Adhir Chandra Das vs Smt. Rakhi Dey
2022 Latest Caselaw 4697 Gua

                                                                    Page No.# 1/4

GAHC010063072022




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                  Case No. : Mat.App./7/2022

            ADHIR CHANDRA DAS
            S/O LATE JATINDRA CHANDRA DAS, RESIDENT OF SIRAJULI COLONY,
            GAUR BASTI, PO SIRAJULI, MOUZA AND PS DHEKIAJULI, DIST SONITPUR,
            ASSAM.



            VERSUS

            SMT. RAKHI DEY
            W/O SRI ADHIR CHANDRA DAS D/O LATE AMULLYA DEY, RESIDENT OF
            VILLAGE AMONI, NEAR MAHARAJ LINE HOTEL, PO AMONI, DIST
            NAGAON, ASSAM



Advocate for the Petitioner   : MR G N SAHEWALLA

Advocate for the Respondent : MR. B C DAS




             Linked Case : I.A.(Civil)/2273/2022

            SMT. RAKHI DEY
            W/O SRI ADHIR CHANDRA DAS D/O LATE AMULLYA DEY
            RESIDENT OF VILLAGE AMONI
            NEAR MAHARAJ LINE HOTEL
            PO AMONI
            DIST NAGAON
            ASSAM
                                                                              Page No.# 2/4


            VERSUS

            ADHIR CHANDRA DAS
            S/O LATE JATINDRA CHANDRA DAS
            RESIDENT OF SIRAJULI COLONY
            GAUR BASTI
            PO SIRAJULI
            MOUZA AND PS DHEKIAJULI
            DIST SONITPUR
            ASSAM.


            ------------
            Advocate for : MR. B C DAS
            Advocate for : MR M SAHEWALLA appearing for ADHIR CHANDRA DAS



                                   BEFORE
                        HONOURABLE THE CHIEF JUSTICE
                    HONOURABLE MR. JUSTICE SOUMITRA SAIKIA
                                   ORDER

29.11.2022 (R.M. Chhaya, CJ) Heard Mr. B. C. Das, learned counsel for the applicant. Also heard Mr. Pinak Deka, learned counsel appearing for the respondent.

2. The present application is filed in a Matrimonial Appeal, which is pending consideration. The appellant has filed the appeal challenging the judgment and decree dated 08.03.2019, passed by the learned Additional District Judge, Sonitpur, in Title Suit (M) No. 30/2016, whereby the petition for divorce filed by the opponent herein- original appellant under section 13(1)(ib) of the Hindu Marriage Act, 1955 came to be dismissed. The said appeal has been admitted by a Coordinate Bench of this Court vide order dated 04.04.2022 and, pending the said proceedings, the present application is preferred by the applicant-original respondent, i.e. wife of the appellant, wherein it is inter alia prayed as under:

"In the premises aforesaid it is therefore, humbly prayed that this Hon'ble Court may be pleased to admit this Application and further be pleased to direct the Page No.# 3/4

appellant/respondent to pay the litigation cost to the applicant to enable her to contest the case and/or may be pleased to pass any such justified order/orders as Your Lordships may be deem fit and proper in the interest of justice."

3. It is averred in the application that the opponent-original appellant is paying only Rs. 2,000/- per month as maintenance allowance to the applicant and her son and she is earning her livelihood by working as a Casual Anganwadi worker, whereas the opponent/original appellant was working as a Professor in Kalaguru Bishnu Rabha Junior College, Urang and was earning Rs. 1,00,000/- (Rupees One Lakh) per month and now he earns Rs. 50,000/- (Rupees Fifty thousand) per month by way of pension. Referring to the mediation proceedings, which were held as per direction of this Court, it is further contended by the applicant that the applicant had to incurr expenses for the legal proceedings and the present application is filed under Section 24 of the Hindu Marriage Act, 1955 praying for a direction to the opponent-original appellant to pay an amount of Rs. 50,000/- to the applicant as Litigation Cost.

4. In response to the notice issued by this Court, the opponent-original appellant has filed an affidavit-in-opposition and has inter alia contended that originally the opponent-original appellant used to pay Rs. 7,000/- as maintenance allowance, which came to be reduced to Rs. 2,000/- vide an order passed by the competent Court at Koliabor. It is also contended by the opponent-original appellant that he has retired from service and now receives only Rs. 29,959/- per month as pension. It is further contended that Section 24 of the Hindu Marriage Act, under which the present application is filed claiming expenses, would be attracted only during the pendency of the maintenance case and not at the stage of hearing of the Matrimonial Appeal before the High Court and, therefore, the present Application is not maintainable.

5. Learned counsels appearing for the parties have reiterated the contention in the Application and the affidavit-in-opposition respectively.

6. Mr. B. C. Das, learned counsel for the applicant has contended that the applicant is not able to maintain herself with a meagre amount of Rs. 2,000/- per month as she Page No.# 4/4

has to maintain her son as well. It is also contended by the learned counsel for the applicant that the amount claimed by the applicant had to be incurred by the applicant in connection with the mediation proceedings, and the Application being bona fide and maintainable, the same be allowed.

7. Mr. Pinak Deka, learned counsel for the opponent-original appellant has vehemently opposed the application and has contended that the applicant is working as Anganwadi Worker and earning her livelihood and, therefore, the cost of Rs. 50,000/- is not only exorbitant but also unwarranted in the facts of this case. It is also reiterated by the learned counsel for the opponent-original appellant that this Application under Section of the Hindu Marriage Act, 1955 is not maintainable.

8. Having heard the learned counsel for the parties, it cannot be said that the present Application is not maintainable. In the facts of this case, the applicant would be entitled to some cost for the present litigation and the present Application under Section 24 of the Hindu Marriage Act can be entertained by this Court while the appeal is pending. However, at the same time, the plea raised by the applicant for Rs. 15,000/- towards mediation expenses and Rs. 35,000/- towards filing of affidavit and clerkage etc. is, in our opinion, not only excessive but far from reality. In totality of the facts of the case on hand, even if the statement made in the affidavit-in-opposition is believed, considering the income of the opponent-original appellant, the applicant would be entitled to a reasonable amount. Accordingly, we deem it fit to quantify the cost claimed by the applicant at Rs. 10,000/-. The opponent-original applicant is directed to pay an amount of Rs. 10,000/- to the applicant towards the cost of the appeal.

The Application is partly allowed as aforesaid.

                             JUDGE                      CHIEF JUSTICE
             Comparing Assistant