Ajay Issar vs Komal Issar (Nee Kohli)

Shampa Sarkar, J

This matter is taken out of turn in view of urgent mentioning.

This is an application filed by the husband aggrieved by an order dated December 4, 2019 passed in Matrimonial Suit No.31 of 2013 pending before

the learned Additional Principal Judge, Family Court, Calcutta. By the order impugned dated December 4, 2019, the learned Court below allowed the

application under Section 24 of the Hindu Marriage Act filed by the wife/opposite party and directed the husband to pay Rs.15,000/- per month from

date of filing of the application till the disposal of the suit and litigation costs of rupees 1,00,000/-.

Aggrieved, the husband has preferred this revisional application on the ground that the learned Court below has failed to consider the income of the

husband as also the wife while granting the amount of Rs.15,000/- as maintenance pendente lite.

According to Mr. Lahiri, learned Senior Advocate appearing on behalf of the husband, there are internet generated copies to show that the wife was a

life coach a form of Martial Arts. That the wife had a fancy life style and was a member of Saturday Club and Tolly Club. That the wife was residing

at the premises jointly owned by the husband and wife and the EMI was paid by the husband. That the learned Court below ought to have considered

the fact that the husband was suffering from Glaucoma and as such his work had considerably reduced which led to a considerable fall in the income.

That the wife has an income of her own from a salon/spa and other business and engagements and she did not require any maintenance from the

husband.

From the order impugned, it appears that the wife had produced documents to show that the petitioner had worked as a contractor for Sunsam

Propertiers and Shapoorji Pallonji Builders. TDS certificates issued by M/s. Sunsam Properties Pvt. Ltd. in favour of ‘Mahogony’, that is, the

proprietorship business of the husband in Interiors, Design, Project Management and Consultancy, was filed in Court. The documents showing that the

husband was the Power of Attorney holder of a Saudia Arabian Construction Company and also engaged in many= construction and housing projects

and oil and gas projects abroad have been filed. Documents showing transfer of money to the petitioner’s son living and studying in the USA was

also filed.

On the other hand, the husband filed an internet generated copy showing that the wife was a life coach in Krav Maga in Eastern India, which is an

Israeli form of Martial Art. The membership cards of Saturday Club and Tolly Club and pictures of t2 magazine of the Telegraph showing that the

wife was engaged in teaching Martial Arts were filed by the husband.

Upon perusal of the application under Section 24 of the Hindu Marriage Act, it appears that the wife had categorically pleaded that the husband had a

proprietorship business for interior designs, projects and consultancy and had an income to the tune of Rs.5 lakh to 6 lakh per month. That she had no

income of her own. That the husband had a huge annual income and had an expensive life style. He paid Rs.1,36,392/- per annum towards EMI for

his own flat, rent of Rs.3,60,000/- for a flat in Wood Street and his personal expenses were around Rs.18 lakhs per annum. The petitioner had been

residing separately for several years and thereafter filed for divorce. The wife thus claimed maintenance pendente lite of Rs.1 lakh per month.

The learned Court below upon perusal of the documents and also upon taking into consideration the depositions of the parties, came to the conclusion

that the husband has failed to prove his own income. The learned court held that the husband had also failed to substantiate the income of the wife as

a life coach of Martial Art. Thus, the learned Court below arrived at a finding that the wife did not have sufficient income to maintain herself and

awarded Rs.15,000/- per month maintenance pendente lite along with litigation costs of Rs.1 lakh.

From the deposition of the wife and the cross-examination, it appears that the wife had denied that she had sufficient income for her own maintenance

by teaching Martial Arts. That the engagement in the Spa was temporary. The fact that as the husband was a member of the clubs, it was quite

natural that the wife would also have a membership with Saturday Club and the Tolly Club. Membership could not be a proof that she earned

sufficiently to maintain her club life, and bear her personal expenses, when the wife deposed that the husband paid the bills at the Clubs. It is also a

fact that while granting maintenance the consideration should be that the wife would be able to continue to live in the same status and lifestyle to

which she was used to, prior to separation from her husband. The averments made in the application under Section 24 of the Hindu Marriage Act with

regard to the established business of the husband and his professional success have not been disproved by the husband. The husband has not been

able to show anything before the learned Court below that to his income was much less than what was stated by the wife. The husband has not been

able to prove that the wife had her own income.

Under such circumstances, the only document available before the learned Court below was the income tax return of the husband for the assessment

year 2001-02 in which the annual income of the husband was stated as Rs.7,15,000/- per annum. One-third to one-fifth being the amount awarded

usually by the Courts, the Court awarded Rs.15,000/- per month, which is around one-fourth of the income of the husband.

The Delhi High Court in Radhika Narang v. Karun Raj Narang reported at 2009 (1) DMC 814 (Delhi )held that the purpose of providing maintenance

is to secure a wife as far as possible the status and facilities enjoyed by her prior to her separation from her husband.

