Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2024 Supreme(Cal) 799

IN THE HIGH COURT AT CALCUTTA
AJAY KUMAR GUPTA, J.
Swagato Biswas – Appellant
Versus
The State of West Bengal & Ors. – Respondents
C.R.R. 2344 of 2022
Decided on : 17-01-2024

Advocates:
Advocate Appeared:
For the Appellant : Mr. Sujit Bhattacharya, Adv. Mr. Suman Chatterjee, Adv.
For the Respondent: Mr. Somnath Banerjee, Adv. Mr. Pronojit Roy, Adv.

Interest accrued from the investment of retirement benefits should be considered as part of the husband's income for maintenance calculation.

Headnote:
Maintenance - Reduction of Maintenance Allowance - Section 125, 127 of the Code of Criminal Procedure, 1973 - [Section 125, Section 127]
Fact of the Case:

The petitioner, a husband, sought reduction of maintenance allowance after his retirement and reduction in income. The court rejected his plea, considering his pension and interest from retirement benefits as part of his income.
Finding of the Court:

The court found that the interest accrued from the investment of retirement benefits should be considered as part of the husband's income for maintenance calculation. It held that the entire income of the petitioner should be assessed, including income from pension and other sources.
Issues: The main issue was whether the interest accrued from the investment of retirement benefits should be considered as part of the husband's income for maintenance calculation.
Ratio Decidendi: The court held that while the retirement benefits may be exempt from income tax, the interest from investment or bank deposits should be considered as other sources of income and included in the assessment of the husband's total income for maintenance calculation.
Final Decision: The court reduced the maintenance amount to Rs. 21,800 per month, considering the husband's total income from pension and interest. The impugned order was modified accordingly.

JUDGMENT :

Ajay Kumar Gupta, J:

1. This revisional application has been filed by the petitioner/husband under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 challenging the correctness, legality and propriety of an order dated 9th June, 2020 passed by the learned Magistrate, 5th Court at Serampore in Misc. Case No. 1 of 2020 thereby the learned Magistrate rejected the petitioner’s prayer for reducing the quantum of maintenance allowed earlier by the learned Magistrate in Misc. Case No. 3 of 2017, on the ground that the petitioner/husband’s income has been reduced after his superannuation from service.

FACTUAL MATRIX:

2. The brief fact of the instant case is that earlier an application under Section 125 of the Cr.PC had been filed by opposite party no. 2/wife seeking for maintenance being Maintenance Case No. 198 of 2013. The Ld. Magistrate, after hearing the parties, passed an order of maintenance to the tune of Rs. 18,000/-per month against the petitioner but petitioner did not prefer any appeal or revision against the said order and accept the said order by paying the maintenance in time to his wife.

3. The opposite party no. 2/wife further filed an application for enhancement of the maintenance allowance under Section 127 of the Cr.PC being Misc. Case No. 3 of 2017. After hearing both the parties, the Ld. Magistrate enhanced the order of maintenance from Rs. 18,000/-to Rs. 23,000/-per month on 29.12.2017. Even then enhanced maintenance allowed by the Ld. Magistrate has been accepted by the petitioner and continued to pay the same in time. However, in the meantime, the petitioner superannuated from his service on and from 31.08.2019 and his salary reduced to a pension of Rs. 32,029/-after statutory deduction of income tax. Pension effected on and from 01.09.2019. Apart from that, it is the contention of the petitioner that the petitioner has no any other source of income. Accordingly, the petitioner has filed an application praying for reduction of maintenance allowance under change circumstances. The Ld. Magistrate has, however, delayed in disposal of the said Misc. Case. No. 1 of 2020 and for that reason, the petitioner had to file a revisional application for early disposal vide CRR No. 1734 of 2021 before the Hon’ble High Court. The said revisional application was disposed of by the Co-ordinate Bench on 10.09.2021 observing therein, inter alia, as follows:

“……… The reduction of the income of the petitioner due to his retirement is an important factor to be considered in fixing the quantum of maintenance.

Thus, the application is disposed of with a direction upon the Learned Magistrate in the Court below to dispose of the said Misc. Case being No. 1 of 2020 within a period of six months from date………”

4. Thereafter, matter was heard by the Learned 5th Judicial Magistrate, Serampore, Hooghly in presence of the parties and finally rejected the Misc. Case No. 1 of 2020 on 09.06.2022 without considering the petitioner’s case and further ignored the pension amount, getting after superannuation and changed circumstances on account of superannuation and reduction of salary.

5. The Ld. Magistrate has accounted the retiral benefits while considering the income of the petitioner. Though the provision is very clear whenever any changed circumstances, the Court can consider prayer under Section 127 of the Cr.PC. It took a long time for disposal. In the meantime, the opposite party/wife filed so many Misc. Execution cases on different dates and time to time he is paying the arrear maintenance though maintenance amount ought to have reduced as per the present income of the petitioner. Hence the instant revisional application.

ARGUMENTS ON BEHAL OF THE PETITIONER/HUSBAND:

6. Learned advocate appearing on behalf of the petitioner submitted that it is a settled law that when the income is reduced on change circumstances, the amount of maintenance allowance also should be reduced according to the proportion of reduction of

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