Thursday, 22 October 2015

When wife is entitled to get enhanced amount of maintenance?

 The amount of Rs.5,000/- cannot be said to be just and proper in the facts and circumstances of the present case as I find that although in his Written Objection the petitioner/husband contended that his gross salary is Rs.21,000/- and his take home pay is Rs.12,000/- but in evidence he stated that his monthly gross salary is around Rs.40,000/- and net salary is Rs.33,000/- plus. The impugned order was passed on 31.03.2012. It is needless to say that there has been sea change of circumstances which justifies enhancement of the amount awarded by the Learned Family Court. Accordingly, I think that the petitioner/husband shall be directed to pay Rs.8,000/- per month as maintenance allowance to the O.P./wife from this date.
Kolkata High Court (Appellete Side)
 Sabuj Seal ...vs Shrabani Seal & Anr on 4 March, 2015
Author: Shib Sadhan Sadhu
Citation; 2015 CRLJ(NOC)417 CAl

1. The petitioner/husband has preferred this Revision Petition under Section 482 of the Code of Criminal Procedure, 1973 (for short Cr.P.C.) against the order dated 31st January, 2012 passed by the Learned Principal Judge, Family Court, Calcutta in Misc. Case No.108 of 2007 whereby and whereunder he rejected the applications under order VI Rule 17 C.P.C. filed by the petitioner/husband praying for amendment of the Written Objection and the application filed by him for re-cross-examination of P.W.1 and re-examination of O.P.W.1 and allowed the application under Section 125 of the Cr.P.C. filed by the wife/O.P. No.1 directing that husband/petitioner shall pay Rs.5,000/- per month towards maintenance to the O.P./wife and to pay a further sum of Rs.5,000/- to her towards the expenses of litigation.
2. Briefly stated, the facts of the case are that the wife/O.P. No.1 filed an application for maintenance under Section 125 of Cr.P.C. before the Family Court, Calcutta for grant of maintenance of Rs.5,000/- (Rupees Five Thousand only) per month. It was stated in the application that the O.P. No.1 was married with the present petitioner on 2nd December, 2003 according to Hindu Rites and Ceremonies. After solemnization of the marriage, the O.P.No.1 went to her matrimonial home at Chandannagar on 03.12.2003. On 04.12.2003 in the night they closetted together but she was surprised to notice some abnormal behaviour of her husband. Her husband refused to share the bed with her and he compelled her to sleep on the floor. Although she stayed in her husband's house up to 12.12.2003 but her husband did not create any sexual relationship with her. The parents of her husband also ill-behaved with her and mentally tortured her. On 21st December, 2003 she was forced to go back to her paternal house being escorted by her father-in-law as her husband refused to accompany her. Thereafter, she made several attempts on several occasions to contact with her husband over telephone but he refused to respond her and lastly on 20th April, 2004 a relative of her husband arranged for a meeting in his premises and on that date her husband declared that it was not possible for him to continue with the conjugal life with her without disclosing any reason whatsoever. Thereafter, on 13th May, 2004 she received a summons from the District Judges' Court, Hooghly alongwith copy of an application filed by her husband for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955 wherein the petitioner/husband made some false allegations. On 31.08.2006 she sent a letter through her Advocate to her husband demanding Rs.5,000/-per month as maintenance. Thereafter, her husband requested her father to take her to matrimonial home and accordingly she went there on 17.02.2007 and began to live with her in-laws. But the history repeated itself and she was subjected to physical and mental cruelty. Her husband assaulted her and at his instigation she attempted to commit suicide. Thereafter, her father-in-law got her back to her father's house on 24.03.2007 and since then she has been residing there. It was also mentioned in the application that she was humiliated, assaulted and was refused and neglected by her husband and it was prayed that the petitioner/husband be directed to pay maintenance at the rate of Rs.5,000/-per month.
