Prasanta Majumder vs Baishakhi Bhowmik (Majumder) And Anr

Heard Mr. B. Debnath, learned counsel appearing for the petitioner as well as Mr. D. C. Roy, learned counsel and Ms. S. Chisim, learned amicus curiae appearing for the respondent No.1. There is no representation for the respondent No.2 for obvious reason.

This is a petition under Section 19(4) of the Family Courts Act, 1984 against the final order dated 25.05.2018 delivered in Misc.319 of 2016 by the Judge, Family Court, Agartala, West Tripura. By the said order, the respondents have been awarded the maintenance allowance at Rs.7,000/- per month. By the said order, the maintenance allowance of Rs.5,000/- has been awarded for the son of the petitioner w.e.f. 25.05.2018.

Mr. Debnath, learned counsel appearing for the petitioner at the outset has submitted that the petitioner has not challenged the maintenance allowance as granted in favour of the son. But the petitioner is seriously aggrieved by the quantum of maintenance awarded in favour of the respondent No.1. According to Mr. Debnath, learned counsel for the petitioner, the respondent No.1 is a qualified engineer and she has the capacity to get job to earn her livelihood. But without following the recourse, she has filed the application for realising the maintenance under Section 125 of the Cr.P.C. alleging that the petitioner has refused to maintain her. Other findings as returned by the Judge, Family Court have not been seriously contested.

Mr. Debnath, learned counsel has to buttress his contention relied on a decision of Madhya Pradesh High Court in Smt. Mamta Jaiswal vs. Rajesh Jaiswal (judgment dated 24.03.2000 delivered in Civil Revision No.1290/1999) where the said High Court has floated the question that whether a spouse who has capacity of earning but chooses to remain idle, should be permitted to saddle other spouse with his or her expenditure and whether such spouse should be permitted to get pendente lite maintenance at the higher rate from the other spouse in such condition? In answer to those questions, it has been observed that a spouse who is well qualified to get the service immediately with less efforts is not expected to remain idle to squeeze out, to milk out the other spouse by relieving him of his or her own purse by a cut in the nature of pendente lite maintenance. The law does not expect the increasing number of such idle persons who by remaining in the arena of legal battles try to squeeze out the adversary by implementing the provisions of law suitable to their purpose.

This court is not in agreement with all humilities, with such observation having due regard to the constitutional empathy in respect of the vulnerable persons who bear the risk of becoming vagrants. When the petition under Section 125 of the Cr.P.C. was filed, it is the admitted position that the respondent No.1 was not working. Even in the judgment, as referred by Mr. Debnath, learned counsel, the case was for enhancement of the pendente lite maintenance for the claim of the wife enhancement was dismissed, not the maintenance as a whole.

Mr. D. C. Roy, learned counsel has submitted that at present the respondent No.1 is at Bengaluru and staying there with her son. While this court queried, how she is maintaining her in Bangaluru when she does not have a house there, no satisfactory reply came from Mr. Roy, learned counsel. Later on, Mr. Roy, learned counsel has submitted that she is earning a sum of rupees four thousand and odd per month and somehow she is maintaining herself - which this court, however, could not believe. A qualified engineer is not expected to earn only Rs.4,000/- a month, if she is at all engaged in any work.

Be that as it may, what Mr. Debnath, learned counsel has succinctly submitted before this court that at present the petitioner is completely unemployed and doing some tuitions for earning living and from that he cannot pay that huge amount. These pleas are all in a nebulous form and there is no hard evidence. However, considering the nature of the casual employment of the petitioner, this court is of the view that for the time being the maintenance would be paid to the respondent No.1 at the rate of Rs.5,000/- per month from 25.05.2018. the petitioner herein, would continue to pay this maintenance to the respondent No.1. The respondent No.1 is however granted the liberty to approach the court in the event of the change in the circumstances to make claim for enhancement of the maintenance allowance. The arrears of the maintenance, if not paid by this time by the petitioner, shall be paid by 31st January, 2019 in full in addition to the monthly maintenance allowance as directed to be paid by this court. The monthly allowance, as determined shall be paid by every 10th day of the English calendar months. The remittance shall be made by the money order or by transfer to the bank account, if the respondent No.1 provides the bank details to the petitioner. Otherwise, if the bank details are not provided for any reason by the respondent No.1, the petitioner shall send the said remittance by the money order. In that event, the charge of the money order shall be borne by the petitioner.

Ms. S. Chisim, learned amicus curiae has submitted that the unemployment of the respondent No.1 is required to be taken seriously which phenomenon has been taken serious note of, by this court.

The High Court Legal Services Committee shall reimburse the bill of Ms. S. Chisim, learned counsel who appeared as the amicus curiae in this court on request.

In terms of the above, this petition is partly allowed.

A copy of this order be furnished to the learned counsel for the parties including to Ms. S. Chisim, learned amicus curiae for doing their needful.