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2009 DIGILAW 925 (CAL)

Biplab Bhowal v. Bipasha Bhowal

2009-12-21

JYOTIRMAY BHATTACHARYA

body2009
Judgment :- (1.) This application under Article 227 of the Constitution of India is directed against an order being No.95 dated 3rd November, 2009 passed by the learned Additional District Judge, 4th Court at Alipore in Matrimonial Suit No.78 of 2009 which is being heard analogously with matrimonial Suit No.79 of 2009. By the said order the opposite partys application for issuance of direction upon her husband (petitioner) to handover the key of the flat No.213 "Shanti Bhaban", Hardwar for enabling the opposite party (wife) to stay there during her short period of stay at Hardwar during the Christmas Vacation, was allowed with a rider that the wife will return back the said key to the petitioner (husband) on her return to Kolkata. (2.) The petitioner (husband) is aggrieved by the said order. Hence, he filed the instant application before this Court. Heard Mr. Roy Chowdhury, learned Senior Counsel appearing for the petitioner and Mr. Ghosal, learned Senior Counsel appearing for the opposite party herein. Considered the materials on record including the order impugned. Let me now consider as to how far the learned Trial Judge was justified in passing the impugned order in the facts of the instant case. The petitioner (husband) filed a suit for divorce before the learned District Judge at Alipore. The said suit which was registered as Matrimonial Suit No.524 of 2005 was subsequently transferred to the Court of the learned Additional District Judge, 4th Court at Alipore and was renumbered as matrimonial Suit No.78 of 2009. The wifes application under Section 9 of the Hindu Marriage Act which is being heard analogously with the husbands suit for divorce was registered as Matrimonial Suit No.79 of 2009. The wife filed an application under Section 24 of the Hindu Marriage Act in her husbands suit, inter alia praying for her alimony pendente lite, as well as cost of maintenance of her child. The Wifes said application was allowed by the learned Trial Judge on 22nd June, 2006. The husband was directed to pay a consolidated amount of Rs.16,000/-per month on account of her alimony pendente lite and the cost of maintenance of the child. The husband was also directed to pay a sum of Rs.15,000/- to the wife on account of litigation cost. (3.) The wife was not satisfied with the said order. Hence, she preferred a revisional application before this Honble Court. The husband was also directed to pay a sum of Rs.15,000/- to the wife on account of litigation cost. (3.) The wife was not satisfied with the said order. Hence, she preferred a revisional application before this Honble Court. The husband was also dissatisfied with the said order. Accordingly, he also preferred a revisional application before this Court. Both the aforesaid revisional applications were rejected. Thus, the order passed by the learned Trial Judge was maintained. While disposing of the aforesaid revisional applications, a direction was passed by this Honble Court for early disposal of the suits. The learned Trial Judge was directed to dispose of the matrimonial suits within six months from the date of communication of the said order. The real problem started thereafter, as the wife/opposite party started filing various interlocutory applications successively claiming diverse reliefs in the said suit. Sometime the wife claimed enhancement of her alimony amount. Sometime she claimed enhancement of the cost of maintenance of the child. Sometime she claimed further litigation cost. She also claimed litigation costs separately in her suit. On some occasions her prayer for enhancement of maintenance was allowed. Again on some occasions, her prayer for enhancement of maintenance was disallowed. Her prayer for litigation cost in her suit was allowed. The husband complied with all the orders passed by the learned Trial Judge from time to time either with regard to the maintenance of the wife and child and/or the enhancement thereof, or with regard to the litigation cost. (4.) Mr. Roy Chowdhury, learned Senior Counsel appearing for the petitioner submits that in spite of the best efforts of his client, the hearing of the said suit could not be expedited as per the direction of this Honble Court as mentioned above due to filing of such successive applications by the wife. Mr. Roy Chowdhury further contended that the progress of the hearing of the said suit was delayed even thereafter, as the wife started filing several other successive applications claiming delivery of the key of the husbands flat at Hardwar so that the wife along with her son and mother can spend sometime at Hardwar during the summer vacation of her childs school. Since the said application could not be disposed of by the learned Trial Judge before commencement of the summer vacation, she abandoned her said application by filing a separate application claiming identical relief during the Puja Vacation of the school of the child. Again, since the said application also could not be disposed of by the learned Trial Judge before the commencement of the Puja Vacation of the childs school, she filed a supplementary affidavit in connection with the said application inter alia praying for identical relief so that she along with her son and mother can stay in the said flat at Hardwar during the Christmas Vacation of her childs school. Though the husband filed objection against the wifes said application but no objection could be filed by him against the wifes supplementary affidavit as no opportunity was given by the learned Trial Judge to the husband for filing his objection against the wifes said supplementary affidavit. (5.) While disposing of the wifes said application the learned Trial Judge held that the wifes such prayer cannot be refused as the wife has her right of residence in her husbands house so long as the matrimonial relationship continues. Accordingly, the husband was directed to hand over the key of the said Hardwar flat to the wife for enabling her to stay there with her mother and son, during the Christmas Vacation with a rider that the wife will return the said key to her husband, on her return to Kolkata. The husband has challenged the propriety of the said order before this Court. Mr. Ghosal, learned Advocate appearing for the opposite party rightly pointed out that the wifes right of residence in her husbands house so long as matrimonial relationship between them continues, cannot be denied. Even if, this Court agrees with the submission of Mr. Roy Chowdhury that the wife has no title in the