Latest Judgement

Court: CALCUTTA HIGH COURT

Bench: JUSTICE Ashis Kumar Chakraborty

TRIPTI CHAKRABORTY Vs. ANJAN CHAKRABORTY On 28 July 2017

Law Point:
Post held by Husband and Monthly Salary are Important Factors to be Considered in Determination of Amount of Maintenance.

JUDGEMENT

This revisional application, at the instance of the respondent wife in the matrimonial suit, is directed against the order dated March 31, 2015 passed by the learned Additional District Judge, 5th Court, Alipore in Misc. Case No. 9 of 2011 arising out of Mat Suit No. 54 of 2011. By the impugned order, the learned Court below disposed of the application filed by the present petitioner under Section 24 of the Hindu Marriage Act, 1955 (in short “the Act of 1955”) by directing the opposite party husband to pay Rs. 14,000 , per month to the petitioner for alimony pendente lite and Rs. 10,000 for support of the minor girl. The learned Court below further directed the opposite party to pay Rs. 15,000 to the present petitioner for the litigation cost.

2. Shorn of details, the facts leading up to the present revisional application are that in the year 1991 the petitioner and the opposite party was married, but since no child was born out of their wedlock, they adopted a girl child. However, due to matrimonial discord having arisen between the parties, the petitioner and the minor daughter are living separately from the opposite party. The opposite party husband filed the matrimonial suit under Section 13(1)(ia) of the Act of 1955 against the petitioner, before the learned Court below, claiming a decree for dissolution of marriage. Before filing of the matrimonial suit, the present petitioner had filed an application under Section 125 of the Criminal Procedure Code, 1973. In the said application, the learned Judicial Magistrate, 4th Court at Barrackpore on June 4, 2011 passed an order directing the opposite party to pay Rs. 12,000, per month to the present petitioner on account of her maintenance and Rs. 8,000, per month for the maintenance of the minor daughter. The opposite party challenged the said order dated June 4, 2011 by filing a criminal revisional application before the learned Additional District and Sessions Judge, Fast Track Court, Barrackpore, North 24-Parganas which was dismissed on July 3, 2012. The opposite party challenged the said order dated July 3, 2012 in criminal revision before this Court and the same was also rejected by a learned Single Judge of this Court on June 3, 2014. In the meantime, on February 21, 2011 the petitioner filed the application in the matrimonial suit, under Section 24 of the Act of 1955, praying for monthly alimony pendente lite of Rs. 40,000 for herself, monthly interim maintenance of Rs. 10,000 for her adopted daughter and Rs. 40,000 towards litigation cost. In the said application, the petitioner alleged that the opposite party is working in a high post in the Central Government Undertaking, his monthly salary is around Rs. 1,00,000 and that the opposite party has no liability as his mother maintains herself with the wealth left behind by her deceased husband. The opposite party contested the said application. In his affidavit-in-opposition the opposite party stated that he is employed in Central Glass and Ceramic Research Institute under the Council of Scientific and Industrial Research, Government of India and after statutory deduction and other expenses, he is getting monthly salary of Rs. 66,000. The opposite party further alleged that he has been paying the life insurance premium of Rs. 11,500 per month for the two policies standing in the name of the petitioner and the said amount is deducted from his salary. In the said application the petitioner, as well as the opposite party examined themselves. The opposite party exhibited his pay slip for the month of July, 2014 (Ext.-1) disclosing that he was working as a Senior Principal Scientist of Central Glass and Ceramic Research Institute, Kolkata, his gross monthly salary was Rs. 1,64,210 and after deduction of income-tax, professional tax, life insurance premium and co-operative charges, he was receiving the net salary of Rs. 76,220, per month. By order dated March 31, 2015 the learned Court below disposed of the said application by directing the opposite party to pay Rs. 14,000 per month as alimony pendente lite for the petitioner wife and Rs. 10,000, per month as interim maintenance for the minor child and an amount of Rs. 15,000 as litigation cost to the petitioner wife. The learned Court below further directed that the said amount of alimony pendente lite will be adjusted with any amount paid by the opposite party husband to the petitioner wife and the minor daughter towards their maintenance. As mentioned earlier, it is the said order dated March 31, 2015 passed by the learned Court below which is the subject matter of challenge in this revisional application for enhancement of the alimony pendente lite and maintenance for the petitioner and the minor daughter respectively.

