We find no substance in the contention of Mr Chakrabarti that merely because the proceeding has been continuing for the last 11 years, she should be deprived of her just dues proved in the suit. The husband cannot get the advantage of the delayed disposal of the proceedings. Section 34 of the Code of Civil Procedure vests the Court with the power even to grant interest in a suit for payment of money from the date of institution of the suit on the amount decreed. Therefore, it is preposterous to suggest that in a suit of payment of maintenance the Court is not entailed to pass direction for payment of alimony, the relief of payment of money claimed, from the date of the institution of the suit.
(a) The parties were married on 13th December, 1990 according to Hindu Rites and in the said wedlock, a male child was born on 15th March, 1992. The said son was under the care and custody of the plaintiff since 15th August, 1993, when the plaintiff was beaten and driven out along with her child from the house of the defendant.
(b) The plaintiff was subjected to inhuman physical and mental torture in her matrimonial home and ultimately, on 15th August, 1993, she was ruthlessly beaten by the defendant and was compelled to take shelter sometime in her brother's house, and occasionally, in the house of her parents.
(c) The plaintiff had no means of her own to maintain herself and her son, and was fully dependent upon her poor father and the charity of her near relations. The defendant was neither maintaining the plaintiff nor the minor child save and except the monthly payment of Rs.350/- pursuant to an order passed in a criminal proceeding under Section 125 of the Code of Criminal Procedure vide the case no.510 of 1993 which was pending in the First Court of Judicial Magistrate, Alipore.
(d) The defendant is a permanent employee of Calcutta Port Trust and his salary was Rs.10,438/- a month. The plaintiff, therefore, was entitled to get permanent maintenance of Rs.5,000/- a month for herself and her son.
The suit was contested by the defendant by filing written statement thereby denying the material allegations made in the plaint and the defence of the defendant were as follows:
(1) It was denied that the plaintiff was subjected to physical or mental torture in the matrimonial home, that the plaintiff was beaten mercilessly, that she was driven away from the house of the defendant with the wearing apparel only, or that the plaintiff had been living at her parents' house or in her brother's house.
(2) The defendant admitted that he was an employee of Calcutta Port Trust but denied that he used to get a monthly salary of Rs.10,000/- but admitted his salary to be Rs.4,400/-.
(3) The father of the plaintiff and the plaintiff herself were opposed to live jointly with the widowed mother and unmarried sister of the defendant and the plaintiff and her father advised the defendant to live and stay in the family of the plaintiff at Howrah as a domesticated son-in-law and when the defendant turned down such proposal, the plaintiff of her own left the matrimonial home.
(4) The plaintiff knew sewing work and earned a minimum amount of Rs.1,000/- a month.
At the time of hearing, the plaintiff and her brother deposed in support of the case made out in the plaint, while the defendant, his mother and one Raj Kumar Mukherjee, deposed on behalf of the defendant.
The learned Trial Judge by the judgment and decree impugned herein concluded that the mother of the defendant was not dependant upon the defendant and there had been forcible ouster of the plaintiff from the matrimonial home. It was further found that the plaintiff had no income of her own except that she used to receive a sum of Rs.350/- a month by virtue of an interim order passed in the proceeding under Section 125 of the Code of Criminal Procedure. After arriving at such finding, the learned Trial Judge was of the view that the plaintiff was entitled to get Rs.1,500/- a month for herself and a further sum of Rs.1,500/- a month for the maintenance and education of the minor son. Being dissatisfied, the defendant has come up with the present appeal and as pointed out earlier, a cross-objection has been filed by the plaintiff. Mr Chakrabarti, the learned senior advocate appearing on behalf of the appellant, strenuously contended before us that the learned Trial Judge failed to consider that in a proceeding under the Act, it was the duty of the Court to see whether the defendant had any other dependant within the meaning of the said Act. According to Mr Chakraborty, the mother of his client is also a dependant and, thus, the learned Trial Judge ought to have considered such aspect while passing a direction for payment of Rs.3,000/- a month. Mr Chakrabarti submits that after deduction, his client gets only Rs.4,000/- and odd a month, although, he admitted that the gross income of the husband was Rs.10,000/- and odd. Mr Chakrabarti further contends that it was the duty of the learned Trial Judge to specifically mention in the decree that the amount received by the plaintiff in the proceeding under Section 125 of the Code of Criminal Procedure is adjustable against the decretal amount and that the decree should be effective with effect from the date of passing of the decree.
