Rousseau Mitra Vs. Shrimati Chandana Mitra - Court Judgment

Excerpt:
- ordersubhro kamal mukherjee, j.1. this is an application under article 227 of the constitution of india by the plaintiff husband against an order passed by the learned trial judge allowing in part an application under section 24 of the hindu marriage act, 1955, inter alia, directing the husband to pay a sum of rs. 2000/- (rupees two thousand) only per month to the wife-defendant towards maintenance pendente lite for the wife and the male child from the date of filing of the said application and a sum of rs. 3,000/- (rupees three thousand) only towards expenses of the proceedings including a sum of rs. 2,000/- (rupees two thousand) only, which has already been paid to the wife in terms of an order passed by the learned trial judge on november 23, 2000.2. the husband instituted matrimonial suit no. 721 of 1998 in the court of the learned district judge. district south 24 parganas for divorce. the said suit was eventually transferred to the court of the learned additional district judge, eleventh court at alipore and has been renumbered as matrimonial suit no. 55 of 1998.3. in connection with the aforesaid suit the wife applied under section 24 of the hindu marriage act, 1955, inter alia, praying for maintenance pendente lite at the rate of rs. 2000/- (rupees two thousand only per month for herself and rs. 1000/- (rupees one thousand) only per month for the son. she, also, claimed a sum of rs. 5000/-(rupees five thousand) only as expenses of the proceedings. it is contended by her that she has been presently residing in the family of her brother with the male child and she has no independent income at all either to maintain herself or the son. the child is a student and was prosecuting his studies in barisha shisu shikshaniketan and she required fund for the education and medical treatment of the son. the husband was an employee of a private firm and at the time of marriage he was earning a sum of rs. 2500/- (rupees two thousand five hundred) only per month as his remuneration and used to earn about 1500/- (rupees one thousand five hundred) only by doing outside typing job. it was alleged that the husband was earning approximately rs. 8000/-(rupees eight thousand) only per month. the aforesaid application was registered as misc. case no. 32 of 1998.4. the husband contested the said application by filing a written objection. it was contended by him that he was a graduate in science and he possessed b.ed. degree. he was working as a typist-cum-clerk in m/s. pashupati das and sons (pvt.) limited and was drawing consolidated salary of rs. 1800/- (rupees one thousand eight hundred) only per month. his father, well-known scholar in his field, was a teacher in acharya prafullya chandra college, new barrackpur and rabindra bharati university. his mother was an assistant accountant. south eastern railways. the only sister of the husband has been married in 1989 and has been living with her husband. the father being a distinguished scholar was author of several books. it was stated that the wife gave birth to a male child on february 28, 1994 at balananda bramhachary hospital, kolkata, but it was denied that for his primary education any expense was necessary.5. in connection with the said application the wife deposed as petitioner's witness no. 1 and the husband deposed as opposite party's witness no. 1. the husband in his deposition stated that his salary was increased to rs. 2600/- (rupees two thousand six hundred) only per month, but in november 2001 he submitted his resignation from service and since then he was unemployed.6. the learned judge by the order impugned dated september 11, 2002, as indicated hereinabove, allowed the said application under section 24 of the hindu marriage act, 1955 in part.7. mr. jyotirmoy bhattacharya, learned advocate, appearing in support of the revisional application, submitted that the order granting maintenance pendente lite at the rate of rs. 2000/- (rupees two thousand) only per month for the wife and the child from the date of making of the said application is excessive and not commensurate with the income of the husband. it is submitted that in passing the order impugned the learned trial judge failed to exercise his discretion judicially and as the wife inflated the income of the husband out of all proportion, the ends of justice demands that the maintenance to be payable at best from the date of the order impugned.8. from the materials on record certain facts are admitted :(a) the marriage of the parties was solemnised on february 11, 1993.(b) the father of the wife is dead and she is residing in the family of her elder brother since december 12, 1993.(c) the wife gave birth of a male child on february 28. 1994 at behala balananda bramhachary hospital.(d) the child is studying in barisha sisu sikshaniketan.(e) the husband possesses the qualification of b.sc. and b.ed. and he was employed in pashupati das and sons (pvt.) limited and was earning a sum of rs. 2600/- (rupees two thousand six hundred) only per month towards his remuneration. he used to type to earn additional money at his residence. from november 2001 he left the employment of pashupati das and sons (pvt.) ltd. he is residing in his own house, which stood in the name of his deceased mother. his father is a renowned scholar and was a reader of acharya prafullya chandra college, new barrackpur and was a lecturer of rabindra bharati university and his father has several publications in his credit. his only sister is married and residing with her husband. 9. there is no fixed principle for determining the amount of maintenance pendente lite or expenses of the proceedings. the court has to consider the status of the parties, their needs and the capacity of the husband to pay having regard to the reasonable expenses for the maintenance of the wife and the child, which he is obliged to meet under the law. the amount of maintenance pendente lite should be fixed for the wife and the child taking into consideration the cost of living index so that she does not feel handicapped. the husband was an employee of a private firm and he used to earn by undertaking private typing jobs. it is alleged by the husband that he has left his service voluntarily with effect from november 2001 and presently he is unemployed and has no income at all to pay the maintenance pendente lite or expenses of the proceedings. the husband is an able-bodied person capable of earning. the husband voluntarily incapacitated himself from earning, but he cannot avoid his liability to maintain his wife and the child.10. a division bench of this court in the case of somen ghosh v. bani ghosh (nee sen) reported in 1986 (90) cwn 816 observed that it could not be held that unless the husband actually earned any income, the court could not under section 24 of the hindu marriage act, 1955 order him to pay maintenance pendente lite and expenses of the proceeding to his wife. the court has ample discretion and in a deserving case might ascertain not only what money the husband had, but what money he could have had if he liked. the court would look at the realities and not permit it to be misled by appearances. it is not the case of the husband that he is not an able-bodied man and he is not fit to work, but he alleges that he has ceased to be an employee of pashupati das and sons (pvt.) limited. it cannot be said that as the husband has no income, the court loses its power to award any maintenance pendente lite.11. the family background of the husband had been disclosed. it has been established that the parties come from respectable families and they have a particular status in the society. although there was no evidence before the court about the actual income of the husband, the court can legitimately take into consideration his ability to earn a reasonable amount.12. the decision in the case of jasbir kaur sehgal v. district judge, dehradun reported in : air1997sc3397 cited by mr. bhattacharya, learned advocate, appearing for the petitioner, in my view, has no application in the facts and circumstances of the case. there was no dishonesty on the part of the wife, but the husband deliberately suppressed his actual income to frustrate the legitimate claim of his wife and his son. the court has discretion in the matter as to from which date maintenance under section 24 of the hindu marriage act, 1955 should be granted. the learned trial judge, in my view, rightly exercised his discretion in directing the husband to pay maintenance pendente lite from the date of the application filed by the wife, that is, from july 30, 1998.13. the order impugned suffers from no irregularity and it is not perverse requiring interference by this court under article 227 of the constitution of india.14. accordingly, the revisional application is rejected without, however, any order as to costs.

