31,000 INTR maint pm wife+kid husb earns 150,000+ NO discussion WHY case takes MANY YEARS TO END? men should be given a copy of such judgments ALONG with gifts for the marriage !! will this be 25 .. 30 lakhs arrears with interest ???
* Case filed in 2006 !!!
* Husband earning nearly 110,000 AT THAT time
* Wife seeks INTR maint and other reliefs
* District court Howrah orders total interim maintenance of Rs 25000 p.m. from date of application !! yes date of application !! (17000 for wife and 8000 for kid)
* Husband runs to HC seeking revision !!
* in the meanwhile husband and wife live together for one year (circa ... 2007 ) as per order under DV act
* they seem to have lived together
* Revision petition comes to HC in 2009 and being decreed in 2011
* the revision court does NOT accept the living together / liging together period as something of a condonation and does NOT reduce the interim maintenance !!
* on the other hand, the HC increases the interim maintenance to Rs 31000 I.e. addl 3000 for wife and addl for kid
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CASE FROM JUDIS / INDIAN KANOON WEB SITE
In The High Court At Calcutta
Civil Revisional Jurisdiction
Present : The Hon'ble Justice Harish Tandon.
C.O. No. 2966 of 2009
Smt. Jayanti Basu
For the petitioner : Mr. Bidyut Banerjee Mr. Debjit Mukherjee
For the Opposite Party : Mr. S. P. Mukherjee Mr. D. Mukherjee
Heard on : 29.7.2011, 2.9.2011, 15.9.2011 & 20.9.2011 Judgment on : 26.9.2011
HARISH TANDON, J.:
This revisional application is directed against an order no. 29 dated 25.5.2009 passed by the learned Additional District Judge, Fast Track Court-II, Howrah Misc. Case no. 40 of 2006 by which alimony pendente lite under section 36 of the Special Marriage Act 1954 is disposed of.
Admittedly the parties are married under the Special Marriage Act 1954 and lived together as husband and wife. A male child was borne of the said wedlock on 26th July 2001. The opposite party filed matrimonial suit no. 67 of 2006 in the court of the district Judge, Howrah praying for decree for divorce under section 27 of the Special Marriage Act. The petitioner filed an application under section 36 of the said Act claiming an alimony pendente lite which was registered as Misc. Case no. 40 of 2006. It is specifically stated that the opposite party is an employee in a foreign company and draws gross salary of Rs. 1.25 lakhs. The petitioner claimed a sum of Rs. 25,000/- per month for herself and Rs. 15,000/- for the said minor son, in addition to the same, further sum of Rs. 50,000/- towards litigation cost.
The trial court found that the petitioner is a house wife and has no independent source of income. The trial court further held that the income of the opposite party is Rs. 1,10,944/- per month on the basis of a xerox copy of the pay slip for the month of February 2008 and awarded the monthly maintenance @ Rs. 17,000/- for the petitioner and Rs. 8,000/- to the minor son and Rs. 25,000/- as litigation cost. After coming to the aforesaid conclusion the trial court directed the opposite party to pay the maintenance from the date of the impugned order. The said order is assailed by the petitioner in this revisional application on a solitary ground that the trial court ought to have awarded the maintenance from the date of the filing the application under section 36 of the said Act and not from the date of the impugned order. During the pendency of the revisional application the petitioner filed a supplementary affidavit praying for enhancement of the alimony pendente lite as the gross salary of the opposite party has increased to Rs. 1,75,000/-. In the said supplementary affidavit it is stated that the petitioner has to pay a sum of Rs. 13,800/- per month towards the licence fee for the accommodation where she is living along with the aid minor son.
Mr. Bidyut Banerjee, learned Senior Advocate appearing for the petitioner submits that the trial court ought to have directed the payment of the alimony pendente lite from the date of filing the said application and not from the date of an order by which the said application is disposed of. By contending so, he relies upon a judgement of the Division Bench of this court in case of pratima Bose Vs. Kamal Kumar Bose reported in 68 CWN 316 where it is held that the maintenance should be awarded from the date of service of summons of the said suit. Mr. S.P. Mukherjee, learned Advocate appearing for the opposite party contends that in compliance of an order passed in a proceeding under the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to Domestic Violence Act, 2005), the petitioner lived with his client between the period from 26.12.2007 to 5.12.2008 and there was a consummation during the said period of stay. He placed a copy of the petition dated 21.1.2008 filed by the petitioner praying for the dismissal of the said matrimonial suit on the ground that the parties have lived together as husband and wife. He further submits that if the parties have lived together and consummation has taken place that implies the condonation of the claim of maintenance and the petitioner is not entitled to the maintenance from the date of the filing the said application. He further submits that there is no hard and fast rule that the court should award the maintenance from the date of filing the application and relies upon a judgment of the Division Bench of this court in case of Samir Kumar Banerjee Vs. Sujata Banerjee reported in 70 CWN 633 and a judgment of the supreme Court in case of Jasbir Kaur Sehgal Vs. District Judge, Dehradun & Ors. reported in (1997) 7 SCC 7.
