Calcutta High Court (Appellete Side)
Shyamapada Das vs Binapani Das on 18 August, 2023
D/L13 C.R.R. 2798 of 2023
18.08.2023
Bpg.
In Re: An application under Section 482 read with Section 401 of the
Code of Criminal Procedure;
Shyamapada Das
Versus
Binapani Das
Mr. Soumyajit Das Mahapatra
Mr. Supriyo Das
Ms. Madhurai Sinha.
...for the petitioner.
Mr. Navanil De
Mr. Rajeshwar Chakraborty
Mr. Srinjan Ghosh
Mr. Subhrajit Dey
Ms. Monami Mukherjee.
...for the opposite party.
Affidavit of assets and liabilities for non-agrarian
deponent so submitted by the petitioner be kept with the record.
The subject matter of challenge in the present revisional
application relates to judgment dated 12th May, 2023 passed by the
learned Additional District and Sessions Judge, Paschim Medinipur
in Criminal Revision No.51 of 2022 wherein the learned revisional
court on an application made by the opposite party/wife was
pleased to modify and enhance the award of maintenance to the
extent that the petitioner/wife is entitled to get Rs.8,000/- per
month towards the interim maintenance.
Learned advocate appearing for the petitioner has drawn
the attention of this Court to the bank statement particularly with
regard to the pension amount which is remitted which reflects
2
Rs.22,655/-. Learned advocate submits that the petitioner is aged
76 years and the wife has been staying separately for the last 15
years at the upper floor of the house. There is a son who maintains
wife also but unnecessarily the present petitioner is foisted with
such liability.
Learned advocate in order to substantiate his claim has
relied upon the judgment of Kalyan Dey Chowdhury Vs. Rita Dey
Chowdhury Nee Nandy reported in (2017) 14 SCC 200. Reliance has
been made in respect of paragraph 15 of the said judgment which is
set out as follows:
"15. The review petition under Order 47 Rule 1 CPC came to
be filed by the respondent wife pursuant to the liberty granted
by this Court when the earlier order dated 2-2-2015 [Rita Dey
Chaudhury v. Kalyan Dey Chowdhury, 2015 SCC OnLine Cal
10447] awarding a maintenance of Rs 16,000 to the
respondent wife as well as to her minor son was under
challenge before this Court. As pointed out by the High Court,
in February 2015, the appellant husband was getting a net
salary of Rs 63,842 after deduction of Rs 24,000 on account of
GPF and Rs 12,000 towards income tax. In February 2016,
the net salary of the appellant is stated to be Rs 95,527.
Following Kulbhushan Kumar v. Raj Kumari [Kulbhushan
Kumar v. Raj Kumari, (1970) 3 SCC 129] , in this case, it was
held that 25% of the husband's net salary would be just and
proper to be awarded as maintenance to the respondent wife.
The amount of permanent alimony awarded to the wife must
be befitting the status of the parties and the capacity of the
spouse to pay maintenance. Maintenance is always
dependent on the factual situation of the case and the court
would be justified in moulding the claim for maintenance
passed on various factors. Since in February 2016, the net
salary of the husband was Rs 95,000 per month, the High
Court was justified in enhancing the maintenance amount.
However, since the appellant has also got married second time
and has a child from the second marriage, in the interest of
justice, we think it proper to reduce the amount of
maintenance of Rs 23,000 to Rs 20,000 per month as
maintenance to the respondent wife and son."
Reliance has also been made in respect of a reported
judgment of Ananda Ganguly VS. Latika Ganguly reported in 1983
SCC OnLine Cal 253. Emphasis has been laid down in respect of
paragraphs 7 and 9 of the said judgment. Learned advocate has
stressed in paragraph 9 of the said judgment wherein it has been
held that since the wife was staying separately for almost 27 years
the order of maintenance was liable to be set aside.
So far as 1983 SCC OnLine Cal 253 is concerned, the
same is after the evidence was recorded and the final maintenance
amount was decided by the jurisdictional trial court. So far as the
Hon'ble Supreme Court verdict in 2017 is concerned, the same was
a case which is being decided under Section 25(2) of the Hindu
Marriage Act wherein there was an enhancement.
The present case for which the jurisdiction of this Court
has been invoked is at the interim maintenance stage in an
application under Section 125 of the Code of Criminal Procedure. So
far as the provisions of Section 125 of the Code of Criminal
Procedure is concerned, the same is for the purpose of parents, wife
and child who are unable to maintain herself/himself. The yardstick
for consideration in a proceeding under Section 125 of the Code of
Criminal Procedure obviously is on the emphasis on the word
unable to maintain herself or himself.
The present case is at interim maintenance stage which
has been decided by the revisional court by enhancing the sum of
Rs.2,000/- per month to Rs.8,000/- per month. Admittedly, without
entering into any other issues the present petitioner is getting
pension of a sum of Rs.22,655/- . Naturally, the sum of Rs.2,000/-
per month which was decided by the learned Magistrate was not
commensurate with the pension amount which is received by the
petitioner. So far as the quantum is concerned, that is, Rs.8,000/-
per month, I do not find that any plea has been taken in the
affidavit that there has been any sharing of pension benefits of the
petitioner, to which the wife was entitled for sustaining her life.
There are no materials also surfacing regarding the sharing of the
assets of the parties. The learned trial court in seisin of the matter
would have the opportunity to address on the issues in course of
the trial of the main proceedings under Section 125 of the Code of
Criminal Procedure. So far as the quantum which has been decided
by the learned revisional court is approximately 1/3rd of the amount
of pension amount which is being received by the petitioner. As
such, I do not think there is any ground for interference in respect
of the subject matter of challenge in the present revisional
application.
Petitioner would be at liberty to adduce his evidence
before the learned trial court in course of the main proceedings.
With the aforesaid observations, CRR 2798 of 2023 is
disposed of.
All parties shall act on the server copy of this order duly
downloaded from the official website of this Court.
Urgent photostat certified copy of this order, if applied
for, be supplied to the parties upon compliance of all requisite
formalities.
(Tirthankar Ghosh, J.)
