailing the said order of maintenance, it is further denied that the non-consideration of the financial position of the Respondent-husband who was earning Rs. 9,000/- per month and her complete dependence on her old retired father rendered the impugned order perverse and without jurisdiction. 5. While Mr. A.C. Debnath, learned Counsel for the Petitioner submitted that the amount of maintenance awarded is an absurd amount which shows utter indifference and non-application of mind of the learned court below, Mr. A.K. Bhowmik, learned Sr. 9,000/- per month and her complete dependence on her old retired father rendered the impugned order perverse and without jurisdiction. 5. While Mr. A.C. Debnath, learned Counsel for the Petitioner submitted that the amount of maintenance awarded is an absurd amount which shows utter indifference and non-application of mind of the learned court below, Mr. A.K. Bhowmik, learned Sr. Counsel for the Respondent-husband argues that if the amount awarded is considered to be inadequate, she is always at liberty to make a fresh prayer in the same court instead of filing revision petition under Section 115 of the Code of Civil Procedure (for short, 'Code') which in the given facts and circumstances of this case cannot be invoked for enhancement of the amount. Placing reliance on the decisions of the Supreme Court in Shiv Sakti Coop. Housing Society, Nagpur v. Swaraj Developers reported in (2003) 6 SCC 659 and Sher Singh v. Joint Director of Consolidation reported in AIR 1978 SC 1341 , the other submission advanced by Mr. Bhowmik is that the order of maintenance under Section 24 of the Act is interim in nature and, therefore, cannot be reviewed in a revision proceeding. Though the said petition for maintenance was filed in 1998 long before the amendment of Section 115 of the Code which came into effect from 1.7.02, it has been held by the Apex Court that in all the pending proceedings, the amended provision of that section shall have the regulatory force. The proviso added to Section 115 of the Code which came into force with effect from 1.7.02 provides as follows: Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings. The Divorce proceeding was instituted by the Respondent-husband which undoubtedly has given rise to the cause of action for a separate petition under Section 24 of the Act for maintenance pendente lite and expenses of proceedings. The wife or the husband who does not have independent income sufficient for his or her support and necessary expenses of the proceeding may approach the court for such sum as may be adequate for both the parties. The wife or the husband who does not have independent income sufficient for his or her support and necessary expenses of the proceeding may approach the court for such sum as may be adequate for both the parties. Section 24 of the Act provides as follows: 24. Maintenance pendente lite and expenses of proceedings. - Where in any proceeding wider this Act it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the Respondent to pay to the Petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the Petitioner's own income and the income of the Respondent, it may seem to the court to be reasonable. 6. The lis between the parties under this section is only relating to maintenance and expenses of litigation only for the period of the divorce proceeding. It thus cannot be said to be an interim order inasmuch as it terminates at the end of the divorce proceeding. For permanent alimony and maintenance under Section 25 of the Act, a separate order at the time of passing any decree or at any time specified thereto on application made to the court is called for. Thus, the words "pendente lite" cannot be construed to have any interim nature. After saying so the question is whether the lis between the parties on this issue would have been terminated if the court had passed an order in favour of the party applying for the revision. The answer is undoubtedly in the affirmative so as to say that the proceeding for the limited purpose of maintenance pendente lite and expenses of proceedings would have been terminated by an order in favour of the Petitioner-wife. 7. This being the considered view of this Court, the present revision petition against the impugned order is held to be maintainable. 8. A plain reading of the impugned order would go to show that there has been no discussion on the source of income of the Respondent-husband or total dependence of the Petitioner-wife on her old retired father. The learned court recorded the Petitioner's case that her husband was earning Rs. 8. A plain reading of the impugned order would go to show that there has been no discussion on the source of income of the Respondent-husband or total dependence of the Petitioner-wife on her old retired father. The learned court recorded the Petitioner's case that her husband was earning Rs. 9,000/- per month and thereafter in the next two paragraphs jumped the conclusion that an amount of Rs. 1,000/- per month as maintenance would be the just amount. As regards the expenses of the proceedings only a sum of Rs. 3,000/- has been considered to be the, required amount to meet the expenses. Thus, the order impugned herein is devoid of any discussion on the issues which are required to be considered by the court as provided in the Section 24 of the Act in the words "such sum as, having regard to the Petitioner's own income and the income of the Respondent, it may seem to the court to be reasonable." As there is no discussion on the Petitioner's own income or the income of the Respondent, in the face of the specific pleadings that the Respondent-husband is a graduate teacher in a Government School earning Rs. 9,000/- per month, the impugned order is said to be wrong exercise of the jurisdiction calling for interference by this Court. 9. In the divorce petition, the Respondent-husband has himself stated that he is a graduate teacher in the senior basic school under the Government and, therefore, his statement in the objection petition against the prayer for maintenance by the Petitioner that he is earning only Rs. 3,000/- per month does not appear to be a correct statement. The scale of pay of a graduate teacher as mentioned by the Petitioner-wife after the revision of pay makes the total monthly salary at Rs. 13,000/- which was before revision Rs. 7 to 9 thousand. It is true that the Respondent-husband has a large family consisting of his old and ailing mother, a sister deserted by her husband and a brother with wife and children. But, except mother, all other members cannot be treated to be members of his family, though he may have moral obligation to support them, but certainly not by disowning his responsibility to provide maintenance to his legally married wife. 10. In that view of the matter, it is directed that the Petitioner-wife is entitled to a maintenance of Rs. But, except mother, all other members cannot be treated to be members of his family, though he may have moral obligation to support them, but certainly not by disowning his responsibility to provide maintenance to his legally married wife. 10. In that view of the matter, it is directed that the Petitioner-wife is entitled to a maintenance of Rs. 2,500/- (rupees two thousand and five hundred) only per month with effect from the date of filling of the present revision petition. She is also entitled to an amount of Rs. 10,000/- (rupees ten thousand) only being the cost of the proceedings. The arrear amount with effect from December, 1998 @ Rs. 1,000/- per month till filing of the present revision petition shall be paid in 6 (six) monthly equal installments and the amount, if any, already paid in terms of the impugned order shall be adjusted suitably. The enhanced amount and the cost of the proceeding shall also be paid within a period of two months from the date of passing of this judgment and order failing which it will carry interest @ 9 (nine) percent per annum from the date of expiry of two months. There shall be no order as to cost.