Calcutta High Court (Appellete Side)
Smt. Dipti Aggarwal vs Sri Ashish Chandra on 7 July, 2017
Form No.J(2)
IN THE HIGH COURT AT CALCUTTA
Civil Revisional Jurisdiction
Present : The Hon'ble Mr Justice Mir Dara Sheko
C.O.No.537 of 2016
Smt. Dipti Aggarwal
-vs-
Sri Ashish Chandra
Mr. Partha Pratim Roy
Mr. Shibaji Kumar Das ....for the petitioner
Ms. Sutapa Sanyal
Mr. C.K. Saha
Mr. Soumyajit Chakraborty ...for the opposite party
Heard on : July 7, 2017
Judgment on : July 7, 2017 (in court)
Mir Dara Sheko, J: Heard Mr Roy being assisted by Mr Das representing the
petitioner-wife. Heard also Ms Sanyal being assisted by Mr Saha and Mr
Chakraborty representing the opposite party-husband.
2. The revisional application under Article 227 of the Constitution of India
has been directed against Order No.14 dated December 17, 2015 passed by
learned Additional District Judge, 5th Court, Barasat, North 24-Parganas in Misc.
(Matri) 13(R) MCIII of 2015 arising out of Mat. Suit No.32 of 2015 filed by the
husband seeking divorce on the grounds as made therein.
3. The undisputed facts reveal as follows. The petitioner is a lady came
from a high family and is well qualified. She also prior to her marriage was in the
employment, but she had left it. Her husband is equally highly educated having
employment as pilot of Air India Airlines. Out of the wedlock they have one male
child who has been residing with his father. The husband filed a suit for
dissolving his marital tie with the petitioner by a decree of divorce. Learned trial
court allowed litigation costs `10,000 against claim of `50,000 and monthly
maintenance pendente lite at the rate of `10,000 against claim of `70,000 to the
petitioner.
4. Mr Roy criticising the impugned order submitted that in view of
educational qualifications, status of the parties, while the petitioner was put
within the litigation of a divorce suit, she sought for `70,000 as maintenance
pendente lite and litigation costs of `50,000 by applying the proviso under section
24 of the Hindu Marriage Act, 1955. Submitted further that learned trial court
without determining the monthly salary of the opposite party and also without
taking note of the present helpless condition of the petitioner in defending her
husband in the matrimonial suit granted maintenance pendente lite only to the
tune of `10,000 for herself and `10,000 as litigation costs. Mr Roy inviting
attention of this court to the text of paragraph 20 of the section 24 application
submitted that the text of that paragraph was not dealt with properly by learned
trial court, although there was no specific denial of the opposite party as against
the same.
5. Mr Roy concluded his submission by citing a Supreme Court decision in
the case of Manish Jain v. Akanksha Jain in Civil Appeal No.4615 of 2017 [arising
out of SLP(C) No.7670 of 2014].
6. Ms Sanyal, per contra, submitted that though her client was a pilot of Air
India Airlines but his monthly salary was not fixed, which would be variable
depending upon the trips undertaken by him. Submitted further that the
petitioner, who was highly qualified and having capability well to get employment
in terms of her educational qualifications, only to utilise the better option in
seeking maintenance in view of pendency of the matrimonial suit she had also
left the job. She even left the temporary job, which she had got in Bhubaneswar.
Submitted further that the petitioner had sufficient assets - both movable and
immovable, including several bank accounts and shares. Therefore, submitted
that in the order of maintenance under section 24 of the 1955 Act the concept of
reasonableness would have to be considered.
7. Upon such submission and, of course, in her usual fairness admitting
about the logical principle enunciated once more in the decision cited by Mr Roy,
Ms Sanyal concluded her argument that while the husband of the petitioner had
been paying `6,000 suo motu for her maintenance and considering the status of
the parties while learned trial court exercised its jurisdiction in granting
maintenance pendente lite at the rate of `10,000 by providing also `10,000 as
litigation costs, in revisional jurisdiction there may not be any reason to make
interference with the same by this court.
