Wife earng 54K claims addl 25K for same standrd of living. Cal HC says NOT entitled 2 maintnance !
* Wife is earning 54,239.35 and is working for Life insurance corporate of India
* Initially wife claims Rs. 3 lakhs & further Rs. 20,000/- per appearance and Rs. 40,000/- per appearance for hearing !!
* That's dismissed by trial Court. Carried to Hon. HC in civil revision and was affirmed.
* Subsequently, an appliction u/s 36 of Special Marriage Act !! filed by wife/petitioner claiming maintenance per month !!
* In this application "...submitted .. the petitioner gets a paltry sum of Rs. 23,000/- and odd .. not enough to maintain the status, dignity and the reputation which the husband or its family has in the society and, therefore, an additional sum of Rs. 25,000/- per month is required to maintain the same !!!..."
* Finally that is ALSO rejected by the Hon. HC
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CASE FROM JUDIS / INDIAN KANOON WEB SITE
Kolkata High Court (Appellete Side)
Smt Chanda Sinha vs Ranjan Sinha on 19 January, 2015
Author: Harish Tandon
24 19.01. C.O. 31 of 2015
Smt Chanda Sinha
Mr. Md. Shahajahan Hossain,
Sanjida Sultana, ... for the petitioner.
Mr. Subrata Kumar Basu,
Mr. Rupendra Nath Chowdhury, ... for the opposite party.
This revisional application is directed against an order No. 43 dated 13th November, 2014 passed by the learned Second Additional Principal Judge, Family Court, Calcutta in Matrimonial Suit No. 218 of 2009 by which an application under Section 36 of the Special Marriage Act, is allowed.
The marriage between the parties were solemnized in accordance with rituals and rites recognised under Hindu Law. Even the proceeding for divorce is filed under Section 13 of the Hindu Marriage Act, 1955. There cannot be any applicability of the provisions of the Special Marriage Act in the attending facts and circumstances. It is no longer res intetra that mere quoting the wrong provision does not entail the application liable to be dismissed as the Court is required to look into the substance thereof. Even if the application is captioned as an appliction under Section 36 of the Special Marriage Act, it is in effect, an application under Section 24 of the Hindu Marriage Act, 1955, which stands in pari materia. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
The proceedings for divorce is initiated at the instance of the husband/opposite party and in such proceedings, the wife initially filed an application under Section 24 of the said Act. There was rival stand of the parties whether the earlier application contains the relief of maintenance or was restricted to the litigation costs. A copy of the earlier application is produced before this Court wherefrom it appears that the wife simply claimed an amount of Rs. three lakhs and further amount of Rs. 20,000/- per appearance and Rs. 40,000/- per appearance for hearing in a proceeding pending before the Court at Faridabad.
In paragraph 10 of the said application, the wife categorically asserts that she is in service under Life Insurance Corporation of India and does not require any amount for her sustenance. From the length and breadth of the said application, it can be deciphered with reasonable certainty that the wife does not require any amount for her daily needs as she has sufficient income therefor but claims a litigation costs as she has been forced to bear such burden because of the litigation having imposed against her by the husband. The said application was dismissed by the trial Court as the wife could not produce the relevant document in support of the claim. The order was carried to this Court in civil revision and was affirmed. Subsequently, an appliction captioned as an application under Section 36 of the Special Marriage Act came to be filed at the instance of the wife/petitioner claiming the maintenance at the rate of Rs. 20,000/- per month. Paragraph 5 of the instant application records the conscious statement of the petitioner that she is working with Life Insurance Corporation of India and is getting a net salary of Rs. 23,632/-.
In order to prove the aforesaid statement, a salary certificate is annexed to this revisional application wherefrom it appears that she is getting gross salary of Rs. 54,239.35 paise. Certain voluntary deduction was allowed to be made from the said monthly salary in order to show that the net amount, which the petitioner takes home, is Rs. 23,632/-.
Paragraph 7 of the petition proceeds that the petitioner who is living separately has to burden the salary of the domestic help apart from the legal expenditure, which she has to incur in defending the proceedings initiated against her. It would be apposite to quote the statement made in the statement 7 of the said paragraph, which is reproduced below :
] "7. That the respondent states that since she is being compelled
] to live separately, she has to keep one full time domestic
] help/maid servant incurring Rs. 4,500/- per month as her salary.