3. The husband, i.e. the present petitioner, filed Written Objection, wherein he denied the allegations as alleged in the application. He contended that the O.P./wife was in the habit of picking up quarrel with his parents and also in the habit of visiting her father's house out of her own accord. She used to go to her father's house only to satisfy her lust with her pre-marital connection with 'telecaller'. After going to her father's house, she never returned except on the date for few hours in July, 2007 when she came to collect her belongings. He filed a Matrimonial Suit bearing No.208 of 2004 in the Court of Learned District Judge, Hooghly for restitution of conjugal rights but she declined such offer and preferred to stay at her father's house for enjoying her life with the alleged 'telecaller' with whom she had allegedly "husband-wife relation much prior to her alleged marriage with the O.P." It was further contended that the O.P./wife being highly educated earns several thousand rupees per month through tuition. Besides her family earns a lot from jewellery/goldsmith shop. On the other hand, he is a petty service holder having gross salary of Rs.21,000/- per month and his take home pay is Rs.12,000/- per month after statutory deduction. It is the further contention of the husband/petitioner that the O.P./wife left her matrimonial home voluntarily after executing an agreement and she took away all her belongings promising not to return again. He, therefore, prayed for dismissal of the application under Section 125 Cr.P.C. and also for a declaration of nullity of the marriage and for decree of divorce.
4. In support of the case, the O.P./wife examined herself as witness No.1(P.W.1) and the husband/petitioner examined himself as Opposite Party-witness No.1. Three more witnesses namely Chinmoy Seth, Anuradha Seth, parents of the O.P./Wife and one Soumen Sen were examined as Court witness Nos.1, 2 and 3 respectively. They proved the agreement dated 17.07.2005 which was marked as Ext.A.
5. Learned Family Court after considering submission of the Learned Counsel for the parties rejected the applications filed by the present petitioner for amendment of his Written Objection and for re-cross examination of P.W.1 and re-examination of O.P.W.1 and allowed the application under Section 125 Cr.P.C. and directed the petitioner/husband to pay a monthly maintenance of Rs.5,000/- (Rupees Five thousand only) per month to the O.P./wife. Being aggrieved with the same, the petitioner has preferred this Revision Petition.
6. Mr. Chakraborti, Learned Counsel appearing on behalf of the husband/petitioner contended that the Learned Family Court Judge did not allow proper opportunity to the present petitioner for contesting the case by rejecting the petitions filed by the petitioner for amendment of his Written Objection and for re-cross examination of P.W.1 and re-examination of O.P.W.1 and still he came to the findings that the testimony of P.W.1 to the effect that following the negotiation held between her and her husband and also between their families, she went back to her in-laws house on 17.02.2007 and thereafter, on 24th March, 2007 she was taken to her father's place by her father-in-law against her will, remained unchallenged. He further contended that the O.P./wife, herself, voluntarily left the house of the petitioner/husband by mutual consent after executing an agreement and she also took away all her 'Stridhan properties' and they also agreed to file a case of mutual divorce on mutual consent. Therefore, she is not entitled nor the petitioner is liable to pay the amount of maintenance to the wife, in view of the provisions laid down in Sub-Section (4) of Section 125 of the Cr.P.C. He, therefore, concludingly submitted that the Learned Family Court committed an illegality in passing the impugned orders, which are liable to be set aside and the application filed by the O.P./Wife be dismissed.
7. Mr. Ghosh, Learned Counsel appearing for the O.P./Wife, on the other hand submitted that the Learned Family Court has rightly rejected the applications filed by the present petitioner seeking to amend his Written Objection and for re-cross examination of P.W.1 and for re-examination of O.P.W.1 as those were filed after closure of the evidence and at the stage of passing judgment as also with the object to fill up the lacuna. He further submitted that the Learned Family Court has arrived at the finding taking into consideration the evidence and materials produced by the parties and passed the order directing the present petitioner to pay maintenance at the rate of Rs.5,000/- per month. He submitted yet further that the alleged agreement is not valid and it does not bind the parties. According to him, such agreement being opposed to public policy cannot compel the O.P./Wife to surrender her right to maintenance. He, thus, concluded by emphasizing that the impugned orders are absolutely valid and correct and the same should not be interfered with.
