Smt. Piyali Mitra vs Sri Prasanta Mitra
2022 Latest Caselaw 127 Cal

19.01. 2022
 Ct. 21
 D/L 29
  ab



                                 C.O. 994 of 2020
                              (Via Video Conference)

                                 Smt. Piyali Mitra
                                        -Vs-
                                 Sri Prasanta Mitra



              Ms. Priyanka Mondal,
                                               ...for the petitioner

              Mr. Prantick Ghosh,
                                             ... for the respondent



                    The petitioner's wife being aggrieved by the order

              the interim order of pendente lite alimony at the rate of

              rupees Five thousand per month towards support of the

              minor child and litigation cost of rupees Five thousand

              awarded by the learned Additional District Judge, 3rd

              Court, Barrackpore in MAT Suit No. 2077/17 on

              19.12.2019 has filed the present application under

              Article 227 of the Constitution of India.

                    Facts

of the case in gist is that present opposite

party Prasanta Mitra has filed a Matrimonial Suit No.

2077/17 for dissolution of his marriage with the

present petitioner, which was solemnized according to

Hindu rites and customs on 16.06.2011. While enjoying

marital bliss they jointly purchased a flat in Durganagar

after taking loan from the bank as the husband works

as a commercial manager in SENCO Gold and earn

rupees Sixty thousand per month and wife works as a

sales girl in Tanisq, Barasat and earns around rupees

Twenty Five thousand.

A daughter was born to them in 20.07.2015. That

their relationship started deteriorating after the birth of

the child and ultimately the husband left the

matrimonial home on 01.11.2017 and refused to

maintain the family and pay the loan of the flat. All the

responsibility fell on the wife who had to take care of

the child's upbringing, her educational expenses as the

child is studying in a English Medium school at Barasat

and her medical expenses and also the responsibility of

payment of installment of loan of the flat. Taking into

consideration such facts as stated in the petition and

written objection of the parties, the learned Court below

passed the impugned order.

Now, by filling the present application the

petitioner wife has alleged that the Court below passed

the impugned order without adjudicating the necessity

and requirement of the child. The Court below without

any reason failed to award pendente lite alimony in

favour of the wife and without recording the oral

evidence of the parties and without directing the

husband to produce his salary certificate.

It has been alleged by the wife that due to non-

payment loan, bank has already served a notice under

SARFAESI Act. She has filed resignation sent to her

employer by email on 21.01 2020 and alleged that at

present she is unemployed and husband is bound to

maintain her. Here, I find the wife has tendered her

resignation to pursue other career aspirations after the

passing of the impugned order.

Therefore, I find by filing by filing present

revisional application the petitioner has not only

challenged the legality of the order impugned, but also

brought certain subsequent facts that have been

developed after the passing of the order impugned.

Hon'ble Supreme Court in Rajnesh Vs. Neha

reported in 2021(2) SCC 324 has been pleased to frame

guidelines on the issue for payment of maintenance,

payment of interim maintenance, the criteria for

determining the quantum of maintenance, the date

from which the maintenance is to be awarded and

enforcement of order of maintenance in different

enactments.

The Supreme Court on the issue of payment of

interim maintenance directed the following.

a. The affidavits of Disclosure of Assets and

Liabilities shall be filed by both the parties in all

maintenance proceedings before the concerned

Court as the case may be, throughout the country.

b. If any further information is required, the

concerned court may pass appropriate orders in

respect thereof.

c. The income of one party is often not within the

knowledge of the other spouse. Hence, the Court

may invoke Section 106 of the Evidence Act, 1872 if

necessary, since the income, assets and liabilities

of the spouse are within the personal knowledge of

the party concerned.

d. If during the course of proceedings, there is a

change in the financial status of any party, or there

is a change of any relevant circumstances, or if

some new information comes to light, the party may

submit an amended/supplementary affidavit,

which would be considered by the court at the time

of final determination.

e. The pleadings made in the applications for

maintenance and replies filed should be responsible

pleadings; if false statements and

misrepresentations are made, the Court may

consider initiation of proceeding u/S. 340 Cr.P.C.,

and for contempt of Court.

f. In case the parties belong to the Economically

Weaker Sections ("EWS"), or are living Below the

Poverty Line ("BPL"), or are casual labourers, the

requirement of filing the Affidavit would be

dispensed with.

g. The concerned Family Court / District Court /

Magistrate's Court must make an endeavor to

decide the I.A. for Interim Maintenance by a

reasoned 37 order, within a period of four to six

months at the latest, after the Affidavits of

Disclosure have been filed before the court.

