Monday, 15 August 2016

Whether fact that husband has retired can be considered by court while granting interim maintenance?

After hearing rival submissions of both parties in
connection with C.O. 2948 of 2015 and C.O. 2614 of 2015 I am
of the view that while awarding pendente lite alimony, Court
should take into the account the income as it stood on the date of
hearing of the application. Admittedly, the application was
pending for about 10 years before the Court below. When the
application was made at that time the husband was in service
and had been earning a considerable amount but after retirement
his income is reduced to a great extent. It is also on record, that
in the meantime he had purchased a flat measuring about 750
square ft. wherein the wife and their son have been residing. The
son is well educated and earns a fat salary. The wife O.P. had
contended that the husband had landed properties at Fulia,
which yields him about Rs.1,50,000/- per month but that part of
her submission has not been substantiated by any document.
Even the description of landed property was not there. Therefore,it cannot be said that the husband has some earning from the
landed property also.
 At the same time, the wife deserves a moderate standard
of living because she is the wife of an Ex-Chief Engineer of
Doordarshan when he had been residing with her husband, her
standard of living was obviously much higher and she was
accustomed with that. Naturally, she deserves that standard of
living. Due to retirement of her husband, she is also supposed to
sacrifice her standard of living to some extent because she has
been provided with a flat which has not been denied.
IN THE HIGH COURT AT CULCUTTA
(CIVIL REVISIONAL JURISDICTION)
C.O. No. 2948 of 2015
With
C.O. No. 2614 of 2015
Sri Gurubar Biswas
-Vs.-
Smt. Krishna Biswas
Present : The Hon’ble Mr. Justice Siddhartha Chattopadhyay

