Upanita Das vs Arunava Das
2021 Latest Caselaw 2743 Cal

sn   9.4.21                     C.O.4386 of 2019
8

                         UPANITA DAS VS. ARUNAVA DAS

                         Mr. Srijib Chakraborty
                         Ms. Sudeshna Basu Thakur
                                        ..for the petitioner
                         Mr. Aniruddha Chatterjee
                         Mr. Sachit Talukdar
                                   ..for the opposite party


                        1.

This revisional application arises out of an

order dated August 8, 2019 passed by the learned

Additional District Judge, Alipore, in Misc. Case No. 2 of

2016 arising out of Matrimonial Suit No. 44 of 2015. The

wife is aggrieved with the quantum of maintenance.

2. Misc. Case No. 2 of 2016 is an application

under Section 24 of the Hindu Marriage Act for

maintenance pedente lite. In the application filed by the

wife under Section 24 of the Hindu Marriage Act,

maintenance pendente lite @ Rs. 30,000/- per month and

Rs.75,000/- as litigation cost was prayed for.

3. Originally, the application was filed and the

affidavit was affirmed by the petitioner, "by occupation

service". On detection of such mistake, a correction was

inserted on the basis of an amendment application and

the petitioner corrected the affidavit as by occupation

"unemployed". This amendment was not challenged by

the husband, and as such the controversy cannot be re-

opened now.

4. It appears that in the application, the

petitioner has elaborately quantified the expenses as

follows :-

"That in view of the above your petitioner pray before your Honour Rs. 7,000/- per month for her square meal, Rs. 2,000/- per month for clothings, Rs. 4,000/- per month for conveyance, Rs. 500/- per month for her communication purpose, Rs. 3,000/- per month for medicine, and another Rs. 13,500/- per month towards cook, maid servants, washing and cleaning, cosmetics and toiletries, other daily miscellaneous hand expenses as per the status of her husband, your petitioner is entitled to get a alimony pendete lite @ Rs. 30,000/- per month and Rs. 75,000/- as Lump Sum amount towards litigation expenses.

The petition is made bonafide for the ends of justice. It is therefore humbly prayed that Your Honour would graciously be pleased to pass an order of alimony pendente lite directing the opposite party to pay alimony @ Rs. 30,000/- per month (including the monthly expenditure) and Rs. 75,000/- as Lump Sum amount towards litigation expenses and or may pass such other order or orders as Your Honour may deem fit and proper.

And your petitioner as in duty bound shall ever pray."

5. The wife is aggrieved because the learned

Court below allowed 1/5th of the income of the husband

as maintenance pendente lite. The Court considered the

husband's income to be Rs.60,000/- per month.

According to the petitioner, the learned Court below

proceeded as if maintenance pendente lite should be in

the ratio of 1/5th of the husband's income as the

standard rate. No other reasons for awarding

maintenance of Rs.12,000/- per month has been

assigned.

6. It is submitted that the husband in his

objection has not mentioned anything about his income.

No evidence has been filed by the husband to prove his

income or to deny the evidence and pleading of the wife.

The wife has filed her written examination in chief in

support of her contentions but such contentions of the

wife has not been denied by any evidence on the part of

the husband.

7. According to Mr. Chakraborty, the evidence

and pleadings of the wife should be accepted as correct

and uncontroverted in the absence of any contrary

evidence. Thus he submitted that the wife should be

paid at least 1/3 of the income of the husband.

8. Mr. Chatterjee, learned Advocate for the

opposite party/husband points out to the cross

examination of the wife in support of his contention that

the wife had been employed in various educational

institutions of repute in the past and as a corollary to

this, it has been urged that she is still earning, but she

has suppressed the fact. He submits that the learned

Court below while considering the possibility of the fact

that the wife may be in employment has rightly allowed

Rs.12,000/- per month.

9. Mr. Chatterjee submits that the wife should

be asked to produce her income tax returns and

employment status before this Court. He further submits

that the husband's parents are dependent on the

husband. The husband did not have any extra income

over and above his expenses.

10. He submits that the Hon'ble Apex Court

had laid down certain guidelines which required both the

parties to file their affidavits of assets before the Trial

Court where the proceeding for maintenance pendente

lite was going on. Heard the parties.

11. The Hindu Marriage Act is a complete code

which provides for the rights, liabilities and obligations

arising from a marriage between two Hindus. Sections

24 and 25 make provisions for providing maintenance to

a party who has no independent income sufficient for his

or her support and necessary expenses. This is a gender-

neutral provision, where either the wife or the husband

may claim maintenance. The pre-requisite is that the

applicant did not have independent income which is

sufficient for his or her support during the pendency of

the lis.

12. In this case, it is the wife's application for

maintenance pendete lite.

13. Reference is made to the decision of

Rajnesh v. Neha and ors. passed by the Hon'ble Apex

Court in Criminal Appeal No.730 of 2020 dated November

4, 2020. The famous judgment of Justice Krishna Iyer in

the matter of Captain Ramesh Chander Kaushal v. Mrs.

