Calcutta High Court (Appellete Side)
Soumen Bhattacharjee vs Paramita Bhattacharjee (Ganguly) on 29 March, 2011
Author: Dipankar Datta
Bench: Dipankar Datta
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IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
Present: The Hon'ble Justice Dipankar Datta
C.O. No. 128 of 2011
Soumen Bhattacharjee
Versus
Paramita Bhattacharjee (Ganguly)
For the petitioner : Mr. R.S. Chattopadhyay
Mr. U.S. Chattopadhyay
For the opposite party : Mr. Sukanta Chakraborty
Heard on : February 18, 2011
Judgment on : March 29, 2011
1.In this application under Article 227 of the Constitution dated January 11, 2011, the petitioner (hereafter the husband) calls in question order no.7 dated December 20, 2010, passed by the learned Additional District Judge, 2nd Court, Barasat. By the impugned order, the petition filed by the opposite party (hereafter the wife) under Section 24 of the Hindu Marriage Act (hereafter the Act) dated September 14, 2010 was allowed on contest. It was held that the wife is entitled to alimony pendente lite of Rs. 8,000/- per month from the date of filing of the application. The husband was also directed to pay Rs. 4,000/- as litigation cost to the wife.
2. The learned Judge after noting the stand of the husband that his gross salary is Rs.
14,800/- per month, arrived at a conclusion on perusal of his salary slip that he was 2 earning more than what he had claimed and proceeded to grant alimony pendente lite , as noticed above.
3. Mr. Chattopadhyay, learned advocate appearing for the husband contended that the learned Judge failed to consider that the husband was under an obligation to maintain his old parents and that in terms of an order passed by the competent authority under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, he has been paying consolidated sum of Rs. 2,500/- to them each month. That apart, it was also not considered by the learned Judge that earlier proceedings before the Court between the husband and the wife had been compromised on the understanding that the wife would reside with the husband, and after such compromise, on the insistence of the wife while they were living together, the husband had arranged for a separate accommodation obtaining loan from a financial institution for which he has been paying Rs. 4,178/- on account of EMI. According to him, since the husband filed an application for restoration of conjugal rights under Section 9 of the Act and the wife is not willing to reside with him, the learned Judge ought not to have imposed such a heavy liability on him. The sum as awarded by the learned Judge, it was contended, is much on the higher side and it would be difficult for the husband to meet all ends and survive.
4. He, accordingly, prayed for suitable modification of the quantum of alimony pendente lite payable to the wife.
5. This application has been opposed by Mr. Chakraborty, learned advocate for the wife.
According to him, the learned Judge was right in not considering payment of EMI as a factor for reducing the quantum of alimony pendente lite determined to be payable by the husband. It was contended that the wife has no source of earning and was surviving along with the minor child born in the wedlock of the parties on the charity of her parents. The child has to be brought up in a decent manner and all her needs have to be met by the husband, apart from sums required for support of the wife commensurate with the status she enjoys.
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6. In support of his submissions, Mr. Chakraborty relied on the decisions reported in 2010 (7) JT 176 (SC) : Neeta Rakesh Jain v. Rakesh Jeetmal Jain, AIR 1997 SC 3397 :
Jasbir Kaur Sehgal v. District Judge, Dehradun, 2009 (1) CHN 282 : Soma Chowdhury (Sarkar) v. Pradip Kumar Chowdhury, 1994 (2) CLT 97 : Rina Sen v. Aloke Kumar Sen, and AIR 1988 Calcutta 98 : Chitra Sengupta v. Dhruba Jyoti Sengupta.
7. He prayed that the order of the learned Judge be upheld and this application dismissed with costs.
8. I have heard learned advocates for the parties and given the rival claims due consideration in the light of the principles laid down in the cited decisions regarding award of alimony pendente lite. It seems to be settled law that it is only such amount that the Court considers appropriate for the support of the wife and the child that should be awarded; the amount should neither be paltry nor should it be excessive in the sense that the husband is unable to sustain himself with the remainder of his earning after meeting the amount awarded on account of alimony pendente lite. The amount to be awarded ordinarily ought to vary between one-third and one fifth of the earnings of a spouse.