Refuting the contention of Mr. Mukherjee on the point of condonation, Mr. Banerjee, learned Senior Advocate relies upon a judgment of the Supreme Court in case of Dr. N. G. Dastane Vs. Mrs. S. Dastane reported in (1975) 2 SCC 326 to contend that in order to constitute condonation there must exist two elements namely forgiveness and restoration. He therefore submits that in absence of any element regarding forgiveness and restoration the condonation cannot be inferred.
Having heard the respective submissions of the parties there emerges two points namely
(1) whether the court is statutorily bound to pass an order of maintenance from the date of filing an application claiming maintenance or from any date subsequent thereto and
(2) whether the claim of maintenance is condoned by the reason of living together during the pendency of the proceeding.
Point no. 1 :
Admittedly the parties are married under the Special Marriage Act 1954 and a minor son was borne of the said wedlock. It has been categorically found by the trial court that the petitioner has no independent source of income and is living at the alms of her parent. It was also found by the trial court on the basis of the pay slip for the month of February 2008 that monthly gross salary of the opposite party is Rs. 1,10,944/- and awarded the maintenance of Rs. 25,000/- per month towards the petitioner and the said minor son. As held in Jasbir Kaur Sehgal (supra) the apex court observed that there is no hard and fast rule that the maintenance should be granted by the court from the date of filing an application; there is no statutory provision which envisages that the maintenance should be granted from the date of making an application. What has been fructified is the conferment of right to claim maintenance on the date of filing the divorce petition under section 36 of the said Act in these words :
>"8. The wife has no fixed abode of residence. She says
>she is living in a Gurdwara with her eldest daughter
>for safety. On the other hand the husband has
>sufficient income and a house to himself. The wife has
>not claimed any litigation expenses in this appeal.
>She is aggrieved only because of the paltry amount of
>maintenance fixed by the courts. No set formula can be
>laid for fixing the amount of maintenance. It has, in
>the very nature of things, to depend on the facts and
>circumstances of each case. Some scope for leverage
>can, however, be always there. The court has to
>consider the status of the parties, their respective
>needs, the capacity of the husband to pay having
>regard to his reasonable expenses for his own
>maintenance and of those he is obliged under the law
>and statutory but involuntary payments or deductions.
>The amount of maintenance fixed for the wife should be
>such as she can live in reasonable comfort considering
>her status and the mode of life she was used to when
>she lived with her husband and also that she does not
>feel handicapped in the prosecution of her case. At
>the same time, the amount so fixed cannot be excessive
>or extortionate. In the circumstances of the present
>case we fix maintenance pendente lite at the rate of
>Rs 5000 per month payable by the respondent-husband to
>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. 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
The Division Bench of this court in case of Pratima Bose (supra) held that the maintenance should be allowed from the date of service of the principal petition by placing reliance upon the another Division Bench judgment of this court in case of Smt. Sovona Sen Vs. Amar Kanta Sen reported in AIR 1959 Cal 455.
However, in case of Samir Kumar Banerjee (supra), the Division Bench made a departure in laying down the ratio that there is no hard and fast rule that the maintenance should have granted from the date of the original application for judicial separation but it depends upon the court's discretion to pass an order either from the date of the said application claiming maintenance or any period subsequent thereto. From the law enunciated in above-noted reports, the grant of maintenance either from the date of initiation of the original action or from the date of an application or from a period subsequent thereto is within the discretion of the court. Such discretion would be exercised with sound reason and logic on the facts and circumstances of each case. Unless such discretion is found irrational and illegal, the superior forum should be slow and circumspect to interfere with the discretionary order. In the instant case the petition under section 27 of the Special Marriage Act was filed in the year 2006 and the petitioner entered appearance on 8.3.2006 and the application under section 36 of the said Act was filed immediately thereafter on 29.3.2006. It cannot be said that the petitioner having waited for considerable period after entering appearance, has taken out an application for alimony pendente lite. The trial court while passing the alimony pendente lite from the date of the order did not record its satisfaction in that regard. As indicated above, there is no delay and laches on the part of the petitioner in filing an application under section 36 of the said Act and it would be unjust and unreasonable that alimony pendente lite should be ordered from the date of the order by which the said application under section 36 of the said Act is disposed of but should have been allowed from the date of filing of the said application.
