Jyostnarani Khatua vs Samir Ranjan Behera
2022 Latest Caselaw 1664 Ori

AFR             IN THE HIGH COURT OF ORISSA AT CUTTACK

                               C.M.P. No.560 of 2019

          In the matter of an application under Article 227 of the Constitution
          of India, 1950.
                                        -----------

          Jyostnarani Khatua                           ....          Petitioner

                                          Versus

          Samir Ranjan Behera                            .... Opposite Party

              For Petitioner         ... Mr.R.K.Satpathy, D.Dash,
                                       S.K.Kanungo, Advocate
                                       Arguing Counsel-Mr.Lalit Mishra.
              For Opposite Party     ... M/s. M.Pihan, Advocate


                                   JUDGMENT

PRESENT:

THE HONOURABLE JUSTICE BISWANATH RATH

Date of Hearing: 15.02.2022 Judgment:04.03.2022

Biswanath Rath, J. This C.M.P. is filed by the wife-Petitioner seeking

appropriate direction for granting appropriate monthly maintenance

in her favour in setting aside the order dated 17.04.2019 passed by

the learned Judge, Family Court, Jagatsinghpur in I.A. No.284 of

2018 arising out of C.P. No.54 of 2016.

// 2 //

2. Brief fact involving the case is that the wife-Petitioner

married the husband-Opposite Party on 17.02.2009. After

solemnization of marriage both the husband and wife stayed

together at Mumbai. At the time of marriage the husband was

working as AGM, Grade-C in Reserve Bank of India, Mumbai and

after some time the wife also got a job at Mumbai in UTI

Infrastructure Technology and Services Ltd. with Rs.50,688/-

salary per month. While the matter stood thus, on being transferred

to Bhubaneswar the husband instituted a Civil Proceeding bearing

C.P. No.54 of 2016 U/s.13 of the Hindu Marriage Act involving

various allegations against the wife-Petitioner. Upon receipt of

notice in the proceeding under Section 13 of the Hindu Marriage

Act, the wife on her appearance resisted all the allegations made

therein. During pendency of the aforesaid proceeding the wife-

Petitioner filed an application U/s.24 of the Hindu Marriage Act

before the learned Judge, Family Court, Jagatsinghpur seeking

monthly interim maintenance as well as litigation expenses. In

filing application under Section 24 of the Hindu Marriage Act,

wife while disclosing that she is also an earner being an employee

under UTI Infrastructure Technology and Services Ltd., in

claiming monthly maintenance at least @ Rs.30,000/- and

// 3 //

Rs.3,00,000/- towards litigation expenses, the wife in paragraph-5

claimed the husband being an Officer in Reserve Bank of India is

getting monthly salary around Rs.1,30,000/- per month. In

support of her case, the wife has also disclosed in paragraph-4 that

her earning is at a very lower side and for desertion by husband she

is compelled to take independent accommodation. For her

accommodation purpose in the city like Bombay, claimed she is not

only required to spend a sum of Rs.16,000/- towards house rent

further a sum of Rs,3,000/- towards electricity charges, besides,

she used to spent a sum of Rs.1,500.- at least per day towards car

hiring charges to move between her rented house and office

premises.

3. It appears, on being noticed in the Section 24 of the Hindu

Marriage Act proceeding instituted by the wife-Petitioner the

husband-Opposite Party appearing therein averred that though the

marriage between them is admitted, the wife-Petitioner put the

husband into untold harassment and misbehaved causing physical

and mental torture to him. It is further claimed by the husband

therein that the expenses narrated by the wife-Petitioner was more

exaggerated and due to the torture imparted by the wife Petitioner,

// 4 //

he got compelled to institute the aforesaid civil proceeding under

the Hindu Marriage Act.

4. From the objection of the husband to the proceeding under

Section 24 of the Hindu Marriage Act, it appears, while husband

claiming the wife earning a sum of Rs. 65,000/- per month but

husband did not volunteer regarding his income nor disputed the

submission of the wife on his income. The trial court coming to

consider the rival claims, by the impugned order dated 17.04.2019

however decided the matter solely on the basis of a decision of the

Hon'ble Apex Court in the case of Kalyan Dey Chowdhury -Vrs.-

Rita Dey Chowdhury, reported in AIR 2017 (SC)2383 where in

paragraph-16 the Hon'ble Apex Court appears to have held that

there should not be grant of maintenance less than 25% of the

monthly salary of the husband. It is here taking this decision into

account and keeping in view the salary earned by the wife, the trial

court has come to observe since the wife is already in the earning

of more than 25% of the husband's income, she need not be

entitled to any further maintenance.

