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2016 DIGILAW 260 (CAL)

Gurubar Biswas v. Krishna Biswas

2016-03-10

SIDDHARTHA CHATTOPADHYAY

body2016
JUDGMENT : Siddhartha Chattopadhyay, J.: Both these revisional applications are taken up for hearing at a time being interlinked with each other. 2. In the revisional application bearing No. 2614 of 2015 the wife petitioner has challenged the quantum of the pendente lite alimony passed by the Learned Additional District Judge, 8th Court, at Alipore mainly on the ground that the learned Trial Judge failed to consider the provision of Section 24 of the Hindu Marriage Act, 1955 in its proper perspectives. The wife petitioner also submitted that the income of the opposite party husband has not been properly appreciated and as a result only a paltry sum has been awarded. So she has prayed for enhancement of the amount so awarded by the Learned Additional District Judge, 8th Court, at Alipore. 3. In C.O. No. 2948 of 2015 the petitioner husband has also challenged the same order dated 15th June, 2015, contending inter alia that the learned Court below failed to appreciate the position of law so far as the arrear is concerned. He categorically submitted that since November 2004, the petitioner husband voluntarily started paying Rs.3,000/- per month as maintenance to the respondent wife, who had regularly accepted the same. Divorce suit was filed in 2004. Therefore, he wanted to show his bona fide to pay maintenance to his wife. 4. In course of hearing of the revisional application bearing No. 2614 of 2015 learned Advocate appearing on behalf of the petitioner contended that before the learned Court below she had filed affidavit-in-chief 11.02.2009 wherein she has mentioned that the opposite party is the Chief Engineer of Doordarshan and had been earning salary to the extent of Rs.80,000/- per month and this apart he had an income about Rs.1,50,000/- from his landed properties and after his retirement he would get nearly Rs.80 lakhs as his retiral benefit. Considering the income of her husband she has prayed for Rs.40,000/- as alimony pendente lite and Rs.50,000/- on account of litigation expenses but the learned Court below did not consider the said aspects. According to him, income of the husband has to be shown by the husband himself and not by the petitioner wife. Considering the status of the petitioner wife, she deserves that amount. 5. Challenging the said contention of the petitioner wife, the learned Counsel Mr. Dipak Kr. According to him, income of the husband has to be shown by the husband himself and not by the petitioner wife. Considering the status of the petitioner wife, she deserves that amount. 5. Challenging the said contention of the petitioner wife, the learned Counsel Mr. Dipak Kr. Prahladka contended that matrimonial suit was filed in 2004 and since then he had been voluntarily paying Rs.3000/- which has been accepted without any objection by the petitioner wife. He further stated that in the meantime he is now retired and he received a total amount of Rs.27,62,681/- being his retirement benefits and he has been earning pension at the rate of Rs.37,347/- only per month. He further contended that a two room flat was purchased by him measuring about 750 square ft. by taking loan and the present petitioner wife and his son have been residing there. He also contended that his son is well established now. The petitioner wife has no other liability except her food and other bare necessities. So he has submitted that the impugned order does not call for any interference. 6. He further argued that the matrimonial suit was supposed to be disposed within two months from the date of filing as per Family Court Act but that has not been done. On the contrary the suit is being protracted for more than 10 years and during this period he had all along paid Rs.3,000/- per month, which was accepted by the respondent. 7. Learned Counsel appearing on behalf of the petitioner wife has contended that alimony pendente lite should be given from the date of application and enhanced maintenance that has to be also given effect to from that date. In support of his contention he has referred to a decision reported in (2002) 2 W.B.L.R. 182, (Smt. Poushali Pal –Vs.