8. During course of argument a copy of the application filed by the wife
before learned trial court to exercise her right of visitation to the minor child
admittedly lying under the custody of his father, copy of written objection of such
application and the score sheet of Common Admission Test where the petitioner
had sat and cleared, as filed by Ms Sanyal be taken on record.
9. For appraisal of the sanctity in the claim the text of para.20 of the
application under section 24 of the Hindu Marriage Act, 1955 is set out below:-
"20. That the husband has capacity/ability to pay the amount of Rs.70,000/- per month as
the husband is a pilot under Air India and getting more than 2,50,000/- per month but the petitioner
is now only housewife, if the maintenance is not granted the petitioner/wife will not be able to
carry on her day to day life."
10. Though all the materials were not placed before learned trial court
revealing actual salary of the husband, but through affidavit-in-opposition
submitted by the husband and also through the affidavit-in-reply to the said
opposition and supplementary affidavit some documents have been placed by the
wife before this court wherefrom the tentative regular income of the opposite
party, status of the petitioner and her family, despite death of father of the
petitioner, are apparent. It is obvious that all those documents ought to have
been placed by the parties before learned trial court adjudicating the application
under section 24 of the Act. For the present, looking back to the order impugned
it reveals that learned trial court had imposed the responsibilities, rather the
onus also upon the petitioner-wife for not placing materials in support of
respective claims although, learned trial court correctly accepted the settled
principle that "the wife is to be maintained in view of the status of her husband."
Despite such observations, learned trial court granted maintenance pendente lite
to the petitioner only at the rate of `10,000. The impugned order also did not
indicate whether such amount of maintenance would be payable from the date of
application, or from the date of order. It is, however, the rule of law that if the
specific date of enforcement is kept absent, then it would be deemed that the
order of maintenance would be enforceable from the date when it was passed. In
that event, reason is to be assigned in declining to enforce the order from the
date of application. The same is absent in the impugned order.
11. At this juncture for appreciation of the provision under section 24 of the
Hindu Marriage Act, 1955,` the same, without its proviso, is set out below:-
"24. Maintenance pendente lite and expenses of proceedings.- Where in any proceeding
under this Act it appears to the court that either the wife or the husband, as the case may be, has no
independent income sufficient for her or his support and the necessary expenses of the proceeding,
it may, on the application of the wife or the husband, order the respondent to pay to the petitioner
the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner's own income and the income of the respondent, it may seem to the court to be reasonable."
Now, on plain reading of such provision, some key words are to be taken on record once again. There must be a proceeding under the Act. The applicant must have no independent income sufficient for her support and necessary expenses of the proceeding also to be allowed. The rest is upon the judicial discretion of learned trial court to fix up the amount of maintenance pendente lite as would be deemed to the court as just and reasonable.
12. The terms just and reasonable can have no straight-jacket formula which, accordingly, is to be adjudicated in exercise of judicial discretion in terms of the attending circumstances available on record covering the educational qualifications, status of the parties, monthly income of the spouse and capability of complying with the order, who would be so directed.
In view of the provision laid down under section 24 of the 1955 Act, the words "has no income sufficient for her or his support" and "necessary expenses of the proceeding" have been connected by the conjunctive word "and". Meaning thereby, the very word "and" has been used to conjunct those two eventualities which are to be taken into consideration by learned trial court adjudicating the application and relief is to be granted on both the courts. The term "relief" again means to make the applicant feel like easing out of her hardship for which the application is filed. It does not logically mean that relief is granted just in allowing the application. Such grant of relief, therefore, must be meaningful to the life and limb of the applicant during pendency of the suit.
