Supriya Banerjee vs Moumita Banerjee

Harish Tandon, J—This revisional application is directed against order No. 43 dated 22nd July, 2015 passed by the learned Additional District Judge, Third Court at Howrah in Miscellaneous Case No. 145 of 2010, by which an application under Section 24 of the Hindu Marriage Act, 1955 (hereinafter referred to as ''said Act'') is disposed of.

Admittedly, the husband filed a suit for divorce on one or more grounds envisaged under Section 13 of the said Act. In the said proceeding, the wife appeared and claimed for maintenance under Section 24 of the said Act alleging that the husband being an employee of Garden Reach Ship Builders Company earns more than Rs. 25,000/- per month.

In the opposition, the husband not only denies the income as alleged by the wife in the said application but make a counter-statement that the wife has a substantial earning from tuition and, therefore, is not entitled to maintenance. It is further stated in the said objection that the wife has initiated other proceedings for maintenance before the learned Judicial Magistrate and, therefore, not entitled to maintenance under the said provision.

The Trial Court disposed of the said application holding that the gross income of the husband is Rs. 37,000/- and odd and awarded maintenance of Rs. 8,000/- per month to the wife.

The learned advocate for the petitioner challenges the said order on the following grounds. Firstly, admittedly, the wife has deserted the husband and thus disentitles herself to claim a maintenance under Section 125 of the Criminal Procedure Code and further disentitles herself to claim the maintenance under Section 24 of the said Act as the principles of Section 125 of the Criminal Procedure Code has its applicability. Secondly, it is submitted that the income is the special knowledge of a person and the wife failed to discharge such onus by not producing an iota of piece of paper in support of her income and thirdly, several judgments were cited before Court touching the issue raised in an application under Section 24 of the said Act, which has not been dealt by the Trial Court. Lastly, it is submitted that the Trial Court did not take into account the expenditure, which his client has to bear for the medical expenses of his ailing mother while determining the quantum of maintenance.

After hearing the learned advocate for the petitioner and giving an anxious thought over the aforesaid submissions, I am not impressed that any of such point has a substance.

Section 125 of the Criminal Procedure Code contains the provision relating to the maintenance of wife, children and parents, who are unable to maintain themselves. The consideration required under the aforesaid provision is that upon a proof of negligence and refusal to maintain the aforesaid persons, the Magistrate can order a person to make monthly allowance for their maintenance, which he thinks fit. The second proviso to sub-section (3) of Section 125 of the Criminal Procedure Code creates an embargo on the wife to claim a maintenance if an offer is made by a person for maintenance of his wife on the condition of her living with him and if she refused to live.

The said provision inspired the learned advocate for the petitioner to say that such analogy should also be brought within the purview of Section 24 of the said Act. However, he tried to cover up the adverse impact of it by saying that though the said provision has no direct nexus and/or impact on the provision of Section 24 of the said Act but the principle can be extended.

Though the quantum of maintenance is a common factor between the provisions contained under Section 125 of the Criminal Procedure Code and Section 24 of the said Act, but I am afraid whether both stands pari materia and have an impact on the ultimate decision taken in both the proceedings.

In the conspectus of the above, the reliance can be safely placed upon a judgment of this Court in case of Anand Ruia Vs. Vidhas Ruia and Others, (2004) 1 CHN 685 , wherein it is held:

"9. Alimony pendente lite under section 24 of the H.M. Act may not remain in existence after the disposal of the matrimonial suit and the wife have to seek remedy for permanent alimony in a different proceedings. Scope of maintenance under section 125 Cr. P. C. is completely different and to some extent wider than section 24 of H.M. Act and being so the wife cannot be restrained from proceeding with section 125 Cr. P. C. application during pendency of application for maintenance pendente lite in matrimonial suit. She even can claim interim maintenance in a proceeding under section 125 Cr. P. C. in view of the decision of the Supreme Court in Savitri Rawat Vs. Govind Singh Rawat, AIR 1986 SC 984 : (1986) CriLJ 41 : (1985) 2 SCALE 697 : (1985) 4 SCC 337 : (1985) 3 SCR 615 Supp .

The above discussion of principle of law as enunciated by the Apex Court of India makes it clear that a wife''s claim for maintenance under section 125 of Cr. P. C. cannot be defeated due to her filing a claim for alimony pendente lite in matrimonial suit under section 24 of the H.M. Act. That being the position, the learned Judge of Family Court was right in rejecting the prayer of the husband to stay the proceeding of section 125 Cr. P. C."

