The High Court of Calcutta, while dismissing a petition filed against the judgment passed by the Learned Additional Sessions Judge thereby affirming the judgment that convicted the present petitioner and sentenced him to suffer simple imprisonment for the offense punishable u/s 26(i) (e) (f) of Indian Forest Act 1927, held that the non-mention of Section 26 in the application does not affect the substance of the prayer for maintenance and even if no formal application has been made under Section 26 or a wrong section has been quoted in the application for the interim maintenance of the children, still relief under Section 26 can be granted.
Brief Facts:
The petitioner and the opposite party got married. However, alleging cruelty, the wife/opposite party left her matrimonial home, with two minor children. The wife/opposite party herein filed an application under Section 24 of the Hindu Marriage Act. It was alleged that the petitioner never contributed any amount for the maintenance of the daughters. Learned Court below allowed the said application in part by the impugned order by directing the husband/petitioner herein to pay Rs. 2,000/- per month to each daughter. Hence, the present petition by the husband.
Contentions of the Petitioner:
The learned counsel appearing on behalf of the Petitioner submitted that the amount awarded is exorbitant and the Court below has passed the order without considering the financial condition of the Petitioner who earns much less than her wife. He argued that the wife/opposite party herein is a well-paid primary school teacher and has sufficient financial capacity to maintain both children.
Contentions of the Respondent:
The learned counsel appearing on behalf of the Respondent submitted that the husband/petitioner herein has huge landed property wherefrom he earns a lot and he also runs a medical shop and he is still working as an employee of village Gram Panachayat wherefrom also he is getting a salary and being an able-bodied person and also being the father of the two children he is bound to maintain his minor daughters.
Observations of the court:
The court noted that the language of Section 24 does not talk of granting of pendent lite maintenance of the children as there is a separate provision under Section 26 for maintenance of minor children toward interim relief in any pending proceeding and for which ideally the petitioner ought to have filed the application under Section 24 (for litigation cost) read with Section 26 or a separate petition under Section 26 for maintenance of children.
The Court observed that the non-mention of Section 26 in the application does not affect the substance of the prayer for maintenance and even if no formal application has been made under Section 26 or a wrong section has been quoted in the application for the interim maintenance of the children, still relief under Section 26 can be granted. This is because Courts should look to the substance of the application and should not pay too much importance to the technicalities of the pleadings. The Court has complete discretion in this regard.
The decision of the Court:
The Calcutta High Court, dismissing the petition, held that considering the welfare of the children, in making the order impugned, the Court below did not commit any illegality or impropriety.
Case Title: Ratan Kumar Das v. Smt. Lily Das nee Roy @ Lili Das
Coram: Hon’ble Mr. Justice Ajoy Kumar Mukherjee
Case No.: C.O. 2178 of 2018
Advocate for the Petitioner: Ms. Poulami Chakraborty
Advocate for the Respondent: Ms. Manali Biswas
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