Civil Revisional Jurisdiction v. Krishna Dasgupta Nee Goswami

6. The petitioner/husband has neither challenged order dated 22-3- 2017 nor challenged Order dated 24-02-2022. Hence the petitioner 5 husband is supposed to pay the arrear amount of alimony as directed by this Court first.

7. The respondent denies that the petitioner/husband is suffering from ailments, as on the date of Order 22-03-2017 no medical documents were filed in Court.

8. The petitioner has not filed any documents regarding his retirement on and from 30th November 2021 as well as did not produce any documents regarding his retirement benefit as on that date. The petitioner has no family member dependant on him. His elder brother was working in Railway and a Central Government employee.

9. That under no-circumstances the alimony should be reduced @ Rs. 5000/- from Rs. 15,000/- per month as the petitioner/husband is paying vide Order No. 64 dated 22-03-2017. Moreover, the price index of daily commodities has been increased by leaps and bounds. Hence in this circumstances if the alimony @ Rs. 15,000/- Per month is reduced to Rs. 5,000/- per month it would be difficult for the respondent/wife to meet both ends with this meager amount. Learned Trial Court upon considering the application and objection filed was pleased to dispose the same by order dated 16/01/2023. Learned Trial Court was pleased to observe and direct as follows: ‘Now, on the strength of petition dated 21.04.2022 the husband has prayed for reduction of the amount of the pendentilite @ Rs. 5000/- per 6 month by modifying the order dated 22.03.2017 on the ground that now the husband retired from his service and getting pension of Rs. 30,940/- per month w.e.f. December, 2021 and also on the ground that the husband is a senior citizen and suffering from various ailments and on the ground that it is not possible for him to make the payment of Rs. 15,000/- per month as alimony pendentilite and as such he has prayed for reduction of the alimony pendentilite amount from Rs. 15,000/- p.m. to Rs. 5000/- p.m. Wife contested the petition by filing wo. Both sides file their respect affidavit of assets on the subject matter. It is true that the husband/petitioner is now a retired person and getting pension. The contention of the Ld. Lawyer for the husband is that the alimony pendentilite will be considered only on the basis of amount of pension. On the other hand Ld. Advocate for the wife contended that the alimony pendentilite should be considered on the pension amount as well as on the retirement benefit. From the annexure “D” running page 52 of affidavit of assets and liabilities filed by the husband it appears from Form 16 for the assessment year 2022-23 total income of husband is Rs. 8,48,160/-. As the retirement benefit of the husband has already been credited to his account, the amount of alimony pendentelite will be considered on the basis of 7 both pension and retirement benefits as well other source of income of the husband. So having considered the materials on record and above all the petition filed by the husband for reduction of alimony pendentilite from Rs. 15,000/- p.m. to Rs. 5000/-p.m. is hereby rejected. To 10/03/2023 for further cross of DW.’ The petitioner made an application under Section 151 CPC for recalling order dated 16-1-2023 passed by Learned Trial Court but the same was also dismissed by Order dated 14/02/2023 Learned Court observed as follows: ‘Record is put up by petition on behalf of the petitioner/husband who filed an application u/s 151 CPC for recalling the order no. 97 dated