3. In this revisional application, a learned Single Judge of this Court passed an order referring the disputes between the parties for mediation through a former Judge of this Court. In the mediation proceeding, the petitioner produced the salary certificate of the opposite party for the month of March, 2016 showing his gross salary of Rs. 1,82,534 and net pay of Rs. 97,699. The said mediation proceeding failed and all the records were forwarded to this Court. On May 15, 2017 this Court directed the opposite party to produce his salary certificate for the month of March, 2017. The opposite party produced his salary certificate for the month of March, 2017 which showed his gross salary to be Rs. 1,97,332 and after the statutory deduction of Income-tax, professional tax and voluntary deduction of provident fund, life insurance premium etc., his net pay is Rs. 1,04,894 . Of course, when the opposite party went into the box and proved his said salary certificate for the month of March, 2017 he stated that presently he is residing at a rented accommodation at a monthly rental of Rs. 11,000 but he did not produce any rent receipt.

4. Assailing the impugned order passed by the learned Court below, Mr. Amal Krishna Saha, learned Advocate appearing for the petitioner wife submitted that when the salary certificate produced by the opposite party in the application under Section 24 of the Act of 1955 disclosed that in the month of July, 2014 he was receiving a gross salary of Rs. 1,64,210, the learned Court below ought to have considered the net disposable monthly income of the petitioner without deducting the monthly life insurance premium and provident fund contribution deducted from the gross salary of the opposite party which are voluntary contribution/deductions and not statutory deduction. He further submitted that although in his examination-in-chief before the learned Court below, the opposite party made a statement that a sum of Rs. 11,500 is deducted from his salary on account of monthly insurance premium for two policies which are standing in the name of the petitioner wife, but from the copies of the policy documents issued by the Life Insurance Corporation, as disclosed by the opposite party in his examination-in-chief, it is clear that the both the said policies are in his own name and the petitioner wife is only a nominee of the said insurance policies. Relying on the decisions of the Supreme Court in the cases of Jasbir Kaur Sehgal v. District Judge, Dehradun reported in II (1997) DMC 338 (SC)=V (1998) SLT 551=III (1997) CLT 398 (SC)=(1997) 7 SCC 7 and Shamma Farooqui v. Shabid Khan, reported in III (2015) SLT 703=III (2015) DLT (CRL.) 371 (SC)=(2015) 5 SCC 705, it was contended that in the present case, for ascertaining the figure of alimony pendente lite to be paid by the opposite party husband to the petitioner, the learned Court below ought to have first ascertained the net disposable monthly income of the opposite party, without taking into consideration the deductions made by his employer on account of his provident fund contribution and the said life insurance premium which are voluntary payments/deductions. It was submitted that if the amount of provident fund contribution and the monthly insurance premium are not deducted from the gross salary of the opposite party for the month of November, 2013, his net disposable monthly income was Rs. 1,12,200 and the learned Court below erred in holding that the net pay of the opposite party was Rs. 76,220. Mr. Saha further cited the Division Bench decision of this Court in the case of Smt. Soma Chowdhury v. Pradip Kumar Chowdhury, reported in AIR 2009 Cal. 63, and submitted that it is settled law that alimony pendente lite payable under Section 24 of the Act of 1955 varies between one-third and one-fifth of the net disposable income of the earning spouse, but the learned Court below passed the impugned order in violation of the said settled law. It was further argued that in any event, it is the well settled law that in an application under Section 24 of the Act of 1955 the applicant is entitled to receive alimony pendente lite and the interim maintenance for the minor child from the date of the filing of the application, but in the instant case the learned Court below while passing the impugned order fell into an error of law in not directing that the opposite party is liable to pay alimony pendente lite from the date of filing of the application by the petitioner. On these grounds, it was strenuously contended by the petitioner that the impugned order passed by the learned Court below is vitiated by failure to exercise judicial discretion and the same is liable to be set aside. It was further pointed out on behalf of the petitioner that from the salary slip of the opposite party disclosed in the mediation proceeding, it is clear that he has been promoted to the post of Senior Principal Scientist and at least from the month of March, 2016 his gross salary has increased to Rs. 1,82,534. It was further submitted that the salary certificate produced by the opposite party for the month of March, 2017, before this Court on May 19, 2017 discloses that his gross salary now stands increased to Rs. 1,97,332 and if the statutory deductions of income tax and professional tax are taken into consideration, the net disposable monthly income of the opposite party is presently more than Rs. 1,35,000. Citing the Division Bench decision of this Court in the case of Chitra Sengupta v. Dhruba Jyoti Sengupta, reported in II (1987) DMC 162 (DB)=AIR 1988 Cal. 83, Mr. Saha further contended that it is settled law that the amount of maintenance awardable to the wife is to depend on the status and station of the husband, the amount which can be regarded to be sufficient for her support must also depend and vary with the status and station of the husband. Therefore, according to him, in the instant case, with the enhanced monthly salary of the opposite party, the petitioner is entitled to receive alimony pendente lite for herself and interim maintenance for the minor daughter far in excess of the amount allowed by the learned Court below and this Court should set aside the impugned order and fix the amount of alimony pendente lite for the petitioner and the interim maintenance for the minor child after considering the net pay of the opposite party for the month of March, 2017 to be Rs. 1,35,894 .

