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2009 DIGILAW 637 (CAL)

Debasish Guha v. Sarmistha Guha

2009-08-20

Md.Abdul Ghani

body2009
JUDGMENT 1. THE instant application under Article 227 of the Constitution of India is directed against the order No. 40 dated 19.3.2009, passed by Sri N.K. Ghosal, learned Additional District and Sessions Judge, 4th Court at Howrah in Misc. Case No. 109 of 2004, arising out of MAT Suit No. 356 of 2004. 2. FROM the materials on record it could be ascertained that the present petitioner Debasish Guha by instituting the MAT Suit No. 356 of 2004 has prayed for decree of divorce against his wife being the O.P. Sarmistha Ghosh. In the said suit the O.P. entered appearance and by filing a petition under Section 24 of the Hindu Marriage Act has prayed for alimony and litigation cost to the tune of Rs. 5,000/- p.m. and Rs. 15,000/- respectively. Learned Court below upon hearing the learned Counsel for the parties concerned and also giving due consideration to the materials on record including the status of the parties concerned has been pleased to pass an order of alimony to the tune of Rs. 2,500/- p.m. and litigation cost to the tune of Rs. 5,000/-. Being aggrieved by and dissatisfied with the said order petitioner- husband has preferred the present application under Article 227 of the Constitution of India for setting aside the impugned order. 3. LEARNED Counsel appearing for the petitioner-husband having drawn this Court's attention to the contents of the application under Article 227 of the Constitution of India as also some other important materials on record including the order dated 19.3.2009 emphatically argued and submitted that the impugned order is not sustainable and tenable in the eye and estimation of law in as much as the O.P.-wife earns a sum of Rs. 2,900/- p.m. as a school teacher. He, however, submitted that the litigation cost of Rs. 5,000/-needs no interference. In support of his contention he has relied upon a ruling reported in 2001 WBLR (Cal) 609 (Purnendu Bhunia v. Seema Bhunia) and contended that in a case like the present one, wherein the O.P.-wife is having earning to the tune of Rs. 2,900/- p.m., she is not entitled to get any alimony and accordingly the impugned order needs modification and interference by this Court. 4. 2,900/- p.m., she is not entitled to get any alimony and accordingly the impugned order needs modification and interference by this Court. 4. ON the other hand, learned lawyer appearing for the O.P.-wife referring to the contents of the application under Article 227 of the Constitution of India and some other materials on record including the impugned order strongly urged that the order impugned does not suffer from any legal infirmity or absurdity as also impropriety inasmuch as the O.P.-wife earned a sum of Rs. 2,900/-p.m. as a temporary school teacher and the husband being an employee of a private company earns more than Rs. 12,000/- p.m. In fine, it has been contended on behalf of the O.P.-wife that it is a fit case wherein the application deserves rejection. 5. HAVING heard the learned Counsels for the parties concerned and also on perusal of the materials on record it could be detected that the petitioner-husband earns a sum of Rs. 12,267/- p.m. as an employee of HINDALCO and the O.P.-wife for a certain period earned a sum of Rs. 2,900/- p.m. as a temporary teacher of a school. In view of the principles laid down in the ruling reported in (2004)3 CAL LT 243 (HC) (Asim Bhattacharya v. Smt Saswati Bhattacharya Chakraborty) there is no hide bound formula as to the quantum the Court is to award as alimony pendente lite and as such it is the Court's duty to assess the alimony in accordance with the totality of the circumstances including the status of the parties. Further it is pertinent to point out that in accordance with the ruling relied upon on behalf of the petitioner-husband the wife who is able to maintain herself is not entitled to get any alimony. Since in the present case the wife is not having any permanent scope for employment as also earning she cannot be said to have capacity to maintain herself properly. Although the wife happens to be a sufficiently educated lady, but she is without having any employment. According to the cross-examination of the O.P.-wife she was earning Rs. 2900/- p.m. as a teacher on contract basis and the contract expired in December, 2008. It is true that there is no tangible evidence that the O.P.-wife is still earning Rs. 2,900/- p.m. or otherwise. 6. According to the cross-examination of the O.P.-wife she was earning Rs. 2900/- p.m. as a teacher on contract basis and the contract expired in December, 2008. It is true that there is no tangible evidence that the O.P.-wife is still earning Rs. 2,900/- p.m. or otherwise. 6. THEREFORE, having considered the submissions made on behalf of the parties concerned and also regard being had to the principles of the ruling referred to above. I am of the view that the learned Trial Court while disposing of the application under Section 24 of the Hindu Marriage Act, committed no error or mistake in awarding alimony to the tune of Rs. 2,500/- p.m. and litigation cost to the tune of Rs. 5,000/-. In the circumstances, it may be said that the order impugned needs no interference by this Court. In the result, the revisional application being devoid of any merit hereby stands dismissed. However, I make no order as to costs. Urgent xerox certified copy be given to the parties expeditiously, if applied for.