The High Court dismissed a revision petition challenging a Family Court order granting Rs. 7,500 monthly maintenance. The Court rejected claims that the wife earned sufficient income or that the maintenance quantum was excessive, affirming the award from the date of application.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT AT CALCUTTA CRIMINAL REVISIONAL JURISDICTION [CIRCUIT BENCH AT PORT BLAIR]
PRESENT: HON’BLE JUSTICE JAY SENGUPTA
CRR/11/2021 IA No: CRAN/1/2021
NITAI BARAL … PETITIONER VS. SUJATA BARAL … RESPONDENT For the petitioner : Mr.Lokesh Chezian, Advocate For the Respondent : Mr. Siddhartha Singha, Advocate Heard on : 15th December, 2021 Judgment on : 16th December, 2021
JAY SENGUPTA, J.
Re: CRAN/01/2021 – Condonation of Delay
In view of the explanation provided on behalf of the petitioner and after hearing the learned counsels appearing for the parties, I condone the delay of 176 days in preferring the revision petition.
Accordingly, CRAN/01/2021 is allowed.
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Re: CRR/11/2021 – Revision Petition
This application is directed against the judgment and order dated 21st December, 2020 passed by the learned Judge, Family Court, Andaman and Nicobar Islands, Port Blair in Misc. Case No.42 of 2018 under section 125 of the Code. A sum of Rs.7500/- was awarded as maintenance allowance per month to the present opposite party with effect from the date of application i.e. 21.06.2018.
Mr. Chezian, learned counsel appearing on behalf of the petitioner-husband, submits as follows. In her crossexamination, the opposite party-wife admitted that she had filed a suit for divorce. The son of the couple was a student of graduation. The husband was paying his hostel charges. The wife further admitted that she had a furniture business. However, she claimed that she had prayed for suspension of license for the furniture business that once ran with four or five employees. The wife further admitted that she was collecting rent of Rs.5000/- per month from the house of her husband. She also admitted that she was having another shop room, which was let out. The petitioner-husband is a government servant and is working as Mazdoor under the Forest Department. As on 2017, his gross salary was about Rs.41,000/- per month. Although the husband denied that he
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had built a RCC house, he had admitted that he was having a car and a bike. The wife-opposite party left the petitioner without any just cause. In fact, she was earning sufficiently in her business as also by letting out two shop rooms. Since the wife was having sufficient income to maintain herself, there was no question of husband paying her maintenance. Besides, there was no reason recorded in the impugned order for granting maintenance allowance from the date of application. On this reliance is placed on the decision of the Hon’ble Apex Court in the case of Jaiminiben Hirenbhai Vyas and another vs. Hirenbhai Rameshchandra Vyas and another, reported at
(2015) 2 SCC 385.
Mr. Singha, learned counsel appearing on behalf of the wife-opposite party, submits as follows. The respondent - opposite party is a 53 years old lady. Although maintenance allowance was awarded with effect from 2018, till date no sum has been paid. It is the case of the wife-opposite party that the petitioner-husband used to inflict torture upon her. He also had an illicit affair with his paramour. When the wife objected, she was assaulted. She had to lodge a complaint before the police in this regard. As was rightly pointed out by the learned Trial Judge, since the husband’s income was shown as around Rs.41,000/- as on 30.05.2017, at present such income must have gone up to the range of Rs. 65,000/. The husband was
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earning handsomely and had taken a lone of Rs.6,00,000/- as would be evident from his GPF withdrawals, for constructing an RCC building on his land. It is true that the petitioner gets a sum of Rs.5000/- at present as rent from a shop room. However, she, in turn, has to pay a sum of Rs.800/- to the Gram Panchayat per month as rent. She suffers from several ailments and has to incur expenditure in this regard. Even if one considers the rule of 1/5th to 1/3rd of the husband’s income payable as maintenance allowance, a sum of Rs.7500/- per month is not much compared to the income that the husband is enjoying. As regards the decision relied on behalf of the petitioner, the facts are quite distinguishable in the present case. In the other case, interim maintenance had been granted. However, in the instant case, the petitioner-husband did not pay a single penny as maintenance allowance during the pendency of the proceeding.
I have heard the learned counsels appearing on behalf of the petitioner and the respondent/opposite party and have perused the revision petition.
As would appear from the evidence of the wife/opposite party and with reference to the police case in particular that the opposite party had to initiate against the petitioner, the opposite party-wife has made out a justifiable ground for not staying with her husband. The husband is a government servant earning
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handsomely. As such, the wife is entitled to be maintained by him.
It appears that the wife-opposite party had relied on documents to show that she had applied for suspension of license for the business she was having earlier. However, she has admitted that she was earning Rs.5000/- per month as rent from a shop room. But, she has also mentioned about the expenditure she has to incur.
A husband is to maintain his wife quite at standard that she would have enjoyed had she been able to live in the husband’s household. Therefore, whether she earns an irregular and paltry income from another source or not, if such income is not sufficient to maintain herself, then she would be entitled to receive maintenance allowance from the husband.
It is settled law that if the wife earns something which is very nominal, it does not preclude her from claiming maintenance from the husband. On this, reliance is placed on the decisions of the Hon’ble Apex Court in Sunita Kachwaha Vs. Anil Kachwaha, (2014) 16 SCC 715 and Chaturbhuj Vs. Sita Bai, (2008) 2 SCC 316.
Considering the income of the husband, the apparent standing of the couple and the rising price indices, I do not think that Rs.7500/- per month is a disproportionately high amount to be granted as maintenance allowance for the wife.
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While in the case of Jaiminiben Hirenbhai Vyas (supra), interim maintenance had been directed to be paid, here the opposite party did not receive any sum from the husband during pendency of the application. The said case is also distinguishable from the present facts inasmuch as there the Hon’ble Apex Court was perturbed by the fact that the Hon’ble High Court had directed payment of maintenance from the date of order, without assigning any reason.
In Rajnesh vs. Neha reported at (2021) 2 SCC 324, the Hon’ble Apex Court has clearly held that ordinarily maintenance allowance is to be awarded from the date of application.
In the facts of the present case, the learned Trial Court was, thus, justified in awarding maintenance allowance from the date of the application.
Therefore, I do not find any merit in this application. Accordingly, the same is dismissed.
However, there shall be no order as to costs.
Urgent photostat certified copy of this order, if applied for,
be supplied to the parties upon compliance of usual necessary formalities.
[ JAY SENGUPTA, J.]
3 issues framed by the court
Whether the High Court was justified in dismissing the revision petition seeking condonation of delay and quashing of maintenance order.
Whether the quantum of monthly maintenance granted by the Family Court was disproportionate to the husband's income.
Whether maintenance could be awarded from the date of application rather than the date of the order.
1 provisions across 1 enactments
NITAI BARAL
SUJATA BARAL
JAY SENGUPTA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