Mr Ghosh, the learned advocate appearing on behalf of the respondent, on the other hand, has submitted that it has been well established from the evidence that the father of the appellant also was an employee of the Calcutta Port Trust and his mother had been getting family pension. According to him, the mother is, thus, not a dependant. He further contends that by showing repayment of the loan amount and excessive deduction of provident fund, the gross income of Rs.10,000/- and odd has been reduced to Rs.4,000/- and odd a month and therefore, the plaintiff is entitled to get alimony on the basis of the gross income of the husband. He further points out that it has been established that the defendant/appellant purchased a new motorcycle and he uses the said motorcycle. According to him, such fact indicates that he had sufficient income and it is a fit case where a sum of Rs.5,000/- should be awarded for the maintenance of the plaintiff and her son. Mr Ghosh denies the submission of Mr Chakrabarti that the decree passed by the Court should be effective not from the date of institution of the suit but from the date of the decree. After hearing the learned counsel for the parties and after going through the materials on record, we find that undisputedly the husband had a gross income of Rs.10,000/- and odd and he is a permanent employee of the Calcutta Port Trust. It further appears that the mother of the defendant is a family- pension-holder but she refused to produce document showing the exact amount of her family pension. From the previously mentioned fact, the Court reasonably drew adverse presumption against her and concluded that she was not at all dependant upon the defendant. We further find that the D.W.-2, the mother of the defendant, made a deliberate false statement in her deposition that the motorcycle used by her son was given to him by a friend whereas it has been proved from the evidence on record that he purchased the said motorcycle by taking loan. If the defendant for purchasing a new motorcycle takes loan from his office and makes payment of loan, such luxury on the part of the husband cannot affect the right of the wife to get appropriate amount of maintenance. It is now settled law that the alimony should vary between one-third and one-fifth of the income of the husband depending upon the facts and circumstances of the case. It has been proved in this case that the income of the husband is more than Rs.10,000/- a month and in such circumstances, we are of the view that at least Rs.3,000/- should be payable to the wife as alimony and a further sum of Rs.2,000/- to the son who is now 15 years old to meet not only his maintenance but also the educational expenses from the date of filing the application for amendment of the plaint. For the period prior to the date of filing of the application for amendment of the plaint from the date of filing of the suit, the amount should be Rs.2000/- for the wife and Rs.1000/- for the son. The next question is whether the decree we propose to pass should be effective from the date of institution of the suit or from the date of the decree of the Trial Court.
Mr Chakrabarti, in this connection, made twofold submission. First, according to him, the wife having already obtained interim order of alimony and having accepted the said amount without challenging the same in higher forum, no further amount of alimony should be granted for the selfsame period. Secondly, he contends that in a suit claiming monthly alimony under the Act, the decree passed therein, as a rule, should be effective not from the date of institution of the suit but from the date of decree.
