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2019 DIGILAW 973 (CAL)

Narayan Chandra Biswas v. Namita Biswas

2019-12-13

MANOJIT MANDAL

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JUDGMENT : Manojit Mandal, J. This application is directed against the Order No. 13 dated February 08, 2019 passed by the learned District Judge, Hooghly in Misc. Case No. 70 of 2017 whereby the learned District Judge allowed the application under Section 24 of the Hindu Marriage Act, 1955. 2. The husband/petitioner filed the Matrimonial Suit No. 273 of 2016 praying for decree of divorce by dissolution of marriage against the wife/opposite party. In that suit the wife/opposite party appeared and filed an application under Section 24 of the Hindu Marriage Act, 1955 which was allowed by the order impugned granting alimony pendente lite at the rate of Rs. 7,000/-(Rupees Seven Thousand) per month to the wife/opposite party and Rs. 6,500/-(Rupees Six Thousand Five Hundred) each for two daughters from the date of filing of Misc. Case i.e. 18.05.2017 and a sum of Rs.10,000/-(Rupees Ten Thousand) towards litigation costs. Being aggrieved, the husband/petitioner has preferred this application. 3. Now, the question is whether the impugned order should be sustained? 4. Having heard the learned advocate for the parties and on going through the materials on record, I find admittedly the parties to the case are husband and wife. Admittedly, the husband is a Railway employee and he earned Rs. 86,680/-(Rupees Eighty Six Thousand Six Hundred Eighty) for the month of January, 2019 and after deduction his net income was Rs. 55,837/-(Rupees Fifty Five Thousand Eight Hundred Thirty Seven). Admittedly, the wife/opposite party is residing separately and she has no source of income. 5. Mr. Ghosh, learned advocate for the husband/petitioner contended that the wife/opposite party is leading an adulterous life and that has been observed by the learned Judicial Magistrate, 3rd Court, Hooghly by passing an order in connection with Misc. Case No. 60 of 2010 under Section 125 of the Code of Criminal Procedure and the learned trial Court did not consider the same. He further contended that the order impugned should not have been passed on the ground that the wife/opposite party is leading an adulterous life. He further contended that the learned trial Court should not have granted maintenance to the elder daughter when the learned Magistrate of the Court below has not granted maintenance to the elder daughter Arjoyita Biswas. As such order impugned cannot be sustained in the eye of law. He further contended that the learned trial Court should not have granted maintenance to the elder daughter when the learned Magistrate of the Court below has not granted maintenance to the elder daughter Arjoyita Biswas. As such order impugned cannot be sustained in the eye of law. In support of his argument he has relied upon a decision reported in 2016 (4) CHN (Cal) 569. 6. Mr. Bandopadhyay, the learned advocate for the wife/opposite party contended that the learned trial Court has rightly passed the order impugned and it does not call for any interference. He further contended that the rejection of the earlier claim made by the wife/opposite party under Section 125 of the Code of Criminal Procedure is not a bar to file an application for grant of interim maintenance in the proceeding initiated by the husband/petitioner. 7. Upon due consideration of the material on behalf of both the parties, the learned District Judge observed that :- “……..it is not possible for this Court to ascertain as to why ld. Court below passed such order but merely on the ground that the wife is leading adulterous life, husband cannot be exonerated from his liability to maintain his wife in cases filed u/s 24 of H.M. Act. Furthermore, scope of granting maintenance u/s 125 Cr.P.C. is absolutely different than that of the scope u/s 24 H.M. Act. The purpose of incorporating such provision is to make provision for the spouse who is unable to maintain herself till the original matrimonial suit is completed. Furthermore, whether the wife is leading adulterous life or whether she voluntarily left the matrimonial home can only be decided at the time of hearing of the Mat suit after taking evidence of both the parties.” The reason given by the District Judge in allowing the prayer made by the wife for interim maintenance is fully right and legal and should be sustained. It has been held in a case reported in AIR 1999 Bombay 237 (Bijal Parag Dave v. Mr. Parag Labhashankar Dave) that while considering the application for pendente lite maintenance, the only consideration is inability of the person to maintain herself or himself for want of financial means or inadequacy of financial means to maintain at the social status of the other spouse from when interim maintenance is sought and not the misconduct of the spouse. Parag Labhashankar Dave) that while considering the application for pendente lite maintenance, the only consideration is inability of the person to maintain herself or himself for want of financial means or inadequacy of financial means to maintain at the social status of the other spouse from when interim maintenance is sought and not the misconduct of the spouse. It has also been held in another case reported in AIR 1988 Rajasthan 27 (Virendra Kumar v. Smt. Santhoshi Devi) that a decision rendered under Section 125 of the Code of Criminal Procedure is not a bar in deciding an application under Section 24 of the Hindu Marriage Act. In the light of the above principle, I am of the view that petition filed by the wife /petitioner is maintainable in law. In the circumstances, I hold that the rejection of the earlier claim made by the wife/opposite party under Section 125 of Criminal Procedure Code is not a bar to file an application for grant of interim maintenance in the proceeding initiated by the husband/petitioner. As regards the elder daughter of the parties it appears from the materials on record that husband/petitioner has admitted in his cross-examination dated 13.06.2015 before learned Judicial Magistrate that presently his elder daughter is living with her mother. Therefore, I hold that learned Court below has granted the maintenance to the elder daughter Arjoyita Biswas properly. The judgment referred by the husband/petitioner being 2016 (4) CHN (Cal) 569 is no assistance to the petitioner as because the wife has not filed any application for maintenance pendente lite in the Court below against the husband in that case. 8. Under these facts and circumstances and on the consideration of the materials on record, I am of opinion that order of the learned Lower Court does not call for any interference of this Court. 9. The revision application fails and the same is dismissed. 10. There will be no order as to costs. 11. Urgent Photostat certified copy of this order, if applied for, be given to the parties on priority basis.