13. Now paragraph 15 from the case of Manish Jain's (supra) is set out:-
"An order for maintenance pendente lite or for costs of the proceedings is conditional on the circumstance that the wife or husband who makes a claim for the same has no independent income sufficient for her or his support or to meet the necessary expenses of the proceeding. It is no answer to claim of maintenance that the wife is educated and could support herself. Likewise, the financial position of the wife's parents is also immaterial. The Court must take into consideration the status of the parties and the capacity of the spouse to pay maintenance and whether the applicant has any independent income sufficient for her or his support. Maintenance is always dependent income sufficient for her or his support. Maintenance is always dependent upon factual situation; the Court should, therefore, mould the claim for maintenance determining the quantum based on various factors brought before the Court."
From the above quoted portion the very key sentence is that the order to provide maintenance would be dependent upon "factual situation and the quantum would be based on various factors brought before the court." It means that both the parties ought to have assisted the court by making fair play, since the scheme also cannot be allowed to be misused as a profit-earning unit. Learned trial court, however, imposed the responsibility on the wife to prove by documents as to what was the actual income of her husband which the petitioner could not. This court observes that within provision under section 24 of the 1955 Act tendering one application to seek maintenance pendente lite is a matter of right. Whereas to provide the amount of maintenance pendente lite by the husband would be mandatory obligation, if the husband wants to proceed with the matrimonial suit seeking divorce, or otherwise. Although the husband did not discharge his minimum obligation by filing some pay-slips showing his monthly salary of a period of consecutive three months before learned trial court. Learned trial court thereby committed mistake in shifting the responsibility upon the wife, instead of drawing adverse inference against the husband of the petitioner, although the text of paragraph 20 of the application under section 24, as quoted above in paragraph 9 above, was not denied by the husband specifically. However, the petitioner, on exercising the Right to Information Act, 2005, submitted documents in support of salary amount of her husband, against which the husband can have no controverting submissions, save and except relying on his one document showing his burden to pay EMI to satisfy the loan taken by him.
14. It has not gone out of sight that the husband did not discharge the obligation by disclosing his actual income either before learned trial court or even before this court; rather there was always attempt to divert the attention of the court by keeping his exact or even tentative monthly salary under suppression as far as he could. From page 32 of his affidavit-in-opposition it is noticed that the amount of EMI against loan taken by him has been shown as `87,439/- against sanctioned amount of `67,86,000/-. Had it been so, then it is very hard to swallow that an employee, allegedly having much lesser income than the said EMI amount, as claimed for the purpose of rendering opposition to the prayer of maintenance pendente lite, would be able to pay such an amount of EMI without disclosing any other source.
15. On the contrary, the copies of Form 16 which were issued by his DDO, it reveals that for the financial year 2012-13 his total yearly salary income was shown as `51,83,039; in the financial year 2013-14 it was shown as `49,12,583; whereas in the financial year 2014-15 the same was shown as `58,29,458 from which the proportionate income and taxes were also shown to have been deducted. Now, on taking above income in consecutive three financial years (that too up to 2014-15) and on deduction of tax therein, the average monthly income of the opposite party came to not less than `3,80,000.
16. Though we are now in 2017, this can be safely accepted that the claim of the petitioner has been established as a truth as asserted in paragraph 20 of her application that her husband had been getting monthly salary more than `2.50 lakh. The documents noted above reveal that the opposite party earns monthly salary more than `3,80,000 in average. In terms of the educational qualifications, status of the petitioner who is still a wife of a pilot having such handsome affluent salary, the opposite party should not restrict his wife in having maintenance pendente lite to the tune of `10,000 only and also the litigation costs to the tune of `10,000 even though the unchallenged text of paragraph 20 (supra) only remains, which however is not in reality. Since learned trial court did not exert its authority in assessing actual income of the husband for want of document, this court in exercise of its jurisdiction under Article 227 of the Constitution takes the documents under reference not only to interfere with the impugned order to lend support to the petitioner to maintain herself during pendency of the suit in befitting manner as a wife of a pilot but also allow her to contest in the suit by engaging an advocate of her choice if she wants to contest. The term 'support' must be proportionate to the income of her husband, status to which she had passed her conjugal life apart from her own life style to which she had passed her days before marriage. Therefore, lending such support should not be disproportionate to the income and quality of job of her husband and status and life style of the well-educated parties. Though from record it appears that the petitioner has so much of educational qualifications and capability of becoming employed, she is unemployed. In paragraph B.(i) of the affidavit-in-opposition it reveals that she was employed before her marriage up to November 21, 2007. Item (d) of said paragraph though shows that she got employment from December 2007 in NIIT Technologies, Kolkata but she had left that job. Over the reason of leaving job there is version and counter-version on which this court refrains from putting any observation for the purpose of pendency of the matrimonial suit, because if it is done, then in the suit either of the parties may be prejudiced.
