Calcutta High Court (Appellete Side)
Nachiketa Manna vs Smt. Debasree Manna on 9 July, 2015
Author: Harish Tandon
Bench: Harish Tandon
25 09.07.15 C.O. 2399 of 2015
akd
Nachiketa Manna
Vs.
Smt. Debasree Manna.
--------
Mr. Brotindra Narayan Ray, Ms. Priyanka Das.
... for the petitioner.
Mr. Indranil Nandi, Mr. Rathin Kundu.
... for the opposite party.
Admittedly the gross income of the husband is Rs.22,700/- per month from his avocation and the Trial Court awarded maintenance at the rate of Rs.4,000/- per month to the wife and Rs.2,000/- to the minor daughter, who is now aged about 15 years.
The husband/petitioner filed a suit for divorce on one or more grounds envisaged under Section 13 of the Hindu Marriage Act, 1955. The wife claims maintenance under Section 24 of the said Act alleging that the income of the husband is Rs.30,000/- per month and she has no independent source of income.
As indicated above in course of the said proceeding the Court found that the gross salary of the husband is above Rs.22,000/- and awarded maintenance a sum of Rs.7,000/- to the wife as well as the minor daughter.
Learned advocate for the petitioner submits that all along the petitioner maintained the daughter by paying the school fees and other expenses and, therefore, cannot be penalized twice. He further submits that his client used to maintain the opposite party as well by voluntarily paying some amount.
It appears that the wife is residing with her retired mother and is totally depending upon her, more particularly upon the pension, which the mother receives. It further appears during the cross- examination that the mother owns two premises and the wife said that because of the mother she has sufficient means.
Learned advocate for the petitioner vehemently submits that the wife left the matrimonial home of her own and, therefore, cannot claim the maintenance from his client for her misdeed or the wrongs committed by her.
Section 24 of the said Act provides that in any proceeding under the said act if it appears to the Court that either the wife or the husband has no independent source of income sufficient enough for her or his support and meet the necessary expenses of the proceeding, the Court shall allow the maintenance on an application taken out in this regard having regard to the income of the other spouse, which seems reasonable.
A meaningful reading of the said provision does not suggest that the maintenance can only be awarded to either of the spouse, if he or she is thrown out of the matrimonial house and not when any of them voluntarily walks out therefrom. The reasonability is a relative term and depends upon the facts and circumstances of the each case.
According to the learned advocate for the petitioner the quantum of maintenance had been awarded from the date of the application at the rate which the Court fixed on the basis of the present salary when admittedly the lesser amount used to be received by his client on the date of the application.
It is no longer res integra that the Court can provide the maintenance to the wife either from the date of the application or from the date of the order, depending upon the facts and circumstances of each case. Such discretion should not be interfered with unless it is irrational, unreasonable and beyond the legal parameters.
This Court does not find that the discretion exercised by the Court is unrealistic and not in consonance with law.
The parties have a daughter, who is now aged about 15 years and is admittedly a school going child. The wife has admitted in the cross-examination that the school fees of the child used to be paid by the husband/petitioner at one point of time.
There is some disputes over the payment allegedly paid by the petitioner and the Court after considering all the aspects have arrived at the decision that a sum of Rs.7,000/- towards the maintenance of the wife and the daughter is reasonable and is not oppressive. The salary has gradually increased and there is no denial that it was all along more than the maintenance awarded by the Trial Court.
The quantum of maintenance is not required to be determined with mathematical precision as the Section provides that such quantum should appear to be reasonable in commensurate with the income of either of the parties or both.
According to the learned advocate for the petitioner in course of the proceeding certain payments have been made in terms of the order passed by the Court. But the impugned order does not reflect any adjustment thereof.
This Court, therefore, modifies the impugned order to the extent that the petitioner shall pay the arrears maintenance after adjusting the amount paid to the wife/opposite party either voluntarily or in terms of the order of the Court. If an adjustment is to be made with the payments made voluntarily, the petitioner shall furnish the proof of such payment or in case the wife admits to have received, such adjustment shall be allowed by the Court.
The arrears of maintenance shall be paid by the husband by 12 equated monthly instalments; first of such instalments shall be paid on or before 5th day of August, 2015 and all subsequent instalments shall be paid within 10th day of each succeeding months. The current alimony pendente lite for the month of July, 2015 shall be paid on or before 15th day of August, 2015 and the subsequent alimony pendente lite shall be paid within 10th day of each succeeding months.
If there is no fetter on the part of the Trial Court in proceeding with the Matrimonial Suit, this Court requests him to make efforts to dispose of the same as quickly as possible and preferably within August, 2016.
With the above observations, the revisional application is disposed of.
There will be no order as to costs.
(HARISH TANDON, J.)