Judgment Delivered On : 10.03.2016.
Citation:AIR 2016 (NOC)513 Cal

 Both these revisional applications are taken up for hearing
at a time being interlinked with each other. 2. In the revisional application bearing No. 2614 of 2015 the
wife petitioner has challenged the quantum of the pendente lite
alimony passed by the Learned Additional District Judge, 8th
Court, at Alipore mainly on the ground that the learned Trial
Judge failed to consider the provision of Section 24 of the Hindu
Marriage Act, 1955 in its proper perspectives. The wife petitioner
also submitted that the income of the opposite party husband
has not been properly appreciated and as a result only a paltry
sum has been awarded. So she has prayed for enhancement of
the amount so awarded by the Learned Additional District Judge,
8th Court, at Alipore.
 3. In C.O. No. 2948 of 2015 the petitioner husband has also
challenged the same order dated 15th June, 2015, contending
inter alia that the learned Court below failed to appreciate the
position of law so far as the arrear is concerned. He categorically
submitted that since November 2004, the petitioner husband
voluntarily started paying Rs.3,000/- per month as maintenance
to the respondent wife, who had regularly accepted the same.
Divorce suit was filed in 2004. Therefore, he wanted to show his
bona fide to pay maintenance to his wife. 4. In course of hearing of the revisional application bearing
No. 2614 of 2015 learned Advocate appearing on behalf of the
petitioner contended that before the learned Court below she had
filed affidavit-in-chief 11.02.2009 wherein she has mentioned
that the opposite party is the Chief Engineer of Doordarshan and
had been earning salary to the extent of Rs.80,000/- per month
and this apart he had an income about Rs.1,50,000/- from his
landed properties and after his retirement he would get nearly
Rs.80 lakhs as his retiral benefit. Considering the income of her
husband she has prayed for Rs.40,000/- as alimony pendente
lite and Rs.50,000/- on account of litigation expenses but the
learned Court below did not consider the said aspects. According
to him, income of the husband has to be shown by the husband
himself and not by the petitioner wife. Considering the status of
the petitioner wife, she deserves that amount.
 5. Challenging the said contention of the petitioner wife, the
learned Counsel Mr. Dipak Kr. Prahladka contended that
matrimonial suit was filed in 2004 and since then he had been
voluntarily paying Rs.3000/- which has been accepted without
any objection by the petitioner wife. He further stated that in the
meantime he is now retired and he received a total amount ofRs.27,62,681/- being his retirement benefits and he has been
earning pension at the rate of Rs.37,347/- only per month. He
further contended that a two room flat was purchased by him
measuring about 750 square ft. by taking loan and the present
petitioner wife and his son have been residing there. He also
contended that his son is well established now. The petitioner
wife has no other liability except her food and other bare
necessities. So he has submitted that the impugned order does
not call for any interference.
 6. He further argued that the matrimonial suit was supposed
to be disposed within two months from the date of filing as per
Family Court Act but that has not been done. On the contrary
the suit is being protracted for more than 10 years and during
this period he had all along paid Rs.3,000/- per month, which
was accepted by the respondent.
 7. Learned Counsel appearing on behalf of the petitioner
wife has contended that alimony pendente lite should be given
from the date of application and enhanced maintenance that has
to be also given effect to from that date. In support of his
contention he has referred to a decision reported in (2002) 2
W.B.L.R. 182, (Smt. Poushali Pal –Vs.- Sri Gautam Pal). I havegone through the said judgment but the factual aspects of that
case is substantially different from the present one on the ground
that before making any order passed by the learned Court below
the opposite party husband had been paying Rs.3,000/- to the
present petitioner wife. So according to the Counsel appearing on
behalf of the opposite party husband, the said judgment does not
fit in this case.
 8. In connection with C.O. 2948 of 2015, learned Counsel
appearing on behalf of the petitioner contended that on 4th
November, 2002 the respondent wife left his house out of her own
volition and lodged a complaint under Section 498A of the Indian
Penal Code and he was arrested and produced before the learned
Sub-Divisional Judicial Magistrate at Alipore. Charge-sheet has
also been submitted. In spite of that considering his duty he had
been sending maintenance amount to his wife and that good
gesture cannot be overlooked by a Court of law. He has
categorically submitted that payment of arrears of interim
maintenance from May 2004 is liable to be set aside, on the
ground that the amount of interim maintenance is claimed or
calculated or awarded on the basis of the costs for maintaining
the basic standard of living and not on the basis of the earning ofthe opposite party. He further contended that he was not a tool
for causing delay of hearing of the said application and now the
petitioner husband is already retired and does not have enough
means to pay the said amount of arrear.
 9. After hearing rival submissions of both parties in
connection with C.O. 2948 of 2015 and C.O. 2614 of 2015 I am
of the view that while awarding pendente lite alimony, Court
should take into the account the income as it stood on the date of
hearing of the application. Admittedly, the application was
pending for about 10 years before the Court below. When the
application was made at that time the husband was in service
and had been earning a considerable amount but after retirement
his income is reduced to a great extent. It is also on record, that
in the meantime he had purchased a flat measuring about 750
square ft. wherein the wife and their son have been residing. The
son is well educated and earns a fat salary. The wife O.P. had
contended that the husband had landed properties at Fulia,
which yields him about Rs.1,50,000/- per month but that part of
her submission has not been substantiated by any document.
Even the description of landed property was not there. Therefore,it cannot be said that the husband has some earning from the
landed property also.
 10. At the same time, the wife deserves a moderate standard
of living because she is the wife of an Ex-Chief Engineer of
Doordarshan when he had been residing with her husband, her
standard of living was obviously much higher and she was
accustomed with that. Naturally, she deserves that standard of
living. Due to retirement of her husband, she is also supposed to
sacrifice her standard of living to some extent because she has
been provided with a flat which has not been denied.
 11. Learned Court below has awarded alimony pendente lite
to the tune of Rs.9,000/- per month from the date of filing of the
application i.e. from May 2004 and the litigation cost of
Rs.10,000/-. The husband was further directed to pay the arrear
maintenance in 24 equal instalments and the litigation cost by 4
equal instalments.
 12. Having regard to the income of the husband, standard of
living of the wife in which she was accustomed and as the
present market price is being increased by leaps and bounds, I
am of the view that the alimony pendente lite amount should beRs.12,000/- instead of Rs.9,000/- per month. At the same time, I
will not be oblivious to the fact that the husband had shown a
good gesture, in spite of being arrested in a case under Section
498A of the Indian Penal Code, by paying Rs.3,000/- without any
demand from the wife since May 2004. Since he is already
retired, so I am of the view that the enhanced amount of alimony
pendente lite should be from the date of order passed by the
learned Court below i.e. from 15.06.2015. So, the arrear accrued
from 15.06.2015 to 31.03.2016 to be paid by six monthly
instalments and first such instalment shall fall due on 2nd April,
2016. The husband shall go on paying the current alimony
pendente lite amount of Rs.12,000/- from 2nd April, 2016.
Amount of Rs.3,000/-, if paid by the husband after 15.06.2015,
shall be adjusted with the amount of Rs.12,000/-.
 13. Accordingly, the impugned order dated 15.06.2015
passed by the learned Court below in Mat Suit No. 13 of 2009 is
hereby modified in the light of observation made above. This
judgment will govern the C.O. 2948 of 2015 and C.O. 2614 of
2015. 14. Let a copy of this order be sent to the learned Court
below for his information and taking necessary action in
accordance with law.
 15. Urgent certified photocopy of this Judgment and order,
if applied for, be supplied to the parties upon compliance with all
requisite formalities.
 (SIDDHARTHA CHATTOPADHYAY, J.)
A.F.R/N.A.F.R.
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