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2015 DIGILAW 503 (CAL)

Lata Biswas v. Shanti Ranjan Biswas

2015-06-17

RAJIV SHARMA, SHIVAKANT PRASAD

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JUDGMENT : Shivakant Prasad, J. 1. The petitioner filed an application under Section 13 of the Hindu Marriage Act, before the learned District Judge, North 24-Parganas which was subsequently transferred to the Ld. Court of Additional District and Sessions Judge, Fast Track Court, Bongaon, North 24-Parganas being Matrimonial Suit No. 64 of 2008 (Matrimonial Suit No. 1558/2008) and the said suit was dismissed by the Judgment and decree dated 25th January, 2012 and on 09.02.2012 respectively by the said Court. 2. On being aggrieved the petitioner filed an appeal before this Court registered as FAT No. 116 of 2012. 3. It would be apt to take note of the case in a nutshell that on 21st day of Shraban 1405 B.S. petitioner’s marriage with the respondent was solemnized according to Hindu rites and customs and out of the said wedlock two issues were born i.e. one daughter and the other is a son. The daughter namely Mridula Biswas is now 9 years old and son Bittu Biswas is now 7 years old. That since marriage, till 18th day of October, 2008 the petitioner lived and cohabited with her husband/respondent in her matrimonial home at Village Fulsara Dhakapara P.S. Chandpara Bazar, under P.S. Gaighata. The petitioner withdrew herself from the society of the respondent without any reasonable and probable cause. It has been contended that the petitioner was ill behaved and was subjected to physical and mental cruelty on the pretext that the money was demanded by the respondent and for the peace of the petitioner’s life, her elder brother paid more than 5 lacs cash money to the respondent on various occasion. The respondent had taken away the ornaments and articles of the petitioner for the purpose of playing Shatta, Jua, Khelo etc. and petitioner efforts of preventing the Respondent from removing such bad habits were in vain. That the respondent maliciously and falsely charged the petitioner of having committed adultery and used to abuse the petitioner with such cruelty as to cause reasonable apprehension in the mind of the petitioner that the same will be harmful for the petitioner to live with the respondent any further. Hence, the petitioner filed an application under section 13 of Hindu Marriage Act, 1955 for dissolution of marriage. 4. Hence, the petitioner filed an application under section 13 of Hindu Marriage Act, 1955 for dissolution of marriage. 4. The respondent/husband contested the application by filing written statement contending, inter-alia, that the petitioner did not state the names of her father and her elder brother her exact where about was not known to the petitioner. The petitioner left her matrimonial home on 07.11.2008 for which a G.D. Entry was lodged by the Respondent as the petitioner disappeared from the place of her in laws house at Chandpara and is now under custody of one miscreant, who for the purpose of marrying her gave such shelter. 5. Admittedly, she has not filed any application for maintenance pendent lite in the court below against the respondent except application under Section 24 of Hindu Marriage Act 1955 being CAN No. 3204 of 2012 before this Hon’ble Court which was disposed of on 5th June, 2012 without any decision, however, with liberty to appellant to renew her prayer at the appropriate stage. 6. This is how the petitioner has now renewed her prayer for alimony pendent lite. 7. Learned counsel for the petitioner submits that in there nobody to look after her and that under the extreme financial stringency the petitioner filed this petition for maintenance once again as she is living at the mercy of her maternal uncle. It is further submitted that the opposite party/husband never paid any maintenance to the petitioner as well as litigation costs and she has got no sufficient income to maintain herself. 8. She is presently residing in the house of her maternal uncle C/o. Sanju Sharma Village Piyally Nutan Pally, P.O. Kalaria, P.S. Canning, District South 24-Parganas, who has no income to maintain the petitioner. It is further contended that respondent is a businessman and earns Rs. 20,000/- per month. Accordingly, the petitioner has prayed for a sum of Rs. 5,000/- per month to maintain herself towards alimony pendent lite and Rs. 10,000/- as lump sum for litigation costs. 9. We are mindful of the objects and reasons for maintenance pendent lite and expenses of proceedings under Section 24 of the Hindu Marriage Act, 1955, which do not contain any time limit for disposal of application for alimony pendent lite. Nevertheless, we are aware that under Hindu Law, the wife has an absolute right to claim maintenance from her husband. We are mindful of the objects and reasons for maintenance pendent lite and expenses of proceedings under Section 24 of the Hindu Marriage Act, 1955, which do not contain any time limit for disposal of application for alimony pendent lite. Nevertheless, we are aware that under Hindu Law, the wife has an absolute right to claim maintenance from her husband. But she loses her right if she deviates from the path of chastity. 