Calcutta High Court (Appellete Side)
Smt. Soma Chowdhury (Sarkar) vs Sri Pradip Kumar Chowdhury on 26 June, 2008
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
Form No. J(2)
IN THE HIGH COURT AT CALCUTTA
Appellate/Revisional/Civil Jurisdiction
Present:
The Hon'ble Mr. Justice Bhaskar Bhattacharya
And
The Hon'ble Mr. Justice Rudrendra Nath Banerjee
F.A.T. No. 701 of 2007
With
C.A.N. 2970 of 2007
With
C.A.N. 4236 of 2008
Smt. Soma Chowdhury (Sarkar)
Versus
Sri Pradip Kumar Chowdhury
For the Appellant/Petitioner: Mr Biswajit Basu,
Mr Susenjit Bank.
For the Respondent/Opposite Party: Mr D.K. Maity.
Heard on: 12.06.2008.
Judgment on: 26th June, 2008.
Bhaskar Bhattacharya, J.:
This first appeal is at the instance of a wife in a suit for divorce on the ground of cruelty and this appeal is directed against the judgment and decree dated 8th December, 2006 passed by the learned Additional District Judge, First Court, Howrah, in Matrimonial Suit No.117 of 2006 thereby passing a decree for divorce and also granting a decree for permanent alimony to the tune of Rs.3,00,000/- payable by the husband to the wife.
Being dissatisfied, the wife has come up with the present first appeal. At the time of hearing of the interlocutory applications in connection with the first appeal, our attention was drawn to the fact that in this case, the learned Trial Judge, while disposing of an application under Section 24 of the Hindu Marriage Act, without disposing of the said application by the wife, granted the main relief claimed in the suit, i.e. the decree of divorce itself, although in the suit, the wife was yet to file the written statement and the date was fixed for hearing of the application under Section 24 of the Act. In view of such unprecedented fact, we immediately called for the Lower Court Records and after the arrival of the Lower Court Records, we decided to hear out the appeal itself by dispensing with the necessity of filing the formal paper books.
We find that after the filing of the suit by the husband, the wife filed an application under Section 24 of the Act giving rise to a Miscellaneous Case thereby praying for alimony pendente lite at the rate of Rs.8,000/- a month on which the Court issued notice upon the husband, although, such Miscellaneous Case arose out of a suit filed by the husband for divorce and, thus, there was no necessity of issuing formal summons upon the husband and the requirement could be dispensed with by service of the copy of the application upon the learned advocate for the husband in the same suit. Be that as it may, 20th August, 2006 was the date fixed for filing written objection to the application for alimony pendente lite and the Court on that day adjourned the matter on the prayer of the husband and fixed 30th November, 2006 for hearing of the application for maintenance.
On 30th November 2006, the parties filed Hazira and the husband filed an application for filing written objection against the application for alimony pendente lite. The Court on that date directed the husband to be present on the next date fixed namely, 8th December, 2006, with specific observation that in case of absence of the husband on that day, he would dispose of the Misc. Case ex parte.
It appears from Order No.4 dated 8th December, 2006 that both the parties were present with their respective lawyers and the learned Trial Judge recorded that he tried for reconciliation between the parties but according to him, the parties reached a point of no return due to the impotency of the husband. He has further recorded that the husband accused the wife for his impotency. After recording such fact, the Court observed that the parties had reached such a stage that they could not stay together and they deposed that they wanted divorce.
It is further recorded that the learned advocates of both sides had submitted that they had no objection for divorce provided that the alimony of Rs.3,00,000/- was paid by the husband by 7th March, 2007. It is further recorded that the Court was, therefore, of the opinion that the permanent alimony to the tune of Rs.3,00,000/- should be paid by the husband through Bank Draft in the name of the wife and having regard to the evidence on record and in view of submission of both the parties the suit should not be dragged any further and accordingly, he had passed a decree for divorce on that day itself.