16.01.2023 and to revive the said order reducing the alimony pendentilite from the amount of Rs. 15,000/- to Rs. 5000/- per month. From the case record it appears that the husband has prayed for reduction of the amount of alimony pendentilite on the ground that he has now retired person and his present pension is Rs. 34,000/- but, after commutation he is getting only Rs. 20,400/- per month as pension. From the case record and from the impugned order and assets and liabilities filed by the both the parties it transpires that besides the amount of pension, the husband has sufficient income from this retirement benefit and other sources. 8 The retirement of a husband is no ground for reduction in the maintenance granted to the divorced wife as it held the husband’s obligation was on a “higher pedestal whom the question of maintenance of wife and children arise.” So having considered the materials on record and above all I do not find any cogent ground or reason to review the order no.97 dated 16/01/2023 and hence the instant petition is rejected.’ The petitioner being aggrieved by the Order dated 16-01-2023 and 14- 02-2023 passed by Learned Trial Court has come up with an application under Article 227 of the Constitution of India. It is the contention of the petitioner that the Learned Court below failed to take into consideration that the Petitioner has already retired from his service on 30th November 2021 and as such his monthly income was already reduced. It is further contended that the Learned Court below should have considered that the amount of alimony pendentelite was enhanced to Rs. 15,000/- on the basis of monthly salary/income of the petitioner. It is also contended that the Learned Court below should have considered that immediately after retirement the monthly pension of the petitioner has been reduced to Rs. 30,940/- per month and as such the petitioner is not capable to pay Rs. 15,000/- per month being half of his monthly pension. Opposite party has filed Affidavit in opposition to the application under Article 227 of the Constitution of India. The opposite party has repeated and 9 reiterated the contentions made in the objection filed before Learned Trial Court for reduction of the amount of alimony pendent-lite. In addition the opposite party has contended that the petitioner has received gratuity amount of Rs. 14, 69,820/- and other retirement benefits which the petitioner did not disclose. Further the petitioner did not disclose his various savings account in different banks, mutual fund, LIC and other investments. Moreover during pendency of the suit, he has transferred his share in his parental property to his elder brother by executing two Deeds of Gift dated. 24-07-2017. Heard Learned Advocate for the petitioner and Learned Advocate for the opposite party. Perused the petition filed and materials on record. Learned Advocate for the Petitioner submits that the Learned Trial Court erred in not considering the reduction of monthly income of the petitioner and rejecting the prayer of the petitioner for reduction of alimony-pendentelite. Learned Advocate for the respondent/opposite party submits that the prices have gone high and it will be extremely difficult for the opposite party to maintain herself if there is reduction of alimony pendentilite. Before proceeding to decide on the issue of reduction of alimony pendentelite it is necessary to consider as to the alimony pendentelite which was granted at the outset. It appears that the initial alimony pendentelite per month was Rs. 4,000/- from February 2010. Thereafter it was enhanced to Rs. 6,000/- on 20th September 2013 and on 22/03/2017 it was enhanced to Rs. 15,000/-. Thus for a period of seven years there was no enhancement of 10 alimony pendent-lite. As section 24 of the Hindu Marriage Act 1954 is a beneficial provision incorporated in the statute the Court has discretion to alter maintenance on the oral prayer of party also while hearing his submission and objection to the petition of reduction by another party if the Court thinks just and proper. Due to rise in prices there is alteration of maintenance and in objecting to such prayer for reduction when opposite party contends that there is huge rise in price and reduction will cause extreme, hardship and the Court finds that the quantum of maintenance was not enhanced for a long period the Court may before proceeding to deal with the prayer for reduction of maintenance consider as to what would be the reasonable maintenance at that point of time, when petition for reduction is considered. Upon fixing that particular amount as reasonable maintenance the Court may proceed to consider reduction of maintenance on the ground of reduction of income of the applicant. In the instant case alimony pendentelite was not enhanced for a period of seven years. Thus in order to prevent further application/litigation for enhancement of alimony pendentelite as the opposite party wife has contended huge rise in price which cannot be ignored it would be reasonable to consider and fix the maintenance of wife at this stage to be Rs. 17,000/- per month in the interest of justice and then proceed with the prayer for reduction of maintenance. Now the point for consideration is what should be the quantum of reasonable maintenance after the retirement of petitioner at a pension of Rs. 11 30,940/- per month when prior to retirement the reasonable maintenance is Rs. 17,000/-. Upon perusing the orders dated 16-1-2023 and 14/02/2023 passed by the Learned Trial Judge it would appear that the Learned Judge, by Order dated 16/01/2023 rejected the prayer for reduction of maintenance pendentilite on the ground that yearly income of the petitioner was Rs. 8,48,160/- Learned Judge further went on to observe in order dated