The Supreme Court on the issue of permanent

alimony gave the following directions:

a. Parties may lead oral and documentary evidence

with respect to income, expenditure, standard of

living, etc. before the concerned Court, for fixing

the permanent alimony payable to the spouse.

b. In contemporary society, where several

marriages do not last for a reasonable length of

time, it may be inequitable to direct the contesting

spouse to pay permanent alimony to the applicant

for the rest of her life. The duration of the marriage

would be a relevant factor to be taken into

consideration for determining the permanent

alimony to be paid.

c. Provision for grant of reasonable expenses for

the marriage of children must be made at the time

of determining permanent alimony, where the

custody is with the wife. The expenses would be

determined by taking into account the financial

position of the husband and the customs of the

family.

d. If there are any trust funds / investments

created by any spouse / grandparents in favour of

the children, this would also be taken into

consideration while deciding the final child support.

The Supreme Court further directed in the

judgment the criteria for determining the quantum

of maintenance and provided the following factors

to be considered by the court:

1. Status of the parties,

2. Reasonable needs of the wife and dependent

children,

3. Whether the applicant is educated and

professionally qualified,

4. Whether the applicant has any independent

source of income,

5. Whether the income is sufficient to enable her

to maintain the same standard of living as she was

accustomed to in her matrimonial home,

6. Whether the applicant was employed prior to

her marriage,

7. Whether she was working during the

subsistence of the marriage,

8. Whether the wife was required to sacrifice her

employment opportunities for nurturing the family,

child rearing, and looking after adult members of

the family,

9. Reasonable costs of litigation for a non-

working wife,

10. The financial capacity of the husband,

11. His actual income,

12. The spiraling inflation rates and high costs of

living,

13. Reasonable expenses for his own

maintenance, and dependent family members

whom he is obliged to maintain under the law, his

liabilities if any.

Further the Supreme Court held that

maintenance in all cases will be awarded from the

date of filing the application for the maintenance

before the concerned court. For enforcement/

execution of the orders of maintenance, an order or

decree of maintenance may be enforced under

Section 28A of the Hindu Marriage Act, 1956;

Section 20(6) of the D.V. Act; and Section 128 of

Cr.P.C., as may be applicable. The order of

maintenance may be enforced as a money decree of

a civil court as per the provisions of the CPC, more

particularly Sections 51, 55, 58, 60 r.w. Order XXI.

Section 24 and 25 of the Hindu Marriage Act,

1955 make provision for maintenance to a party who

has no independent income sufficient for his/her

support and necessary expenses. The prerequisite is

that the applicant does not have independent income

which is sufficient for her or her support, during the

pendency of the lis.

After taking into consideration the averments

made by the wife in her application and where she

has invariably stated that she is the one who was

making payment of the loan installment to save the

flat. She is taking care of daily needs of the minor

child including her educational expenses and

medical expenses and finding wife having her own

independent source of income the learned court

below has passed the impugned order granting

pendent lite maintenance only in respect of the

child without calling parties to adduce oral and

documentary evidence to prove their actual income,

status and whether the income of the wife is

sufficient to maintain herself and child to the

standard of life to which she is/was accustomed to

and the income of the wife is sufficient to meet her

reasonable meet.

Now, it has come on record the wife has already

tendered resignation. That in view of direction of the

Hon'ble Supreme Court in the above cited decisions the

wife has to submit an amended supplementary affidavit

before the trial court and who would consider the same

at the time of final hearing. If the wife is no more in

service then it would be difficult for her to maintain her-

self and a minor school going child with a paltry sum of

rupees Five thousand as awarded towards interim

maintenance of the child.

Having regards to events that have taken place

subsequent to the passing of the impugned order, this

court is of view that wife petitioner has to bring

subsequent events to the knowledge of the lower Court

who passed the impugned order and for modification of

the order impugned. Therefore, order impugned is set

aside with a direction to learned court below to consider

the application of the wife under section 24 of the

Hindu Marriage Act, 1955 afresh. The petitioner wife is

directed to file supplementary affidavit in respect of

subsequent events and also calling salary certificate

from the employer of the husband and also from the

employer of the wife provided the wife is working in

some other concern.

Accordingly, the revisional application being C.O. 994

of 2020 is disposed of.

Connected application, if any, is disposed of.

Interim orders, if any, stands discharged.

There will be no order as to costs.

In view of the order made above affidavits are not

invited. Allegations made shall be deemed to be

denied.

All parties shall act in terms of the copy of the

order downloaded from the official website of this

Court.

Urgent Xerox certified photocopies of this

judgment, if applied for, be given to the parties

upon compliance of the requisite formalities.

(Kesang Doma Bhutia, J.)

Accordingly C.O. -- of -- is dismissed. Connected

applications are disposed of.

Interim order, if any, stands discharged.

In view of the order made above Affidavits are not

invited. Allegations made shall be deemed to be denied.

There will be no order as to costs.

All parties are directed to act on a server copy of

this order duly downloaded from the official website of

this Court.

Urgent Photostat certified copies of this order, if

applied for, be given to the parties upon compliance of

all requisite formalities.

( Kesang Doma Bhutia, J.)