Veena Kaushal and ors. reported in (1978) 4 SCC 70, on

the object of maintenance laws has been quoted:-

"9. This provision is a measure of social justice and specially enacted to protect women and children and falls within the constitutional sweep of Article 15(3) reinforced by Article 39. We have no doubt that Sections of statutes calling for construction by courts are not petrified print but vibrant words with social functions to fulfil. The brooding presence of the constitutional empathy for the weaker Sections like women and children must inform interpretation if it has to have social relevance. So viewed, it is possible to be selective in picking out that interpretation out of two alternatives which advances the cause - the cause of the derelicts."

14. While discussing the various judicial

precedents on the point of maintenance, the Apex Court

in Rajnesh (supra) discussed the various criteria for

determining the quantum of maintenance and the

relevant factors to be taken into consideration in order to

quantify the amount. The object behind granting

maintenance is to ensure that the dependent spouse was

not reduced to destitution or vagrancy on account of

failure of the marriage and not as a punishment to the

other spouse. While discussing a decision of the Delhi

High Court, the Apex Court also approved of the factors

to be relevant. Such finding of the Apex Court is at

paragraph 57 of the judgment. The relevant paragraph is

quoted below:-

"(v) The Delhi High Court in Bharat Hedge v Smt. Saroj Hegde laid down the following factors to be

considered for determining maintenance :

1. Status of the parties.

2. Reasonable wants of the claimant.

3. The independent income and property of the claimant.

4. The number of persons, the non-applicant has to maintain.

5. The amount should aid the applicant to live in a similar lifestyle as he/she enjoyed in the matrimonial home.

6. Non-applicant's liabilities, if any.

7. Provisions for food, clothing, shelter, education, medical attendance and treatment etc. of the applicant.

8. Payment capacity of the non-applicant.

9. Some guess work is not ruled out while estimating the income of the non-applicant when all the sources or correct sources are not disclosed.

10. The non-applicant to defray the cost of litigation.

11. The amount awarded u/s 125 Cr.PC is adjustable against the amount awarded u/ 24 of the Act. 17.

(vi) Apart from the aforesaid factors enumerated hereinabove, certain additional factors would also be relevant for determining the quantum of maintenance payable."

15. Unfortunately these factors were not taken

into consideration by the learned court below.

16. The Apex Court also observed that the

financial position of the parents of the wife, the education

of the wife, the potential of the wife to earn money would

not be relevant consideration for grant of maintenance.

While granting maintenance pendente lite, neither the

mere potential nor the actual earning of the wife would be

sufficient to deny the claim of maintenance. In this case,

the Apex Court has reiterated the principle that it was for

the husband to prove his income and substantiate that

such income was not sufficient to provide the

maintenance as claimed by the wife in her application

under Section 24 of the Hindu Marriage Act. If he fails to

do so, then adverse inference should be drawn.

17. In the case in hand, the wife's potential to

earn may exist as she has a post graduate degree, but

from the evidence which has emerged from the

examination-in-chief and cross-examination of the wife, it

appears that she has been out of employment since May,

2014. No contrary evidence is forthcoming from the

husband. The records also reveal that in 2012, the

husband had been appointed in DPS, Siliguri at a salary

of around Rs.23,000/-. Past appointment in a foreign

location has also been disclosed by the wife. It is

expected that in the intervening period, the husband's

income must have gone up by at least three times. The

Apex Court has noted that some guess work cannot be

ruled out while estimating the income of the non-

applicant when the sources or correct sources are not

disclosed. Thus the learned Trial Court rounded of the

figure at Rs.60,000/- per month as the expected income

of the husband at present. The expenses of the wife as

enumerated in the application do not seem to be too

extravagant or unreasonable. Although the wife has

claimed Rs.30,000/-, this Court upon taking into

consideration the relevant factors thinks it prudent to

award Rs.20,000/- per month to the wife as maintenance

pendete lite.

18. The contention of Mr. Chatterjee, that the

wife should be directed to disclose her present income

and file the affidavit of assets as per the direction of the

Apex Court does not impress this Court. The matter was

adjudicated upon and order was passed by the learned

Trial Judge before the decision of the Hon'ble Apex Court

when there was no requirement to file the affidavit of

assets. The evidence of the wife (both chief and cross) and

the pleadings to the effect that the wife did not have any

income of her own has been accepted by the learned Trial

Judge. In the absence of any evidence on the part of the

husband, this Court is of the opinion that taking into

consideration the criteria as laid down by several judicial

precedents on the subject from time to time, Rs.20,000/-

as maintenance pendete lite per month is just and

proper.

