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2010 DIGILAW 751 (CAL)

Asit Kumar Chakraborty v. Sharmita Chakraborty

2010-07-07

KANCHAN CHAKRABORTY

body2010
Judgment :- Kanchan Chakraborty, J: 1) The Challenge in this revision application under Article 227 of the Constitution of India is to the order no. 30 dated 13.6.2006 passed by the Sri S. Dhar, learned District Judge, Birbhum in Misc. Case No. 155 of 2004 arising out of M.A.T. Suit No. 72 of 2004. 2) The petitioner herein Asit Kumar Chakraborty is the husband of Smt. Sharmita Chakraborty. The marriage of the petitioner Asit Kumar Chakraborty with the opposite party Smt. Sharmita Chakraborty took place on 25.11.2001 according to Hindu Rites and Customs and in their wedlock a female child was born. Sharmita was subjected to physical and mental torture in her matrimonial house. She had to leave the house of the petitioner as she could not bear the torture any more and she started living at her parents house when all the efforts to iron out the disputes between them became futile. The petitioner filed a M.A.T. Suit being No. 72 of 2004 praying for divorce under Section 13 of the Hindu Marriage Act while the opposite party filed a proceeding under Section 125 Criminal Procedure Code praying for maintenance for herself and the minor daughter. A criminal action under Section 498 A I.P.C. was also initiated by the opposite party against the petitioner and in laws. The opposite party filed a petition under Section 24 of the Hindu Marriage Act in the Court of learned District Judge, Birbhum in the M.A.T. Suit No. 72 of 2004. That prayer for maintenance pendenti-lite under Section 24 of the Hindu Marriage Act was allowed by the learned District Judge by the order no. 30 dated 13.6.2006 whereby he was pleased to direct the present petitioner husband to pay the opposite party of Rs. 2000/- per month and Rs. 500/- for the minor daughter for their maintenance. The learned Court also allowed litigation cost of Rs. 8000/- in favour of the opposite party, Sharmita Chakraborty. 3) The husband, Asit Kumar Chakraborty felt aggrieved by the said order and challenged the legality, validity and correctness of the same in this revision application on the ground that the learned Court failed to consider the fact that the opposite party has already obtained an order of monthly maintenance under Section 125 of Criminal Procedure Code to the tune of Rs. 1400/-, in all, for herself as well as for the minor daughter and that the learned Court failed to appreciate the fact that monthly income of the petitioner was only Rs. 3315/- after deduction and it was not possible for him to pay Rs. 3900/- per month towards the maintenance of the opposite party and the minor daughter. 4) Mr. Kishore Mukherjee, learned Counsel appearing on behalf of the petitioner contended that the order passed by the learned District Judge, Birbhum under Section 24 of the Hindu Marriage Act put the petitioner in real hardship in as much as his net income is only 3315/- per month and he was supposed to pay Rs. 3900/- per month to the opposite party towards her maintenance and maintenance of the female child. The opposite party has already obtained an order of maintenance under Section 125 Cr.P.C. whereby the present petitioner was directed to pay Rs. 800/- per month towards the maintenance of the opposite party and Rs. 600/- per month towards the maintenance of the minor daughter. That fact was suppressed by the opposite party while the petition under Section 24 of the Hindu Marriage Act was filed by the opposite party in the Court of learned District Judge. According to Mr. Mukherjee, the learned District Judge ought to have considered the financial condition of the petitioner as well as the maintenance order passed under Section 125 Cr.P.C. in favour of the opposite party. He handed over this Court a copy of one letter dated 6.5.2009 with statement of salary of the opposite party Smt. Sharmita Chakraborty showing that she had been working as Library Attendant in Birbhum Institute of Engineering and Technology in the Year 2009 and had been receiving a gross salary or Rs. 5930/- per month. 5) I have carefully perused the order passed under Section 125 Cr. P.C. by the Judicial Magistrate Suri on 3.3.2005 allowing interim maintenance of Rs. 800 and 600 per month for Sharmita Chakraborty and her minor daughter. I have carefully gone through the order under challenge passed by the learned District Judge, Birbhum as well as the petition and written objection filed on behalf of the parties in that proceeding. 6) The admitted position is that Sharmita Chakraborty is legally married wife of the petitioner Asit Kumar Chakraborty and that in their wedlock a female baby was born. 6) The admitted position is that Sharmita Chakraborty is legally married wife of the petitioner Asit Kumar Chakraborty and that in their wedlock a female baby was born. It is also admitted position that Sharmita Chakraborty left her matrimonial house and started living with her parents along with her minor daughter. From the materials on record it is found also that Sharmita Chakraborty initiated a proceeding under Section 125 Cr.P.C. against Asit Kumar Chakraborty and obtained an order of interim maintenance of Rs. 800/- + 600/- per month for herself and the minor daughter, respectively. That order was passed on 3.3.2005. In the mean time, the present petitioner instituted a M.A.T. Suit praying for divorce in the Court of learned District Judge Birbhum and opposite party filed an application under Section 24 of the Hindu Marriage Act in that suit praying for maintenance pendenti lite for herself and the minor daughter. That petition was heard on contest and the order under challenge dated 13.6.2006 was passed by the learned District Judge, Birbhum. 