Amit Saha v. Papiya Saha

May 16, 2024 Sl. No.A 140 Court No.19 s.biswas CO 25 of 2024 Sri Amit Saha vs.

Smt. Papiya Saha Mr. Atanu Biswas Mr. Mrinal Saha ... for the petitioner

1. The revisional application arises out of order dated September 22, 2023 passed by the learned Additional District Judge, 1st Court, Serampore, Hooghly in connection with Misc. Case NO.35 of 2023 arising out of Matrimonial Suit No.162 of 2022.

2. The learned court directed the petitioner/husband to pay a sum of Rs.5000/- in addition to Rs.2000/- already awarded in another proceeding (Rs.7000/- in total) along with arrears from the date of filing of the application. Further, litigation cost of Rs.15000/- was also awarded, taking note of the fact that wife had to travel from Durgapur to Serampore, in order to attend court.

3. The learned court was of the view that the husband had failed to prove his income. The husband contended that he was a plumber, but he did not disclose his income. The wife had alleged that the husband had a business of civil

works, including plumbing and had a monthly income of Rs.1 lakh.

4. From the pleadings of both the parties as well as the affidavit of assets and liabilities, it is clear that the petitioner/husband was residing in an apartment in Lake Town, Kolkata, which he claimed to be the paternal property. According to the court, a person who earned Rs.5000/- per month, could not reside at an apartment.

5. The law requires the husband to prove his income. The petitioner has not been able to prove his income. He has not proved that the wife had her own income. Merely mentioning that he earned Rs.5000/- per month, would not be construed as proof of income.

6.

An able-bodied husband must be presumed to be capable of earning sufficient money to maintain his wife and children, and cannot contend that he is not in a position to pay Rs.7000/-. The onus is on the husband to establish with necessary material that there are sufficient grounds justifying his inability to maintain his wife and discharge his legal obligations for reasons beyond his control. If the husband does not disclose the exact amount of his income, an adverse inference may be drawn by the Court.

7. Under such circumstances, I do not find any reason to interfere with the order impugned. The parameters for determining the quantum of maintenance to be paid to the wife has to be determined on various factors.

8. While discussing the judicial precedents on the point of maintenance, the Apex Court in Rajnesh v. Neha and ors. reported in (2021) 2 SCC 324 discussed the various criteria for determining the quantum of maintenance and the relevant factors to be taken into consideration in order to quantify the amount. The object behind granting maintenance was to ensure that the dependent spouse was not reduced to destitution or vagrancy on account of failure of the marriage. Yet, an excessive and unreasonable amount could not be imposed as a punishment upon the other spouse. While discussing a decision of the Delhi High Court, the Apex Court also approved the factors to be relevant. Such finding of the Apex Court is at paragraph 57 of the judgment. The relevant paragraph is quoted below:- "(v) The Delhi High Court in Bharat Hedge v Smt. Saroj Hegde laid down the following factors to be considered for determining maintenance :

1. Status of the parties.

2. Reasonable wants of the claimant.

3. The independent income and property of the claimant.

4. The number of persons, the nonapplicant has to maintain.

5. The amount should aid the applicant to live in a similar lifestyle as he/she enjoyed in the matrimonial home.

6. Non-applicant's liabilities, if any.

7. Provisions for food, clothing, shelter, education, medical attendance and treatment etc. of the applicant.

8. Payment capacity of the non-applicant.

9. Some guess work is not ruled out while estimating the income of the non-applicant when all the sources or correct sources are not disclosed.

10. The non-applicant to defray the cost of litigation.

11. The amount awarded u/s 125 Cr.PC is adjustable against the amount awarded u/ 24 of the Act. 17.

(vi) Apart from the aforesaid factors enumerated hereinabove, certain additional factors would also be relevant for determining the quantum of maintenance payable."

9. In my view Rs.7000/- is the bare minimum required by a lady to maintain herself. It is not excessive.

10. In the celebrated judgment of Justice Krishna Iyer in the matter of Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal and ors.

reported in (1978) 4 SCC 70, the object behind promulgation of maintenance laws, had been discussed, which is quoted below:- "9. This provision is a measure of social justice and specially enacted to protect women and children and falls within the constitutional sweep of Article 15(3) reinforced by Article

39. We have no doubt that Sections of statutes calling for construction by courts are not petrified print but vibrant words with social functions to fulfil. The brooding presence of the constitutional empathy for the weaker Sections like women and children must inform interpretation if it has to have social relevance. So viewed, it is possible to be selective in

picking out that interpretation out of two alternatives which advances the cause - the cause of the derelicts."

11. Accordingly the revisional application stands dismissed. The order impugned is not perverse.

12. Urgent photostat certified copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.

(Shampa Sarkar, J.)