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2013 DIGILAW 795 (CAL)

Krishna Sarkar v. Ashok Kumar Sarkar

2013-10-09

PRASENJIT MANDAL

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Judgment : Prasenjit Mandal, J. This application is at the instance of the wife/respondent and is directed against the Order No.19 dated July 31, 2013 passed by the learned Additional District Judge, 2nd Court, Barrackpore in Matrimonial Suit No.95 of 2012 thereby rejecting an application under Section 24 of the Hindu Marriage Act. The question is whether the impugned order should be sustained. The husband/opposite party herein instituted the aforesaid matrimonial suit for divorce in the year 2012 and previously, he also instituted a suit being Matrimonial Suit No.535 of 2003 for restitution of conjugal rights. In that earlier suit, the husband was directed to pay alimony pendente lite at the rate of Rs.2,000/- per month for the wife, Rs.3,000/-per month for the eldest daughter and Rs.2,500/-per month for the youngest daughter beside the litigation costs of Rs.5,000/-. Ultimately, the husband was reluctant to proceed with the said suit and as such, the said suit was dismissed. The wife has contended that the husband was working as a photographer of the Anthropological Survey of India and he retired from service on superannuation on March 31, 2012. He received the retiral benefits accordingly. But, he is neglecting to maintain the petitioner and his two daughters who are residing at the premises of the husband. So, an application under Section 24 of the Hindu Marriage Act was filed, which was rejected by the impugned order. Being aggrieved, this application has been preferred by her. Having heard the learned Counsel for the parties and on going through the materials on record, I find that admittedly, the marriage between the two was solemnized according to Hindu customs and rites on December 5, 1986 and that two daughters were born in the wedlock on January 18, 1988 and November 15, 1997 respectively. Admittedly, the wife/petitioner herein has been residing in the house of the husband/opposite party herein along with her youngest daughter. There is no evidence that the wife and the youngest daughter have any independent source of income for their livelihood. As per materials on record, the eldest daughter is now married and so, the question of payment of alimony pendent lite for the eldest daughter is not relevant now. There is no evidence that the wife and the youngest daughter have any independent source of income for their livelihood. As per materials on record, the eldest daughter is now married and so, the question of payment of alimony pendent lite for the eldest daughter is not relevant now. As observed above, the husband was directed to pay alimony at the rate of Rs.2,000/-per month for wife, Rs.3,000/- per month for the eldest daughter, Rs.2,500/- per month for the youngest daughter and the litigation costs of Rs.5,000/-in the earlier Matrimonial Suit No.535 of 2003. Thus, the total alimony pendente lite was to the extent of Rs.7,500/- per month. As per materials on record, the husband paid maintenance to the youngest daughter regularly. Admittedly, the husband retired from service on superannuation on March 31, 2012 and at the time of retirement, he got the retiral benefits as usual. What I find from the materials on record is that admittedly, the husband is now a pension-holder and at present, after commutation of a portion of the pension, he is getting pension at the rate of Rs.16,000/-(approximately) per month. Thus, I find that the husband/opposite party herein got not only the benefits out of the service at the time of retirement but also the benefits by commutation of pension to some considerable extent. Under the circumstances, in my view, the husband has enough capacity to pay the alimony to the wife and the youngest daughter pendente lite. The observation of the learned Trial Judge in this regard, in my view, cannot be sustained. During the argument, Mr. Ranjit Kumar Ghosal, learned Advocate for the petitioner has contended that the learned Trial Judge is wrong in holding that since the husband is residing elsewhere and not in his house and the wife and the youngest daughter are living in the house of the husband, after retirement, the wife cannot get any maintenance from the pension of the husband/opposite party. This observation, in my view, also cannot be sustained. So long as the wife and the youngest daughter are unable to maintain themselves, the husband/opposite party herein having sufficient income/means is bound to maintain them. Mr. This observation, in my view, also cannot be sustained. So long as the wife and the youngest daughter are unable to maintain themselves, the husband/opposite party herein having sufficient income/means is bound to maintain them. Mr. Dipak Kumar Mukherjee, learned Advocate appearing for the opposite party has contended that from the annexures to the application, it would reveal that the husband is suffering from various ailments and he is under treatment of renowned doctors of the locality and the eldest daughter being married to a person of different community, whose photographs are enclosed to the application and in consideration of the fact that the wife and the youngest daughter are residing in the house of the husband and the husband had to take a rented room for residence, so, after meeting of such expenses, the husband has practically no money to pay up the alimony to the wife/petitioner herein and the daughter Oindrila. Mr. Mukherjee has contended that the husband has stated that he requires Rs.100/-daily for his food. So after meeting such expenses, he has hardly any money to pay to the wife and the daughter. This being the submission on behalf of the husband, Mr. Ranjit Kumar Ghosal, learned Advocate appearing for the petitioner has contended that the wife is also entitled to get the same amount for each of the wife and the daughter as their alimony. Anyway, the husband is to provide alimony for the wife and the youngest daughter for their livelihood and in that case, the husband shall be compelled to pay the alimony, if he is not willing to pay. Mr. Mukherjee has contended that his client has to pay the charges for the accommodation of his residence, food and the medical expenses, so he is not able to pay the alimony. Mr. Ghosal has contended that though the husband retired from service, he is still hale and hearty and is able to do the works. Anyway, I find that the husband is not penniless for the reasons stated above. So, he is bound to pay the alimony for the wife and the youngest daughter, Oindrila pendente lite. Mr. Ghosal has contended that though the husband retired from service, he is still hale and hearty and is able to do the works. Anyway, I find that the husband is not penniless for the reasons stated above. So, he is bound to pay the alimony for the wife and the youngest daughter, Oindrila pendente lite. As regards the quantum of alimony pendente lite, since the husband got a considerable amount of retiral benefits including the money obtained from the commutation of a portion of the pension and the fact that the husband is still getting Rs.16,000/-per month as pension, I am of the view that if the husband is directed to pay a sum of Rs.4,000/- per month for each of the wife and the youngest daughter, it will not be unjust and unfair at all. The husband is capable of making such payment as alimony till the disposal of the suit. The learned Trial Judge has, therefore, failed to address the issue properly. The impugned order suffers from illegality. So, the impugned order should be set aside and the application should be allowed. The application is, therefore, allowed and the impugned order is hereby set aside. The husband is directed to pay alimony to the wife and the youngest daughter each at the rate of Rs.4,000/- per month from the date of filing of the application under Section 24 of the Hindu Marriage Act. He is also directed to pay the current alimony by the 10th of the succeeding month without fail. So far as arrears of alimony are concerned, the husband is directed to pay the entire arrears of alimony by almost three equal instalments by three consecutive months starting from November, 2013 and such arrears of alimony must be paid by the 10th of the month also without fail. Considering the circumstances, there will be no order as to costs.