Gauhati High Court
Partha Baidya vs Dipali Das Baidya on 1 October, 2024
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GAHC010113532024
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP(IO)/218/2024
PARTHA BAIDYA
S/O- LATE ASHUTOSH BAIDYA,
R/O- J P R ROAD, JORHAT TOWN, P.O AND P.S- JORHAT, DIST- JORHAT,
ASSAM
VERSUS
DIPALI DAS BAIDYA
W/O- PARTHA BAIDYA,
D/O- DHANINDRA DAS ,
R/O- VILLAGE PATIDOI BHERELA,
P.O- GORUBONDHA MISAMARI,
P.S- MISAMARI, DIST- SONITPUR, ASSAM, PIN-784506
Advocate for the Petitioner : MR G N SAHEWALLA, MS K SARMA,MS K
BHATTACHARYYA,MS T J SAHEWALLA,MR H K SARMA,MS. S. TODI
Advocate for the Respondent : ,
BEFORE
HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA
ORDER
01-10-2024
1. Heard Mr. G. N. Sahewalla, learned Senior counsel assisted by Ms. S. Todi,
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learned counsel for the petitioner.
2. Though, the notice issued by this Court has been duly served upon the
respondent, however, none has appeared for the respondent. This revision
petition is, therefore, heard ex-parte.
3. This application under Article 227 of the Constitution of India read with
Section 151 of the Code of Civil Procedure, 1908 has been filed by the petitioner
Shri Partha Baidya impugning the judgment and order dated 18.04.2024 passed
by the learned District Judge, Jorhat in Misc. (J) Case No. 24/2023 in connection
with Title Suit (M) No. 91/2021.
4. By the impugned order, the Trial Court had allowed the application filed by
the respondent under Section 24 of the Hindu Marriage Act, 1955 granting
maintenance allowance of Rs. 16,000/- per month to the respondent and her
minor son along with a litigation cost of Rs. 50,000/- and an additional amount
of Rs. 3,000/- on the dates when the respondent appears before the Court of
learned District Judge, Jorhat in connection with the aforementioned suit.
5. Mr. G.N.Sahewalla, learned Senior counsel for the petitioner has submitted
that by the impugned judgment and order dated 18.04.2024 the Trial Court,
while fixing the quantum of interim maintenance to be paid by the petitioner to
the respondent, has failed to take into account the affidavit of assets and
liabilities filed by the present petitioner as well as NOC dated 25.01.2023 from
which it is apparent that monthly income of Rs. 64,858/-, earned through the
business was to be divided among five family members and thereafter the
earning of the petitioner comes around Rs. 12,971/-.
6. Learned Senior counsel for the petitioner has also submitted that the Trial
Court has also erred in not taking into account the statement made on oath in
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the affidavit of assets and liabilities by the petitioner to the effect that the
respondent is presently living in her parents' residence and running her
transport business and also sharing the house rent proceeds of the rented
property.
7. Learned Senior counsel for the petitioner has submitted that the petitioner,
considering his earning capacity, is able to pay the litigation cost of Rs. 50,000/-
in installment only. He also submits that the petitioner is ready to pay the cost
of Rs. 3,000/- on every date of appearance, by the respondent, before the Trial
Court. However, he submits that considering the earning capacity of the
petitioner as revealed from his affidavit of assets and liabilities the interim
monthly maintenance to be paid to the petitioner and her son may be reduced.
8. I have considered the submissions of learned Senior counsel for the
petitioner as well as gone through the materials on record including the affidavit
of assets and liabilities.
9. Considering the fact that according to the affidavit of assets and liabilities,
submitted by the petitioner before the Trial Court, the earning from the business
has to be divided equally amongst five members of the family and on doing so
the earning of the petitioner would come to near about Rs. 13,000/-. Also
considering the fact that the said aspect was not taken into consideration by the
learned District Judge, Jorhat while, fixing the quantum of interim maintenance
to be paid to the respondent and her minor son, this Court is of the considered
opinion that the amount of interim maintenance payable to the respondent and
her minor son, during the pendency of the Title Suit (M) No. 91/2021 needs to
be modified.
10. By order dated 28/06/2024, this court has directed the petitioner to pay an
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amount of the Rs. 4000/- per month to the respondent for our monthly
maintenance along with her minor son. The said amount appears to be
approximately 25% of the income of the petitioner which remained with him
after division of the total earning amongst five members of the family. This
court is of considered opinion that, under the facts and circumstances of this
case, the said amount may be regarded as just and reasonable amount of
interim maintenance, which the petitioner has to pay to the respondent and her
minor son during the pendency of the Title Suit (M) No. 91/2021.
11. The petitioner is, therefore, directed to pay an amount of Rs, 4000/- as the
interim monthly maintenance, to the respondent and her minor son, during the
pendency of the Title Suit (M) No. 91/2021.
12. As regards litigation expenses of ₹ 50,000/-is concerned, same shall be paid
by the petitioner to the respondent in eight equal instalments of ₹ 6,250/- each
in every month.
13. In addition to the above, the petitioner shall also pay an amount of ₹ 3000/-
as and when the respondent appears before the Trial Court, in Title Suit (M) No.
91/2021, at Jorhat.
14. The impugned order is accordingly modified to the extent indicated here in
above and this revision petition is accordingly disposed of.
JUDGE
Comparing Assistant