9. The wife is without any earning is undisputed. The husband is a staff reporter employed by the Ananda Bazar Patrika group. It appears from a document being part of Annexure 'P-6' to this application that w.e.f. April 1, 2010, for a period of 24 months, the husband would be entitled to Rs. 20,786/- each month as compensation package excluding statutory deductions. It further appears from another document being part of Annexure 'P-6' i.e. pay slip for April, 2010, that after statutory deductions towards professional tax, provident fund and income tax, the total earnings of the husband would be Rs. 18,735/-. The learned Judge, therefore, was obliged to determine alimony pendente lite payable to the wife for her own support as well as for the maintenance of the minor child bearing in mind the said sum of Rs. 18,735/-.
10. As noticed above, the learned Judge did not accept the claim of the husband that he was earning Rs. 14,000/- and observed that he was earning much more. However, not 4 a single reason was assigned as to why he thought that Rs. 8,000/- on account of alimony pendente lite would be just and proper considering all aspects. Since the parties have been heard in extenso, I am of the considered view that interest of justice would be best served if, instead of remitting the matter to the learned Judge citing non-furnishing of acceptable reason as the cause for interdiction, a decision in respect of the entitlement of the wife is arrived at on this application itself.
11. The learned Judge was correct in his conclusion that any loan that a party might have obtained and the money spent for repayment thereof is not relevant for considering the amount to be granted on account of alimony pendente lite. However, the order impugned suffers from certain serious legal infirmities, other than non-furnishing of reason, for which I consider that intervention is necessary to set things right. It does not appear from the order impugned that the fact that the husband has to bear Rs. 2500/- on account of maintenance of his parents was given any consideration worth the name. Also, the husband being a staff reporter and Rs. 1,500/- being allocated by his employer towards conveyance charges, it is quite but normal that such amount would be spent for travel on duty and, therefore, ought to have been excluded for the purpose of determining the quantum based whereon alimony pendente lite was required to be ordered. If the amount of maintenance that the husband is liable to bear for his parents and the amount allocated by the employer for his conveyance is deducted, a sum of Rs. 14,735/- is left in the hands of the husband. The learned judge ought to have considered as to what share of this figure would constitute reasonable alimony pendente lite. The formula that has been uniformly followed is to award anything between one-third and one-fifth of the net earnings. Since the figure of Rs. 14,735/-, according to me, ought to constitute the guiding factor for determining payment of alimony pendente lite in the present case, I shall proceed to decide what would serve the interests of the parties best bearing in mind the undeniable fact that the husband has a duty to support his wife as well as to take all such steps that are necessary for proper upbringing of his minor child. One-third of Rs. 14,735/- would be 5 something less than Rs. 5,000/- whereas one-fifth would be something less than Rs. 3,000/-. I have been informed that the child is about 5 years old. Considering the requirement of a child of such age, it would be proper to award Rs. 2,000/- per month for her proper upbringing whereas for the proper support of the wife, I consider it proper to award her Rs. 5,000/- on account of monthly maintenance.
12. The order of the learned Judge accordingly stands modified. Instead of Rs. 8,000/- as directed to be paid by the impugned order, the husband shall be under an obligation to pay Rs. 7,000/- per month from the date the application under Section 24 of the Act was filed. The arrears shall be computed and paid to the wife by the husband in eight equal monthly instalments together with current alimony pendente lite. It shall be paid within the 10th of April, 2011 and by the 10th of each succeeding month until further orders are passed by the learned Judge. If there be change of circumstances leading to hike/reduction of monthly earnings of the husband, either party shall be at liberty to pray for enhanced or reduced alimony pendente lite, as the case may be.
13. In so far as litigation cost is concerned, the amount awarded by the trial Judge stands.
14. This application stands disposed of with the above directions, without order for costs.
15. Urgent photostat certified copy of this judgment and order, if applied for, be supplied to the applicant upon compliance with requisite formalities.
(DIPANKAR DATTA, J.)