Calcutta High Court (Appellete Side)
Chinmoy Dutta vs Smt. Patralekha Dutta on 14 September, 2011
Author: Prasenjit Mandal
Bench: Prasenjit Mandal
1 Form No.J(2) IN THE HIGH COURT AT CALCUTTA CIVIL REVISIONAL JURISDICTION APPELLATE SIDE C.O. No. 164 of 2011 Present :
The Hon'ble Mr. Justice Prasenjit Mandal
Chinmoy Dutta.
Versus
Smt. Patralekha Dutta.
For the petitioner: Mr. Bidyut Kr. Banerjee, Mr. Asit Baran Raut.
For the opposite party: Mr. Buddhadev Ghoshal, Mr. Arabinda Sen, Ms. Rita Ganguly.
Heard On: 09.08.2011, 24.08.2011, 30.08.2011, 05.09.2011, 07.09.2011 & 08.09.2011.
Judgement On: September 14, 2011.
Prasenjit Mandal, J.: This application is at the instance of the husband / petitioner and is directed against the Order No.83 dated December 20, 2010 passed by the learned Judge, 5th Fast Track Court, Alipore in Misc. Case No.32 of 2004 arising out of the Matrimonial Suit No.9 of 2004 thereby disposing of an application under Section 24 of the Hindu Marriage Act.
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The application for alimony filed by the wife / opposite party herein in the said matrimonial suit was converted into the Misc. Case No.32 of 2004.
Upon hearing both the sides and on consideration of the application, its objection and the materials on record, the learned Trial Judge allowed the misc. case on contest. The following facts are not in dispute:-
a) The husband / petitioner herein and the wife / opposite party herein were married on November 27, 1997 under the Hindu Marriage Act and subsequently, their marriage was registered under the provisions of the Special Marriage Act, 1954. After the marriage, both the parties lived together as husband and wife at the residence of the petitioner at 5/1, Gour Dey Lane, P.S. Bowbazar, Kolkata-
700012.
b) One daughter, namely, Riya Dutta was born in the wedlock on July 31, 1999.
c) Since February 24, 2002 the wife / opposite party herein has been residing at her father's house along with her daughter, Riya.
d) The husband asked the wife to come back to his house with the daughter and stay with him over telephone, but the wife refused.
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e) The petitioner filed an application for restitution of conjugal rights before the District Court and that application has been converted into the Matrimonial Suit No.9 of 2004.
f) During the pendency of the said application for restitution of conjugal right, the opposite party initiated a proceeding under Section 125 of the Code of Criminal Procedure for maintenance and that application was registered as Misc. Case No.174 of 2003. The learned Principal Judge of Family Court was pleased to pass order granting maintenance at the rate of Rs.1,500/- per month for the child but observed that the wife was not entitled to get any maintenance.
g) Being aggrieved, the wife filed an application for revision before this Hon'ble Court and that application is still pending.
h) Subsequently, the wife filed a criminal case being the Case No.GR/752 of 2007 under Section 498A & 406 of the Indian Penal Code against the petitioner before the Chief Metropolitan Magistrate, Calcutta on March 7, 2007
i) Thereafter, the wife filed an application under Section 24 of the Hindu Marriage Act claiming alimony at the rate of Rs.10,000/- per month and a further sum of Rs.5,000/- towards the litigation cost.
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j) On the prayer of the husband, the said matrimonial suit was converted from the one for restitution of conjugal rights to another for dissolution of marriage by a decree of divorce.
k) The learned Trial Judge granted alimony at the rate of Rs.5,000/- per month for the wife and Rs.3,500/- per month for the minor daughter and a litigation cost of Rs.5,000/- by the impugned order.
l) The husband is an employee of the State Bank of India, Overseas Branch, Kolkata drawing salary at the rate of Rs.27,000/- per month and he has admitted that his take home salary is Rs.24,000/- per month, and
m) The wife has no source of income of her own and her father is a retired service-holder.
Being aggrieved, the husband has preferred this revisional application.
Now, the question is whether the impugned order should be sustained.
Mr. Bidyut Kr. Banerjee, learned Senior Advocate appearing for the petitioner has submitted that the wife / opposite party herein instituted a Misc. Case No.174 of 2003 under Section 125 of the Cr.P.C. before the Family Court and the learned Principal Judge disposed of the said misc. case granting maintenance for the 5 daughter, Riya. The wife brought wild allegations against the husband stating the episodes of Digha and Tarakeswar temple. The learned Principal Judge, Family Court, Kolkata did not believe in such episodes. He has also submitted that as per contention of the husband, on February 24, 2002 the wife requested the husband to let her come to her father's house to look after her sister who was staying at her father's house in the advanced stage of pregnancy and she required four months' time to look after her. Accordingly, one writing was made between the two and as per materials on record placed before the Family Court, the wife voluntarily consented to the said writing and she went to her father's house on her record.
As per observation of the Family Court in the judgment dated May 10, 2007, the learned Principal Judge has observed that the husband requested the wife to come back to his house along with the daughter over television and she refused to come even the husband went to her father's in law's house to bring her back, but the wife refused to come with him. The husband sent registered letter to the wife with acknowledgement card but even then she did not come back.
