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2017 DIGILAW 458 (CAL)

Gunjan Ray v. Arindam Ray

2017-05-11

MIR DARA SHEKO

body2017
JUDGMENT : Mir Dara Sheko, J. Since accommodation on two earlier occasions for the purpose of settlement between the parties had gone in vain, the matter is taken up for hearing and disposal on merit. 2. Heard Mr Basu and Mr Hassan representing the petitioner-wife and the opposite party-husband respectively. 3. The application under Article 227 of the Constitution of India has been directed assailing Order No. 45 dated June 7, 2016 passed by learned Principal Judge-in-charge, Family Court, Calcutta in Matrimonial Suit No. 177 of 2012 rejecting an application under section 151 of the Code of Civil Procedure proposing enhancement of maintenance pendente lite from Rs. 35,000 to Rs. 60,000. 4. Mr Basu apprised this court that the suit for divorce has been filed by the petitioner's husband seeking divorce where on the basis of an application under section 36 of the Special Marriage Act, 1954 learned trial court awarded maintenance pendente lite in favour of the wife at the rate of Rs. 20,000 per month taking note of the petitioner's claim that her husband used to earn in excess of Rs. 1.5 lakh per month. He further submitted that on being moved by the petitioner in an earlier revisional application being CO No. 2673 of 2014, this court modified the order of maintenance pendente lite enhancing the sum to be payable by the husband at the rate of Rs. 35,000 from the date as directed by learned trial court with a rider which is as follows:- "The wife will also be entitled to apply for enhancement of the quantum obtaining sufficient material to support the same and by relying on the fact that the present enhancement or modification has been made by taking the husband's income to be Rs. 1.10 lakh per month." Mr. Basu submitted that in view of the liberty granted by this court and since the amount of Rs. 35,000 was not sufficient, the petitioner filed an application under section 151 CPC proposing further enhancement in the amount of maintenance pendente lite from Rs. 35,000 to Rs. 60,000. Grievance as ventilated by Mr. Basu is that in seisin of the matrimonial suit the trial court failed to consider the prayer in proper perspective and on merit, rather, dismissed the application only on the grounds that due to filing of the likewise nature of applications, the proceeding of the matrimonial suit was being delayed. Mr. 35,000 to Rs. 60,000. Grievance as ventilated by Mr. Basu is that in seisin of the matrimonial suit the trial court failed to consider the prayer in proper perspective and on merit, rather, dismissed the application only on the grounds that due to filing of the likewise nature of applications, the proceeding of the matrimonial suit was being delayed. Mr. Basu also submitted that the prayer for enhancement was made in view of the liberty granted by this court which ought to have been allowed on taking proper consideration. 5. Mr. Hasan, on the other hand, supporting the impugned order opposed the prayer of the wife and prayed for dismissal of the revisional application submitting that the application under section 151 CPC for further enhancement is not maintainable. 6. As it appears from record that the matrimonial suit was filed by the husband seeking divorce under the Special Marriage Act, 1954 in the year 2012. The petitioner in exercising her statutory liberty filed the application praying for maintenance pendente lite and she was awarded Rs. 20,000 as maintenance. Mr. Basu, on instructions, also apprised the court that an amount of Rs. 50,000 in a lump has been paid by the husband towards the litigation costs. Said amount of Rs. 20,000 has been enhanced by the order of this court. Accordingly, upto this stage the petitioner-wife has been getting Rs. 35,000 as maintenance pendente lite from her husband taking note of the husband's monthly income of Rs. 1,10 lac. According to the rider mentioned in the order of CO No. 2673 of 2014, the petitioner was given liberty to apply for enhancement of quantum upon obtaining sufficient materials to support the same. 7. Now, in the section 151 CPC application filed by the petitioner she claimed that "from credible source" she learnt that current income of her husband "is now not less than Rs. 2 lakh per month." The petitioner, however, has ventilated in the application from time to time about her sufferings from some ailments. 8. Therefore, if the application under section 151 CPC under reference is properly construed, then save and except surmise and conjecture in the name of "credible source" she could not supply any "sufficient material to support the same" for which liberty was given by this court while disposing of the application being CO No. 2673 of 2014. 8. Therefore, if the application under section 151 CPC under reference is properly construed, then save and except surmise and conjecture in the name of "credible source" she could not supply any "sufficient material to support the same" for which liberty was given by this court while disposing of the application being CO No. 2673 of 2014. On examining further, this court could not find any substantial change in the circumstances which can justify the impropriety of the order impugned to caption that learned trial court has virtually committed lapses in the decision-making process. 9. Learned trial court on June 7, 2016 in rejecting the further prayer of the petitioner proposing further modification in the amount of maintenance pendente lite observed as follows:- "Both these petitions appear to have been filed after about one year of passing of the above order by Hon'ble High Court, Calcutta. Further proceedings of this suit as well as disposal of the suit is being delayed due to filing of applications by the parties, one after another. The parties should not be allowed to drag the proceeding to some uncertain destiny without sufficient reason." 10. It is obvious that the proceeding of the present nature is desirable to be expedited as early as possible. If reconciliation fails, then it is to be disposed of on merit. If ultimately the suit for divorce ends with the affirmative answer, then again upon application the wife shall have the opportunity under the statute to opt for permanent alimony under section 37 of the Special Marriage Act, 1954; whereas within the scope of section 36 of the Special Marriage Act, 1954 of which section 24 of the Hindu Marriage Act, 1955 is a replica, there is no provision to enhance the amount of maintenance pendente lite', once it is finalised upto any level. 11. Therefore, learned trial court rightly, with a view to saving the proceeding for further delay in view of the presentation of the application of likewise nature one after another, rejected the impugned application under section 151 CPC, specially when Rs. 35,000 as awarded as an interim amount is not an insufficient amount to maintain a housewife, who may have opportunity to get the alimony at an enhanced rate, if she would have to adopt the provision of section 37 of the Special Marriage Act, 1954. 12. 35,000 as awarded as an interim amount is not an insufficient amount to maintain a housewife, who may have opportunity to get the alimony at an enhanced rate, if she would have to adopt the provision of section 37 of the Special Marriage Act, 1954. 12. Before departure, this court also desires to refer the case decided in CO No. 2486 of 2016 with CO No. 2913 of 2016 by which this court on March 16, 2017 already held that once upto any level the application either under section 24 of the Hindu Marriage Act, 1955 or under section 36 of the Special Marriage Act, 1954 attains finality, then in the second application for enhancement in the amount of maintenance during pendency of the proceeding is not available in the statute, while there is no occasion to observe that the proceeding of the main suit is being delayed due to any overt act or action of the husband. 13. Therefore, the impugned order dated June 7, 2016 passed by learned Principal Judge-in-charge, Family Court, Calcutta in Matrimonial Suit No. 177 of 2012 is affirmed and the revisional application is dismissed with direction to learned Judge-in-charge to expedite the proceeding of the matrimonial suit for its disposal as early as possible, without granting unnecessary adjournment to either of the parties. 14. No order as to costs. 15. Certified photostat copy of this order, if applied for, shall be given to the parties.