Calcutta High Court (Appellete Side)
Bibhas Chandra Datta vs Kakoli Dutta on 14 August, 2013
Author: Subhro Kamal Mukherjee
Bench: Subhro Kamal Mukherjee
1 S/L.3. 14.08.2013
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bpg.
C.O. No.349 of 2013 Bibhas Chandra Datta ...petitioner/husband.
Versus Kakoli Dutta.
...opposite party/wife.
Mr. Sandip Chanda.
...for the petitioner/husband.
Mr. Dilip Kumar Mondal, Ms. Kavita Rani.
...for the opposite party/wife.
By the order impugned dated December 21, 2012, the learned trial judge found that the wife was entitled to Rs.5,000/- (Rupees five thousand) only for herself as alimony pendente lite and Rs.2,500/- (Rupees two thousand five hundred) only for her minor son.
Already, the criminal court under Section 125 of the Code of Criminal Procedure, 1973, directed payment of Rs.1200/- (Rupees one thousand two hundred) only per month as maintenance allowances.
Thus, the learned trial judge directed payment of Rs.8,700/- (Rupees eight thousand seven hundred) only to the wife towards alimony pendente lite and cost of maintenance of the children.
2Mr. Sandip Chanda, learned advocate appearing in support of this application, draws my attention to the decision of the Supreme Court of India in the case of Sudeep Chaudhary versus Radha Chaudhary reported in AIR 1999 Supreme Court 536. The Supreme Court held that the amount awarded under Section 125 of the Code of Criminal Procedure, 1973, for maintenance was adjustable against the amount awarded in the matrimonial proceeding and was not to be given over and above the same.
Therefore, Mr. Chanda submits that the wife is entitled to get Rs.7,500/- (Rupees seven thousand five hundred) only in total including the maintenance granted by the criminal court.
Mr. Dilip Kumar Mondal, learned advocate appearing for the opposite party/wife, however, submits that the learned judge found, as findings of fact, that the husband was liable to pay in total Rs.8,700/- (Rupees eight thousand seven hundred) only to the wife and the children and, thus, he has directed payment of Rs.8,700/- (Rupees eight thousand seven hundred) only by the husband to the wife. Secondly, Mr. Mondal submits that the application for alimony pendente lite and cost of litigation was filed on May 31, 2011. Therefore, the learned Additional District Judge was not correct in awarding such maintenance from November 1, 2012.
I am of the opinion that the learned judge committed an error of jurisdiction in directing payment of maintenance from November 1, 2012, when the application was filed on May 31, 2011. The maintenance must be directed to be paid at least from the date of filing of the application.
3Considering the income of the husband and that the position and status of the parties, I am of the opinion that justice will be sub-served if the husband is directed to pay Rs.5,000/- (Rupees five thousand) only towards alimony pendente lite to the wife and Rs.3,000/- (Rupees three thousand) only as cost of maintenance of the children during the pendency of the suit.
Needless to say, that in view of pronouncement of the Supreme Court of India in case of Sudeep Chaudhary (supra), the amount awarded for maintenance is adjustable against the amount awarded in the matrimonial proceeding.
Thus, the order impugned is modified. The husband shall pay Rs.5,000/- (Rupees five thousand) only towards alimony pendente lite to the wife and Rs.3,000/- (Rupees three thousand) only towards maintenance of the children totaling Rs.8,000/- (Rupees eight thousand) only to the wife with effect from May 31, 2011.
Let the husband pay all the arrears by four months in four equal monthly instalments. The current alimony pendente lite of Rs.8,000/- (Rupees eight thousand) only shall be paid for the month of August, 2013 by September 7, 2013 and all subsequent payments shall be paid by seventh of each succeeding month for which the same is due and payable.
In order to avoid any future criticism in the matter, I direct the wife to disclose her bank particulars to enable the husband to go on depositing the arrears and current maintenance month by month in such bank account.
4Let such particulars be disclosed by the wife/opposite party to the learned advocate for the husband/petitioner by a week from date.
With the aforesaid directions, the revisional application stands disposed of.
I make no order as to costs.
(Subhro Kamal Mukherjee, J.)