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2008 DIGILAW 890 (CAL)

Ajoy Chakraborty v. Mithu Chakraborty

2008-09-04

PRASENJIT MANDAL

body2008
JUDGMENT: PRASENJIT MANDAL, J. (1.) THIS application is directed against the order no. 28 dated 06. 08. 2007 passed by the learned Additional district Judge, First Track Court, Hooghly in Matrimonial suit No. 28 of 2006 whereby the learned Trial Judge has allowed the petition under Section 24 of the Hindu Marriage Act, 1955 in part granting the wife/respondent alimony pendente lite at the rate of rs. 2,000/-per month with effect from the date of filing of the instant petition. The learned Trial Judge has also awarded the litigation cost of Rs. 3,000/- by the impugned order. (2.) THE short fact is that the husband/petitioner filed the said matrimonial Suit under Section 13 (i) (ia) of the Hindu Marriage act, 1955 for dissolution of marriage on the ground of cruelty. In that suit, the wife/respondent appeared and filed the petition under Section 24 of the Hindu Marriage Act. Upon recording evidence on behalf of both the sides, the learned Trial Judge has allowed the said petition in part in the manner as indicated above. Being aggrieved by the impugned order, the husband/petitioner has filed this application. (3.) HAVING considered the submissions of the learned Advocate for the husband/petitioner and the learned Advocate for the wife/respondent and on perusal of the materials on record, I find that the contention of the husband/petitioner is that he has been paying maintenance at the rate of Rs. 1,500/-per month for the wife/respondent and her children in the maintenance case. It is not dispute that he has been paying the said amount. Thereafter, the wife/respondent has claimed alimony under Section 24 of the hindu Marriage Act. The contention of the husband/petitioner is that at present he gets net salary of Rs. 5,618/- per month as a group "D employee of the Baidyabati Municipality and that he has no other source of income. So such amount has become excessive. (4.) ON the other hand, the learned Advocate for the wife/respondent has contended that the claim under Section 24 of the Hindu Marriage Act by the wife/respondent is independent and that in spite of reliefs granted under Section 125 of the Cr. P. C. , the wife/respondent is entitled to get the relief sought for under section 24 of the Hindu Marriage Act. P. C. , the wife/respondent is entitled to get the relief sought for under section 24 of the Hindu Marriage Act. In support of his contention, he has referred the decisions such as, AIR 1988 rajasthan 127, 1996 CWN 861, AIR 2001 Gujurat 148, AIR 1987 allahabad 130 and AIR 1987 Calcutta 230. All these decisions relate to the general proposition relating to consideration of the application under Section 24 of the Hindu Marriage Act in spite of grant of maintenance under Section 125 of the Cr. P. C. The only fact to be considered is that if the husband/petitioner is entitled to get an adjustment of the amount he has been paying against the order of maintenance under Section 125 of the Cr. P. C. The learned Advocate for the wife/respondent has also contended that the present application having been filed under Article 227 of the Constitution of India, the husband/petitioner is not entitled to have the impugned order modified under Article 227 of the Constitution of India. (5.) HAVING considered the rival submissions of the learned advocate of both the sides, I find that admittedly the wife/respondent is getting maintenance at the rate of Rs. 1,500/per month in the proceedings under Section 125 of the Cr. P. C. from the husband/petitioner. I find from the materials on record that the husband/petitioner is getting the net salary of Rs. 5,618/-per month. If the amount of Rs. 1,500/- per month as granted by the learned Magistrate and the amount granted by the learned Trial judge in the impugned order are taken into consideration, I find that total payment will be Rs. 3,500/- per month that is more than 50% of the net salary drawn by the husband/petitioner. The amount deducted by the husband/petitioner towards his G. P. F. and other funds cannot be said to be excessive in order to avoid payment of maintenance and alimony to the wife/respondent. Therefore, in consideration of the entire situation I hold that a further payment of Rs. 1,000/-only per month instead of Rs. 2,000/- per month granted by the learned Trial Judge as alimony would subserve the interest of justice of both the sides. So, I hold that quantum of alimony per month would be Rs. 1,000/ -. The litigation cost as granted, I hold is not excessive at all and in fact either party did not make any submission in this regard. 2,000/- per month granted by the learned Trial Judge as alimony would subserve the interest of justice of both the sides. So, I hold that quantum of alimony per month would be Rs. 1,000/ -. The litigation cost as granted, I hold is not excessive at all and in fact either party did not make any submission in this regard. (6.) THE contention of the learned Advocate for the wife/respondent that this Honble Court cannot interfere with the impugned order in exercise of jurisdiction of superintendence, I hold, cannot be accepted. Whenever there are material irregularities in the matter of any proceedings before any Court subordinate to the Honble High Court, the High Court is justified in interfering with the same in appropriate cases. (7.) IN the circumstances, I hold that this Court has jurisdiction to interfere with the impugned order. Accordingly, the alimony at the rate of Rs. 1,000/-per month is granted in favour of the wife/respondent instead of Rs. 2,000/-per month as granted by the learned Trial Court. Rest portion of the order impugned is supported. (8.) ACCORDINGLY, the application is disposed of with the above observations and findings. There will be no order as to costs.