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2016 DIGILAW 664 (CAL)

Rajbahadur Roy @ Rakesh Roy v. Subhra Roy

2016-08-23

HARISH TANDON

body2016
JUDGMENT : Harish Tandon, J. This revisional application is directed against an Order No.31 dated May 26, 2016 passed by the Ld. Additional District Judge, First Court, Srirampur, Hooghly in Matrimonial Suit No.343 of 2013 by which an application under Section 24 of Hindu Marriage Act, 1955 is disposed of. 2. The wife/opposite party filed an application under Section 13 of the said Act for dissolution of marriage inter-alia on the ground of dissertion and cruelty. It is alleged in the said petition that the marriage between the parties was solemnized on 9th December, 1997 as per the Hindu Rights and Rituals and they have resided together in the house of the husband/petitioner and the marriage was consummated. It is further alleged that the petitioner started misbehaving with the opposite party in rough manner and also committed physical torture on the pretext that she should bring the money as per her share in the father's property and further demanded a huge sum. It is averred that while such physical torture was continuing a female baby was born but even thereafter the petitioner could not change his behaviour and therefore it is impossible to live with him. 3. The petitioner denied the allegations against him in the said petition by the opposite party in the written objection filed to the said application. It is categorically asserted that the wife/opposite party voluntarily left the house and started living with one Pratyosh Narayan Ganguly by deserting him as well as the minor baby. The minor baby is under the custody of the maternal grandmother namely Smt. Maya Mondal and is still under her custody. A counter claim is made by the petitioner for restitution of conjugal rights. 4. In an application under Section 24 of the Hindu Marriage Act filed by the opposite party, she clearly stated that she has no income of her own and is residing at the mercy of one Khagen Nath Ganguly and claimed the maintenance of Rs. 10,000/- per month for herself and her minor baby and a litigation cost of Rs. 10,000/-. In the objection to Section 24 application the husband disclosed that an extra marital relationship has grown up between the petitioner and the said Pratyosh Narayan Ganguly since 16.06.2008 and therefore she is leading an adulterous life. 10,000/- per month for herself and her minor baby and a litigation cost of Rs. 10,000/-. In the objection to Section 24 application the husband disclosed that an extra marital relationship has grown up between the petitioner and the said Pratyosh Narayan Ganguly since 16.06.2008 and therefore she is leading an adulterous life. It further appears from the said objection that a criminal case was initiated under Section 498A of the Indian Penal Code by the wife, who has developed an extra marital relationship with the said gentleman. 5. In the affidavit as to examination of chief, the wife/opposite party deemed her living with Khagen Nath Ganguly who happens to be the father of Pratyosh Narayan Ganguly and is provided with the shelter and the food. 6. Interestingly, the mother of the opposite party filed an affidavit-in-chief in the said proceeding wherein she clearly stated that the opposite party voluntarily left the house of her son in law and is residing with Pratyosh Narayan Ganguly and leading an adulterous life with him. She further asserted that the minor baby is residing with her and she is taking the care of. 7. The Trial Court disposed of an application under Section 24 of the Act awarding an alimony pendente lite of Rs.2500/- to the opposite party and Rs.2500/- to the minor baby apart from a one time litigation cost of Rs.5000/-. 8. The learned Advocate for the petitioner submits that the Court neither considers the clear admission of the opposite party having residing with another gentleman nor the fact that the minor baby is living with her matrimonial grandmother in awarding the compensation under Section 24 of the said Act. It is further submitted that the petitioner is providing sufficient means for her minor baby to her mother in law who is looking after her and therefore the petitioner should not be saddled to pay the maintenance for the child. 9. On the other hand, the learned Advocate for the opposite party submits that she has no independent source of income and is living at the mercy of another person and therefore the Trial Court has not committed any error in awarding the maintenance under Section 24 of the Act. 9. On the other hand, the learned Advocate for the opposite party submits that she has no independent source of income and is living at the mercy of another person and therefore the Trial Court has not committed any error in awarding the maintenance under Section 24 of the Act. It is further submitted that the petitioner is getting a maintenance in a proceeding under section 125 of the Code of Criminal Procedure and the maintenance awarded under Section 24 of the Act is exclusive of such maintenance. Lastly, it is submitted that no interference is called for in the impugned order and the revisional application should be dismissed. 