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2017 DIGILAW 402 (CAL)

RUCHIKA AGARWAL v. VIKAS AGARWAL

2017-04-18

MIR DARA SHEKO

body2017
JUDGMENT : Mir Dara Sheko, J. The revisional application under Article 227 of the Constitution of India has been directed assailing an order dated April 20, 2016 passed by learned District Judge, Hooghly in Misc. Case No.142 of 2015 (Smt. Ruchika Agarwal v. Sri Vikas Agarwal) arisen out of Matrimonial Suit No.2727 of 2014 filed by the wife-petitioner under section 13 of the Hindu Marriage Act, 1955 seeking divorce. 2. Learned trial court by the order impugned directed the opposite party-husband to start making payment of the maintenance pendente lite as fixed from the date of the order i.e. w.e.f. April 20, 2016. 3. Let it be reiterated that by the order impugned learned trial court has fixed Rs. 60,000 per month as maintenance pendente lite payable by the husband in favour of his wife apart from the litigation costs of Rs. 30,000, and the opposite party has been directed to start making of such payment from the date of order and not from the date of application. The grievance of the petitioner-wife in this revisional application has been mounted over the issue that learned trial court ought to have given effect of such order from the date of application filed under section 24 of the Hindu Marriage Act, 1955 Act on July 17, 2015, and not from the date of passing of the order. 4. Before ventilating about the arguments advanced before this court, let me set out the backdrops prior to passing of this impugned order by learned trial court - (a) The matrimonial suit under reference seeking divorce has been filed by the petitioner-wife on November 20, 2014. (b) After entering appearance of the husband, one application under section 24 of the Hindu Marriage Act, 1955 has been filed by the wife on July 17, 2015. (c) By its first round disposal on October 5, 2015 maintenance pendente lite was fixed by learned trial court at the rate of Rs. 80,000 per month by making it enforceable from the date of order. (d) CO No.4160 of 2015 was filed at the instance of the husband challenging propriety of that order, and this court setting aside said order disposed of the CO on February 3, 2016 remanded back to learned trial court for hearing afresh by imposing interim maintenance pendente lite payable by the husband at the rate of Rs. (d) CO No.4160 of 2015 was filed at the instance of the husband challenging propriety of that order, and this court setting aside said order disposed of the CO on February 3, 2016 remanded back to learned trial court for hearing afresh by imposing interim maintenance pendente lite payable by the husband at the rate of Rs. 10,000 per month with effect from December 2015 till disposal of Misc. Case No.142 of 2015. (e) In turn, learned trial court upon hearing both sides and on examining the evidence adduced before him passed the impugned order as mentioned above directing the husband to pay maintenance pendente lite at the rate of Rs. 60,000 with effect from the date of order. 5. Mr Chatterjee assisted by Ms Mukherjee, learned counsel appearing for the petitioner, argued that though against the order dated October 5, 2015 no application was preferred before this court assailing any part of that order; but when the matter was sent back on remand, then it shall be deemed that the said order, except the interim direction, had no more force, meaning thereby, either of the parties would not get any benefit of the order dated October 5, 2015 which was set aside by this court in CO No.4160 of 2015 save and except carrying out the directions passed by this court. Second limb of submission of Mr. Chatterjee is that the husband was always with the motive to suppress his actual income and for that reason the conduct of her husband should be looked into and since delay had taken place in view of such conduct and since the petitioner-wife had also undertaken a separate proceedings under the Domestic Violence Act, the effect of the order of maintenance pendente lite ought to have been given effect from the date of application and not from the date of order. Mr. Chatterjee concluded his submission with a prayer to allow the revisional application modifying the order impugned to make it enforceable from the date of application, since the provision under section 24 of the Hindu Marriage Act, 1955 is one of the other beneficial legislations. 6. Mr. Chatterjee concluded his submission with a prayer to allow the revisional application modifying the order impugned to make it enforceable from the date of application, since the provision under section 24 of the Hindu Marriage Act, 1955 is one of the other beneficial legislations. 