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2013 DIGILAW 185 (CAL)

Sarmi Chatterjee v. Udayan Chatterjee

2013-04-03

HARISH TANDON

body2013
ORDER This revisional application is directed against Order No. 41 dated October 10, 2012 passed by the learned Additional District Judge, 13th Court, Alipore in Miscellaneous Case No. 19 of 2011 by which an application under Section 24 of the Hindu Marriage Act, is disposed of. 2. This revisional application is at the instance of the wife assailing the aforesaid order on two fold grounds. Firstly, that the quantum of maintenance granted by the Trial Court is not in commensurate with the income of the husband more particularly in relation to the status and the comforts which the parties used to avail during the conjugal period. Secondly, that the alimony pendente lite should have been directed to be paid from the date of an application and not from the date of the order. 3. Admittedly, a salary certificate was produced for the month of June, 2012 by the husband/opposite party before the Trial Court. The parties agreed for determination of the quantum of monthly alimony pendente lite on the basis of such disclosure. 4. The Trial Court found that the net monthly income of the husband/opposite party is Rs. 61,000/- and odd. Although the husband/opposite party specifically averred in the written objection that the wife has an independent income but could not prove the same in the said proceeding. 5. According to the learned Advocate appearing for the petitioner, the quantum of maintenance should be determined by the Court taking into consideration the social status of the parties, the comforts which the parties used to avail during the conjugal period and their position in the society. To buttress the aforesaid submission reliance is placed upon a Division Bench judgment of this Court in case of Chitra Sengupta v. Dhruba Jyoti Sengupta reported in AIR 1988 Calcutta 98. 6. On the other point that the monthly alimony pendente lite should be granted from the date of an application and not from the date of an order, reliance is placed upon a judgment of the co-ordinate Bench in case of Smt. Poushali Pal v. Sri Gautam Pal, reported in (2002) 2 WBLR (Cal) 182. 7. Lastly, it is submitted that the wife/petitioner is living at the mercy of her ailing parents and, therefore, the quantum of maintenance awarded by the Trial Court is too meager in proportionate to the monthly income of the husband. 8. Mr. 7. Lastly, it is submitted that the wife/petitioner is living at the mercy of her ailing parents and, therefore, the quantum of maintenance awarded by the Trial Court is too meager in proportionate to the monthly income of the husband. 8. Mr. Biswajit Basu, learned Advocate appearing for the husband/opposite party at the very outset submits that his client has not chosen to assail the said order and accepted the quantum of maintenance awarded by the Trial Court. He further submits that the monthly alimony pendente lite would reckon either from the date of application or order is within the discretion of the Court which unless appears to be unreasonable, irrational and beyond the settled legal proposition, the revisional Court should not interfere with such discretionary order. In support of the aforesaid contention he placed reliance upon a judgment rendered by this Court in case of Smit. Jayanti Basu v. Partha Basu, reported in 2012 (1) CLJ (Cal) 296. 9. He strenuously submits that no averment is made in the revisional application nor any document is annexed thereto relating to the conduct of the husband which occasioned the delay in disposing of the said application for maintenance and therefore, the revisional Court should not interfere with such discretionary order by which the monthly alimony pendente lite is awarded from the date of the order. 10. Having considered the respective submissions admittedly, the parties have proceeded with the said application under Section 24 of the said Act on the basis of the salary certificate produced by the husband/opposite party before the Trial Court. 11. There is no provision contained under Section 24 of the Hindu Marriage Act, 1955 wherefrom it could be safely gathered that an application filed under the said provision would be the date for payment of the alimony pendente lite. 12. By catena of decisions rendered in this regard a procedure is adopted by a different High Court either to award the maintenance from the date of an application or from the date of an order or from any date as may be directed by the Court. There cannot be straight jacket formula for passing an order to pay the monthly alimony pendente lite either from the date of an application or from the date or an order. The commencement of the alimony pendente lite depends upon the facts of each case. There cannot be straight jacket formula for passing an order to pay the monthly alimony pendente lite either from the date of an application or from the date or an order. The commencement of the alimony pendente lite depends upon the facts of each case. It is absolutely within the discretion of the Court in the facts of the given case either to allow the application directing either of the spouse to pay the maintenance from the date of an application or from the date of an order. 