10. Admittedly, the wife/opposite party is awarded maintenance under Section 125 of Cr.P.C. for herself. It is not in dispute that the minor baby is residing with her matrimonial grandmother and not with the opposite party. The matrimonial grandmother filed affidavit as to examination in chief before the Trial Court and admitted that the minor granddaughter is residing with her. The mother of the opposite party openly asserted that his daughter is residing with Pratyosh Narayan Ganguly in extra marital relationship and it would not be to the welfare of the child to live with the mother. The mother-in-law stood by the side of the petitioner, which is one of the rarest events. The opposite party has admitted that she is living with another gentleman but has denied her extra marital relationship with the said gentleman. The opposite party has explained that after she was driven out by the petitioner, she took shelter in the house of the Khagen Nath Ganguly, who is providing the shelter and food to her. 11. Undisputedly, the wife/opposite party filed an application under Section 13 of the Hindu Marriage Act, 1955 for dissolution of marriage inter-alia on the ground of desertion and cruelty. On the other hand, the husband/petitioner while delivering the defence made a counter claim in the form of decree for restitution for conjugal rights. It is also not in dispute that the application under section 125 of the Code of Criminal Procedure is disposed of directing the maintenance to be paid to the wife. On the other hand, the husband/petitioner while delivering the defence made a counter claim in the form of decree for restitution for conjugal rights. It is also not in dispute that the application under section 125 of the Code of Criminal Procedure is disposed of directing the maintenance to be paid to the wife. Interestingly, even after asserting that the wife have voluntarily left the house with one Pratyosh Narayan Ganguly deserting the minor daughter, the husband/petitioner still wants the wife to come back and lead the conjugal life by way of restitution in the form of counter claim. 12. It is for the first time argued at the bar that since the wife is leading adulterous life with a person who has no relation, the maintenance should not be granted to her. In support of the aforesaid decision the reliance is placed upon a Division Bench Judgment of this Court in case of Sachindranath Biswas v. Sm. Banamala Biswas & Anr. reported in AIR 1960 Calcutta 575. The said case is distinguishable on facts. In the said case a dissolution of marriage was sought on the ground of adultery and the paramour was impleaded as codefendant therein. The wife therein chose not to adduce any evidence as a result whereof the Trial Court passed the decree for divorce dissolving the marriage which is not further challenged before the higher forum. An application was taken out by the wife therein at the final hearing of the suit claiming permanent alimony, which was granted by the Trial Court. Argument was advanced on the basis of the provision contained under Section 25 of the Hindu Marriage Act, 1955 that if the wife is leading an adulterous life, she is not entitled to maintenance. In the backdrop of the aforesaid facts it is held:- "(13) Unchastity on the part of a woman (and also sexual intercourse by a man with a woman, outside wedlock) are sins against the ethics of matrimonial morality in this country. Moral law, it is true, is not the positive Civil law of a country, but there are many instances where law and morality meet. In our opinion, such a meeting place of law and morality is Section 25 of the Hindu Marriage Act or for the matter of that Section 18 of the Hindu Adoption and Maintenance Act. Moral law, it is true, is not the positive Civil law of a country, but there are many instances where law and morality meet. In our opinion, such a meeting place of law and morality is Section 25 of the Hindu Marriage Act or for the matter of that Section 18 of the Hindu Adoption and Maintenance Act. In the exercise of judicial discretion, expressly vested in Courts of law under Section 25(1) of the Hindu Marriage Act, a Judge should, unless there be very special grounds, leave a wife divorced on the ground of proved unchastity or adultery, to the resources of her immorality and deny her the lawful means of support, by passing a decree for maintenance in her favour." 13. The ratio laid down in the above noted report cannot be applied in the facts and circumstances of the instant case. The husband has not sought for dissolution of marriage on the ground of adultery even after alleging that the wife is living with another person, restitution of conjugal right is prayed by way of counter claim. The conduct of the husband shows that he condoned all such acts of the wife and therefore, it is not open to him to assert that leading an adulterous life would debar the wife to claim permanent maintenance. There is a clear distinction between the provisions contained under Section 24 and 25 of the said Act. Section 24 of the Act does not contain any provision like Section 25, which may debar the either of the spouse leading adulterous life to claim maintenance. 14. Therefore, this Court cannot accept the contention of the petitioner in this regard. 15. So far as the maintenance granted to the wife is concerned, this Court does not find any grounds warranting interference therein. However, the maintenance granted to the child is concerned, it is an admitted case that the child is not residing with the wife nor wife possesses her custody. The child is admittedly residing with her matrimonial grandmother, who has deposed in the matter and clearly asserts the above facts. The said aspect has been overlooked by the Trial Court. 16. The order impugned therefore is modified to the extent that the alimony pendente lite awarded to the child is hereby set aside. On the other hand, the maintenance awarded to the wife is not interfered with. 17. The said aspect has been overlooked by the Trial Court. 16. The order impugned therefore is modified to the extent that the alimony pendente lite awarded to the child is hereby set aside. On the other hand, the maintenance awarded to the wife is not interfered with. 17. On the basis of the above findings, the revisional application is disposed of. However, there shall be no order as to costs. Revisional application disposed of.