6. Per contra, Mr Basu, learned senior advocate, assisted by Mr Mukherjee and Ms Chatterjee, learned counsels appearing for the opposite party-husband, submitted that while the initial order dated October 5, 2015 was passed by learned trial court directing the husband to pay maintenance pendente lite by making it enforceable not from the date of application but from the date of order, said order was set aside and the matter was sent back on remand at the instance of the husband, there was no application challenging any part of that order, though there was specific indication about the date of enforcement in the said order of maintenance pendente lite. Mr Basu submitted that though there is no yardstick or specific rule of law giving mandate about the date of enforcement of any such order of maintenance pendente lite, but generally as a usage the court may grant such maintenance by giving its effect from the date of application. According to Mr Basu, if it is not so made and if effect is so given from the date of order itself, it means that learned trial court in exercise of its discretion chose not to give its effect from the date of application, which should not be interfered in the revisional jurisdiction, provided there is no lapse or error of law in the decision-making process. 7. In support of the contention Mr Basu relied upon the following decisions – (i) Smt. Jasbir Kaur Sehgal v. District Judge, Dehradun & Ors. reported in AIR 1997 SC 3397 ; (ii) Rousseau Mitra v. Shrimati Chandana Mitra reported in AIR 2004 Calcutta 61; and (iii) Smt. Kakali Gupta v. Tushar Gupta & Anr. reported in 2011 (2) CLJ (Cal) 372. Mr Basu concluded his argument by submitting that in the matrimonial suit there was no proof of causing delay at the instance of the husband, rather the husband has been paying not only the interim maintenance directed by this court but also the maintenance as directed in the pending proceeding under the Domestic Violence Act. Mr Basu concluded his argument by submitting that in the matrimonial suit there was no proof of causing delay at the instance of the husband, rather the husband has been paying not only the interim maintenance directed by this court but also the maintenance as directed in the pending proceeding under the Domestic Violence Act. Therefore, he submitted, when taking note of the conduct of the parties learned trial court exercised its discretion by making the order impugned enforceable from the date of order consciously, then the same need not be interfered with. 8. Perused the cases cited by Mr Basu. In Smt. Jasbir Kaur Sehgal's case (supra), para.8, the cardinal principles have been ventilated by Their Lordships of the Supreme Court to remind all concerned once again that in the matter of determination of the quantum of maintenance in a proceeding of the present nature the court has to consider the status of the parties, their respective needs, capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and those he is obliged under the law and statutory or involuntary payments or deductions, if any. Therefore, the amount of maintenance pendente lite should be fixed for the wife in such a manner so that she can live with reasonable comfort in view of her status and the mode of life she was used to when she would live with her husband so that she could not feel herself handicapped in prosecuting her case. The relevant portion from para.9 of the aforesaid judgment is set out below:- "The question then arises as to from which date the wife would be entitled to claim the enhanced amount of maintenance pendente lite. If wife has no source of income it is the obligation of the husband to maintain her and also children of the marriage on the basis of the provisions contained in the Hindu Adoptions and Maintenance Act, 1956. Her right to claim maintenance fructifies on the date of the filing of the petition for divorce under the Act. Having thus fixed the date as the filing of the petition for divorce it is not always that the court has to grant the maintenance from that date. The Court has discretion in the matter as to from which date maintenance under Section 24 of the Act should be granted. Having thus fixed the date as the filing of the petition for divorce it is not always that the court has to grant the maintenance from that date. The Court has discretion in the matter as to from which date maintenance under Section 24 of the Act should be granted. The discretion of the court would depend upon multiple circumstances which are to be kept in view. These could be the time taken to serve the respondent in the petition; conduct of the parties in the proceedings; averments made in the application and the reply thereto; the tendency of the wife to inflate the income out of all proportion and that of the husband to suppress the same; and the like. There has to be honesty of purpose for both the parties which unfortunately we find lacking in this case. We are therefore of the opinion that ends of justice would be met if we direct that maintenance pendente lite as fixed by this judgment to be payable from the date of impugned order of the High Court which is October 16, 1996........." Considering Smt. Jasbir Kaur Sehgal's