19. In the judgment Rajnesh (supra) it was held

that even if the wife has an income, the same would not

be a ground for reducing the maintenance determined to

be payable by the husband. The relevant paragraphs are

set out below:-

"62. The Courts have held that if the wife is earning, it cannot operate as a bar from being awarded maintenance by the husband. The Courts have

provided guidance on this issue in the following judgments.

63. In Shailja & Anr. v Khobbanna, this Court held that merely because the wife is capable of earning, it would not be a sufficient ground to reduce the maintenance awarded by the Family Court. The Court has to determine whether the income of the wife is sufficient to enable her to maintain herself, in accordance with the lifestyle of her husband in the matrimonial home.40 Sustenance does not mean, and cannot be allowed to mean mere survival.

64. In Sunita Kachwaha & Ors. v Anil Kachwaha the wife had a postgraduate degree, and was employed as a teacher in Jabalpur. The husband raised a contention that since the wife had sufficient income, she would not require financial assistance from the husband. The Supreme Court repelled this contention, and held that merely because the wife was earning some income, it could not be a ground to reject her claim for maintenance.

65. The Bombay High Court in Sanjay Damodar Kale v Kalyani Sanjay Kale while relying upon the judgment in Sunita Kachwaha (supra), held that neither the mere potential to earn, nor the actual earning of the wife, howsoever meagre, is sufficient to deny the claim of maintenance.

66. An able-bodied husband must be presumed to be capable of earning sufficient money to maintain his wife and children, and cannot contend that he is not in a Chander Prakash Bodhraj v. Shila Rani Chander Prakash. The onus is on the husband to establish with necessary material that there are sufficient grounds to show that he is unable to maintain the family, and discharge his legal obligations for reasons beyond his control. If the husband does not disclose the exact amount of his income, an adverse inference may be drawn by the Court."

20. Having considered the rival contentions of

the respective parties, it appears that no where in the

objections filed by the opposite party has he mentioned

anything about his income. It is for the husband to prove

his income as it is within his personal knowledge. The

wife's contention is that the husband is earning

something around Rs.80,000/- per month. The learned

Court below having considered the pleadings and

evidence tendered on behalf of the wife, came to the

conclusion that the husband has failed to prove his own

income. In the examination in chief, the wife has

categorically mentioned that the husband has other

income from other sources. In the cross examination, the

wife has said that she had been working as a school

teacher and also on temporary basis as a lecturer in

some institutions of repute but on and from May, 2014,

she was not employed. The statement is quoted below :-

"From the year 2014, I have been out of employment. Volunteers: Lastly I worked at Adamas International School at Belgharia on and from the month of June or July in the year 2013 up to the month of May, 2014.

Lastly, I received Rs.17,400/- per month (Approximately) from that school."

21. In her further cross-examination, she also

has stated that on and from May, 2014, she applied for

jobs in several places including educational institutions.

In support of her contentions, she had also filed some

documents before the court but according to her, in spite

of the applications she had not been offered any job in

any educational institution.

22. When such evidence is on record and no

contrary evidence had been put forward by the husband,

this court sitting in jurisdiction under Article 227 of the

Constitution of India cannot re-appreciate the evidence

which are already on record. The learned Court below

also did not disbelieve any statement or contention of the

wife but erred in calculating the amount of maintenance

pendente lite as 1/5th without any reasons as if it was the

standard rate prescribed by judicial precedents. The

ratio could be between 1/3 to 1/5 of the husband's

income depending on the facts of a given case.

23. It has been settled that while calculating

the maintenance pendente lite the income of the wife has

to be taken into account. Here, in this case, what has

emerged from the evidence of the wife is that she has

been out of employment since 2014. The husband has

not produced any contrary evidence. The cross-

examination of wife has already mentioned hereinabove.

The husband has also not been able to show the

expenses that he has to incur for himself and his

parents. Maintenance pendente lite for the wife has to be

allowed by taking into consideration certain parameters

which include food, clothing, shelter, medical expenses,

rent and other out of pocket expenses.

24. The wife should be able to live in the

status and condition at par with the husband. If the

husband was a senior school teacher as would appear

from the evidence produced by the wife with regard to the

status of the husband, in my opinion, Rs.20,000/-, that

is, 1/3 of Rs.60,000/- as maintenance pendente lite

should be justified for the expenses of a lady, who comes

from a good middle class background and is well

educated. There is no evidence to show that the husband

does not have any income to support his wife.

25. The order impugned is modified to the

above extent. With regard to the direction for payment of

maintenance pendente lite and arrear they will remain

the same. The amount awarded shall be inclusive of any

amount which has already been directed to be paid in

any other proceeding. The current maintenance shall be

paid with effect from April, 2021 within 20th of the

month. Thereafter on and from May 2021 the

maintenance shall be paid within 15th of every month as

directed by the learned court.

26. With the above observations, this

revisional application is disposed of.

27. There will be however no order as to costs.

Urgent photostat certified copy of this order be

given to the parties on priority basis, if the same is

applied for.

(Shampa Sarkar,J.)