The determination of the maintenance allowance not being governed by any rigid or inflexible rule but it gives wide power and discretion to the Court

to do justice. For the purpose of fixation of quantum the status of the husband as well as the status of the wife are to be taken into consideration.

Perceptibility of the income is not the test. Therequirement is potentiality. In spite of absence of any documentary evidence to prove the monthly

income of the husband, the Court can award maintenance allowance in order to do justice keeping in mind the social reality and the nature of the work

of the husband. Moreover, there can be an enhancement of maintenance allowance due to change in the circumstance which includes rise in the cost

of living and increase of earning of the husband. (Narayan Chandra Das v. Geeta Rani Das reported at 2006 (2) CLT 85 (HC).

The Act does not prescribe any formula to be applied in determining the quantum of alimony pendente lite. In Soma Chowdhury (Sarkar) v. Pradip

Kumar Chowdhury reported at 2009 (1) CHN 282 it was observed:-

 “It is now settled law that the amount of alimony pendente lite should vary between one-third and one-fifth of the income of the earning spouse

depending upon the facts and circumstances of the case.â€​

It does not enact any mathematical formula of one-third or any other proportion. It gives wide power flexible and elastic to do justice in a given case.

The Delhi High Court in Dev Dutt Singh v. Smt. Rajni Gandhi reported at AIR 1984 Del 320 held that:-

“30. A word of caution. On Sections 24 and 25 of the Act there is a “wagon-load of casesâ€, to use a phrase of Lord Atkin (See Harris v.

Associated Portland Cement Manufacturers Ltd., (1939) AC 71, 78). But they do not lay down any proposition of law. They are decisions on the

particular facts of those cases. “We ought to be beware of allowing tests or guides which have been suggested by the Court in one set of

circumstances, or in one class of cases to be applied to other surroundingsâ€, and thus by degrees to turn that which is at bottom a question of fact

into a proposition of law. If we allow this to happen we will be crushed under the weight of our own reports. (See Qualcast (Wolverhampton) Ltd. v.

Haynes, (1959) AC 743 761 (per Lord Denning).)

But it must not be forgotten that the award of maintenance pendente lite has to be reasonable, having regard to the income of the parties. On the facts

of this case and having regard to the income of husband and wife I have no hesitation in holding that the Judgeʹs award is eminently just.â€​

The Honʹble Supreme Court in Jasbir Kaur Sehgal v. District Judge, Dehradun, 1997 (4) RCR (Civil) 65: (1997) 7 SCC 7 observed:-

“No set formula can be laid for fixing the amount of maintenance. It has, in the very nature of things, to depend on the facts and circumstances of

each case. Some scope for leverage can, however, be always there. The court has to consider the status of the parties, their respective needs, the

capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and of those he is obliged under the law and

statutory but involuntary payments or deductions. The amount of maintenance fixed for the wife should be such as she can live in reasonable comfort

considering her status and the mode of life she was used to when she lived with her husband and also that she does not feel handicapped in the

prosecution of her case. At the same time, the amount so fixed cannot be excessive or extortionate.â€​

The Honʹble Supreme Court in the case of Dr. Kulbhushan Kunwar v. Raj Kumari, AIR 1971 Supreme Court 234 approved the principle enunciated

in Mt. Ekradeshwari v. Homeshwar, AIR 1929 PC 128 that Maintenance depends upon a gathering together of all the facts of the situation, the

income of the parties, a survey of the conditions and necessities, regard being had to the scale and mode of living, and to the age, habits wants and

class of life of the parties. The Honʹble Supreme Court in the case of Mangat Mal v. Punni Devi, 1995 (3) RRR 632: (1995) 6 SCC 8 8held as follows

Maintenance, necessarily must encompass a provision for residence. Maintenance is given so that the lady can live in the manner, more or less, to

which she was accustomed. The concept of maintenance must, therefore, include provision for food and clothing and the like and take into account the

basic need of a roof over the head.

The Honʹble Supreme Court in the case of Maharani Kesarkunverba v. I.T. Commissioner, AIR 1960 Supreme Court 1343, held that Maintenance

must vary according to the position and status of a person. It does not only mean food and raiment.

In this case the wife resides in a flat, the EMI of which is paid by the husband. The club’s bills of the wife is paid by the husband. Even if the wife

had some income from her amateur coaching of martial arts and as a consultant to ‘Prana’ a Spa, considering the status of the parties award of

Rs.15,000/- per month as maintenance of the wife is reasonable.

I do not find any illegality or irregularity in the order impugned.

The revisional application is dismissed. The order dated December 4, 2019 is upheld.

The husband is directed to pay to the wife the maintenance pendente lite and litigation costs, as directed by the learned Court below.

Such payment should commence from the month of March, 2020.

There will be, however, no order as to costs.

Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis.