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2010 DIGILAW 709 (CAL)

Sourendra Nath Mukherjee v. Suparna Chakraborty

2010-06-29

JYOTIRMAY BHATTACHARYA

body2010
JUDGMENT: This application under Article 227 of the Constitution of India is directed against an order being No. 116 dated 10th February, 2010 passed by the Learned Judge, Fast Track Court, Seventh Court at Alipore, in Matrimonial Suit No. 36 of 2006 by which all further proceeding of the said Matrimonial Suit was stayed till realization of the arrear amount of the maintenance of the child accumulated due to non-payment of the cost of maintenance of the child as per the order of the Trial Court, which was affirmed in revision by this High Court. The plaintiff (husband) is aggrieved by the said order. Hence he has come before this Court with this application. Heard Mr. Ray Chowdhury, learned Senior Counsel, appearing for the petitioner and Mr. Chatterjee, learned Senior Counsel, appearing for the opposite party, 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. In a suit for declaration that the marriage between the parties is a nullity, filed by the plaintiff against the defendant/opposite party herein under Section 24 of the Special Marriage Act (hereinafter referred to as said Act), the opposite party filed an application under Section 36 of the said Act inter alia praying for a sum of Rs.30,000/- per month towards her maintenance pendente lite and a further sum of Rs.10,000/- per month towards the maintenance of the child. The opposite party also claimed a sum of Rs.20,000/- towards litigation cost. The petitioner contested the said application by filing objection therein challenging the legality of their marriage. The petitioner contended that he never married the opposite party. He stated that the opposite party had earlier married one Mr. Saha and thereafter she again married one Mr. Samarendra Nath Chakraborty. Subsequently she again married one Supratim Sarkar and thereafter she started residing with the said Supratim Sarkar as his married wife for last ten years. The petitioner, thus, challenged the legality of his marriage with the opposite party. The plaintiff/petitioner also stated in his objection that the minor son for whom maintenance was sought for by the opposite party in the said application, is not his son. The petitioner, thus, challenged the legality of his marriage with the opposite party. The plaintiff/petitioner also stated in his objection that the minor son for whom maintenance was sought for by the opposite party in the said application, is not his son. The plaintiff, thus, denied his liability to pay any amount either towards the maintenance pendente lite of the opposite party or towards the cost of maintenance of the child. The said application was ultimately disposed of by the learned Trial Judge on 9th July, 2008 vide order No.71 by which the plaintiff was directed to pay a sum of Rs.2,000/- per month towards the maintenance pendente lite of the opposite party and a further sum of Rs.8,000/- per month towards the maintenance of child. The petitioner was directed to pay such alimony pendente lite of the opposite party and the cost of maintenance of child from the date of filing of the application under Section 36 of the said Act. The petitioner was also directed to pay sum of Rs.20,000/- to the opposite party towards the litigation cost. Neither party was satisfied with the said order. As such the plaintiff challenged the said order by filing an application under Article 227 of the Constitution of India before this Court. The said revisional application was registered as C.O. No. 2810 of 2008. The opposite party also challenged the said order by filing another revisional application being C.O. No. 3211 of 2008. Both the aforesaid revisional applications were heard analogously and both those applications were disposed of by a common order dated 7th December, 2009 passed by the Hon’ble Justice P. K. Deb (as His Lordship then was). His Lordship held that since the marriage itself is disputed between the parties, payment of alimony in favour of the defendant (wife) is not presently warranted. Thus, His Lordship held that the wife is not entitled to get any alimony pendente lite. However, after considering the various materials produced by the parties in connection with the said proceeding His Lordship ultimately held that the child was born while the opposite party was staying in the flat of the petitioner. Thus, His Lordship held that the wife is not entitled to get any alimony pendente lite. However, after considering the various materials produced by the parties in connection with the said proceeding His Lordship ultimately held that the child was born while the opposite party was staying in the flat of the petitioner. His Lordship, after considering the birth certificate of the said child wherein the petitioner was described as the father of the child, held that even if the child is ultimately not held to be legitimate child of the parties but still then the child as an illegitimate child of the parties, is entitled to claim financial help from his biological father for survival. Under such circumstances, His Lordship held that the plaintiff should go on paying the maintenance in favour of the son Suparna Mukherjee at the same rate as awarded by the learned Court below till the disposal of the Matrimonial Suit. Thus, the revisional application which was filed by the plaintiff/petitioner, was