Calcutta High Court (Appellete Side)
CRR-1724-2015 on 8 September, 2015
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
1 08.09.2015
.
14.
as C.R.R. 1724 of 2015
Mr. Subhadeep Ghosh. ...for the Petitioner.
Mr. Dipanjan Chatterjee. ...for the O.P.
The judgment and order dated 27.2.2015 passed by the learned Additional Chief Judicial Magistrate, Kalyani, Nadia in Misc. Case No.109 of 2013 directing the petitioner/husband to pay maintenance allowance at the rate of Rs.12,000/- per month to the opposite party no.1/wife and Rs.6,000/- per month to the minor child from the date of the application has been challenged.
The case of the opposite party no.1/wife is to the effect that on 12.5.2003 she was married to the petitioner as per Hindu rites and customs. After marriage, the couple was residing at Kalyani in a rented accommodation. The petitioner/husband started demanding further articles to be brought from her parental house. Various articles including cash were given by the opposite party no.1/wife upon demand of the petitioner/husband. In the event of any delay in making such payment, the opposite party no.1/wife was subjected to mental and physical torture. Finally, the petitioner absconded from the rented accommodation and the opposite party no.1 was constrained to take shelter at her parental 2 home. Later on it was found that the petitioner was residing at Bidhanpally, Kalyani. At the intervention of well wishers, the opposite party no.1/wife started residing with the petitioner at the said place. Again, the petitioner deserted the opposite party no.1/wife and took up residence at Taltala, Kalyani in the house of Jogesh Biswas. At the intervention of well wishers, the couple again started residing at Taltala, Kalyani. The opposite party no.1 became pregnant and gave birth to a male child named Soumyadipta. The petitioner, however, continued to ill-treat the opposite party no.1/wife and even physically assaulted her. She was driven out from the matrimonial home with the child and took refuge at her parental home. The petitioner is presently employed as a Lecturer in Lalpur, Mahatma Gandhi College, Purulia. The petitioner assured the opposite party no.1/wife that he would take her to Purulia but failed to do so. The petitioner kept the opposite party no.1 at Muratipur at his paternal home where she was neglected. Her stridhan articles were taken away from her and on 12.4.2011 she was driven out with the child from the said place. She filed a matrimonial suit being Mat Suit No.1139 of 2011 wherein the petitioner was directed to pay alimony pendente lite at the rate of Rs.5,000/- per month to herself and Rs.2,000/- per month to the child along with the litigation expenses to the tune of Rs.15,000/-. The petitioner has not been paid a single farthing. 3 The minor child is presently pursuing his education at Springdale School and the opposite party no.1 is residing in a rented premises. The opposite party no.1/wife has no independent income on the other hand the petitioner has an income around Rs.50,000/- per month and accordingly she prayed for maintenance to the tune of Rs.12,000/- per month for herself and Rs.8,000/- for the minor child.
The petitioner/husband contested the said proceeding by filing written objection. He denied and disputed all allegations made therein. He stated that the opposite party no.1/wife had withdrawn from his company without justifiable cause. He stated that he is acting as Lecturer in Mahatma Gandhi College, Purulia and has an income of Rs.30,000/- per month. He further stated that he is paying maintenance regularly. In the course of the proceeding, the opposite party no.1/wife examined three witnesses including herself whereas the petitioner/husband also examined three witnesses including himself. After considering the evidence and/or materials on record, the learned Magistrate by the impugned judgement and order dated 27.2.2015 directed payment of maintenance allowance at the rate of Rs.12,000/- per month to the opposite party no.1/wife and Rs.6,000/- per month to the minor child from the date of the application. Arrears were directed 4 to be paid in 21 equal installments along with current maintenance itself.
The learned Counsel appearing for the petitioner/husband submitted that there is ample evidence on record that the opposite party no.1/wife had withdrawn from the matrimonial home without justifiable cause. He submitted that the quantum of maintenance fixed is disproportionately high. He submitted a current salary slip of his client which showed that he is drawing a gross salary to the tune of Rs.46,759/- per month.
The learned Counsel appearing for the opposite party no.1/wife submitted that she was subjected to mental and physical torture and driven out from the matrimonial home. A matrimonial suit is pending by and between the parties at the behest of the petitioner/husband, which belies the plea that he is ready and willing to reside with the opposite party no.1/wife as husband and wife. Quantum of maintenance is adequate and does not call for interference.
I have considered the materials on record in the light of the aforesaid submissions. I find that the relations are admitted. There is evidence on record that the opposite party no.1/wife was subjected to mental and physical torture and was driven out from the matrimonial home. Evidence adduced on behalf of the petitioner/husband did not inspire confidence and the learned 5 Magistrate rightly disbelieved the same and arrived at a conclusion that the opposite party no.1/wife had been driven out of her matrimonial home after subjecting to her mental and physical torture. I am unwilling to interfere with such factual finding in revisional jurisdiction. That apart, I find that matrimonial suit had been instituted by the petitioner/husband for divorce clearly belying his contention that he wants to take back his wife.
Accordingly, I am of the opinion that the grant of maintenance to the opposite party no.1/wife and the minor child cannot be said to be unjustified and interference in the impugned order is not called for. Coming to the quantum of maintenance, I find that the gross income of the husband is around Rs.47,000/- per month. The learned Magistrate, however, assessed the quantum of maintenance on the premise that the income of the husband is around Rs.70,000/- per month.
Accordingly, I am of the opinion that some reduction in the quantum of maintenance awarded is warranted. Hence, the impugned order is modified and the petitioner is directed to pay maintenance at the rate of Rs.11,000/- per month to the opposite party no.1/wife and Rs.6,000/- per month to the minor child from the date of the application. Arrear of maintenance shall be liquidated in 23 equal monthly instalments and the remaining, if any, in 24th instalment and such instalments shall be paid along 6 with the current maintenance dues within 15th day of each succeeding month. The payment shall commence from 15th of this month. In the event, there is default in making payment, the opposite party no.1/wife shall be at liberty to initiate appropriate proceeding for execution of the same.
I further clarify that the amount paid by the petitioner/husband in terms of the alimony pendente lite shall be adjusted with the quantum of maintenance so fixed in this order.
With the aforesaid directions, the revision petition is disposed of.
(Joymalya Bagchi, J.)