It may be mentioned here that in the order-sheet, there is no indication that on that day i.e. December 8, 2006, any witness was examined; however, it appears that there is typed short examination-in-chief of the father of the wife, the maternal uncle of the wife and of the husband followed by either the declination to cross-examination or "one-line cross-examination" giving a suggestion that the statements are false. There is recorded deposition of Subhasis Basu, Mrs Sarmila Das and S.K. Dey, which are written with the handwriting of the Presiding Officer without even indicating whether those are the statements made in examination-in-chief or in cross-examination. It further appears that immediately after disposal of the suit, a petition was filed by the wife complaining that she never agreed to accept divorce on payment of Rs.3,00,000/- and that the application for alimony pendente lite was not heard on merit. The Court, however, ordered that the said application should be kept with the record without answering the allegations contained therein.
Mr Basu, the learned advocate appearing on behalf of the appellant, vociferously contended that the learned Trial Judge erred in law in passing a decree for divorce even before filing of the written statement on a date fixed for application for alimony pendente lite. He further submitted that it would appear from the deposition itself that the blank signatures of the parties were taken on both the sides of the deposition-sheet and in fact, on that day, only parties were heard in chamber and there was no formal evidence after taking oath.
Mr Maity, the learned advocate appearing on behalf of the respondent, however, did no dispute the fact that the suit was disposed of on the date fixed for hearing of the application for alimony pendente lite but he supported the stance of the learned Trial Judge that it was a fit case for grant of decree for divorce.
After hearing the learned counsel for the parties and after going through the aforesaid materials on record, we find that the learned Trial Judge committed gross illegality and irregularity in passing a decree for divorce even before the filing of the written statement of the wife. It appears that the husband even did not file any written objection to the application for alimony pendente lite and the learned Trial Judge on the basis of alleged statement and concession of the parties granted the decree for divorce. The law does not permit for passing of decree for divorce on concession except in the manner as provided in Section 13B of the Hindu Marriage Act. Therefore, the entire procedure adopted by the learned Trial Judge was illegal. We also do not approve the conduct of the learned Trial Judge compelling the witnesses to sign on the blank papers. The law provides that after the deposition is recorded, the witness should be permitted to go through it; in case he is illiterate, the deposition should be read over and explained to him and then, he should put his signature or thumb impression. In this case, we find that the signatures of the witnesses were taken on the blank sheets of papers as would appear from the fact that the reverse sides of the deposition-sheets, which are still blank, contain the signatures of the witnesses. We are also shocked by the manner of writing the depositions.
We, thus, set aside the judgment and decree passed by the learned Trial Judge, and direct him to proceed from the stage of hearing of the application under Section 24 of the Hindu Marriage Act. The husband is directed to file written objection to such application within three weeks from today. Having regard to the fact that the husband is an employee of the Indian Railways having Masters Degree and is posted as Physical Training Instructor, he is directed to pay alimony pendente lite at the rate of Rs.3,000/- a month until the disposal of the application pending before the Trial Court. He is also directed to comply with the earlier order dated 9th January, 2008 passed by this Court on the application for alimony filed in this Court by paying the ad interim alimony at the rate of Rs.3,000/- a month from the month of January, 2008. The learned Trial Judge, at the time of disposal of the application for alimony, will not be influenced by the fact that we have fixed the amount at Rs.3000/- and will be free to come to his own conclusion after taking into consideration the entire evidence that would be adduced before him as regards the income of the parties, their other legal liability, etc. Although the wife has specifically alleged that the husband gets Rs.20,000/- a month as salary, before adjudication of the claim on evidence, we have not accepted such allegation to be true. However, having regard to even the admission of the husband in the purported "deposition" before the Trial Court that he used to get Rs.10,000/- a month, we have fixed the interim alimony pendente lite. It is now settled law that the amount of alimony pendente lite should vary between one-third and one-fifth of the income of the earning spouse depending upon the facts and circumstances of the case.
The appeal, thus, is allowed. The judgment and decree passed by the learned Trial Judge are set aside.
In view of the deplorable and irregular manner in which the suit was disposed of, let the Lower Court Records along with this judgment be placed before the Administrative Committee.
(Bhaskar Bhattacharya, J.) I agree.
(Rudrendra Nath Banerjee, J.)