5. Challenging the aforesaid order in the refusal of the interim

maintenance in favour of the wife, Mr.Mishra, learned counsel

appearing on behalf of the petitioner taking this Court to the

// 5 //

grounds in the Civil Miscellaneous Petition submitted that

undisputedly both the wife and husband are earners. It is claimed

that the husband is earning a sum of Rs.1,30,000/- and the wife is

earning Rs.50,000/- and odd both per month as their salary. It is

made clear that for the separation between wife and husband, the

wife is not only required to spend towards house rent, electricity

charges and independent travelling expenses and if these expenses

are taken into account, there should not remain any doubt that the

wife is maintaining a life of inferior standard than the husband.

For the settled position of law, Mr.Mishra, learned counsel for the

petitioner contended that there is no difficulty in taking into

account the income of the wife but while considering the question

of grant of interim maintenance in case of an employed wife, the

income and maintenance of standard of life by both should also be

kept in mind. Mr.Mishra, learned counsel while claiming wrong

application of Hon'ble apex Court, decision by the trial court on

the basis of present income of the husband to be Rs.2,54,540/- per

month from July, 2021 submitted that paramount consideration of

Court to say that wife is maintaining equal standard of life and

wife's meager income should not come into way of granting her

interim maintenance. In the circumstance Mr. Mishra, learned

// 6 //

counsel urged this Court while interfering in the impugned order

so far it relates to non-grant of interim maintenance this Court

grant reasonable interim maintenance to the wife involved.

6. It is taking this Court to the decision referred by the trial

Court, Mr.Mishra, learned counsel for the petitioner contended that

the impugned order becomes bad on the premises that there has

been wrong consideration of the Apex Court decision referred to

therein. It is in reference to a decision of this Court in the case of

Khirodini and Ors. -Vrs.- Dinamani Suna decided on 05.11.2015

in C.M.P.No.239 of 2015, reported in 2016(I) OLR 285,

Mr.Mishra, learned counsel for the petitioner contended that in

similar situation taking into account the income of both, this Court

directed for payment of interim maintenance in favour of the wife.

There has been reference of decision in the case of Sridhar

Bandaru -Vrs.- Vijaya Krishnamurty, AIR 2019 MP 127, in the

case of Neeta Rakesh Jain -Vrs.- Rakesh Jeetmal Jain, AIR

2010 SC 3540 asking for increase in the grant of interim

maintenance.

7. On his contest, Mr.Pihan, learned counsel appearing for the

husband taking this Court to the decision taken support by the trial

court and for the admission of both parties regarding their earning

// 7 //

status while not even disputing the wife's claim on present

income of husband more than Rs.2,54,540/- contended that there

has been right appreciation on the interim maintenance aspect by

the trial court and pleaded that for the settled position of law by this

time, there should not be entitlement of the wife more than 25% of

the husband's income. It is in the circumstance, learned counsel

appearing for the opposite party-husband attempted to support the

impugned order. On the present income aspect of the husband,

Mr.Pihan, learned counsel contested the same on the premises that

since such a stand was not available in the trial court, there is no

question of taking into account the fresh stand and the decision in

the impugned order involved confined to the material placed in the

court below.

8. Considering the rival contentions of the parties, this Court

finds undisputedly both the parties are earners being employed.