Mr Chakrabarti, in this connection relies upon the following decisions in support of his contention:
1) Dr. Kulbhushan Kunwar vs. Smt. Raj Kumari & Ors. reported in AIR 1971 SC 234;
2) Kiran Bala Saha vs. Bankim Chandra Saha reported in AIR 1967 Cal 603;
3) Gowardhan Sheocharan & Ors. vs. Smt. Gangabai reported in AIR 1964 M.P. 168;
4) Laxmi & Anr. vs. Krishna Bhatta & Anr. reported in AIR 1968 Mysore 288;
5) Kashinath Sahu vs. Smt. Devi & Ors. reported in AIR 1971 Orissa 295. After considering the submission of the learned counsel for the parties, we are not at all impressed by the submission of Mr Chakrabarti for the reasons set forth below:
The cause of action of filing a suit for alimony arises when the defendant refuses to maintain the plaintiff by paying sufficient amount of maintenance. Such a suit is valued based on the claimed amount of maintenance for a year and the court fees are required to be paid thereon. If at the trial, the plaintiff proves the cause of action alleged in the plaint either in full or in part, the Court passes the decree consequently depending upon the part of the cause of action that has been proved. In other words, if the allegations contained in the plaint are fully proved, the Court will decree the suit in full but if the allegations are partially proved, the Court will pass decree accordingly. For various reasons, the suit may continue for years. The suit out of which the present appeal arises was filed on 16th May, 1997 and was decreed on 25th September, 2001. In the plaint, it was alleged that the plaintiff was driven out from the matrimonial home on 15th August, 1993 and since then the defendant refused to pay any amount as maintenance except the amount received by her by virtue of the order passed by the Criminal Court in the proceedings under Section 125 of the Code of Criminal Procedure. She, however, did not claim any arrears amount of maintenance in the suit for a period prior to the date of institution of the suit. In this case, it has been proved that except the amount received by her in the proceedings under Section 125 of the Code and by virtue of the interim order passed in the suit or in this appeal, no further amount has been paid by the husband to the wife. In such circumstances, the Court while passing the decree should clarify that although the plaintiff would be entitled to get the alimony from the date of filing of the suit (she having decided not to claim any arrears of alimony), the amount received by her either by virtue of the interim order passed in this proceeding or in the criminal proceedings should be deducted from the amount of alimony decreed. In this case, the plaintiff initially claimed maintenance at the rate of Rs.3000/- a month and subsequently, by amendment enhanced the claim to Rs.5,000/- by filing an application for amendment on 14th August, 2001 and the same was allowed. Therefore, in this case, the plaintiff should be entitled to get alimony at the rate of Rs.3000/- a month from the date of institution of the suit till August, 2001 and from September, 2001 at the rate of Rs.5000/- a month less the amount already received by her as interim maintenance either in this proceedings or in the Criminal Court. We find no substance in the contention of Mr Chakrabarti that merely because the proceeding has been continuing for the last 11 years, she should be deprived of her just dues proved in the suit. The husband cannot get the advantage of the delayed disposal of the proceedings. Section 34 of the Code of Civil Procedure vests the Court with the power even to grant interest in a suit for payment of money from the date of institution of the suit on the amount decreed. Therefore, it is preposterous to suggest that in a suit of payment of maintenance the Court is not entailed to pass direction for payment of alimony, the relief of payment of money claimed, from the date of the institution of the suit.
We now propose to deal with the decisions cited by Mr. Chakrabarti. In the case of Dr. Kulbhushan Kunwar vs. Smt. Raj Kumari and another (supra), it was held by the Supreme Court that the quantum of maintenance depends upon a gathering together of all the facts of the situation, the amount of free estate, the past life of the married parties and the families, a survey of the conditions and necessities and rights of the members on a reasonable view of change or circumstances possibly required in the future, regard being, of course had to the scale and mode of living and to the age habits, wants and class of life of the parties. In that case, the wife's claim to maintenance against husband for herself and for her daughter was first laid by a lawyer's notice of 1951 but the suit for maintenance was filed in 1954. In such a situation, it was held that the suit could be decreed from the date of its institution as a terminus a quo for maintenance as claimed by wife. In that case, the wife regularly used to receive Rs.2501/- a month from her father during his lifetime. It was contended that the said sum should be taken to be her income. The Apex Court, however, turned down such contention holding that the said sum so received by the wife from her father was not her income but as only a bounty from her father which she might or might not get and hence, it was not a fact to be taken into consideration under Section 23(2)(d). We fail to appreciate how the said decision is of any help to Mr Chakrabarti when in this case, although, the plaintiff alleged non-payment of maintenance from an earlier point of time, restricted her claim in the suit only from the date of institution of the suit. We, thus, find that the said decision is of no assistance to the appellant.