case (supra) this court in the case of Rousseau Mitra (supra) also observed "the court has discretion in the matter as to from which date maintenance under section 24 of the Hindu Marriage Act, 1955 should be granted." In Smt. Kakali Gupta's case (supra) though within the criminal revisional jurisdiction, this court took note of the conduct of the party/husband who was found very much regular in making payment of interim maintenance as well as payment of current maintenance to the wife and also taking note of financial condition as a junior lawyer in the Bar, the order of maintenance as was enforced by learned trial court with effect from the date of order was not interfered with. 9. Now coming back to the scenario of the case this court appreciates the earlier conduct of the wife while she did not challenge any part of the order passed by learned trial Judge bearing the amount of maintenance pendente lite at the rate of Rs. 80,000, where and when effect of its enforceability was given from the date of its order and not from the date of application. 80,000, where and when effect of its enforceability was given from the date of its order and not from the date of application. Further, admittedly, there was a separate proceeding pending against the husband under the Domestic Violence Act where the husband has been paying maintenance at the rate of Rs. 5000 in favour of his wife. That apart, while by setting aside the earlier order dated October 5, 2015, the matter was sent back on remand with direction to pay maintenance pendente lite as an interim measure till disposal of the Misc. case under section 24 of the Hindu Marriage Act, 1955 at the rate of Rs. 10,000 per month, there is no complaint that the husband did not comply with the same. Therefore, in effect, the husband was paying Rs. 15,000 per month in favour of his wife. It has already been observed that the matrimonial suit for divorce has been filed by the wife, not the husband. Rather, it is the husband who has been contesting in that matrimonial suit, presumably, for the reason that he may want to resume the marital relationship, which may, of course, be the subject matter for consideration during trial. There is no indication in the impugned order that due to lapse or any untoward conduct of the husband the proceeding of the matrimonial suit itself is being dragged or delayed or in other way the petitioner is being harassed due to any conduct on record of the husband. 10. It is pertinent to mention that the process of maintenance pendente lite should not be allowed to be a platform of profit earning unit. When it is allowed date of its effect may be either from the date of application or from the date of order depending upon the facts and circumstances of the case. Its legislation has been made to lend adequate support to the spouse weaker than the other, so that, the petitioner seeking maintenance does not suffer from financial crisis to be maintained on one hand, and, to combat in the proceeding, on the other hand, by engaging legal advisor of own choice. This adequacy or sufficiently in the quantum in dependant upon the factors noted above. Till before the date of impugned order the petitioner would get in all Rs. This adequacy or sufficiently in the quantum in dependant upon the factors noted above. Till before the date of impugned order the petitioner would get in all Rs. 15,000, which might not be sufficiently befitting to her status but there was no complaint on its inadequacy, which however subsequently enhanced by disposing of the application finally, which again may be modified on either side during settlement of permanent alimony if so pressed upon application in the event of success in the matrimonial suit. 11. Now, looking at all the relevant factors, while learned trial court by imposing a reasonable amount of maintenance pendente lite along with a considerable amount of litigation costs as directed, that date of its enforcement would be from the date of its order and not from any earlier date, this court within the revisional jurisdiction does not find any lapses or error of law in such decision-making process, because the discretion as has been exercised by learned trial court in the backdrop of the case is not found as whimsical or irrational. So, this court is not inclined to make any interference. So far as the date of enforcement is concerned, since this court is not inclined to alter or to make any modification thereof, the revisional application stands dismissed. 12. Be it made clear that learned trial court while will take up the matrimonial suit for its disposal on merit shall not be swayed by or influenced with any observation made by this court in disposing of this revisional application. 13. No order as to costs. 14. The department is directed to communicate a copy of this order to learned trial court at once for information. 15. Certified photostat copy of this order, if applied for, shall be given to the parties.