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2020 DIGILAW 38 (CAL)

Madhu Singh v. Jay Shankar Singh

2020-01-09

SHAMPA SARKAR

body2020
JUDGMENT 1. Affidavit-of-service filed in Court today is taken on record. The opposite party has been served. Delivery of the postal article is confirmed. This revisional application has been filed by the respondent in Matrimonial Suit No. 208 of 2018 pending before the learned Additional District Judge, 2nd Court at Durgapur. The petitioner is aggrieved by the order dated August 31, 2019 by which maintenance pendente lite of Rs.2,000/- per month for the wife and Rs.3,000/- per month for the minor children has been awarded by the learned court below. 2. It is contended on behalf of the petitioner that the amount awarded for the two children and the petitioner is excessively low, inasmuch as, the school expenses of the children is itself beyond Rs.5,000/- each. It is further contended that the amount of maintenance has been awarded from the date of the order instead of the date of the application. Mr. Mukherjee contends that the learned court below did not take into account the status of the husband as also the income of the husband, vis--vis, the pleadings in the application under Section 24 of the Hindu Marriage Act. It has been specifically averred in the said application that the husband had 12 bighas of land which was being cultivated and he owned 4.5 cottahs of land as also a Fiat car, a motor cycle and a Scooty. This according to Mr. Mukherjee, was the standard to which the wife was used to and she and her children deserved a living condition akin to the husband as has been disclosed in her application. 3. I have gone through the pleadings as also the impugned order, and I find that the learned court below came to a conclusion that the husband was an employee of Durgapur Transport Care Corporation earning salary of Rs.10,500/- per month. The learned court also held that the petitioner failed to prove her expenses as also the expenses of the children. No document was forthcoming from her side to show that the husband was cultivating on 12 bighas of land and earning therefrom. The husbands income was accepted to be Rs.10,500/- per month by the learned court below in the absence of any other document produced in support of the contention of the wife. 4. No document was forthcoming from her side to show that the husband was cultivating on 12 bighas of land and earning therefrom. The husbands income was accepted to be Rs.10,500/- per month by the learned court below in the absence of any other document produced in support of the contention of the wife. 4. Having considered the various aspects in this case, I find that the husband proved his income on the basis of a letter or a certificate issued by the employer. No documents were produced before the learned court below with regard to the income tax returns, bank statements etc., from which the financial condition of the husband could be ascertained. It is also true that the wife failed to produce any document to indicate her expenses and the minimum amount of money that would be required for sustenance of the wife and the two children in the same standard to which they were used to before the separation. 5. I do not find that there is any evidence on record on the basis of which the monthly expenses of the wife and the children could be assessed. I also do not find any evidence on record which would show the financial condition of the husband. A complete reliance on the certificate may not be a conclusive decision as to the income of the husband. 6. Under such circumstances, the order dated August 31, 2019 is set aside with a direction upon the learned Additional District Judge, 2nd Court at Durgapur to hear the application under Section 24 of the Hindu Marriage Act filed by the wife, afresh upon allowing the parties to adduce evidence and prove the documents and also file additional documents in support of their contentions and depose in support thereof. Upon considering the evidence on record as also the oral evidence, the application under Section 24 of the Hindu Marriage Act should be disposed of in accordance with law. In the meantime, the husband will pay an amount of Rs.5000/- every month beginning January, 2020 within 15 of every month till the application under Section 24 is disposed of by the learned court below. Such amount will be adjusted with the amount as will be awarded by the learned court below. 7. In the meantime, the husband will pay an amount of Rs.5000/- every month beginning January, 2020 within 15 of every month till the application under Section 24 is disposed of by the learned court below. Such amount will be adjusted with the amount as will be awarded by the learned court below. 7. It is, however, made clear, that it is a settled law that maintenance should be awarded from the date of filing of application and not from the date of the order. Reference is made to the decision reported in (1997) 7 SCC 7 [Jasbir Kaur Sehgal (Smt) vs. District Judge, Dehradun & ors.] , and the relevant paragraph is set out below: '9. The question then arises as to from which date the wife would be entitled to claim the enhanced amount of maintenance pendente lite. If the wife has no source of income it is the obligation of the husband to maintain her and also the 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. 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; the date of filing of the application under Section 24 of the Act; 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 in both the parties which unfortunately we find lacking in this case. We are therefore of the opinion that the 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 16.10.1996. We order accordingly. We are therefore of the opinion that the 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 16.10.1996. We order accordingly. The impugned judgment of the High Court shall stand modified to that extent. All arrears of maintenance shall be paid within a period of two months from today and then regularly every month.' 8. The revisional application is allowed. 9. There shall be no order as to costs. Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible subject to compliance of all usual formalities.