Under the circumstances, the learned Principal Judge, Family Court observed that the wife was residing at her father's house on her own accord and she was not entitled to get any maintenance for herself.
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'Under the circumstances, according to Section 20 of the Family Court, prayer for alimony for the wife / opposite party herein cannot be granted by the learned Trial Judge of the matrimonial suit. So, the impugned order in respect of the wife should be set aside', submits Mr. Banerjee.
As regards, the maintenance for the child, Mr. Banerjee has submitted that his client is paying maintenance at the rate of Rs.1,500/- per month for the child, even the husband paid garments but, ultimately, the wife refused to take the same. For that reason, the impugned order should be set aside.
In support of his contention, Mr. Banerjee has referred to the provisions of Sections 7, 18 & 20 for the Family Courts Act, 1984 and the decisions of Gita Chatterjee v. Probhat Kumar Chatterjee reported in AIR 1988 Calcutta 83, the decision of Sudeep Chaudhary v. Radha Chaudhary reported in AIR 1999 SC 536 and the decision of Shyamal Kumar Das v. Smt. Swapna Das reported in 1997 WBLR (Cal) 262. Thus, Mr. Banerjee submits that in view of the decision of Shyamal Kumar Das (supra), the wife is entitled to get maximum 1/5th of the take home salary of the husband at best Rs.5,000/-, but the alimony as granted by the learned Trial Judge cannot be sustained.
On the other hand, Mr. Buddhadev Ghosal appearing on behalf of the wife / opposite party herein submits that the grant of alimony in terms of Section 24 of the Hindu Marriage Act is an 7 interim measure for alimony and such a recourse is completely different from the one under Section 125 of the Cr.P.C. and the grant of alimony under Section 24 of the Hindu Marriage Act may be granted, in spite of the fact that, she has been refused maintenance in a proceeding under Section 125 of the Cr.P.C. and fact that she has been residing at her father's house. Mr. Ghosal has referred to the following decisions in support of his contention:-
i) The decision of Shri Amal Dasgupta @ Babuji v. Smt. Ruby Dasgupta reported in 2004(1) CLJ (Cal) 233.
ii) The decision of Shrimati Pampa Das v. Sri Sanjib Das reported in 2005(1) CLJ (Cal) 254.
iii) The decision of Smt. P. Jayalakshmi & anr. v.
Revichandran & anr. reported in AIR 1992 Andhra Pradesh
190.
iv) The decision of S. Kripal Singh v. Smt. Harbans Kaur reported in AIR 1967 Delhi 19.
v) The decision of Lachman Utamchand Kirpalani v. Meena @ Mota reported in AIR 1964 SC 40.
vi) The decision of Rajinder Prakash v. Smt. Roshni Devi reported in AIR 1981 Punjab and Haryana 212.
vii) The decision of Deep Chaudhary v. Radha Chaudhary reported in (1997) 11 SCC 286.
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viii) The decision of Deepak Jain v. Charu Jain reported in (2007) 10 SCC 229.
ix) The decision of Amarjit Kaur v. Harbhajan Singh & anr.
reported in (2003) 10 SCC 228.
Thus, he submits that the learned Trial Judge is justified in passing the impugned order.
Having considered the above admitted situation, the submissions of the learned Counsel of both the parties and the materials on record, I find that the grant of alimony under Section 24 of the Hindu Marriage Act is an interim measure during the pendency of the civil suit and it will end with the disposal of the suit. But the order of maintenance granted under Section 125 of the Cr.P.C. by the learned Principal Judge, Family Court shall remain in force so long as, it is not set aside by any higher forum or in a proceeding under Section 127 of the Cr.P.C. The Family Courts Act, 1984 is a special scheme for determination, inter alia, the maintenance, including proceedings under Chapter- IX of the Code of Criminal Procedure and such a scheme ensures steps for reconciliation or settlement between the parties to a family dispute and the adherence of procedure rigid rules of procedure and evidence should be eliminated in the matter of disposal of the applications under the said scheme. 9
Therefore, the findings of the learned Principal Judge, Family Court as observations in Misc. Case No.174 of 2003 may not be conclusive but the conclusion arrived at by the learned Principal Judge of Family Court will be relevant in consideration of the application under Section 24 of the Hindu Marriage Act. But the learned Trial Judge, I find, did not consider the amount of maintenance granted by the learned Principal Judge, Family Court at the time of disposal of the application under Section 24 of the Hindu Marriage Act. There is no discussion whether the said amount of maintenance is adjustable or not. Therefore, so far as the conclusion part of the learned Trial Judge relating to the grant of alimony for the child is without any consideration of the maintenance granted for the child and this portion cannot be supported. The alimony granted for the child must include the amount already granted as maintenance for the child in the Misc. Case No.174 of 2003. So, such portion of the order of the learned Trial Judge needs to be modified. The husband is bound to pay the alimony for the child including its educational expenses. The child is reading in Class III in a good school. My conclusion gets support from the decision of Sudeep Chaudhury (supra).