5. However, Dr. Indrajit Mondal, learned Advocate appearing for the opposite party husband strenuously contended that the learned Court below has passed the impugned order in exercise of the discretion conferred under Section 24 of the Act of 1955 and when the impugned order suffers from no patent illegality, this Court in exercise of jurisdiction under Article 227 of the Constitution of India should not disturb the finding of facts recorded by the learned Court below on the basis of the salary certificates of the opposite party husband before the learned mediator and before this Court. In support of such contention, he relied on the decision of the Supreme Court in the case of Mrs. Rena Drego v. Lalchand Soni, reported in III (1998) SLT 678=AIR 1998 SC 1990. He further contended that it is well-settled that the amount of alimony pendente lite once directed by a Court to be paid till the disposal of the matrimonial suit, the same cannot be subsequently enhanced and/or reduced by the Court. In support of such contention, he cited the decision of a learned Single Judge of this Court in the case of Soumya Majumder v. Shressha Dhar Majumder, reported in 2017 (2) CLJ 257 (Cal.). Therefore, it was contended neither this Court in this revisional application nor the learned Court below can alter the amount of alimony pendente lite directed to be paid by the opposite party to the petitioner by the impugned order. He, however, did not dispute that the petitioner with her minor daughter are staying apart from the opposite party, she has no independent source of income to maintain herself and the minor daughter. Further, the learned Advocate for the opposite party did not dispute the contention of the petitioner that the monthly provident fund contribution and monthly insurance premium deducted from the salary of the opposite party are voluntary contributions/deductions and for ascertaining the net monthly disposable income, the said amounts cannot be deducted from the gross monthly salary of the opposite party No. 1.

6. Mr. Saha in his reply, relied on a decision of the learned Single Judge of this Court in the case of Bipasha Bhowal v. Biplab Bhowal, reported in III (2014) DMC 390 (DB) (Cal.)=2011 (1) CHN 239 (Cal.), and submitted that it is well0settled law that based on a subsequent event, the Court has ample power to enhance the amount of alimony pendente lite to be paid by the earning spouse. It was urged that the decision of the learned Single Judge of this Court in the case of Soumya Majumdar (supra) does not lay down the correct exposition of law and, therefore, not binding upon this Court.

7. I have considered the materials on record, as well as the arguments advanced by the learned Counsel appearing for the respective parties. In the first place, the learned Court below passed the impugned order without specifying the date from which the opposite party husband was made liable to pay the alimony pendente lite for the petitioner and the interim maintenance for the minor daughter. Further, the learned Court below has passed the impugned order without considering that the insurance policy documents disclosed by the opposite party himself proved his statement in the examination-in-chief that he is paying life insurance premium of Rs. 11,000, per month for two policies standing in the name of the petitioner wife to be ex facie untrue. In any event, the monthly provident fund contribution and the monthly insurance premium are voluntary contributions of the opposite party and the same could not be taken into consideration for arriving at the net monthly disposable income of the opposite party. Therefore, I find that the petitioner is justified in her contention that the impugned order passed by the learned Court below, insofar as the same fixed the alimony pendente lite and interim maintenance payable by the opposite party for the petitioner and the minor daughter, is vitiated by failure of judicial discretion.

