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 V Smt. Krishna Biswas
Present : The Hon’ble Mr. Justice Siddhartha Chattopadhyay

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

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Whether defence of husband is liable to be struck off if he fails to pay maintenance and litigation expenses to wife?

No doubt, wife can file a petition under Order 21 Rule 37 CPC for the recovery of this amount and the husband can be hauled up under the Contempt of Courts also for disobedience of the aforesaid Court's order, but Section 24 of the Act empowers the matrimonial Court to make an order for maintenance pendente lite and for expenses of proceedings to a needy and indigent spouse. If this amount is not made available to the applicant, then the object and purpose of this provision stand defeated. Wife cannot be forced to take time consuming execution proceedings for Realizing this amount. The conduct of the respondent husband amounts to contumacy. Law is not that powerless as to not to bring the husband to book. If the husband has failed to make the payment of maintenance and litigation expenses to the wife, his defense can be struck out. No doubt, in this appeal he is respondent. His defense is contained in his petition filed under Section 13 of the Act. in a plethora of decisions of this Court Smt. Swarno Devi v. Piara Ram 1975 HLR 15; Gurdev Kaur v. Dalip singh 1980 HLR 240; Smt. Surinder Kaur v. Baldev singh 1980 HLR 514, Sheela Devi v. Madan Lal 1981 HLR 126 and Sumarti Devi v. Jai Parkash 1985 (1) HLR 84 it is held that when the husband fails to pay maintenance and litigation expenses to the wife, his defense is to be struck out. The consequence is that the appeal is to be allowed and his petition under Section 13 of the Act is to be dismissed.

Delhi High Court

Smt. Santosh Sehgal vs Shri Murari Lal Sehgal on 12 May, 2006

Equivalent citations: AIR 2007 Delhi 210, 130 (2006) DLT 643, II (2006) DMC 179

Bench: V Jain, S Aggarwal

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