said flat which belongs to his client, still then, the wifes right of residence in her husbands flat cannot be denied. (6.) In fact, the husband and the wife are the best friends of each other so long as sweet relationship is maintained in their matrimonial life. But once trouble started between them creating a crack and/or deadlock in their matrimonial life, then they become the worst enemy of each other. (6.) In fact, the husband and the wife are the best friends of each other so long as sweet relationship is maintained in their matrimonial life. But once trouble started between them creating a crack and/or deadlock in their matrimonial life, then they become the worst enemy of each other. As such, neither the husband nor the wife can expect normal behaviour and/or attitude towards each other. This is exactly what happened in the present case like in all other matrimonial disputes. The wife desperately made repeated attempts to frustrate the effect of the order of this Honble Court for expeditious disposal of the suits by filing successive applications therein and in fact, she was successful in her said attempts. On the contrary, the husband was totally disappointed, as, in spite of his best efforts and/or his compliance of all the orders regarding payment on various accounts such as payment of maintenance costs, litigation costs etc., passed by the learned Trial Judge, the hearing of the said suit could not be progressed any more. As a result, the husband opposed such prayer of his wife. To overcome such difficulties and also to put an end to the aforesaid interlocutory applications, Mr. Roy Chowdhury gave an alternative suggestion so that neither the wifes tour programme to Hardwar during Christmas Vacation is disturbed nor the sentimental ego of the husband is affected. Mr. Roy Chowdhury, thus, submitted that instead of directing the husband to deliver the key of the said flat to the wife, the husband may be directed to pay a reasonable amount to the wife to meet the expenses of lodging of his wife and his son in any alternative accommodation there including in hotel. (7.) In my view, the suggestion which was given by Mr. Roy Chowdhury was a fair suggestion and if such suggestion is accepted by both the parties, both the parties will be benefited. Mr. Roy Chowdhury also submitted that his client was agreeable to pay any reasonable amount which would be fixed by this Court for payment to his wife on this account provided, however, the disposal of the suit within a reasonable shortest period is assured. Mr. Ghosal, however, still maintains his original stand regarding his clients right of residence in the husbands accommodation in Hardwar. Though this Court cannot ignore such contention of Mr. Mr. Ghosal, however, still maintains his original stand regarding his clients right of residence in the husbands accommodation in Hardwar. Though this Court cannot ignore such contention of Mr. Ghosal but, still then, this Court cannot hold that wifes mother has also a right of residence in the petitioners house. As such, if the petitioner refuses to give an access to his mother-in-law in his premises, neither the wife nor her mother can compel the petitioner to give access to the mother-in-law in his premises. As such, even if the impugned order is maintained, still then, the mother-in-law of the petitioner cannot be allowed to stay in the petitioners flat. The wife claims that the wife will stay at Hardwar with her son and widowed mother. The wife further claimed that she had made all necessary arrangements by purchasing the train ticket for their journey on 23rd December, 2009. Considering the above facts and particularly that the entire arrangement has been made by the wife for staying in Hardwar with her son and widowed mother during the Christmas Vacation, this Court holds that if the suggestion given by Mr. Roy Chowdhury is accepted then neither the tour programme of the wife and her companions will be disturbed nor the husbands sentimental values will be affected. Accordingly, this Court disposes of this revisional application by directing the husband to pay a sum of Rs.20,000/-in cash to the wife and/or his learned Advocate-on-record of this Court by tomorrow i.e. 22nd December, 2009 by 4 P.M. for meeting the expenses towards their lodging in hotel and/or in any other accommodation at Hardwar during their short stay there during the Christmas Vacation. (8.) On her return to Kolkata, the wife will produce the receipts before the learned Trial Judge showing the actual payment to be made by her towards their lodging in Hardwar during the said period so that the balance amount, if there be any, can be adjusted against the payment of the monthly maintenance charges of the wife for the subsequent month. It is, however, made clear that the amount which the husband is directed to pay on such account hereinabove, is the ultimate payment which the husband is required to pay and the wife will not be entitled to claim any additional amount from her husband even if, she spends any additional amount in this regard. It is, however, made clear that the amount which the husband is directed to pay on such account hereinabove, is the ultimate payment which the husband is required to pay and the wife will not be entitled to claim any additional amount from her husband even if, she spends any additional amount in this regard. The learned Trial Judge is, thus, directed to make all endeavour to dispose of the said suit positively within a period of four months from the date of communication of the order without granting any unnecessary adjournment to the parties and if necessary by hearing the said suit on day to day basis. (9.) The revisional application is, thus, disposed of. The impugned order, thus, stands modified. Urgent xerox certified copy of this judgment, if applied for, may be supplied expeditiously after complying with all necessary formalities. Immediately after passing of this order, Mr. Basu, learned Advocate appearing for the petitioner offers the payment of a sum of Rs.20,000/- to the learned Advocate on record of the opposite party in Court. But Ms. Mukherjee, learned Advocate for the opposite party, refuse to accept such payment by expressing her inability to accept the same without taking instruction from her client. Under such situation, the petitioner is directed to tender such payment to the learned Advocate of the opposite party tomorrow once again. Ms. Mukherjee is directed to take instruction from her client in the meantime. Urgent xerox certified copy of this judgment, if applied for, may be supplied expeditiously after complying with all necessary formalities.