Calcutta High Court (Appellete Side)
Aftab Rashid Alias Aftabul Alam Rashid vs Rozina Rashid Alias Dipa Bose on 7 March, 2019
Author: Asha Arora
Bench: Asha Arora
1 07.03.2019
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Item No.10 Ct.No.30 dc.
C.R.R. 337 of 2018 with CRAN 797 of 2018 Aftab Rashid alias Aftabul Alam Rashid Versus Rozina Rashid alias Dipa Bose Mr. M. Ali, Mr. Kushal Chatterjee, Mr. A. N. Ghosh, Mr. Surendra Kumar Sharma ... For the Petitioner. Ms. Shreyashi Saha, Mr. Aniruddha Mitra ... For the Opposite Party.
By the instant application the petitioner/husband has assailed the judgement and order dated 10.01.2018 passed by the learned Judicial Magistrate, 6th Court, Sealdah in Misc. Case No. 41 of 2015 arising out of a proceeding under section 125 of the Code of Criminal Procedure whereby the application under section 125 of the Code of Criminal Procedure filed by the wife/opposite party herein was allowed and the petitioner herein/husband was directed to make payment of Rs.10,000/- per month in favour of the wife/opposite party towards maintenance from the date of the order.
Aggrieved by the aforesaid judgement and order the husband/petitioner has approached this Court. 2 Learned counsel for the petitioner submits that the quantum of maintenance awarded by the trial court is exorbitant and unreasonable. The evidence on record and the documents relied upon by the petitioner/husband were not taken into consideration while determining the quantum of maintenance. It is contended that the petitioner is presently unemployed. At the relevant time the petitioner was working as a marketing agent under a private company and his remuneration was on commission basis. It is also canvassed that the petitioner is suffering from various ailments and is unable to bear the financial burden of paying Rs.10,000/- per month to the opposite party/wife which has been awarded without considering the income and other financial obligations of the husband. Referring to clause 17 of the agreement dated 25.10.2013 relating to appointment of the petitioner as a Marketing Agent cum Liasioning Officer at Mercur Remedies Pvt. Ltd., it is contended that the aforesaid agreement was valid till 31.12.2018 which period has expired and the petitioner is no longer attached to that company. For the aforesaid reasons the amount awarded by the trial court is sought to be reduced.
Inviting the attention of this Court to the appointment letter dated 26.10.2004 issued by Menarini Raunaq Pharma 3 Limited, learned counsel for the wife/opposite party pointed out that this document reveals that the basic salary of the husband/petitioner was Rs.10,000/- per month at the time of his appointment in the year 2004. It is further submitted that nothing could be brought on record by the husband/petitioner to substantiate his contention that he is no longer attached to the aforesaid company and he has been working as a marketing agent on commission basis.
The only point for determination is whether the quantum of maintenance awarded in favour of the wife is just and reasonable. I have considered the submissions advanced with reference to the materials on record. It appears that the appointment letter dated 26.10.2004 was issued in favour of the petitioner by Menarini Raunaq Pharma Limited whereby he was appointed as Regional Sales Manager with effect from October 29, 2004. From the cross-examination of the husband/petitioner in the proceeding under section 125 Cr.P.C it is elicited that the petitioner worked in the said company from 2004 to 2006. By a letter dated 19.09.2006 the petitioner/husband was released from the said company due to his continuous absence from work. It has surfaced in the cross-examination of the petitioner/husband that in the aforesaid company he used to draw a salary of Rs.20,000/- per 4 month. It has also transpired in the cross-examination of the husband/petitioner that from 2006 to 2013 he was unemployed and he joined Mercur Remedies Pvt. Ltd. in the month of October 2013 as marketing agent. Clause 17 of the agreement dated 25.10.2013 reads as follows :
"17. This agreement will be valid till 31.12.2018 provided minimum three bills are raised every quarter. Agreement can be renewed with mutual consent after 31.12.2018."
It is evident that during the relevant period when the application under section 125 of the Code of Criminal Procedure was filed by the wife/opposite party herein, the petitioner/husband was no longer attached to Menarini Raunaq Pharma Limited. The Misc. case arising out of a proceeding under section 125 of the Code of Criminal Procedure was instituted in the year 2015. During the relevant year the husband/petitioner was working as a marketing agent cum Liasioning Officer at Mercur Remedies Pvt. Ltd. Clauses 9 and 10 of the agreement dated 25.10.2013 of Mercur Remedies Pvt. Ltd. provide as follows :
"9. You will be eligible to receive the amount difference i.e. the invoice value minus our net rates plus taxes as your commission.
10. We will immediately release your commission just after receiving the payment of the particular Invoice."5
It is clear from the aforesaid clauses that the petitioner/husband was working on commission basis in the said company. It also appears from the letters dated 08.09.2006 and 19.09.2006 issued by the previous company, namely, Menarini Raunaq Pharma Limited that due to long absence from work on account of his continuous sickness the petitioner's service in the said company was terminated. Curiously enough, the trial court did not consider the evidence on record and documents relied upon by the petitioner/husband which were tendered in evidence and marked as exhibits A to H. It is clear that without considering the oral and documentary evidence the learned Magistrate directed the husband to pay an amount of Rs.10,000/- per month towards maintenance for the wife/opposite party. In course of hearing of this application learned counsel appearing for the opposite party/wife conceded that the quantum of maintenance awarded may be reduced to Rs.8,000/- per month. Learned counsel for the petitioner/husband submits that maintenance has been regularly paid in compliance with the trial court's order at the rate of Rs.10,000/- per month till January 2019 and the maintenance for the month of February 2019 will be paid within a few days so maintenance 6 at the rate of Rs.8,000/- per month may be ordered to be paid with effect from March 2019.
Considering the facts and circumstances of the case with reference to the evidence on record, the socio-economic status of parties and the means of the petitioner/husband, I am of the view that an amount of Rs.8,000/- per month towards maintenance for the wife/opposite party is just and reasonable.
Consequently, the impugned order dated 10.01.2018 is modified to the extent that the husband/petitioner shall pay Rs.8,000/- per month towards maintenance for the wife/opposite party with effect from March 2019 instead of Rs.10,000/- per month as ordered by the learned trial court.
The application being C.R.R. 337 of 2018 is thus disposed of.
The application being C.R.A.N. 797 of 2018 is also disposed of.
Urgent photostat certified copy of this order, if applied for, be given to the applicant upon compliance of requisite formalities.
( ASHA ARORA, J. )