8. I have heard the Learned Counsel for the parties. I have perused all the materials available on record. I have also gone through the impugned orders with meticulous care.
9. I find that the Learned Family Court rejected the applications filed by the petitioner for amendment and for re-cross examination and re-examination observing that the proposed amendment was already incorporated in the Written Objection and such petitions were filed only to harass his wife and similar was the case with the application for re-cross examination and re-examination as most of the questions are irrelevant and were already put. The Learned Judge further held that law does not permit to fill up the lacuna by way of re-examination or re-cross examination. I further find that the present petitioner cross-examined the P.W.1. Thus, it cannot be said that he was not allowed any opportunity to cross-examine the witnesses or that he did not avail of such opportunity. So if the petitioner thought it fit not to cross-examine P.W.1 or put any question to her in cross-examination touching her allegation it cannot be held that no opportunity to cross-examine the witness has been given to him. Once the witnesses have been cross- examined, they could not be recalled for further cross-examination only on the ground that they had not been cross-examined effectively by the Advocate who cross-examined them on the date when they put in appearance. If such type of application is allowed and witnesses are permitted to be further cross-examined, it will open a flood gate of litigation and the trial would never reach its finality.
10. So far as the submission urged on behalf of the petitioner/husband is concerned regarding voluntary execution of agreement (Exht.A) which disentitles the O.P./Wife to claim any maintenance from the present petitioner, I would like to say that if an agreement entered into between the parties is against the public policy or is against the statutory law, that agreement is void under Section 23 of the Contact Act. So if Shrabani Seal agreed not to claim any maintenance allowance and on account of this agreement there was a settlement for filing divorce petition on mutual consent I do not think that this agreement would be binding upon Shrabani Seal not to claim any maintenance allowance in future. This is because the agreement of Shrabani Seal was against the spirit of statutory provision under Section 125 Cr.P.C. and it was also against the public policy. The spirit of Section 125 Cr.P.C. is to prevent destitution or vagrancy of the wife or children. So, any promise or agreement by any of the parties to the marriage would be against this spirit of law and it would also be opposed to the public policy, because it would be against the social order and, accordingly, opposed to public policy. I am, therefore, of the opinion that the agreement reached by the parties on 17th July, 2007 would not operate as bar to the maintainability of the maintenance case. It might be that at that particular moment it prevailed upon her mind that since she was being maintained by her father, she would not claim maintenance from her husband. Now, she felt the necessity to crave maintenance from her husband because her father was no longer able to maintain her and also because she was unable to maintain herself. The Learned Family Court on the basis of evidence held that Shrabani Seal was unable to maintain herself and therefore, she was entitled to get maintenance allowance from the petitioner/husband.
11. I do not find any infirmity, illegality or perversity in the impugned orders passed by the Learned Family Court. The reasons assigned by the Learned Judge for allowing the applications are absolutely just and reasonable and no interference in the same is called for.
12. The amount of Rs.5,000/- cannot be said to be just and proper in the facts and circumstances of the present case as I find that although in his Written Objection the petitioner/husband contended that his gross salary is Rs.21,000/- and his take home pay is Rs.12,000/- but in evidence he stated that his monthly gross salary is around Rs.40,000/- and net salary is Rs.33,000/- plus. The impugned order was passed on 31.03.2012. It is needless to say that there has been sea change of circumstances which justifies enhancement of the amount awarded by the Learned Family Court. Accordingly, I think that the petitioner/husband shall be directed to pay Rs.8,000/- per month as maintenance allowance to the O.P./wife from this date.
13. In view of the above discussions, I do not find any merit in the Revision Petition and the same is accordingly dismissed.
14. Criminal Section is directed to deliver urgent photostat certified copy of this judgment to the parties, if applied for, as early as possible.

(Shib Sadhan Sadhu, J.)
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