Debapriya Chakraborty vs Amita Chakraborty

Prabir Kumar Samanta, J.—These two civil revisional applications which arose out of the self same order of maintenance pendente lite of the wife are taken up for hearing in presence of the learned Advocates for the parties.

The husband-petitioner in his revisional application categorically stated that his gross salary is Rs. 13,932.00 per month. Alimony pendente lite to the wife by the husband has been agreed at the rate of Rs. 2,500.00 P.M. But such payment has been directed to be made from the month in which the said order was more. The husband-petitioner challenged the impugned order on the allegation that he did not agree to the aforesaid quantum of alimony while the wife-opposite party contended that such payment of alimony pendente lite should be from the date of making of the application and not from the date of making of the order. So far as the contention of the husband-petitioner is concerned, I am not inclined to accept the same at this stage inasmuch as the husband-petitioner did not approach the court which recorded such an agreed order for recalling of the same upon proof and/or establishment of the fact that he did not agree to the aforesaid quantum of alimony. The court in exercise of jurisdiction under s. 115 of the CPC cannot go into such disputed questions of fact. Furthermore, the allegations as made by the husband-petitioner require to be considered on the basis of the evidence and/or the materials that may be placed by the husband-petitioner to establish that he did hot agree to the aforesaid quantum of alimony.

On the question as to from which date the wife would be entitled to claim maintenance pendente lite, it is not in dispute that the court has the absolute discretion in the matter. Exercise of said discretion would depend upon multiple circumstances. In this particular case the husband-petitioner has not brought to the notice either of the learned Trial Court or of this court as to why the wife-opposite party would not be entitled to a maintenance at least from the date of making of her application. The underlying principle of, s. 24 of the Act is the obligation of a person to maintain his spouse where such spouse has no independent source of income. Therefore, the main criteria for determining the date from which the said spouse would be entitled to a maintenance would be the date from which the other spouse was under obligation to maintain him or her and had failed to do so. In this particular case the wife-opposite party made the application for maintenance pendente lite and there is no material what so ever to establish that even after the date of making such application the husband-petitioner discharged his obligation by maintaining his wife. Accordingly, I am of the opinion that in the facts and circumstances of the present case, the husband is under obligation to make payment of arrears alimony pendente lite from the date of making of the same by the wife-opposite party. Thus the impugned order is modified to the extent that the alimony pendente lite shall be payable to the wife-opposite party from the date of her making the application. Accordingly, the arrears of alimony pendent elite from the date of making of the application by the wife-opposite party shall be paid by the husband-petitioner to the wife-opposite party by way of instalments. The application having been made in the month of March 1999, the wife-opposite party would be entitled to such alimony from the month of March, 1999 and as such as on date and till November 2000, there would be an arrear to the extent of Rs. 52,500.00. The husband-petitioner shall accordingly pay a sum of Rs. 2,000.00 per month in respect of the aforesaid arrears and will go on paying at such rates till the aforesaid amount is liquidated.

However, in view of the observations made as above in respect of the allegations made by the husband-petitioner on the question of agreed quantum of alimony, it is made clear that the husband-petitioner would be entitled to approach to the learned trial Court. In the event the husband-petitioner makes an application in this regard and the learned trial Court upon consideration of the same is of the opinion that the husband-petitioner in fact did not agree to the aforesaid quantum, then it will determine the quantum afresh on merits and Will consequently, determine the arrears of alimony pendente lite with the necessary direction for payment of the same by way of instalments in the light of the judgment as above.

If urgent xerox certified copy of this order is applied for by the parties, the same should by given expeditiously.