In the case of Kiran Bala Saha vs. Bankim Chandra Saha (supra), it was held by a learned Single Judge of this Court that according to Section 3(b)(i) of the Hindu Adoption and Maintenance Act, the wife should be entitled to get real maintenance and not a bare or starving maintenance so that the person maintained is forced not to lead the life of a dog but, at the same time, while directing the husband to maintain his wife, the Court should not be blind to the liabilities of the husband and thereby award the wife a maintenance which will make the husband a pauper, himself needing a maintenance. In the case before us, we have already pointed out that the mother of the defendant is a family- pension-holder and as such, the defendant had no liability to maintain his mother. In this case, the family of the husband really consists of three members, i.e. the husband himself, wife and the son. We have ordered him to pay less than half of the amount of pay for the maintenance of the two permitting the husband to utilise the balance half for him. The said decision, thus, does not help the appellant in anyway.
In the case of Laxmi & Anr. vs Krishna Bhatta & Anr. (supra), a suit was filed claiming arrears of maintenance for five years. In such a case, a learned Single Judge of the Mysore High Court was of the opinion that it was in the discretion of the Court to award arrears of maintenance at a smaller rate and quite often, arrears of maintenance are awarded only at a rate which is half the rate at which future maintenance is awarded. In the case before us, the plaintiff has not prayed for any arrear maintenance from a period prior to the institution of the suit but has restricted her claim only to future maintenance. Therefore, the principle laid down in that decision as regards the rate of alimony to be fixed for a period prior to the date of the institution of the suit cannot have any application to the fact of the present case.
In the case of Gowardhan Sheocharan & Ors. vs. Smt. Gangabai (supra), the suit was filed for maintenance claiming arrears for twelve years before suit and in such a case, the Division Bench of the Madhya Pradesh High Court followed the well-settled principle that in fixing the rate of arrears of maintenance generally half the figure fixed for future maintenance is passed. We have already pointed out that in this case the plaintiff did not claim for any arrear maintenance in the suit and therefore, the principle laid down in that decision cannot have application to the fact of the present case. In the case of Kashinath Sahu vs. Smt. Devi & Ors. (supra), a learned Single Judge of the Orissa High Court merely held that amount of maintenance should neither be that much as would keep the wife in luxury nor in penury. In the case before us, we have, after taking into consideration the amount of monthly salary of the husband to be more than Rupees ten thousands and the fact that his mother is not dependent upon him, fixed the same at an amount of Rs.3,000/- for herself and Rs.2,000/- for the son. We have already pointed out that in this case the husband has no further liability to maintain any other person. The maintenance ordered to be paid to the wife was less than one-third of the income of the husband and that ordered to be paid to the son was less than one-fifth of the income of the appellant and the total amount did not exceed half the amount earned by him. The said decision, therefore, does not help the appellant in anyway.
The decisions cited by Mr Chakrabarti are, thus, of no avail to his client. We, therefore, set aside the judgment and decree passed by the learned Trial Judge and enhance the amount of maintenance to the tune of Rs.5,000/- a month from the date of filing the application for amendment of the plaint. The rate will be Rs.3000/- a month from the date of institution of the suit till the date of filing application for amendment of the plaint. It is, however, needless to mention here that any amount received by the wife in a proceeding under Section 125 of the Code of Criminal Procedure after the institution of the suit or as interim alimony in these proceedings, either before the Trial Court or before this Court, will be adjustable against such amount. As stated in Section 25 of the Act, the rate fixed by this decree is subject to variation in changed circumstances due to subsequent event.
We, therefore, dismiss the appeal and allow the cross-objection to the extent indicated above.
In the facts and circumstances, there will be, however, no order as to costs.
(Bhaskar Bhattacharya, J.)
I agree.
(Rudrendra Nath Banerjee, J.)