] The respondent has to keep another part time domestic help for
] performing domestic works such as cleaning rooms, washing cloths
] for which she has to pay another sum of Rs. 700/- per month to
] her. These apart, the respondent is being compelled to spend
] huge amount of money on account of legal expenses in connection
] with 498A case as well as for defending and contesting the above
] Mat. Suit instituted by her husband. Legal expenses on account
] of lawyer's fees for appearance and drafting, typing charges of
] petitions etc. court fees etc. as well as travelling expenses
] for attending courts with in attendant also comes to Rs. 7,000/-
] per month, on an average. In addition, the respondent being a
] lady has to incur further sum for her safety and security. The
] respondent has to spend a sum of Rs. 30,000/- for her
] maintenance and support including fooding, lodging, clothing and
] arranging other things essential for day to day living according
] to the status and standard of the parties. In view of day to day
] increasing market price, cost of living, maintenance and support
] has also gone too high."
It is submitted on behalf of the learned advocate of the petitioner that if the income of the wife is not sufficient enough to maintain herself in commensurate with the status of the husband/opposite party, the Court is competent to grant the alimony pendente lite as held in case of Chaturbhuj -Vs- Sita Bai reported in (2008) 1 C Cr LR (SC) 416.
It is strongly submitted that the petitioner gets a paltry sum of Rs. 23,000/- and odd which is not enough to maintain the status, dignity and the reputation which the husband or its family has in the society and, therefore, an additional sum of Rs. 25,000/- per month is required to maintain the same. On the plea that the misquoting or wrong quoting of the provision is not fatal, a judgment rendered in case of P. K. Palanisamy -Vs- N. Arumugham & Anr ((SLP) Civil No. 2308 of 2009; decided on 23rd July, 2009) is relied on.
Taking the second point first, there is no quarrel to the proposition that the wrong quoting or miss quoting of the provision does not invite the Court to dismiss the matter on technicality but the Court should look into the substance thereof. It is no longer res integra that the rights of the parties are to be adjudicated on the basis of the statements made in the pleading or otherwise and the relief claimed therein and the Court should not be swayed by the miss quoting or wrong quoting of the provision. Mere captioning an appliction under Section 36 of the Special Marriage Act cannot stand against the petitioner when the ingredients required under Section 24 of the Hindu Marriage Act is evident and present therein since both the provisions stand pari materia. There is no difficulty in treating the said application to be an application under Section 24 of the Hindi Marriage Act, 1955.
The point which hinges the most in the instant revisional application is whether the claim made in the appliction filed by the petitioner even under Section 24 of the Hindu Marriage Act, 1955 can be allowed. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
The earlier application filed by the petitioner faced dismissal as the petitioner consciously chosen to abandon the right to claim the maintenance for her sustenance as the income which she derived, is sufficient enough to cater her daily needs. The said application was restricted to a litigation costs which according to the petitioner was an additional burden imposed by the action of the husband/opposite party in initiating proceedings both within the state of West Bengal and outside. The Court rejected the said application as the necessary documents in support thereof was not produced and the order of the trial Court stood affirmed upon the dismissal of the revisional application.
The principle of res judicate not only applies between the two proceedings but at the different stages of the said proceedings. Because of the peculiarity of the provision contained under Section 24 of the Hindu Marriage Act which provides the right to either of the spouse to claim the maintenance in a proceedings initiated under Hindu Marriage Act unless it is shown that there is a changed circumstances. The subsequent appliction on the selfsame set of facts which have been adjudicated in an earlier occasion cannot be allowed to be made. Since the proceedings initiated before the Court of law takes time to get it disposed of certain events and happenings may occur compelling the parties to alter the stand and claim relief. Even if the present application, taken out by the petitioner, is treated to be made on the altered circumstances because of the passage of time and the litigation being prolonged, this Court does not find that the income which is admitted by the wife is too meager to maintain herself as per the status and position which the husband possess in the society.
The right of maintenance is not only a legal right but a social obligation of the spouse. There is no straight jacket formula in determining the quantum of the maintenance, which varies from case to case and depends upon the various factors. Admittedly, there is no child from the wedlock. The salary certificate annexed to the revisional application reveals that the wife is residing in a quarter allotted by the Life Insurance Corporation of India as she is paying Rs., 137.10 per month as license fee. The wife have further allowed a hefty sum of Rs. 13, 734/- to be deducted towards the easy monthly installments for the loan which she obtained against housing finance. At the time of arriving the quantum of maintenance, the Court should not allow the deduction made voluntarily and then to arrive at the net amount for the purpose of determining the quantum of maintenance. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
This Court, therefore, does not find that the income which the petitioner has from her service in Life Insurance Corporation of India is too low to maintain the status and position in the society and, therefore, the trial Court in my view has not committed any wrong in rejection the said application.
Otherwise as well, the petitioner could not demonstrate any grounds warranting the interference with the impugned order.
The revisional application is dismissed. There shall be no order as to costs.
( Harish Tandon, J.)
PDF file uploaded here : http://1drv.ms/1zxrKgI
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