Mousumi Basak vs Somnath Basak

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.

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.

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.

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.

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.

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 Vs. Guda Ramachandra Sekhara Sastry, .

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 that the husband has concealed the actual income and the quantum of maintenance awarded by the Court in the impugned order requires enhancement.

Section 24 of the Act in its opening sentence manifests that where in any proceedings under this act it appears to the Court that either the wife or the husband has no independent source of income sufficient for her or his support shall award an alimony pendente lite which seems reasonable. The broad heading of the said Section contains the legislative intent that the said provision can be resorted to if a proceedings is instituted under the said Act and during the pendency of the said proceedings either of the spouse has a right to claim for maintenance provided the conditions laid down therein are fully satisfied. There is no difficulty in maintaining the proceedings for divorce as well as a proceedings for restitution of conjugal rights as those rights are provided under the said Act.

The question begging an answer in this revisional proceedings is whether an application under Section 24 of the Act shall be hit by principles of res judicata if the same has been decided by the Court in earlier proceedings on merit.

Section 21 of the Act expressly provides that all proceedings under the said Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908 which is subject to the other provisions contained under the Act and the rules framed by the High Court. It is no longer res integra that the provisions of the Code of Civil Procedure applies to such proceedings provided it is not repugnant to any other provisions of the Act. The applicability of the Code of Civil Procedure to a proceedings under the said Act has not been taken away under Section 21 of the Act but the provisions repugnant thereto shall not apply. The expressions "subject to other provisions contained in this Act and to such rules as the High Court may make in this behalf makes the position more clear in this regard.

The reliance can be safely placed to the observations made in case of Guda Vijayalakshmi (Supra) wherein it is held:

"3. In my view, on proper construction of the relevant provisions it is not possible to uphold the preliminary objection. In the first place it is difficult to accept the contention that the substantive provision contained in Section 25 , CPC is excluded by reason of Section 21 of the Hindu Marriage Act, 1955. Section 21 of the Hindu Marriage Act merely provides: "Subject to the other provisions contained in this Act and to such rules as the High Court may make in this behalf, all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908." In terms Section 21 does not make any distinction between procedural and substantive provisions of CPC and all that it provides is that the Code as far as may be shall apply to all proceedings under the Act and the phrase "as far as may be" means and is intended to exclude only such provisions of the Code as are or may be inconsistent with any of the provisions of the Act. It is impossible to say that such provisions of the Code as partake of the character of substantive law are excluded by implication as no such implication can be read into Section 21 and a particular provision of the Code irrespective of whether it is procedural or substantive will not apply only if it is inconsistent with any provisions of the Act. For instance, it is difficult to countenance the suggestion that the doctrine of res judicata contained in Section 11 of the Code which partakes of the character of substantive law is not applicable to proceedings under the Act. Res judicata, after all, is a branch or specie of the Rule of Estoppel called Estoppel by Record and though estoppel is often described as a Rule of evidence, the whole concept is more correctly viewed as a substantive Rule of law. [See Canada and Dominion Sugar Co. Ltd. v. Canadian National (West Indies) Steamships Ltd."

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.

The object behind the incorporation of Section 24 in the Act aims to administering the justice and maintaining equilibrium between the rights of the parties. The said Section intended to put both the parties on equal pedestal being based on economic tutelage of the spouse.

It is aimed to remove economic disparity so much as the spouse who is economically week may not be put to disadvantageous position and suffers the consequences in the litigation. On the other hand a person cannot suffer to pay twice the alimony pendente lite as the statute confers rights to claim maintenance in a proceedings instituted in the said Act if on the identical facts an adjudication on merit had already been made in an earlier proceedings under the said Act.

To this I am afraid why the principles of res judicata should not apply which is based on public policy and there is no express fetter under Section 21 about its applicability.

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.

However, there shall be no order as to costs.