BIJAN KUMAR CHAKRABORTY Vs. SUCHANDRA BARDHAN

JUDGEMENT

(1.) This appeal has been preferred at the instance of the husband against a judgment and/or order being Order No. 31 dated 6th August, 1996 passed by Sri S.C. Mishra, Additional District Judge, llth Court at Alipur, South 24 Parganas in Misc. Case No. 24 of 1994 by which the application filed by the wife/respondent under Section 37 of the SPECIAL MARRIAGE ACT, 1954 (hereinafter referred to as "the Act") was allowed in part. By the judgment under appeal, the Additional District Judge, llth Court at Alipur directed the husband/appellant to pay permanent alimony per month to the wife/respondent at the rate of Rs. 700/- provisionally from the date of filing the application subject to other conditions as entered into by the parties thereto.

(2.) We have heard Mr. S.P. Roychoudhury for the husband/appellant and Mr. R.N. Dutta for the wife/respondent. The only question that needs to be decided in this appeal is whether the permanent alimony granted in favour of the wife/respondent can be enhanced or increased in view of the joint petition for compromise entered into by the parties in which the wife had given up her claim for permanent monthly maintenance in excess of Rs. 400/- or not.

(3.) The facts leading to filing of this appeal may be stated in a nut shell which are as follows:- A matrimonial suit for divorce was filed by the husband/appellant against the wife/respondent. The said suit was decreed by a consent decree passed on 15th November, 1989 by which the marriage between the parties was dissolved but no decree for maintenance was passed therein by the Court. Subsequent to the passing of the decree for divorce, an application under Section 37 of the Act was filed by the wife/respondent.for grant of permanent alimony and by an order being Order No. 12 dated 6th January, 1992, the Court granted permanent alimony at the rate of Rs.400/- per month with effect from November, 1989. Be it mentioned herein that after the decree for divorce was passed, the husband/appellant continued to pay to the wife/respondent at the rate of Rs. 400/- per month for four months, that is from November, 1989 to February, 1990 in terms of the prayer made in the matrimonial suit. As noted herein earlier, the marriage was annulled by mutual consent but no decree for permanent alimony was passed although the wife in the joint compromise petition had given up her right to claim monthly maintenance in excess of Rs. 400/-. An application was also made by the wife/respondent for correction of the decree in order to include the claim for permanent maintenance in the decree. However, this application filed under Section 151 of the Code of Civil Procedure was rejected observing that separate proceeding as provided under the law ought to have been taken by the wife/respondent for a decree for permanent maintenance. Subsequent to the aforesaid order granting permanent alimony at the rate of Rs. 400/- per month with effect from November, 1989, the present application under Section 37 of the Act was filed by the wife/respondent for enhancement of alimony from Rs. 400/- to Rs. 1200/- per month. In this application, the wife/respondent alleged that at the time of granting permanent alimony at the rate of Rs. 400/- per month, the husband who was a Development Officer of Life Insurance Corporation of India, was drawing a salary at the rate of Rs. 3,000/- per month but at the time of filing the present application his gross salary had gone up to Rs. 4867/- + Bonus of Rs.1500/- per month in average. She also claimed in this application that she was suffering from various ailments, her medical expenses had exceeded by Rs. 200/- per month. Accordingly, she prayed for enhancement of permanent alimony from Rs. 400/- to Rs. 1,200/- per month. The husband contested the said application for enhancement of alimony filed by the wife/respondent. In his objection, the husband alleged that since by a compromise decree, a permanent alimony was fixed at Rs.400/- per month, she was not entitled to any enhanced permanent alimony from him and accordingly, the application must be rejected.