Print Page
Kolkata High Court (Appellete Side)
Rabin Kumar Chandra vs Sikha Chandra on 26 September, 2008
This first appeal is at the instance of a defendant-husband in a suit for maintenance under the provision of the Hindu Adoption and Maintenance Act, 1956 (hereinafter referred to as the Act) and is directed against the judgment and decree dated 25th September, 2001 passed by the Civil Judge, Senior Division, Seventh Court, Alipore, in Money Suit No.41 of 1997 thereby passing a decree in favour of the plaintiff with a direction for payment of maintenance at the rate of Rs.3,000/- a month for herself and the minor son of the parties. Being dissatisfied, the defendant-husband has preferred this appeal and at the same time, the plaintiff-wife has filed a cross-objection for enhancement of the amount to Rs.5,000/- a month. Both the matters were taken up together. The amended plaint cases are as follows:(a) The parties were married on 13th December, 1990 according to Hindu Rites and in the said wedlock, a male child was born on 15th March, 1992. The said son was under the care and custody of the plaintiff since 15th August, 1993, when the plaintiff was beaten and driven out along with her child from the house of the defendant.
(b) The plaintiff was subjected to inhuman physical and mental torture in her matrimonial home and ultimately, on 15th August, 1993, she was ruthlessly beaten by the defendant and was compelled to take shelter sometime in her brother's house, and occasionally, in the house of her parents.
(c) The plaintiff had no means of her own to maintain herself and her son, and was fully dependent upon her poor father and the charity of her near relations. The defendant was neither maintaining the plaintiff nor the minor child save and except the monthly payment of Rs.350/- pursuant to an order passed in a criminal proceeding under Section 125 of the Code of Criminal Procedure vide the case no.510 of 1993 which was pending in the First Court of Judicial Magistrate, Alipore.
(d) The defendant is a permanent employee of Calcutta Port Trust and his salary was Rs.10,438/- a month. The plaintiff, therefore, was entitled to get permanent maintenance of Rs.5,000/- a month for herself and her son.
The suit was contested by the defendant by filing written statement thereby denying the material allegations made in the plaint and the defence of the defendant were as follows:
(1) It was denied that the plaintiff was subjected to physical or mental torture in the matrimonial home, that the plaintiff was beaten mercilessly, that she was driven away from the house of the defendant with the wearing apparel only, or that the plaintiff had been living at her parents' house or in her brother's house.
(2) The defendant admitted that he was an employee of Calcutta Port Trust but denied that he used to get a monthly salary of Rs.10,000/- but admitted his salary to be Rs.4,400/-.
(3) The father of the plaintiff and the plaintiff herself were opposed to live jointly with the widowed mother and unmarried sister of the defendant and the plaintiff and her father advised the defendant to live and stay in the family of the plaintiff at Howrah as a domesticated son-in-law and when the defendant turned down such proposal, the plaintiff of her own left the matrimonial home.
(4) The plaintiff knew sewing work and earned a minimum amount of Rs.1,000/- a month.
At the time of hearing, the plaintiff and her brother deposed in support of the case made out in the plaint, while the defendant, his mother and one Raj Kumar Mukherjee, deposed on behalf of the defendant.
The learned Trial Judge by the judgment and decree impugned herein concluded that the mother of the defendant was not dependant upon the defendant and there had been forcible ouster of the plaintiff from the matrimonial home. It was further found that the plaintiff had no income of her own except that she used to receive a sum of Rs.350/- a month by virtue of an interim order passed in the proceeding under Section 125 of the Code of Criminal Procedure. After arriving at such finding, the learned Trial Judge was of the view that the plaintiff was entitled to get Rs.1,500/- a month for herself and a further sum of Rs.1,500/- a month for the maintenance and education of the minor son. Being dissatisfied, the defendant has come up with the present appeal and as pointed out earlier, a cross-objection has been filed by the plaintiff. Mr Chakrabarti, the learned senior advocate appearing on behalf of the appellant, strenuously contended before us that the learned Trial Judge failed to consider that in a proceeding under the Act, it was the duty of the Court to see whether the defendant had any other dependant within the meaning of the said Act. According to Mr Chakraborty, the mother of his client is also a dependant and, thus, the learned Trial Judge ought to have considered such aspect while passing a direction for payment of Rs.3,000/- a month. Mr Chakrabarti submits that after deduction, his client gets only Rs.4,000/- and odd a month, although, he admitted that the gross income of the husband was Rs.10,000/- and odd. Mr Chakrabarti further contends that it was the duty of the learned Trial Judge to specifically mention in the decree that the amount received by the plaintiff in the proceeding under Section 125 of the Code of Criminal Procedure is adjustable against the decretal amount and that the decree should be effective with effect from the date of passing of the decree.