- Sri Gautam Pal). I have gone through the said judgment but the factual aspects of that case is substantially different from the present one on the ground that before making any order passed by the learned Court below the opposite party husband had been paying Rs.3,000/- to the present petitioner wife. So according to the Counsel appearing on behalf of the opposite party husband, the said judgment does not fit in this case. 8. So according to the Counsel appearing on behalf of the opposite party husband, the said judgment does not fit in this case. 8. In connection with C.O. 2948 of 2015, learned Counsel appearing on behalf of the petitioner contended that on 4th November, 2002 the respondent wife left his house out of her own volition and lodged a complaint under Section 498A of the Indian Penal Code and he was arrested and produced before the learned Sub-Divisional Judicial Magistrate at Alipore. Charge-sheet has also been submitted. In spite of that considering his duty he had been sending maintenance amount to his wife and that good gesture cannot be overlooked by a Court of law. He has categorically submitted that payment of arrears of interim maintenance from May 2004 is liable to be set aside, on the ground that the amount of interim maintenance is claimed or calculated or awarded on the basis of the costs for maintaining the basic standard of living and not on the basis of the earning of the opposite party. He further contended that he was not a tool for causing delay of hearing of the said application and now the petitioner husband is already retired and does not have enough means to pay the said amount of arrear. 9. After hearing rival submissions of both parties in connection with C.O. 2948 of 2015 and C.O. 2614 of 2015 I am of the view that while awarding pendente lite alimony, Court should take into the account the income as it stood on the date of hearing of the application. Admittedly, the application was pending for about 10 years before the Court below. When the application was made at that time the husband was in service and had been earning a considerable amount but after retirement his income is reduced to a great extent. It is also on record, that in the meantime he had purchased a flat measuring about 750 square ft. wherein the wife and their son have been residing. The son is well educated and earns a fat salary. The wife O.P. had contended that the husband had landed properties at Fulia, which yields him about Rs.1,50,000/- per month but that part of her submission has not been substantiated by any document. Even the description of landed property was not there. The son is well educated and earns a fat salary. The wife O.P. had contended that the husband had landed properties at Fulia, which yields him about Rs.1,50,000/- per month but that part of her submission has not been substantiated by any document. Even the description of landed property was not there. Therefore, it cannot be said that the husband has some earning from the landed property also. 10. At the same time, the wife deserves a moderate standard of living because she is the wife of an Ex-Chief Engineer of Doordarshan when he had been residing with her husband, her standard of living was obviously much higher and she was accustomed with that. Naturally, she deserves that standard of living. Due to retirement of her husband, she is also supposed to sacrifice her standard of living to some extent because she has been provided with a flat which has not been denied. 11. Learned Court below has awarded alimony pendente lite to the tune of Rs.9,000/- per month from the date of filing of the application i.e. from May 2004 and the litigation cost of Rs.10,000/-. The husband was further directed to pay the arrear maintenance in 24 equal instalments and the litigation cost by 4 equal instalments. 12. Having regard to the income of the husband, standard of living of the wife in which she was accustomed and as the present market price is being increased by leaps and bounds, I am of the view that the alimony pendente lite amount should be Rs.12,000/- instead of Rs.9,000/- per month. At the same time, I will not be oblivious to the fact that the husband had shown a good gesture, in spite of being arrested in a case under Section 498A of the Indian Penal Code, by paying Rs.3,000/- without any demand from the wife since May 2004. Since he is already retired, so I am of the view that the enhanced amount of alimony pendente lite should be from the date of order passed by the learned Court below i.e. from 15.06.2015. So, the arrear accrued from 15.06.2015 to 31.03.2016 to be paid by six monthly instalments and first such instalment shall fall due on 2nd April, 2016. The husband shall go on paying the current alimony pendente lite amount of Rs.12,000/- from 2nd April, 2016. So, the arrear accrued from 15.06.2015 to 31.03.2016 to be paid by six monthly instalments and first such instalment shall fall due on 2nd April, 2016. The husband shall go on paying the current alimony pendente lite amount of Rs.12,000/- from 2nd April, 2016. Amount of Rs.3,000/-, if paid by the husband after 15.06.2015, shall be adjusted with the amount of Rs.12,000/-. 13. Accordingly, the impugned order dated 15.06.2015 passed by the learned Court below in Mat Suit No. 13 of 2009 is hereby modified in the light of observation made above. This judgment will govern the C.O. 2948 of 2015 and C.O. 2614 of 2015. 14. Let a copy of this order be sent to the learned Court below for his information and taking necessary action in accordance with law.