allowed in part. His Lordship did not allow the defendant’s prayer for enhancement of alimony pendente lite and/or cost of maintenance of the child. Accordingly, the revisional application which was filed by the defendant/opposite party was rejected by His Lordship. Both the parties accepted the said order. Thus, the said order attained its finality. Subsequently, the defendant/opposite party filed an application before the learned Trial Judge inter alia praying for stay of all further proceeding of the Suit by alleging that the plaintiff/petitioner has not paid the arrear costs of maintenance of the child amounting to Rs.3,60,000/- up to 8th December, 2009 and as such he should not be permitted to continue with the suit until payment of the said amount is made to the wife towards the arrear cost of maintenance of the child. The learned Trial Judge held that the plaintiff/petitioner is a defaulter in payment of the said amount towards the cost of maintenance of the child and he cannot disown his liability to pay the said maintenance of the child right from the date of filing of the application under Section 36 of the said Act as per the order of the learned Trial Judge which remained undisturbed by this Hon’ble Court while disposing of the earlier revisional application, as aforesaid. Under these circumstances, the learned Trial Judge stayed all further proceeding of the suit until realization of the arrear amount. The propriety of the said order is under challenging this application before this Court. Since the fate of this revisional application filed by the plaintiff/petitioner is dependent upon the interpretation of the order passed by Hon’ble Justice P. K. Deb (as His Lordship then was) in the earlier revisional application, this Court is required to consider the merit of the impugned order in the light of the initial order passed by the learned Trial Judge on the defendant’s application under Section 36 of the Said Act and the order passed by His Lordship the Hon’ble Justice P. K. Deb (as His Lordship then was) in the earlier revisional application being C.O. No. 2801 of 2008. I have already indicated above that the defendant’s application under Section 36 of the said Act was disposed of by the learned Trial Judge on 9th July, 2008 vide Order No.71 with the following direction: Ordered “That the Misc. Case No.7 of 2006 be and the same is disposed of on contest. The petitioner is awarded Rs.2,000/- (Rupees Two Thousand) per month towards her maintenance payable by opposite party. Her child is awarded Rs.8,000/- (Rupees Either Thousand) only per month towards his maintenance payable by opposite party. The first payment will be commenced from 25th July, 2008 and subsequent payment will be commenced by the 10th of each successive month. In addition to that petitioner is granted Rs.20,000/- (Rupees Twenty Thousand only) towards her litigation cost payable by opposite party. The petitioner and her child are also entitled to get the arrear amount since the date of filing of impugned petition.” While disposing of the earlier revisional application filed by the plaintiff challenging the propriety of the said order, His Lordship the Hon’ble Justice P. K. Deb (as His Lordship then was) ultimately held that “the petitioner should go on paying the maintenance in favour of the son of Suparna Chakraborty at the same rate as awarded by the learned Court below till the disposal of the Matrimonial Suit. In the result, the revisional application, being C.O. No. 2801 of 2008 was allowed in part with the direction that the plaintiff shall go on paying Rs.8,000/- per month in favour of the son of the opposite party till the disposal of the suit.” While disposing of the said revisional application His Lordship also directed the learned Trial Judge to make all endeavour to have the suit disposed of as early as possible preferably within a period of three months from the date of communication of the said order. If the operative part of the said order is considered minutely along with the discussion made by His Lordship which prompted His Lordship to come to the aforesaid conclusion, then this Court has no hesitation to hold that only that part of the Trial Court’s order whereby alimony pendente lite was granted to the wife, was set aside but the other part of the order which was passed by the learned Trial Judge regarding payment of cost of maintenance to the child at the rate of Rs.8,000/- per month from the date of filing of the defendant’s application under Section 36 of the said Act remained undisturbed. Accordingly, this Court also holds that the plaintiff has the obligation to pay the cost of maintenance of the child at the rate as mentioned in His Lordship’s said order from the date of presentation of the said application under Section 36 of the said Act and such liability will continue till the disposal of the suit. When under these circumstances, the learned Trial Judge passed the impugned order staying all further proceeding of the suit for non-payment of the arrear cost of maintenance of the child in terms of the order of the learned Trial Judge which remained undisturbed by this Court as stated above, this Court does not find any justification to interfere with the said order. The revisional application thus deserves no merit for consideration. The revisional application thus stands rejected. Urgent xerox certified copy of this order, if applied for, be given to the parties, as expeditiously as possible.