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HIGH COURT OF CALCUTTA
Bijayesh Mukherji
KIRAN BALA SAHA - Appellant
Versus
BANKIM CHANDRA SAHA - Respondent
Suit 1881 Of 1954
Decided On : FEBRUARY 10, 1967
MAINTENANCE - HINDU ADOPTIONS AND MAINTENANCE ACT, 1956 - SECTION 18(2)(D) - WIFE ENTITLED TO LIVE SEPARATELY FROM HUSBAND WITHOUT FORFEITING CLAIM TO MAINTENANCE, IF HE HAS ANY OTHER WIFE LIVING - SECTION 23 - COURT TO HAVE DUE REGARD TO POSITION AND STATUS OF PARTIES, REASONABLE WANTS OF CLAIMANT, JUSTIFICATION FOR SEPARATE LIVING, VALUE OF CLAIMANT'S PROPERTY AND INCOME THEREFROM, NUMBER OF DEPENDANTS ENTITLED TO MAINTENANCE - COURT TO TAKE NOTICE OF SUBSEQUENT EVENTS TO SHORTEN LITIGATION AND PRESERVE RIGHTS OF PARTIES - MAINTENANCE ASSESSED AT RS. 50 PER MONTH FROM NOVEMBER 20, 1952 TO JUNE 22, 1954, RS. 50 PER MONTH FROM JUNE 23, 1954 TO 1964'S END, AND RS. 75 PER MONTH FROM JANUARY 1, 1965, ONWARDS, MINUS INTERIM MAINTENANCE ALREADY RECEIVED.
Fact of the Case:
Kiran Bala Saha filed a suit against her husband Bankim Chandra Saha, a professor at St. Paul's College, Calcutta, for maintenance at Rs. 200 per month, arrears of maintenance amounting to Rs. 4,000 from October 20, 1962 to June 20, 1954, and for recovery of gold ornaments, weighing 48 tolas, as set out in schedule A to the plaint, or alternatively, for a decree of Rs. 4,000 being the value of the ornaments aforesaid. Bankim Chandra admitted that Kiran Bala was his first wife and that he had married a second time in 1934-36. Kiran Bala alleged that she was deserted by her husband after his second marriage and that she had been living separately except for a short period of a few months subsequent to the birth of a male child to her in 1935-36. She also alleged that she was compelled to leave the matrimonial home again on October 20, 1952, due to ill-treatment and cruelty by her husband. Bankim Chandra resisted the suit, admitting that Kiran Bala was his first wife but claiming that the maintenance claimed was excessive and that he was not in wrongful possession of the gold ornaments.
Finding of the Court:
The court found that Kiran Bala was entitled to maintenance under Section 18(2)(d) of the Hindu Adoptions and Maintenance Act, 1956, as her husband had another wife living. The court also found that the maintenance claimed by Kiran Bala was excessive and that a reasonable assessment of her maintenance would be Rs. 50 per month from November 20, 1952 to June 22, 1954, Rs. 50 per month from June 23, 1954 to 1964's end, and Rs. 75 per month from January 1, 1965, onwards, minus the interim maintenance already received. The court further found that Kiran Bala was not entitled to the gold ornaments or their value, as she had failed to prove that her husband was in wrongful possession of them.
Issues: 1. What sum, if any, is the plaintiff entitled to on account of her maintenance? 2. Is the defendant in wrongful possession of the various ornaments and jewellery belonging to the plaintiff as set out in paragraph 10 of the plaint? 3. What reliefs, if any is the plaintiff entitled to?
Ratio Decidendi: The court held that in determining the amount of maintenance to be awarded to a wife, the court shall have due regard to the position and status of the parties, the reasonable wants of the claimant, whether or not the claimant is justified in living separately, the value of the claimant's property and any income therefrom or from any other source, and the number of dependants entitled to maintenance. The court also held that it is entitled to take notice of subsequent events to shorten litigation and preserve the rights of parties.