Mr Ghosh, the learned advocate appearing on behalf of the respondent, on the other hand, has submitted that it has been well established from the evidence that the father of the appellant also was an employee of the Calcutta Port Trust and his mother had been getting family pension. According to him, the mother is, thus, not a dependant. He further contends that by showing repayment of the loan amount and excessive deduction of provident fund, the gross income of Rs.10,000/- and odd has been reduced to Rs.4,000/- and odd a month and therefore, the plaintiff is entitled to get alimony on the basis of the gross income of the husband. He further points out that it has been established that the defendant/appellant purchased a new motorcycle and he uses the said motorcycle. According to him, such fact indicates that he had sufficient income and it is a fit case where a sum of Rs.5,000/- should be awarded for the maintenance of the plaintiff and her son. Mr Ghosh denies the submission of Mr Chakrabarti that the decree passed by the Court should be effective not from the date of institution of the suit but from the date of the decree. After hearing the learned counsel for the parties and after going through the materials on record, we find that undisputedly the husband had a gross income of Rs.10,000/- and odd and he is a permanent employee of the Calcutta Port Trust. It further appears that the mother of the defendant is a family- pension-holder but she refused to produce document showing the exact amount of her family pension. From the previously mentioned fact, the Court reasonably drew adverse presumption against her and concluded that she was not at all dependant upon the defendant. We further find that the D.W.-2, the mother of the defendant, made a deliberate false statement in her deposition that the motorcycle used by her son was given to him by a friend whereas it has been proved from the evidence on record that he purchased the said motorcycle by taking loan. If the defendant for purchasing a new motorcycle takes loan from his office and makes payment of loan, such luxury on the part of the husband cannot affect the right of the wife to get appropriate amount of maintenance. It is now settled law that the alimony should vary between one-third and one-fifth of the income of the husband depending upon the facts and circumstances of the case. It has been proved in this case that the income of the husband is more than Rs.10,000/- a month and in such circumstances, we are of the view that at least Rs.3,000/- should be payable to the wife as alimony and a further sum of Rs.2,000/- to the son who is now 15 years old to meet not only his maintenance but also the educational expenses from the date of filing the application for amendment of the plaint. For the period prior to the date of filing of the application for amendment of the plaint from the date of filing of the suit, the amount should be Rs.2000/- for the wife and Rs.1000/- for the son. The next question is whether the decree we propose to pass should be effective from the date of institution of the suit or from the date of the decree of the Trial Court.
Mr Chakrabarti, in this connection, made twofold submission. First, according to him, the wife having already obtained interim order of alimony and having accepted the said amount without challenging the same in higher forum, no further amount of alimony should be granted for the selfsame period. Secondly, he contends that in a suit claiming monthly alimony under the Act, the decree passed therein, as a rule, should be effective not from the date of institution of the suit but from the date of decree.