Section 24 of the said Act does not differentiate the husband or the wife, as under the said provision both of them are entitled to claim maintenance from each other provided any of them has no independent source of income. The second proviso inserted in sub-section (3) of Section 125 of the Criminal Procedure Code is absent in Section 24 of the said Act. There is no restriction and/or fetter in the language employed under Section 24 of the said Act, which may act as a deterrent against the wife or the husband, who voluntarily disassociated his or her company from other.

The guiding factor under Section 24 of the said Act is the satisfaction of the Court that any of the spouse claiming maintenance against other has no sufficient means of income and even if there is an income, the same is not sufficient to meet her expenses and cannot be said to be reasonable. Section 24 further gives an additional right to claim the litigation expenses, which is absent in Section 125 of the Criminal Procedure Code.

The decision of the Criminal Court cannot bind the Civil Court as the determination is distinct, different and stands on a separate pedestal. However, while granting the maintenance under Section 24 of the said Act, the Court should take into account the quantum, which the party applying under the said provision, receives on account of maintenance but cannot create embargo in determining the quantum under Section 24 of the said Act, the basis whereof is different and distinct.

Taking shelter under the principles having its applicability, the substantive provisions cannot be extended to a different statute when the legislature has consciously omitted to do so.

This Court, therefore, does not find any substance in the aforesaid submission that once the wife disassociated herself voluntarily she disentitles herself from claiming the maintenance under Section 24 of the said Act. Furthermore, the opening sentence of Section 24 of the said Act starts with the expressions "where in any proceeding under this Act" should restrict its applicability to a proceeding under the said Act and does not imbibe within itself the proceeding initiated outside the ambit of the said Act.

This Court, therefore, has no hesitation to say that both the provisions, though served the same purpose, cannot supplant each other but supplemental in nature.

It is no longer res integra that while awarding the quantum of maintenance under Section 24 of the said Act, the Court shall take into account the statutory deductions from the salary to arrive at the actual income. The various factors like the status of the parties, position of the husband in the society, the luxury and the amenities enjoyed by the wife are few instances, which should be the guiding one for ascertaining the quantum of maintenance.

It is undeniable that the husband has a gross monthly income of Rs. 37,000/- and odd and even after the statutory deductions the quantum of maintenance of Rs. 8,000/- per month awarded by the Trial Court cannot be said to be a higher and too excessive and not in commensurate with the said income. It is also undeniable that the husband if has an additional responsibility of maintaining his mother, which is not only social and moral but a statutory liability as well and the Court should also take into account the aforesaid factors.

Though there is no express reflection in the impugned order that the Trial Court considered the aforesaid aspect but even those facts are taken into account, the amount of maintenance awarded by the Trial Court does not appear to be unreasonable.

By judicial experience gained in passage of time, it is a routine matter the moment the wife claims maintenance under Section 24 of the said Act, the husband engineered the story of an independent income of the wife from tuition.

Since the wife has no other option but to deny such allegation, it inspired the learned advocate for the petitioner to say that since the income is her special knowledge and, therefore, the Court ought to have drawn the adverse inference for non-disclosure of the actual income. If the wife says that she does not have an independent income at all, it is too hard to accept that still she has to discharge the onus by proving that she has the income.

Section 106 of the Evidence Act may apply in the event it is not denied that there is no income and then the onus cast on the person to prove the quantum of income and not when the party has no income at all.

This Court, therefore, does not find that there is any substance in the aforesaid submissions.

An abstract argument is advanced at the Bar that the Trial Court has proceeded to determine the said application by applying the principles of oath versus oath.

Admittedly, the parties were allowed to produce the documents before the Court. The probative and evidentiary value of those documents and the credibility of the oral evidence are to be test from the different parameters judicially recognized. If it appears to the Court, who is in a position to see the demur of the witness, may be in a best position to accept the statements of a witness and to discard the others.

The truthfulness and trustworthiness are some of the factors in this context. I am afraid whether those principles have any manner of applicability for the simple reason that the husband has disclosed his monthly salary before the Court and has failed to prove by producing an iota of piece of paper that the wife has independent income. If the income is before the Court, the quantum is to be determined by recording the satisfaction and the other attending factors for ascertaining the quantum of maintenance and, therefore, there is no occasion to apply the principles of oath versus oath.

From whatever angle this Court looked at, does not find any grounds warranting interference with the impugned order.

The revisional application, therefore, fails.

The petitioner is at liberty to pray for extension of time to liquidate the arrears before the Trial Court and if approached, shall be decided in accordance with law.

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