Final Decision: The court entered judgment for the plaintiff, granting her maintenance at the rate of Rs. 50 per month from November 20, 1952 to June 22, 1954, Rs. 50 per month from June 23, 1954 to 1964's end, and Rs. 75 per month from January 1, 1965, onwards, minus the interim maintenance already received. The court dismissed the plaintiff's claim for the gold ornaments or their value.
( 1 ) THIS is a suit by Kiran Bala Saha againsl her husband Bankim Chandra Saha a professor in the department of Economics and Civics. St. Paul's College, Calcutta, for maintenance at Rs. 200 a month, for arrears thereof amounting to Rs. 4,000 from October 20, 1962 to June 20, 1954, and for recovery of gold ornaments, weighing 48 tolas, as set out in schedule A to the plaint, in the alternative, for a decree of Rs. 4,000 being the value of the ornaments aforesaid.
( 2 ) THE plaint of a suit as this was presented and admitted on June 23. 1954.
( 3 ) BOTH Kiran Bala and Bankim Chandra are Hindus governed by the Davabhaga School of Hindu law. And they were lawfully married in or about Baisakh 1332 B. S. corresponding to April-May 1926. Some 9 or 10 years later, however, thai is to say, in 1341 B. S. corresponding to 1934-86, Bankim Chandra married for the second time. Such are the averments in paragraphs 2 and 1 of the plaint--averments which. Bankim Chandra savs in paragraph 1 of his written statement, "are substantially correct" This being the admitted position. Section 18 of the Hindu Adoptions and Maintenance Act, 78 of 1956, is attracted Sub-section (2) thereof, by its Clause (d) provides-'a Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance, if he has any other wife living' kiran Bala is such a Hindu wife. Her husband Bankim Chandra has admittedly another wife living. Maintenance is. therefore, hers, as a matter of course and as of right. There is no dispute about it. as are the joint submissions of Mr Chatterjee for the plaintiff and Mr. Das for the defendant. The dispute is about the quantum of maintenance. The dispute is about the gold ornaments.
( 4 ) IN the circumstances, the facts, set out in the plaint and containing, amongst others, allegations of ill-treatment, cruelty and the like, need not be referred to further than as follows: deserted by her husband after his second marriage in 1341 B. S. (1934-36), Kiran Bala was living separately except for a short period of a few months "subsequent to the birth of a male child to her in 1342 B. S. ". (1935-36 ). The child however died "when about 10 months old," And she was deserted once more. She instituted a suit, being suit No. 1280 of 1951, in this court for maintenance. But before the writ of summons could be served, her husband prevailed upon her to return to the matrimonial home which she did. The suit was, therefore, suffered to be struck off. On her return, she lived with her husband from March 20, 1951, to October 19. 1952. Next day that is on October 20, 1952. she left the matrimonial home again, as she was compelled to. Bankim Chandra it is said, has an income of Rs. 800 a month and owns several moveables and immoveables in and outside Calcutta. This coupling with the mode of living Kiran Bala has been used to fosters the claim of maintenance at Rs. 200 a month [see paragraphs 8 and 9 of the plaint. The gold ornaments weighing 43 tolas, the detail whereof is set out in schedule A to the plaint, are her stridhan properties all. Kept in deposit with her husband, she has been deprived thereof, because of "wrongful possession" by Bankim Chandra who failed and neglected to return them to her "in spite of demands" The value of such ornaments is assessed at Rupees 4,000. [see paragraph 10 of the plaint.
( 5 ) HENCE the suit for maintenance, arrears thereof, return of the gold ornaments or their money value (Rs 4. 000): just the reliefs this judgment opens with
( 6 ) BANKIM Chandra, the husband, the defendant, resists the suit, He admits Klran Bala to be his first wife, but adds: he was 16 and Kiran Bala 8 at the time of their marriage. On the two controversial points--the quantum of maintenance and the ornaments--his pleas are: one, Rs. 200 a month claimed as maintenance is "excessive and disproportionately high" It is so because of the following considerations- (a) his income of about
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