7) From the petition filed under Section 125 Cr.P.C. in the Court of learned Judicial Magistrate by the opposite party, I find that she stated therein clearly that she had no independent source of income and was passing here days with the baby in acute hardship. In her petition under Section 24 of the Hindu Marriage Act she reiterated the fact that she had no source of income to maintain herself and the minor daughter. 8) It appears from the order passed by the learned Magistrate as well as learned District Judge that the present petitioner had taken a plea that the opposite party Sharmita Chakraborty had source of income enough to maintain herself and the minor daughter. The learned Magistrate did not belief the fact as no cogent evidence could be produced by the present petitioner. The learned District Judge in his order dated 13.6.2006 also discussed the fact that the present opposite party made out a case that Rs. 1400/- per month awarded by learned Magistrate as interim maintenance was very meager to met the actual expenses. In other words, the learned District Judge while disposing of the petition under Section 24 of the Hindu Marriage Act had taken the fact of interim maintenance allowed by the learned Magistrate, into consideration. 1400/- per month awarded by learned Magistrate as interim maintenance was very meager to met the actual expenses. In other words, the learned District Judge while disposing of the petition under Section 24 of the Hindu Marriage Act had taken the fact of interim maintenance allowed by the learned Magistrate, into consideration. The present petitioner failed to establish that the opposite party Sharmita Chakraborty had independent source of income at the time the petition under Section 24 of the Hindu Marriage Act was filed and on the date the order was passed in favour of the opposite party. The xerox photocopy of the salary certificate issued by Birbhum Institute of Engineering and Technology showing gross pay of Smt. Sharmita Chakraborty relates to the period long after passing of the order under challenge. Neither the learned Magistrate nor the learned District Judge had any scope to take that matter into consideration. No case from the side of the petition is made out to the effect that he filed a petition under Section 127 Cr.P.C. in the Court of learned Judicial Magistrate for modification of the order of interim maintenance on the ground that the opposite party earns Rs. 5000/- and odd from Birbhum Institute of Engineering and Technology. 9) I have already stated that learned District Judge, Birbhum considered the fact of interim maintenance allowed by the learned Magistrate in the proceeding under Section 125 Cr.P.C. while disposing of the petition under Section 24 of the Hindu Marriage Act. The learned District Judge also considered the monthly income of present petitioner before the order of maintenance pendenti lite was passed. From materials on record, I find that the petitioner earns a gross salary of Rs. 10098/- per month. The net salary he gets after deduct is Rs. 3315. No where he explained why he deduct of Rs. 6747/- per month from his gross salary. The petitioner has not given any reason justifying deduction of Rs. 6747/- per month from his salary. There can not be any room of doubt that Rs. 1400/- per month for maintenance of a young lady and a minor daughter is neither sufficient nor adequate. She is to survive facing all the odds of the life. She is to maintain the minor daughter who leaves with her. 6747/- per month from his salary. There can not be any room of doubt that Rs. 1400/- per month for maintenance of a young lady and a minor daughter is neither sufficient nor adequate. She is to survive facing all the odds of the life. She is to maintain the minor daughter who leaves with her. The opposite party can not shrug-off his responsibility to maintain his wife and minor daughter on the pretext that he earns a net salary of Rs. 3315/- only per month and having responsibility to maintain his aged mother. He is an able bodied man and his mother is a pension holder. He is having his own residence to live in also. 10) Considering the facts above, I find that the learned District Judge has made no mistake in passing the order of maintenance pendenti lite. The total sum of Rs. 3900 (1400+2000+500) towards maintenance of a young lady and minor daughter can neither be categorised as astronomical nor exorbitant. That is the minimum amount a young lady and a minor daughter need for their square meal and bare necessities. I find no illegality and incorrectness in the order passed by the learned District Judge. The order wants no interference in this revision. 11) Accordingly the revision application, thus, fails and is disposed of. No order as to cost is passed.