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CALCUTTA HIGH COURT
Harish Tandon, J.
Smt. Mousumi Basak & Anr. —Petitioners
versus
Somnath Basak & Anr. —Respondents
C.O. 3199 of 2015 & 2956 of 2015
Decided on 7.10.2015
Held: It is therefore not correct to suggest that the principles of res judicata shall not apply in a proceedings instituted under the Act but has its fullest applicability in the attending facts and circumstances.
In the backdrop of the aforesaid law enunciated on the subject, let me see whether the order of the Trial Court shall withstand on such anvil overlooking the plea of res judicata. Neither of the parties could argue before this Court that after the determination is made under Section 24 of the Act, a party cannot seek for enhancement of the alimony pendente lite either in the same proceedings or in a different proceedings.
This Court does not see any difficulty in enhancing the quantum of maintenance pendente lite under a changed circumstances. Had it been a case that the maintenance pendente lite is again claimed in a subsequent proceedings on the same set of facts pleaded in an earlier proceedings, there is no hesitation to say that the subsequent application taken out in a separate proceedings shall be hit by res judicata. The language implied in Section 11 is explicit and needs no elaboration in this regard. The wife has disclosed the factum of earlier proceedings and an application under Section 24 of the act filed therein and having disposed of in the year 2013.
This Court did not have an occasion to consider the education expenses incurred for the said minor child who was subsequently put in school. It is boldly stated by the husband that he is unemployed and has no independent source of income and therefore should not be directed to pay the maintenance pendente lite. In course of an argument the wife hands over Form 26AS relating to the tax deducted at source wherefrom it appears that a substantial amount has been deducted on such account which suggest that the income of the husband cannot be less than Rs. 70,000/- to Rs. 80,000/- per month. Section 106 of the Evidence Act cast onus on the person to disclose the facts which is his special knowledge. If the actual income is suppressed the Court can draw an averse inference against him. The Trial Court in fact have treated the application as an application for enhancement of the alimony pendente lite and awarded a sum of Rs. 8,000/- per month for the wife as well as the minor child. The husband who is a Civil Engineer appears to have sufficient income by providing service to the various persons, which is discerned from the certificate evincing the tax deducted at source.
Since the quantum of maintenance awarded by this Court was in the year 2013 and by passage of time the income of the husband is increased, so the expenses, as the daughter has been admitted in the school, this Court, therefore, does not find any infirmity and/or illegality in the order by which the quantum of maintenance pendente lite was enhanced from Rs. 5,000-/ to Rs. 8,000/-.
The revisional application filed by the husband therefore fails.
Since this Court does not find that the quantum assessed by the Trial Court is perverse and/or based on no consideration, the revisional application filed by the wife for enhancing the quantum of maintenance is also dismissed. (Paras 12 & 16 to 20)
Result: Revisions dismissed.
Harish Tandon, J.—The husband is showing his aversion to maintenance granted to the wife under Section 24 of the Hindu Marriage Act, 1955 in a proceeding instituted by her under Section 9 thereof.
2. Prior to the institution of the aforesaid proceedings by the wife, the husband instituted a suit for divorce under Section 13 of the said Act before the competent Court. Admittedly, an application under Section 24 of the said Act was taken out by the wife for alimony pendente lite which was allowed by the Trial Court granting maintenance of Rs. 3,500/- per month to the wife and the minor child together with litigation costs. The order was assailed before this Court in C.O. 2827 of 2011 and the quantum of maintenance was enhanced to Rs. 5,000/-. It has been observed in the said order that the husband has concealed the actual income, which cannot be less than Rs. 40,000/- per month as alleged by the wife.
3. Subsequently, the wife filed an application under Section 9 of the Act for restitution of conjugal rights which was registered as Matrimonial Suit No. 33 of 2014. This Court does not find any impediment in maintaining the subsequent application for conjugal right even if the suit for divorce has been filed by the husband. Section 24 of the Act entitles either of the spouse to claim maintenance pendente lite in a proceedings instituted under the said Act, the wife took out a fresh application under Section 24 of the Act claiming maintenance not only for her but also for her minor child.
4. It is apparent from the record that the wife did not suppress the institution of suit for divorce by the husband and the factum of granting maintenance under Section 24 of the said Act in the said proceedings. The written objection does not contain any averments that the subsequent application under Section 24 of the said Act is hit by principles of res judicata.
5. In course of an argument before the Trial Court the husband took a plea that the instant application is not maintainable if the remedy available under the said provision is exhausted in an earlier suit. The Court proceeded to decide the said application treating the same to have been filed under changed circumstances and enhanced the quantum of maintenance from Rs. 5,000/- to Rs. 8,000/- per month together with a sum of Rs. 10,000/- towards litigation costs. The meaningful reading of the impugned order suggests that the Court took into the account the alimony pendente lite awarded to the wife in a divorce proceedings and proceeded to determine the said application on merit as if the claim under the said provision is in effect for enhancement thereof. The quantum of maintenance granted by the Trial Court includes the maintenance awarded in a divorce proceedings and not to be separately paid by the husband.
6. The plea of res judicata is taken at the bar on the side of the husband before this Court. The sheet anchor of the argument is based on the ratio laid down by the Supreme Court of India in case of Guda Vijayalakshmi –v- Guda Ramachandra Sekhara Sastry, AIR 1981 SC 1143.
7. To countenance the aforesaid submissions, it is submitted on behalf of the wife that there is no fetter in the statute to maintain a separate application under Section 24 of the Act in an independent proceedings instituted therein and therefore the principles of res judicata cannot apply. It is vehemently submitted that an earlier application under Section 24 of the Act filed in the divorce proceedings was decided on the basis of an income of the husband in the year 2009 which has subsequently increased by passage of time and therefore the quantum of maintenance is required to be enhanced in commensurate with the enhanced income. It is further submitted that Section 24 of the Act does not put any fetter in claiming the maintenance in a subsequent proceedings instituted under the act and such statutory right cannot be curbed or taken away by applying the doctrine of res judicata. The wife audaciously submits
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