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2019 Supreme(Cal) 248
IN THE HIGH COURT OF CALCUTTA
Sahidullah Munshi, J.
Abhijit Ghosh - Appellant
Vs.
Jayita Ghosh (Nee Chatterjee) - Respondent
Civil Order No. 1634 of 2018
Decided On : 05-02-2019
Aniruddha Chatterjee, Adv., Srijib Chakraborty, Adv., Raja Tarafdar, Adv., Subhadeep Sen, Adv., Asif Sohail Tarafdar, Adv., Sudeshna Basu Thakur, Adv.
The court emphasized the importance of independently assessing the financial situations of the parties and the need for maintenance, rather than relying solely on previous court orders.
Headnote:
Hindu Marriage Act - Maintenance - Section 24, Protection of Women from Domestic Violence Act - Section 12, 23 - [HINDU MARRIAGE ACT, 1955, SECTION 24, PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005, SECTION 12, 23]
Fact of the Case:
The wife filed an application under Section 24 of the Hindu Marriage Act seeking alimony pendente lite and litigation costs. The husband contested, claiming a decrease in income and financial obligations towards son's education and living expenses.
Finding of the Court:
The court found that the lower court failed to independently assess the husband's income and the wife's need for maintenance. It set aside the lower court's order and directed the husband to pay maintenance at the same rate as directed by the Judicial Magistrate, along with litigation costs.
Issues: The issues revolved around the husband's income, the wife's need for maintenance, and the lower court's failure to consider documentary evidence and independently assess the situation.
Ratio Decidendi: The court emphasized the need for independent assessment of the parties' financial situations and the wife's need for maintenance, rather than relying solely on previous court orders.
Final Decision: The revisional application was allowed, setting aside the lower court's order and directing the husband to pay maintenance at the same rate as directed by the Judicial Magistrate, along with litigation costs.
Sahidullah Munshi, J.
This revisional application is directed against Order no. 33 dated 1st May, 2018 passed by the learned Additional District Judge, 16th Court, Alipore in Miscellaneous Case No. 420 of 2017. The Miscellaneous Case arose out of an application under Section 24 of the Hindu Marriage Act filed by the wife in Matrimonial Suit No. 53 of 2015 (renumbered as No. 2 of 2017) initiated by the husband under Section 13(1) (i-a) of the Hindu Marriage Act, 1955 against the opposite party/wife. The husband resides in Malaysia whereas the wife resides in India.
2. Before the present application under Section 24 of the Hindu Marriage Act had been filed before this Court the wife/opposite party filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the 'PWDV Act'), registered as A.C. No. 1159 of 2013 together with an application under Section 23 of the said Act on 26th February, 2014 before the learned Judicial Magistrate, 4th Court at Alipore. In the said proceeding the learned Magistrate was pleased to dispose of the application under Section 23 of the PWDV Act of 2005 directing the petitioner to pay a sum of Rs. 50,000/- (Rupees Fifty Thousand) only, per month. Considering the income of the petitioner/husband at Rs. 1,43,000/- RM only (Malaysian currency) commonly known of 'Ringgit Malaysian' which is equivalent to Rs. 2,43,100/- (Rupees Two Lakh Forty Three Thousand One Hundred) only, per month at the relevant point of time. It is not disputed that the said amount of Rs. 50,000/- is being paid by the husband/petitioner every month.
3. In the application the wife/opposite party further stated that though she is a qualified doctor but due to various ailments she lost her job and she is presently a housewife having no means to maintain herself and suffering from various ailments. She has also stated that the husband/petitioner has got several houses in India but he does not allow the wife to stay at any of such houses, on the contrary, she has been residing in a rented house. It is the specific averment made by the wife/opposite party in her application under Section 24 of the Hindu Marriage Act that the husband who is also a renowned Doctor, in the Domestic Violence case, admitted that he had been earning 5,000 R.M. from hospital and 3000-6000 R.M from Locums and after deduction, his total earning was 1,43,000/- R.M which is equivalent to Rs. 2,43,100/- per month. She submitted that due to the high cost of living it would be difficult for her to meet the expenses of her livelihood at the same standard of living which she used to live with her husband in Malaysia and it is also difficult for her to contest the Matrimonial Suit with the said paltry amount of Rs. 50,000/- unless the Court directs alimony pendente lite for a sum of Rs. 1,00,000/- (Rupees One Lakh) only per month and Rs. 2,00,000/-(Rupees Two Lakh) only towards litigation cost.
4. This application was contested by the husband/petitioner by filing affidavit-in-opposition. In the affidavit-in-opposition the husband made out a case that Malaysian Ringgit has since devalued tremendously over the last 4 years, thereby the husband's income has also decreased compared to what he was earning in 2014 when the learned Judicial Magistrate passed the order on 26.02.2014 in A.C. No. 1159 of 2013. According to the petitioner the value has decreased by 25% almost. As a ground for not allowing the wife's prayer for the aforesaid alimony pendente lite the petitioner has also pointed out that he lost his lucrative job with a Singapore owned Hospital in Malaysia, that is, Regency Hospital in January, 2014, as a result of his long absence from work without prior notice and this happened because of his sudden arrest in India under Section 498A of the Indian Penal Code a proceeding initiated by the wife and even after bail granted to him, he had to stay in Kolkata absenting himself from his job for over two