10. The object of enacting the provision for maintenance and expenses during the pendency of the proceeding in Section 24 Hindu Marriage Act 1955 is that a wife or husband who has no independent income sufficient for her or his support or enough to meet necessary expenses of the proceedings. So the doctrine of alimony is based on economic condition of a spouse. This section applies to both husband and wife as law has placed both the spouses on the same footing for this purpose but the liability is on the person who initiates and the applicant has to establish that he or she has no independent income sufficient for his or her support and for necessary expenses of the proceeding. The discretion in granting alimony pendent lite and cost of litigation is to be exercised on sound reasoning i.e. legal principles which may be considered are whether applicant is being supported by an adulterer (ii) whether the respondent has no sufficient means. (iii) where the wife is ready and willing to go and live with her husband but the husband did not wish to keep her with him. On such grounds, wife may be entitled to alimony pendent lite. In considering an application for alimony pendent lite independent income of the petitioning spouse and her conduct are taken into account. 11. (iii) where the wife is ready and willing to go and live with her husband but the husband did not wish to keep her with him. On such grounds, wife may be entitled to alimony pendent lite. In considering an application for alimony pendent lite independent income of the petitioning spouse and her conduct are taken into account. 11. No doubt, it is true that the scheme of the Act in reference to Section 24 indicates the legislative intent to provide maintenance to a spouse who otherwise satisfies the ingredients under Section 24 of the Act to claim maintenance or litigation expenses and to curtail or deny the benefit of such a provision would amount to frustrate the legislative intent at the very threshold, nevertheless, on the factual matrix of the instant case as is revealed from the judgment impugned in appeal that the petitioner/wife on her own had left the house of her husband even deserting her one son and a daughter in the custody of her husband. It is depicted from the judgment impugned dated 25.01.2012 passed in MAT Suit No. 64/08 (Old No. MAT 1558/08) that the petitioner/wife was living in adultery with one Kalidas Sarkar against whom the respondent/husband has lodged a case being Gighata P.S. Case No. 421 dated 05.09.2009 under Section 366/372/379/120B IPC vide G.R. Case No. 1454/09 as well as against his associates which is stated to be pending before ACJM Court, Bongaon. The petitioner while leaving her matrimonial home never felt for caring her children. It has been well observed by the learned Additional District Judge, 1st Fast Track Court, Bongaon, that the petitioner had herself contended that she left her in-laws house without any reasonable and probable cause and the petition appears to have deviated herself from the path of chastity. 12. The petitioner has prayed for a decree of divorce dissolving her marital tie with her husband on the ground of cruelty which has not been proved in the trial before the learned trial Judge. On the contrary, the petitioner appears to have withdrew from the company and the society of her husband and even left her minor children with her husband for the reasons well known to her. 13. It is not the case of the petitioner that her suit for restitution of conjugal rights has been dismissed against her husband. On the contrary, the petitioner appears to have withdrew from the company and the society of her husband and even left her minor children with her husband for the reasons well known to her. 13. It is not the case of the petitioner that her suit for restitution of conjugal rights has been dismissed against her husband. In case in hand, the petitioner herself prayed for decree of dissolution of marriage and neither filed any application under Section 24 of Hindu Marriage Act before the trial Judge, nor for maintenance under Section 125 of Criminal Procedure Code before ACJM, Bongaon. 14. This is also not a case of the petitioner that the respondent/husband is living with the concubine in his house compelling the petitioner/wife to live separately and yet pray for maintenance. 15. In the context above, the petitioner has failed to satisfy this Court the ingredients under Section 24 of the Act inasmuch as she has prayed for a decree of divorce against her husband. 16. We are of the considered opinion that a petition for divorce is not like any other commercial suit. A divorce not only affects the parties, their children and their families but the society also feels its reverberations. Stress should always be on preserving the institution of marriage. That is what is the requirement of law as the marriage is a sacrament and the wife being the ardhangini of her husband. Therefore, it is desired that the petitioner/wife should go for reconciliation of her marital tie to live a peaceful life with her husband and children. 17. A petitioner/wife would not be entitled to alimony pendent lite under Section 24 of Hindu Marriage Act, 1955 when she herself prays for a decree of divorce against husband for no ground whatsoever and for dragging her husband to a litigation. 18. CAN No. 1095 of 2013 is thus, disposed of. However, with liberty to the petitioner to approach Ld. Additional Chief Judicial Magistrate, Bongaon for maintenance under Section 125 of Cr.P.C. 19. The Office to supply Photostat certified copy of this order to applicant, if applied for, on urgent basis. Application under Section 24 of Hindu Marriage Act is disposed of. I agree – Rajiv Sharma, J.