Judgment:
ORDER

Subhro Kamal Mukherjee, J.

1. This is an application under Article 227 of the Constitution of India by the plaintiff husband against an order passed by the learned trial Judge allowing in part an application under Section 24 of the Hindu Marriage Act, 1955, inter alia, directing the husband to pay a sum of Rs. 2000/- (Rupees two thousand) only per month to the wife-defendant towards maintenance pendente lite for the wife and the male child from the date of filing of the said application and a sum of Rs. 3,000/- (Rupees three thousand) only towards expenses of the proceedings including a sum of Rs. 2,000/- (Rupees two thousand) only, which has already been paid to the wife in terms of an order passed by the learned trial judge on November 23, 2000.

2. The husband instituted Matrimonial Suit No. 721 of 1998 in the Court of the learned District Judge. District South 24 Parganas for divorce. The said suit was eventually transferred to the Court of the learned Additional District Judge, Eleventh Court at Alipore and has been renumbered as Matrimonial Suit No. 55 of 1998.

3. In connection with the aforesaid suit the wife applied under Section 24 of the Hindu Marriage Act, 1955, inter alia, praying for maintenance pendente lite at the rate of Rs. 2000/- (Rupees two thousand only per month for herself and Rs. 1000/- (Rupees one thousand) only per month for the son. She, also, claimed a sum of Rs. 5000/-(Rupees five thousand) only as expenses of the proceedings. It is contended by her that she has been presently residing in the family of her brother with the male child and she has no independent income at all either to maintain herself or the son. The child is a student and was prosecuting his studies in Barisha Shisu Shikshaniketan and she required fund for the education and medical treatment of the son. The husband was an employee of a private firm and at the time of marriage he was earning a sum of Rs. 2500/- (Rupees two thousand five hundred) only per month as his remuneration and used to earn about 1500/- (Rupees one thousand five hundred) only by doing outside typing job. It was alleged that the husband was earning approximately Rs. 8000/-(Rupees eight thousand) only per month. The aforesaid application was registered as Misc. Case No. 32 of 1998.

4. The husband contested the said application by filing a written objection. It was contended by him that he was a graduate in science and he possessed B.Ed. degree. He was working as a typist-cum-clerk in M/s. Pashupati Das and Sons (Pvt.) Limited and was drawing consolidated salary of Rs. 1800/- (Rupees one thousand eight hundred) only per month. His father, well-known scholar in his field, was a teacher in Acharya Prafullya Chandra College, New Barrackpur and Rabindra Bharati University. His mother was an assistant accountant. South Eastern Railways. The only sister of the husband has been married in 1989 and has been living with her husband. The father being a distinguished scholar was author of several books. It was stated that the wife gave birth to a male child on February 28, 1994 at Balananda Bramhachary Hospital, Kolkata, but it was denied that for his primary education any expense was necessary.