Mr Chakrabarti, in this connection relies upon the following decisions in support of his contention:
1) Dr. Kulbhushan Kunwar vs. Smt. Raj Kumari & Ors. reported in AIR 1971 SC 234;
2) Kiran Bala Saha vs. Bankim Chandra Saha reported in AIR 1967 Cal 603;
3) Gowardhan Sheocharan & Ors. vs. Smt. Gangabai reported in AIR 1964 M.P. 168;
4) Laxmi & Anr. vs. Krishna Bhatta & Anr. reported in AIR 1968 Mysore 288;
5) Kashinath Sahu vs. Smt. Devi & Ors. reported in AIR 1971 Orissa 295. After considering the submission of the learned counsel for the parties, we are not at all impressed by the submission of Mr Chakrabarti for the reasons set forth below:
The cause of action of filing a suit for alimony arises when the defendant refuses to maintain the plaintiff by paying sufficient amount of maintenance. Such a suit is valued based on the claimed amount of maintenance for a year and the court fees are required to be paid thereon. If at the trial, the plaintiff proves the cause of action alleged in the plaint either in full or in part, the Court passes the decree consequently depending upon the part of the cause of action that has been proved. In other words, if the allegations contained in the plaint are fully proved, the Court will decree the suit in full but if the allegations are partially proved, the Court will pass decree accordingly. For various reasons, the suit may continue for years. The suit out of which the present appeal arises was filed on 16th May, 1997 and was decreed on 25th September, 2001. In the plaint, it was alleged that the plaintiff was driven out from the matrimonial home on 15th August, 1993 and since then the defendant refused to pay any amount as maintenance except the amount received by her by virtue of the order passed by the Criminal Court in the proceedings under Section 125 of the Code of Criminal Procedure. She, however, did not claim any arrears amount of maintenance in the suit for a period prior to the date of institution of the suit. In this case, it has been proved that except the amount received by her in the proceedings under Section 125 of the Code and by virtue of the interim order passed in the suit or in this appeal, no further amount has been paid by the husband to the wife. In such circumstances, the Court while passing the decree should clarify that although the plaintiff would be entitled to get the alimony from the date of filing of the suit (she having decided not to claim any arrears of alimony), the amount received by her either by virtue of the interim order passed in this proceeding or in the criminal proceedings should be deducted from the amount of alimony decreed. In this case, the plaintiff initially claimed maintenance at the rate of Rs.3000/- a month and subsequently, by amendment enhanced the claim to Rs.5,000/- by filing an application for amendment on 14th August, 2001 and the same was allowed. Therefore, in this case, the plaintiff should be entitled to get alimony at the rate of Rs.3000/- a month from the date of institution of the suit till August, 2001 and from September, 2001 at the rate of Rs.5000/- a month less the amount already received by her as interim maintenance either in this proceedings or in the Criminal Court. We find no substance in the contention of Mr Chakrabarti that merely because the proceeding has been continuing for the last 11 years, she should be deprived of her just dues proved in the suit. The husband cannot get the advantage of the delayed disposal of the proceedings. Section 34 of the Code of Civil Procedure vests the Court with the power even to grant interest in a suit for payment of money from the date of institution of the suit on the amount decreed. Therefore, it is preposterous to suggest that in a suit of payment of maintenance the Court is not entailed to pass direction for payment of alimony, the relief of payment of money claimed, from the date of the institution of the suit.
We now propose to deal with the decisions cited by Mr. Chakrabarti. In the case of Dr. Kulbhushan Kunwar vs. Smt. Raj Kumari and another (supra), it was held by the Supreme Court that the quantum of maintenance depends upon a gathering together of all the facts of the situation, the amount of free estate, the past life of the married parties and the families, a survey of the conditions and necessities and rights of the members on a reasonable view of change or circumstances possibly required in the future, regard being, of course had to the scale and mode of living and to the age habits, wants and class of life of the parties. In that case, the wife's claim to maintenance against husband for herself and for her daughter was first laid by a lawyer's notice of 1951 but the suit for maintenance was filed in 1954. In such a situation, it was held that the suit could be decreed from the date of its institution as a terminus a quo for maintenance as claimed by wife. In that case, the wife regularly used to receive Rs.2501/- a month from her father during his lifetime. It was contended that the said sum should be taken to be her income. The Apex Court, however, turned down such contention holding that the said sum so received by the wife from her father was not her income but as only a bounty from her father which she might or might not get and hence, it was not a fact to be taken into consideration under Section 23(2)(d). We fail to appreciate how the said decision is of any help to Mr Chakrabarti when in this case, although, the plaintiff alleged non-payment of maintenance from an earlier point of time, restricted her claim in the suit only from the date of institution of the suit. We, thus, find that the said decision is of no assistance to the appellant.