14.02.2023 that retirement of husband is no ground for reduction of maintenance. It is well settled that the Court is required to take into consideration the income of the parties before deciding the quantum of interim maintenance. The Court has to keep in view the income of the applicant and paying capacity of the non-applicant. In the case of Smt. Padmavathi and ors VS V.C. Lakshminaryan reported in AIR-2002. Kant the Hon’ble Court observed as follows: ‘9. The law relating to matrimonial cause provides for rules for payment of maintenance pendete lite and expense of the proceedings. Section 24 of the Act has been enacted with a view to empower the Court to direct payment of maintenance to the husband or the wife as the case may be, provided he or she has no independent income sufficient for his or her support and necessary expenses of the proceedings. Under this Section 24 the amplest discretion is conferred on the Court to award interim maintenance. However, the Court is required to take into consideration 12 the income of the parties need of the applicant and paying capacity of the non applicant. While considering the application under this Section the Court is expected to make a summary enquiry and the Court need not try the issue at length. The granting of maintenance under this Section is a matter of discretion.’ It is to be remembered that when the obligation to pay maintenance by a pension holder or a salaried person is to be decided and quantum of monthly maintenance is to be fixed the Courts should consider monthly salary, or monthly pension and in case of daily rated workers total monthly wages. On the basis of monthly income monthly maintenance is to be determined as a salaried person or a pension holder will have to incur daily expenses or monthly expenses or meet monthly obligation from monthly income. However this principle will not apply in case of business man or professional whose yearly income is to be taken into consideration. Although a retired person earns yearly income and yearly interest from the investment of retirement benefits, but such income should not be taken into consideration while fixing monthly maintenance. However as section 24 of the Hindu Marriage Act 1955 is a beneficial legislation and Courts are empowered to order even re- imbursement of medical expenditure Courts are empowered to order a token one time yearly maintenance payble at the end of each year in addition to monthly maintenance if in the opinion of the Court the retired person earns a considerable amount from interest on fixed deposit every year. It is only in case of income from Monthly Income Scheme the Court may include the same in the 13 monthly income. It is the duty of retired person against whom maintenance is to be awarded to submit before the Court the particulars of the deposits made with regard to retirement benefits and the interest received yearly or monthly. In other words monthly income is to be considered for awarding monthly maintenance and yearly interest and income is to be considered for awarding a token one time yearly maintenance with regard to salaried and retired person. In the instant case the Petitioner ought to have disclosed before the Learned Court about the retirement benefits received and invested and the income earned, for the Court to get a clear picture but he has failed and neglected. Although in such a situation the matter could have been remitted back to Trial, Court for reconsideration after filing documents with regard to investment of retirement benefits but as it will delay the suit this Court thinks fit to fix a reasonable alimony pendentelite and dispose the matter. Upon considering the facts of the case and the monthly pension of the petitioner and the Gratuity amount received by petitioner this Court is of the view that at this stage Rs. 12,000/- as alimony pendetelite, per month is just and reasonable to be paid by petitioner/husband to the opposite party wife. Hence this application under Article 227 of the Constitution Stands disposed. Order dated 16-01-2023 and 14/02/2023 passed by Learned Additional District and Sessions Judge 6th Court at Alipore in Mat Suit 3/2010 is set aside. The petition for reduction of Alimony pendentelite stands allowed 14 in part to the extent that the petitioner/husband shall henceforth pay Rs. 12,000/- per month as Alimony pendentelite to the opposite party/wife. Before concluding this Court requests Learned Trial Court to make an endeavor to settle/reconcile the disputes between the parties before disposing the matter as the parties are aged. Learned Advocates are also requested to render necessary co-operation in this regard. Urgent photostat certified copy of this order, if applied for, should be made available to the parties upon compliance with the requisite formalities. (Biswaroop Chowdhury,J)