5. In connection with the said application the wife deposed as petitioner's witness No. 1 and the husband deposed as opposite party's witness No. 1. The husband in his deposition stated that his salary was increased to Rs. 2600/- (Rupees two thousand six hundred) only per month, but in November 2001 he submitted his resignation from service and since then he was unemployed.

6. The learned Judge by the order impugned dated September 11, 2002, as indicated hereinabove, allowed the said application under Section 24 of the Hindu Marriage Act, 1955 in part.

7. Mr. Jyotirmoy Bhattacharya, learned advocate, appearing in support of the revisional application, submitted that the order granting maintenance pendente lite at the rate of Rs. 2000/- (Rupees two thousand) only per month for the wife and the child from the date of making of the said application is excessive and not commensurate with the income of the husband. It is submitted that in passing the order impugned the learned trial judge failed to exercise his discretion judicially and as the wife inflated the income of the husband out of all proportion, the ends of justice demands that the maintenance to be payable at best from the date of the order impugned.

8. From the materials on record certain facts are admitted :

(a) The marriage of the parties was solemnised on February 11, 1993.

(b) The father of the wife is dead and she is residing in the family of her elder brother since December 12, 1993.

(c) The wife gave birth of a male child on February 28. 1994 at Behala Balananda Bramhachary Hospital.

(d) The child is studying in Barisha Sisu Sikshaniketan.

(e) The husband possesses the qualification of B.Sc. and B.Ed. and he was employed in Pashupati Das and Sons (Pvt.) Limited and was earning a sum of Rs. 2600/- (Rupees two thousand six hundred) only per month towards his remuneration. He used to type to earn additional money at his residence. From November 2001 he left the employment of Pashupati Das and Sons (Pvt.) Ltd. He is residing in his own house, which stood in the name of his deceased mother. His father is a renowned scholar and was a Reader of Acharya Prafullya Chandra College, New Barrackpur and was a Lecturer of Rabindra Bharati University and his father has several publications in his credit. His only sister is married and residing with her husband.

9. There is no fixed principle for determining the amount of maintenance pendente lite or expenses of the proceedings. The Court has to consider the status of the parties, their needs and the capacity of the husband to pay having regard to the reasonable expenses for the maintenance of the wife and the child, which he is obliged to meet under the law. The amount of maintenance pendente lite should be fixed for the wife and the child taking into consideration the cost of living index so that she does not feel handicapped. The husband was an employee of a private firm and he used to earn by undertaking private typing jobs. It is alleged by the husband that he has left his service voluntarily with effect from November 2001 and presently he is unemployed and has no income at all to pay the maintenance pendente lite or expenses of the proceedings. The husband is an able-bodied person capable of earning. The husband voluntarily incapacitated himself from earning, but he cannot avoid his liability to maintain his wife and the child.

10. A Division Bench of this Court in the case of Somen Ghosh v. Bani Ghosh (Nee Sen) reported in 1986 (90) CWN 816 observed that it could not be held that unless the husband actually earned any income, the Court could not under Section 24 of the Hindu Marriage Act, 1955 order him to pay maintenance pendente lite and expenses of the proceeding to his wife. The Court has ample discretion and in a deserving case might ascertain not only what money the husband had, but what money he could have had if he liked. The Court would look at the realities and not permit it to be misled by appearances. It is not the case of the husband that he is not an able-bodied man and he is not fit to work, but he alleges that he has ceased to be an employee of Pashupati Das and Sons (Pvt.) Limited. It cannot be said that as the husband has no income, the Court loses its power to award any maintenance pendente lite.

11. The family background of the husband had been disclosed. It has been established that the parties come from respectable families and they have a particular status in the society. Although there was no evidence before the Court about the actual income of the husband, the Court can legitimately take into consideration his ability to earn a reasonable amount.

12. The decision in the case of Jasbir Kaur Sehgal v. District Judge, Dehradun reported in : AIR1997SC3397 cited by Mr. Bhattacharya, learned advocate, appearing for the petitioner, in my view, has no application in the facts and circumstances of the case. There was no dishonesty on the part of the wife, but the husband deliberately suppressed his actual Income to frustrate the legitimate claim of his wife and his son. The Court has discretion in the matter as to from which date maintenance under Section 24 of the Hindu Marriage Act, 1955 should be granted. The learned trial judge, in my view, rightly exercised his discretion in directing the husband to pay maintenance pendente lite from the date of the application filed by the wife, that is, from July 30, 1998.

13. The order impugned suffers from no irregularity and it is not perverse requiring interference by this Court under Article 227 of the Constitution of India.

14. Accordingly, the revisional application is rejected without, however, any order as to costs.