8. So far as the decision of the Supreme Court in the case of Mrs. Rena Drego (supra) cited by the opposite party I find that in the said case, the High Court in exercise of revisional jurisdiction under Article 227 of the Constitution of India reversed the decree of eviction passed by the Small Causes Court, Bombay, based on findings of facts which was not vitiated by any perversity or patent illegality. In the facts of this case already discussed above, I find that the said decision has no application. With regard to the decision of a learned Single Judge of this Court in the case of Soumya Majumder (supra) it is a fact that in the said case, a learned Single Judge of this Court has held that once an application for alimony pendente lite under Section 24 has been disposed of by the Court any subsequent application for enhancement of the alimony pendente lite is not maintainable. However, with utmost humility, I find that the said decision was passed without considering the Supreme Court decision in the case of Shipra Bhattacharya v. Dr. Aparesh Bhattacharya, reported in I (2009) DMC 882 (SC)=II (2009) SLT 589=(2009) 4 SCC 366, and the decision of a learned Single Judge of this Court in the case of Bipasha Bhowal (supra). In the case of Shipra Bhattacharya (supra), in an application under Section 24 of the Act of 1955, the learned Trial Judge awarded Rs. 4,000, per month as alimony pendente lite to be paid by the respondent husband to the petitioner wife. The said order was challenged by the petitioner wife by filing a revisional application before this Court. During pendency of the said revisional application the petitioner wife filed an application before the learned Trial Judge seeking enhancement of alimony pendente lite which was originally awarded in her favour. A learned Single Judge of this Court, however, disposed of the said revisional application by directing the learned Trial Judge to dispose of the said application filed by the petitioner for enhancement of the original amount of alimony pendente lite within a specific period of time. The said order passed by the learned Single Judge of this Court was challenged by the wife by filing a special leave petition before the Hon’ble Supreme Court. The Supreme Court held that the petitioner wife was entitled to enhancement of the alimony pendente lite and enhanced the monthly alimony pendente lite in favour of the petitioner wife from Rs. 4,000, per month to Rs. 7,000, per month from the date of filing of the application under Section 24 of the Act of 1955. Even in the case Bipasha Bhattacharya (supra), Jyotirmay Bhattacharya, J. upheld the right the applicant wife to file an application for enhancement of the alimony pendente lite originally allowed by the learned Trial Judge under Section 24 of the Act of 1955. For all these reasons, I find that the decision of the learned Single Judge of this Court in the case of Soumya Majumdar (supra) is per incurrium and does not lay down the correct law.

9. In the present case, it is not in dispute that the petitioner wife and the minor daughter are living separately, the petitioner has no independent source of income and the minor daughter, appearing to be aged about 9 years, is under the care of the petitioner. As held by the Division Bench of this Court in the case of Chitra Sengupta (supra) that the expression “income sufficient for her support” in Section 24 of the Act of 1955 would not mean only such amount as would be sufficient for the wife to eke out her existence at the subsistence level, but would cover such amount as would be necessary for the necessaries suited to the status and station which the wife would have enjoyed as the wife of the respondent husband. Thus, while determining the amount of alimony pendente lite awardable to the petitioner and the minor daughter the post held by the opposite party in the Central Government establishment as the Senior Principal Scientist and his monthly salary are important factors to be considered. In the case of Jasbir Kaur Sehgal (supra) the Supreme Court held that while determining the amount of alimony pendente lite payable is to be fixed for the wife, the Court has to consider status of the parties, the capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and of those he is obliged under the law and statutory but involuntary payments and deductions. In the case at hand, the opposite party has not substantiated his claim that his mother is depended on him or that the allegation made by the petitioner that the mother of the opposite party maintains herself with the wealth left behind by her deceased husband.

10. In the facts of this case, as discussed above I find that the impugned order dated March 31, 2015 passed by the learned Court below, insofar as the same directed the opposite party to pay Rs. 12,000 per month as alimony pendente lite for the petitioner and Rs. 8,000 per month for the interim maintenance of the minor daughter is vitiated by failure of exercise of judicial discretion and, as such, cannot be the same is set aside.

11. This revisional application is the continuation of the application of the petitioner under Section 24 of the Act of 1955. The matrimonial suit has been filed by the opposite party husband in the year 2011 and in view of the settled principle of law that with the increase of the income of the husband, the wife is entitled to obtain enhancement of alimony pendente lite for herself and the interim maintenance of the minor child, I think in the interest of justice and in order to avoid further delay in conclusion of the matrimonial suit it would be appropriate to dispose of the present revisional application after taking into consideration the increase of the salary of the opposite party husband.

