Anjan Sarkar vs Atanu Sarkar

[1] Heard Ms. S. Deb (Gupta), learned counsel appearing for the petitioner as well as Mr. S. M. Chakraborty, learned senior counsel assisted by Ms. Ankita Pal, learned counsel appearing for the respondents.

[2] By means of this petition filed under Section 19(4) of the Family Courts Act, the order dated 19.07.2019 delivered in CR.MISC/FC/UDP/79/2018 has been challenged. By the said order, the Judge, Family Court Udaipur refused to allow any maintenance to the petitioner even though it is an admitted fact that the petitioner is legally married wife of the respondents and she does not have any means to maintain her. However, by the said order, maintenance for the son has been made to the extent to Rs.12,000/- per month. The reasons for denying maintenance to the petitioner can be seen from the passage as quoted below:

Anyway, in the instant case, Section 125(4) of Cr.PC will come into play. In view of the discussions made above, I am of the view that the petitioner no.1 is not entitled to receive maintenance from the her husband as she refused to live with her husband without any reasonable cause and excuse.

[3] Ms. S. Deb (Gupta), learned counsel appearing for the petitioner has drawn attention to the evidence recorded by the Judge, Family Court, Udaipur. In the examination-in-chief, the petitioner, has categorically stated that the respondent used to torture her both physically and mentally without any reason. Even in the cross-examination, it was suggested to the petitioner that she was having an illicit relation with the private tutor of her son. Even it has been suggested that, for her misbehavior, the land lord at Udaipur had asked them to vacate. She has also denied that she had misbehaved with the respondent. It is true that in the cross-examination, the petitioner has stated that she shall not live with her husband in any condition even if he properly maintained her and her child. But, she has denied that there was no reasonable cause to leave the matrimonial home.

[4] PW2, the brother of the petitioner has stated that the respondent used to torture his sister physically and mentally and he is habituated to consume alcohol. In the cross-examination, PW-2 has stated that he cannot state the exact date when his sister was tortured by the respondent. But he has admitted that the respondent approached him for settlement. On the other hand, from reading of the examination-in-chief of the respondent, it would appear that the respondent even made some allegation of physical assault perpetrated by the petitioner. Thus, it is clear the marital life of the petitioner and the respondent was not harmonious. In such circumstances, the said observation of the Judge, Family Court is quite unacceptable.

[5] Mr. S. M. Chakraborty, learned senior counsel has submitted that the respondent had obtained a decree of restitution of conjugal life from the same Family Court. This statement has not been contested by the petitioner. In this regard, Mr. Chakraborty, learned senior counsel has submitted that despite the decree, the petitioner did not return to the matrimonial home and as such she may not be favoured with any order of maintenance. Even in that order, a similar observation has been made that the petitioner left the matrimonial home without any reasonable cause and excuse.

[6] On the face of the evidence led in this case, this court is of the view that such finding cannot be maintained. So far the objection as raised by Mr. Chakraborty, learned senior counsel as regards the existence of a decree for the restitution of conjugal life, this court is of the view that mere decree is not sufficient to disentitle the petitioner from getting the maintenance. Before coming to a decision on the reason behind leaving the matrimonial home, the court has the duty to ascertain whether the climate in the matrimonial home under which the wife is persuaded to seek maintenance was conducive or not. From the cross-examination carried by the respondent, this court does not have any hesitation to hold that there was a complete breakdown of trust as the respondent being the husband suggested that the wife was maintaining an illicit relation with the other male.

[7] In this background and as this court has also held that mere existence of decree for restitution cannot disentitle the wife from getting the maintenance unless the maintenance of the wife is settled in terms of Section 25 of the Hindu Marriage Act, 1955.

[8] This court has noticed the salary certificate of the respondent which was considered by the Judge, Family Court, Udaipur and finds that the respondent is capable to pay maintenance even to the wife inasmuch as the gross salary of the respondent is Rs.42,234/- and he saves a sum of Rs.16,000/- in the GPF. Even after other deductions, the respondent can pay the maintenance to the extent of a reasonable amount.

In view of the above, this court is of the view that the petitioner is also entitled to maintenance to the extent of Rs.5000 per month and that shall be paid w.e.f 01.12.2019. The maintenance allowance shall be paid within tenth day of every English calendar month by the same mode as provided in the impugned order dated 19.07.2019 by remittance along with the maintenance of the son.

In terms of the above, this petition stands allowed.

There shall be no order as to costs.

A copy of this order be supplied to the counsel for the parties.