13. The aforesaid proposition can be fortified from the judgment of the Apex Court in case of Jasbir Sehgal v. District Judge, Deradoon, reported in (1997) 7 SCC page 7 : ( AIR 1997 SC 3397 ) where it is held that the Court has a discretion in the matter as to from which date the maintenance under Section 24 of the Act should be granted. The said discretion would depend upon the multiple circumstances depending upon the conduct of the parties in a proceeding. 14. The aforesaid judgment of the Apex Court was noticed in case of Poushali Pal (supra) and it is held that it is exclusively within the domain of the discretion of the Trial Court either to allow the monthly maintenance from the date of an application or from the date of an order. 15. In the facts of the said case His Lordship was of the view that the conduct of the husband/petitioner does not warrant that the alimony pendente lite should be directed to be paid from the date of an order. His Lordship took note of the other co-ordinate Bench decisions wherein the maintenance was awarded from the date of an order and distinguished those judgments on the facts. 16. It is a settled propositions of law that little difference in fact or on additional facts would change the complexion of order or the decision of the Court. Therefore, the ultimate decision arrived by the Court should not be relied in mechanical manner without looking into the facts and circumstances of the given case. 17. As rightly pointed out by Mr. Basu, learned Advocate appearing for the husband/opposite party that there is no averment in the revisional application relating to the conduct of the husband/opposite party in the proceeding which occasioned the delay in taking an ultimate decision therein. 17. As rightly pointed out by Mr. Basu, learned Advocate appearing for the husband/opposite party that there is no averment in the revisional application relating to the conduct of the husband/opposite party in the proceeding which occasioned the delay in taking an ultimate decision therein. The discretion so exercised by the Trial Court should not be said to be dehors or beyond the legal parameters. 18. Even in case where another view is possible and/or permissible but the view taken by the trial Court cannot be said to be perverse and/or contrary to the settled legal proposition of law, the revisional Court should not interfere with the such discretionary order. 19. This Court, therefore, does not find force in the submission of the learned Advocate appearing for the petitioner that the Trial Court should have granted the alimony pendente lite from the date of an application and not from the date of an order. 20. So far as the second point is concerned, that the trial Court ought to have granted the quantum of maintenance in proportionate to the income of the husband, more particularly, on taking into consideration the status as well as the position of the parties in the society, the Division Bench in case of Chitra Sengupta ( AIR 1988 Cal 98 ) (supra) in unequivocal terms laid down that the quantum of maintenance should be considered on various factors, namely the ability of the husband, the actual income of the husband, the needs of the wife, the society status, age, education and other requirements. 21. The word sufficient for her support incorporated in Section 24 of the said Act is of great importance. Sufficiency depends and varies on the status and the position of the parties. It should be determined taking into the consideration the aforesaid factors as indicated hereinabove and should not be determined whimsically and/or capriciously. 22. From an application under Section 24 of the said Act, the wife/petitioner admits that she was working prior to the solemnization of the marriage in a private firm but subsequently gave up the job for maintaining the house. It cannot be said that the wife is unable to earn. She is well educated and at one point of time was in gainful employment. 23. It cannot be said that the wife is unable to earn. She is well educated and at one point of time was in gainful employment. 23. The Trial Court considered the aforesaid factors, namely the age, education, the social status and the income of the husband and arrived at the conclusion that a sum of Rs. 15,000/- per month would be sufficient to support her needs. 24. As indicated, there cannot be straight jacket formula that the quantum of maintenance should be awarded either on 1/3rd or 1/5th basis but it depends upon the various factors and varies from case to case. 25. Since the trial Court has considered all the aspects and awarded the monthly maintenance of Rs. 15,000/- the same cannot be said to be unreasonable in the facts and circumstances of the present case. 26. This Court, therefore, does not find any infirmity and/or illegality in the order impugned. The same is hereby dismissed. 27. There shall, however, be no order as to costs. 28. The learned Advocate appearing for the respective parties uniformly submits that the husband/opposite party is paying the monthly maintenance as awarded by the Trial Court and the said Matrimonial Suit is also posted at the peremptory board. 29. This Court, therefore, feels that the justice would be sub-served if the Trial Court would make endeavours to dispose of the suit as expeditiously as possible without granting unnecessary adjournment to either of the parties. Petition dismissed.