12. In the present case, the learned Court below passed the impugned order on the basis of the salary certificate of the opposite party for the month of September, 2013 when his gross salary was Rs. 1,46,095 and considering the monthly provident fund contribution and monthly insurance premium amounting to Rs. 36,000 to be voluntary deductions, the net disposable income of the opposite party was Rs. 1,01,112. Therefore, when apart from the petitioner wife and the minor daughter, the opposite party does not have to maintain anyone else and considering the high post he holds as the Senior Principal Scientist of Central Glass and Ceramic Research Institute under the Council of Scientific and Industrial Research, Government of India, I am of the opinion that the opposite party is liable to pay Rs. 23,000 as alimony pendente lite for the petitioner wife and Rs. 10,000 for the minor daughter from the date of filing of the application under Section 24 of the Act of 1955, leaving the balance income of Rs. 67,400 for himself. Further, there are two salary certificates of the opposite party husband for the month of March, 2016 and March 2017 showing that there were further revisions of his salary. It may be noted that none of the said certificates was produced by the opposite party on his own. The salary certificate of the opposite party, for the month of March, 2016, was obtained by the petitioner from the employer of the opposite party under Right to Information Act and the salary certificate for the month of March 2017 was produced by the opposite party as per the direction of this Court. From the salary certificate of the opposite party for the month of March, 2016 it appears that his gross salary of Rs. 1,82,534 and considering the monthly provident fund contribution of Rs. 20,000 and monthly insurance premium of Rs. 11,000 are voluntary deductions, his net disposable income was Rs. 1,28,699. Therefore, from the month of March, 2016 till February, 2017, the opposite party should be directed to pay one-third of his net monthly salary amounting to Rs. 42,900 for the alimony pendente lite of the petitioner wife and for interim maintenance of the minor child, leaving the balance income of Rs. 85,800 for himself. Further, the salary certificate of the petitioner for the month of March 2017 shows his present gross salary is Rs. 1,97,332 and considering the monthly provident fund contribution of Rs. 20,000 and monthly life insurance premium of Rs. 11,000 as voluntary deductions, the net disposable income of the opposite party is Rs. 1,35,896 and, as such, he should be directed to pay one-third of his said net disposable income amounting to Rs. 45,000 on account of alimony pendente lite for the petitioner and the interim maintenance of the minor child leaving the balance income of Rs. 90,500 for himself.

13. For the reasons as aforesaid, this revisional application is disposed of with the following directions:

(i)

The opposite party shall pay alimony pendente lite of Rs. 23,000, per month for the petitioner and Rs. 10,000, per month as the interim maintenance for the minor daughter from the date of filing of the application under Section 24 of the Act of 1955 till February, 2016;

(ii)

from the month of March 2016 till February 2017, the opposite party shall pay Rs. 32,000, per month as alimony pendente lite for the petitioner and Rs. 10,900, per month as the interim maintenance for the minor daughter;

(iii)

from the month of March 2017 and until further order the opposite party shall pay Rs. 33,000, per month as alimony pendente lite for the petitioner and Rs. 12,000, per month for the interim maintenance for the minor daughter;

(iv)

the opposite party shall pay the arrear alimony pendente lite for the wife and arrear interim maintenance for the minor daughter till the month of July, 2017, after adjusting the amount already paid to the petitioner wife as per the order dated June 3, 2014 passed by a learned Single Judge of this Court in C.R.R. No. 2798 of 2012, C.R.A.N. 3469 of 2013, Anjan Chakraborty v. State of West Bengal & Anr.;

(v)

so far as the arrear amount of monthly alimony pendente lite for the petitioner wife and the arrear amount of monthly interim maintenance for the minor child, as mentioned above, the opposite party shall pay the same to the petitioner wife by way of seven monthly instalments of equal amount and the first of such instalment shall be paid within August 31, 2017;

(vi)

from the month of August, 2017 the opposite party shall continue to pay the petitioner, the current monthly alimony pendente lite of Rs. 32,000 for the petitioner and the monthly interim maintenance of Rs. 12,000 for the minor daughter within the 10th day of each month;

(vii)

the amount of litigation cost awarded by the learned Court below to be paid by the opposite party to the petitioner remains unaltered. The said amount, if not already paid, shall be paid by the opposite party to the petitioner within the month of August, 2017.

(viii)

the learned Court shall make an endeavour for expeditious disposal of the matrimonial suit and the parties shall render all assistance to the learned Court below.

With the above directions, the application, being C.O. 2196 of 2015, stands disposed of. However, there shall be no order as to costs.

Urgent certified copy of this judgement, if applied for, be supplied to the parties subject to compliance with all requisite formalities.

C.O. disposed of.