Therefore, so far as the alimony of the child is concerned, I am of the view that such alimony shall be sustained and any amount paid as maintenance for the child in the proceeding under Section 125 of the Cr.P.C. is adjustable.
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So far as the alimony for the wife / opposite party is concerned, although the wife is residing at her father's house and even she refused to come and stay with the husband, it will not be proper to refuse alimony for the wife. Even the rejection of the prayer for maintenance under Section 125 of the Cr.P.C. before an appropriate forum will not be a bar for granting alimony under Section 24 of the Hindu Marriage Act because it is a temporary measurement meant to deal with a special situation when the matrimonial court is dealing with the application for dissolution of the marriage. Although, the wife cannot claim alimony as a matter of right, the grant of alimony may even be made irrespective of the conduct of the parties to the suit. When the wife prays for alimony pendente lite and expenses for the proceedings, it is not open to the learned Judge to prejudge the issues and to hold that as the applicant is guilty of matrimonial offences, she is not entitled to alimony pendente lite and litigation cost. My conclusion gets support in this respect from the decision of Rajinder Prakash (supra), Amarjit Kaur (supra), Shri Amal Dasgupta @ Babuji (supra) and Smt. Pampa Das (supra).
In the instant case, although, the wife brought charges of immorality by the episodes of Digha and Tarakeswar, as per observations of the learned Principal Judge, Family Court, such immorality has not been proved and the wife filed a criminal case under Section 498A and 406 of the Indian Penal Code against the 11 husband. Irrespective of such allegations and counter-allegations though not proved as yet, the Trial Court can grant alimony if the situation demands. As noted above, the wife has no source of income and her father is a retired person. She has been residing at her father's house along with the minor child. So, during the pendency of the matrimonial suit referred to above, the wife is entitled to get the alimony.
As to the quantum of the alimony for the wife, the husband has admitted that his take home salary is Rs.24,000/- per month. The wife has contended that the husband has income of house rent from the tenants. Mr. Banerjee has contended that the quantum alimony cannot be more than 1/5th as decided in the case Shyamal Kumar Das (supra), that is, it cannot be more than 1/5th of the total income of the husband. That determination, I should say, cannot be conclusive. The grant of alimony depends on various facts and circumstances and there is no straight jacket formula in granting the alimony as 1/5th of the total income of the husband. Such grant of alimony may vary from 1/3rd to 1/5th according to the situation of each case and the decision of one case may not be applicable in the other case. In the case of Shyamal Kumar Das (supra), the wife claimed maintenance for herself only, but in the instant case, the wife has claimed maintenance not only for herself but for her minor child and so, if it is considered that 12 the wife would get 1/5th of the total income of the husband as alimony for the two, it may not be justified in the situation.
As noted above, the child is reading in a good school in Kolkata and the wife has to bear the educational expenses of the child also. Therefore, I hold that the decision of Shyamal Kumar Das (supra) should not be taken as a standard formula in granting the alimony. In consideration of the present price hike of the essential commodities, the grant of alimony at the rate of Rs.5,000/- for the wife, I hold, cannot be said to be excessive at all.
Mr. Banerjee has referred to the decision of Gita Chatterjee (supra) and submits that income from other property need not be considered in the instant case because there is no clear indication about the income from the house rent. What I find that since the income of the husband is more than the minimum for which the husband need not be pay income tax, the husband must have submitted the Return of his income before the Income Tax Authority. But he did not furnish any copy of his Income Tax Return to show the actual income from different sources. Therefore, the decision of Gita Chatterjee (supra) need not be considered in the instant case. Therefore, the alimony for the wife / opposite party herein as granted by the learned Trial Judge cannot be said to be excessive at all.
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As regards the jurisdiction under Section 20 of the Family Court as submitted by Mr. Banerjee, I find that the provisions for alimony under Section 24 of the Hindu Marriage Act are not contrary or inconsistent to the provisions of grant of maintenance under Section 125 of the Cr.P.C. Section 20 of the Family Courts Act will apply when the provisions of the Family Courts Act, 1984 are inconsistent with any other law for the time being in force. In that case, only Section 20 will apply. The matrimonial suit had been lodged by the husband at Alipore, Dist. South 24 Parganas i.e. outside the jurisdiction of the Family Court, Calcutta. So, the wife is entitled to file the application under Section 24 of the Hindu Marriage Act in that matrimonial proceeding.
In view of the observations made above, I am of the view that in spite of refusal of the maintenance by the learned Principal Judge, Family Court for the wife, alimony can be granted for the wife. So, also with regard to the litigation cost as granted. In fact, Mr. Banerjee did not argue that the litigation cost of Rs.5,000/- is excessive. Therefore, I am of the view that Section 20 of the Family Courts Act, 1984 will not be a bar in granting the alimony under Section 24 of the Hindu Marriage Act.
In that view of the matter, I am of the opinion that there is nothing to interfere with the impugned order. The learned Trial Judge has rightly granted the alimony. Accordingly, the revisional application fails to succeed.
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It is, therefore, dismissed.
Considering the circumstances, there will be no order as to costs.
The payment of the alimony must be made as per impugned order and the arrears of the alimony must also be made within four months from date.
Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.
(Prasenjit Mandal, J.)