Husband is an employee of Reserve Bank of India whereas the wife

is an employee of a private establishment. Husband did not dispute

with regard to his earning Rs.1,30,000/- per month as claimed by

the wife. There is also no denial to the wife earning Rs.50,688/-

per month. It is in this situation, keeping in view the claim of the

wife that for there is separation and a desertion of a wife at the

// 8 //

instance of the husband, the wife is in requirement of an

independent house for which she claims to be spending Rs.16,000/-

per month as house rent. There is also claim at the instance of the

wife that she also spent a sum of Rs.3,000/- towards electricity

charges. Looking to place of working of the wife, there cannot be

any doubt that she must be spending a huge amount for up & down

to her office and back to her rented home. This Court for the above

background here observes there is no denial towards spending of

huge amount by the wife while in employment in a private

establishment in Bombay. On the other hand, husband is an

employee of Reserve Bank of India holding a Management post

and undisputedly in the salary statement for the month of July,

2018, as provided by the Reserve Bank of India showing gross

salary of the husband to be Rs.1,60,657/- per month and for the

submission of the husband, the husband is a resident of

Bhubaneswar being his service place, there is no doubt that there is

huge difference in maintaining of livelihood in between

Bhubaneswar and a city like Mumbai. It is keeping in view all the

above, this Court at this stage going through the decision in the

case of Kalyan Dey Chowdhury -Vrs.- Rita Dey Chowdhury,

reported in AIR 2017 (SC)2383 finds there cannot be any dispute

// 9 //

in the decision taken therein. Going through the decision, this

Court finds this is a case where both husband & wife were in

employment. The husband while getting net salary of Rs.87,500/-

per month being posted at Malda Medical College, Malda, West

Bengal the wife also earned Rs.30,000/- per month as a qualified

beautician and Montessori teacher and the son has also attained

eighteen years of age. Hon'ble apex Court considering that wife is

employed but, however, taking into account the materials available

therein and plea of the parties reduced the interim maintenance

granted by High Court @ Rs.60,000/- in addition to grant of

Rs.10,000/- by the original court to Rs.25,000/- per month in

addition to what she was in receipt by the order of the criminal

court. At the cost of repetition it is said the grant of interim

maintenance was in addition to what the wife was earning. Lower

court measurably failed to understand the Hon'ble apex Court

judgment in AIR 2017 (SC) 2383 and proceeded wrongly.

9. It is here this Court taking into account the decision in the

case of Neeta Rakesh Jain -Vrs.- Rakesh Jeetmal Jain, AIR 2010

SC 3540 where in paragraph-8 the Hon'ble Apex Court has come

to observe even though provision at Section 24 of the Hindu

Marriage Act gives ample power on a Court to take decision in the

// 10 //

matter of granting pendent lite and litigation expenses, but while

doing so for the language in the section, it is to be kept in mind

while fixing interim maintenance, while giving due regard to the

income of both the parties, the discretion of the court must be

guided by the guideline provided in the section, namely, means of

the parties and also after taking into account incidental and other

relevant factors like social status, the background from which both

the parties come from and the economical dependence. Here this

Court likes to observe expenditure requirement looking to the place

of residence while taking a decision in the matter of interim

maintenance. It is for the disclosure of expenses required to be

meted by the wife-petitioner disclosed in paragraph-4 and the

income of both the wife and husband discussed hereinabove, this

Court is of the view that there is definite deprivation of maintaining

of a standard life living at Bombay with that of the maintenance of

life of the husband at Bhubaneswar. This Court finds there should

be grant of interim maintenance not only to see equal standard of

maintenance of life by both wife and husband but also to ensure

wife maintains a minimum standard of life to that of the husband.

This Court here also takes into account a decision of this Court in

the case of Khirodini & Ors. -Vrs.- Dinamani Saha, reported in

// 11 //

2016 (I) OLR 285. Principle therein clearly comes to aid of the

wife-petitioner. Similarly, this Court also takes into account a

decision (2018) 12 SCC 199 where Hon'ble apex Court held the

court has to determine whether the income of the wife is sufficient

to enable her to maintain herself in accordance with the life style

of her husband in the matrimonial home. The case reported in

(2008) 2 SCC 316 also gets support to the case of the petitioner.

Keeping this in view and the income of both the wife and husband,

this Court while declaring the refusal of grant of maintenance by

the trial court as bad, interfering in the impugned order only in that

respect directs the husband to pay at least a sum of Rs.15,000/-

(Rupees fifteen thousand) per month towards interim maintenance

to the wife to be paid by 7th of every succeeding English

calendar month. Direction so far it relates to litigation expenses

stands confirmed. As a consequence the wife will also be entitled

to arrear maintenance from the date of application at the above rate.

The whole arrear be calculated by the husband and shall be

released in favour of the wife in 4 (four) equal by monthly

instalments to be cleared within 8 (eight) months hereafter. The

impugned order interfered with to the extent indicated hereinabove.

Claim of wife on the basis of gross salary presently earned by

// 12 //

the husband since not involved in the lower court proceeding, this

Court while refusing to entertain such aspect leave it to the party

to undertake an appropriate exercise.

10. In the event the main proceeding is still pending, this Court

directs the court below to expedite the trial involving application

under Section 13 of the Hindu Marriage Act and conclude the

same preferably within one year.

11. In the result, the C.M.P. succeeds. No order as to cost.

....................................

BISWANATH RATH, J.

Orissa High Court, Cuttack.

Dated the 4th day of March, 2022/SKS