In the case of Kiran Bala Saha vs. Bankim Chandra Saha (supra), it was held by a learned Single Judge of this Court that according to Section 3(b)(i) of the Hindu Adoption and Maintenance Act, the wife should be entitled to get real maintenance and not a bare or starving maintenance so that the person maintained is forced not to lead the life of a dog but, at the same time, while directing the husband to maintain his wife, the Court should not be blind to the liabilities of the husband and thereby award the wife a maintenance which will make the husband a pauper, himself needing a maintenance. In the case before us, we have already pointed out that the mother of the defendant is a family- pension-holder and as such, the defendant had no liability to maintain his mother. In this case, the family of the husband really consists of three members, i.e. the husband himself, wife and the son. We have ordered him to pay less than half of the amount of pay for the maintenance of the two permitting the husband to utilise the balance half for him. The said decision, thus, does not help the appellant in anyway.
In the case of Laxmi & Anr. vs Krishna Bhatta & Anr. (supra), a suit was filed claiming arrears of maintenance for five years. In such a case, a learned Single Judge of the Mysore High Court was of the opinion that it was in the discretion of the Court to award arrears of maintenance at a smaller rate and quite often, arrears of maintenance are awarded only at a rate which is half the rate at which future maintenance is awarded. In the case before us, the plaintiff has not prayed for any arrear maintenance from a period prior to the institution of the suit but has restricted her claim only to future maintenance. Therefore, the principle laid down in that decision as regards the rate of alimony to be fixed for a period prior to the date of the institution of the suit cannot have any application to the fact of the present case.
In the case of Gowardhan Sheocharan & Ors. vs. Smt. Gangabai (supra), the suit was filed for maintenance claiming arrears for twelve years before suit and in such a case, the Division Bench of the Madhya Pradesh High Court followed the well-settled principle that in fixing the rate of arrears of maintenance generally half the figure fixed for future maintenance is passed. We have already pointed out that in this case the plaintiff did not claim for any arrear maintenance in the suit and therefore, the principle laid down in that decision cannot have application to the fact of the present case. In the case of Kashinath Sahu vs. Smt. Devi & Ors. (supra), a learned Single Judge of the Orissa High Court merely held that amount of maintenance should neither be that much as would keep the wife in luxury nor in penury. In the case before us, we have, after taking into consideration the amount of monthly salary of the husband to be more than Rupees ten thousands and the fact that his mother is not dependent upon him, fixed the same at an amount of Rs.3,000/- for herself and Rs.2,000/- for the son. We have already pointed out that in this case the husband has no further liability to maintain any other person. The maintenance ordered to be paid to the wife was less than one-third of the income of the husband and that ordered to be paid to the son was less than one-fifth of the income of the appellant and the total amount did not exceed half the amount earned by him. The said decision, therefore, does not help the appellant in anyway.
The decisions cited by Mr Chakrabarti are, thus, of no avail to his client. We, therefore, set aside the judgment and decree passed by the learned Trial Judge and enhance the amount of maintenance to the tune of Rs.5,000/- a month from the date of filing the application for amendment of the plaint. The rate will be Rs.3000/- a month from the date of institution of the suit till the date of filing application for amendment of the plaint. It is, however, needless to mention here that any amount received by the wife in a proceeding under Section 125 of the Code of Criminal Procedure after the institution of the suit or as interim alimony in these proceedings, either before the Trial Court or before this Court, will be adjustable against such amount. As stated in Section 25 of the Act, the rate fixed by this decree is subject to variation in changed circumstances due to subsequent event.
We, therefore, dismiss the appeal and allow the cross-objection to the extent indicated above.
In the facts and circumstances, there will be, however, no order as to costs.
(Bhaskar Bhattacharya, J.)
I agree.
(Rudrendra Nath Banerjee, J.)
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