17. Therefore, in terms of the status of the parties, high qualifications and taking note of having no employment of the petitioner at this stage and also taking the affluent salary of her husband he being a pilot of the Air India Airlines, an amount of `70,000 as claimed towards maintenance pendente lite and `50,000 towards litigation costs as sought for was neither unreasonable nor high or excessive. Such claim cannot be defeated in view of opposition made by her husband mentioning some assets and bank account numbers allegedly of the wife. From reply to the affidavit-in-opposition the petitioner also controverted by submitting that she alone was not beneficiary of those assets, and those bank accounts were not within her control. In view of the guidelines available from the case of Manish Jain (supra) the just, reasonable and proportional maintenance pendente lite cannot be denied to lend support during pendency of the suit.
However, with a view to making balance in the matter of discharge of obligations and to preclude also the husband from any excessive hardship, rather testing his capability to pay the amount as to be imposed in modifying the impugned order and considering sufficiency of amount as per need of the petitioner, this court concludes to fix the amount under the head of maintenance pendente lite at the rate of `50,000 per month from the date of filing of the application under section 24 of the Hindu Marriage Act, 1955 and `30,000 towards litigation costs, which are considered to be just, reasonable and sufficient maintenance pendente lite and litigation costs to get support for offering contest in the suit adequately if she really wants to do. Because as the defendant in the suit, she would have further liberty to approach the trial court for permanent alimony under section 25 of the Hindu Marriage Act, 1955, if the decree of divorce after adjudication is answered in the affirmative.
Therefore, interfering with the impugned order and to make the respective amount well proportionate to the income and status of the parties, the amount under reference shall remain enforceable till disposal of the matrimonial suit or until further order to be passed by learned trial court on one and only eventuality, if the opposite party can prove employment, if any, taken by the petitioner during pendency of the matrimonial suit to get her adequate support. Be it mentioned that had there been any failure in complying with the order of maintenance pendente lite or as regards payment of litigation costs, learned trial court shall be free to record appropriate order at the option of the wife.
18. The husband shall get benefit of adjustment of the amount so far as satisfied by him in terms of the order of learned trial court; and he shall go on making payment of such monthly maintenance pendente lite with effect from the date of filing of application under section 24 month by month in the bank account of the petitioner (which shall be supplied by the petitioner, if the same is not supplied in the meantime) within ten days of each succeeding month; and the arrears, as would be accumulated pursuant to this modified order, shall be satisfied by the opposite party by three consecutive monthly instalments - first of which shall be paid along with current maintenance by 10th day of August, 2017 and the balance amount of litigation costs also shall be deposited by the opposite party with the first instalment noted above.
Thus for the reasons above, the revisional application is allowed by modifying the order impugned.
19. No order as to costs.
20. Stay order, if any, passed by this court in respect of the matrimonial suit stands vacated.
Bearing the present burden of the opposite party, learned trial court is directed to expedite disposal of the suit without grant of unnecessary adjournment to either of the parties.
21. Certified photostat copy of this order, if applied for, shall be given to the parties.
[Mir Dara Sheko, J] Subrata