Point no. 2 :
Although the matrimonial suit is filed way back in the year 2006 and the parties are at the logger's head, admittedly, the parties lived together for merely a period of one year i.e. from 26.12.2007 to 5.12.2008. The husband says that the said stay of the wife was in terms of an order passed in a proceeding under the Domestic Violence Act, 2005. What has tried to be contended is that the said stay was under the threat of an order passed by a competent court.
The petitioner during such relevant period, when the parties are staying together, filed an application in the matrimonial suit praying for dismissal thereof. It is categorically stated in the said petition that the conjugal rights between the parties have been restored not only by reason of living together but upon restoration of their marital obligation as well. The husband could not dispute such fact but is now trying to take shelter in contending that by the reason of parties living together under same roof and the resumption of marital obligation the petitioner has condoned her right to claim maintenance not only for the period when the parties stayed together but the period prior thereto.
Condonation constitutes two elements, namely, forgiveness and restoration or reinstatement. There may be a consummation or an act of resumption of the marital obligation or one of the party may pardon the sinister act of the other by consummation and / or cohabitation. So far as the maintenance is concerned, it is not only the statutory obligation but a social and moral obligation as well. It is the social, moral and statutory duty of the husband to maintain his wife either when they are living together or separately if she has no independent source of income. Maintenance is not a stray act which gets condoned by reason of restoration of the marital obligation but is a continuous process. Therefore, it is held that the right to claim maintenance does not extinguish and/or evaporate by condonation on the reason of restoration of the marital obligation or consummation and/or cohabitation by the parties during the pendency of proceeding for divorce.
As held above that the petitioner is entitled to get maintenance from the date of filing an application under section 36 of the Special Marriage Act 1954 but while calculating the quantum of maintenance the court should also consider and weigh the fact that the parties for nearly a period of one year lived together as husband and wife. Certainly during such period the opposite parties have maintained the petitioner and should not be vexed twice. The opposite party shall pay the maintenance on and from the date of filing an application under section 36 of the said Act but shall not be obliged to pay the maintenance from the month of December 2007 to December 2008.
Since the petitioner has not questioned the quantum of the maintenance granted by the trial court in this revisional application and the opposite party has also not assailed the impugned order, it can be logically inferred that the parties have accepted the quantum of maintenance.
However, by filing a supplementary affidavit the petitioner contends that the gross income of the husband has increased by this time. This court directed the opposite party to submit the income tax return and the pay slip of the opposite party which has been filed before this court. From the pay slip for the month of July 2011 it is clear that the gross salary of the opposite party is Rs. 1,52,940/-. The trial court in impugned order has assessed the gross salary of the opposite party at Rs. 1,10,944/- wherefrom it can be roughly assessed that there has been an increase of gross salary by Rs. 42,000/- per month. One cannot lose sight of the fact that because of the increment of gross salary, statutory tax liability has also increased. In the supplementary affidavit the petitioner contends that she is living as a licensee and has to bear the burden of Rs. 13,800/- per month towards license fee. Since I have not invited the opposite party to file counter- affidavit to the said supplementary affidavit it would not be proper on my part to pass any order on consideration of the facts stated therein.
The opposite party has filed the pay slip for the month of July 2011 wherefrom it is evident that the gross salary has increased by Rs. 42,000/- , the petitioner is thus entitled to a proportionate increment on account of alimony pendente lite. Thus, the petitioner is entitled to a further monthly alimony @ Rs. 6000/- per month i.e. Rs. 3000/- for the petitioner and Rs. 3000/- for the minor son to be paid by the opposite party from the month of October 2011. The opposite party shall also pay the arrear maintenance on and from the month of filing of the said application under section 36 of the Special Marriage Act till the date of the impugned order at the rate granted by the trial court except for the period from the month of December 2007 to December 2008 when admittedly the parties lived together as husband and wife. The said arrear alimony pendente lite shall be paid by the opposite party in monthly instalments of Rs. 6000/- in addition to the current alimony in the manner as has been directed by the trial court.
The impugned order is modified to the extent indicated above. The revisional application is, thus, disposed of. However, there shall be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis.
(Harish Tandon, J.)
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