SMT. ANAMIKA SENGUPTA Vs. SRI BISWAJIT SENGUPTA

JUDGEMENT

(1.) The wife-opposite party in the Matrimonial Suit No. 25 of 1997 has challenged the order dated 6.5.2000 passed in Misc. Case No. 132 of 1997 with reference to the application regarding alimony pendent lite and the cost of litigation as filed by the wife under Sec. 24 of the Hindu Marriage Act read with Sec. 27 of the said Act, by the learned Court of 13th Additional District Judge, Alipore. It appears from the impugned order that the learned Court below came to a finding on the basis of the pay certificate as produced by the husband that husband was getting Rs. 8,050.00 per month as gross salary and after deduction some statutory amount actually he was getting Rs. 4372.20p. Considering this factum, the learned Court below has passed an order directing the amount of Rs. 800.00 per month to the wife towards alimony pendent lite from the date of the order together with litigation cost of Rs. 3,000.00. The wife-petitioner aggrieved by the order has challenged such fixation of the amount. From the record, it appears that the husband-opposite party herein is drawing salary to the tune of Rs. 8,050.00 per month and on deducting the statutory deduction the amount as available to him per month is Rs. 7,126/- only not Rs 4,394/- and odd as decided by the learned Court below. The learned Court below in considering deduction has considered the co-operative loan as also the statutory deduction and thereby came to an erroneous finding awarding amount of Rs. 800.00 per month in favour of the wife, it is an admitted position that the wife has left the service to look after the son. The amount of Rs. 8C0.00 in this very hard days, in my view, is not a sufficient amount for a wife to maintain her livelihood during the pendency of the matrimonial proceeding inasmuch as when the husband's income is to the tune of Rs. 7,000.00 and odd after deduction of statutory deductions. Considering the price index and the cost of living as increased qua, the settled judgment of the High Court as well as the Apex Court whereby it has been decided that the alimony pendent lite may be fixed even to the extent of 1/3rd of the salary of the husband, in my view, the impugned decision cannot sustain. The learned Advocate for the opposite party, however, has urged a legal question that the wife-petitioner after accepting Rs. 800.00 as alimony pendent lite as awarded by the learned Court below has filed this application hence it is not maintainable applying the doctrine of estoppel and relied on a judgment in the case of Martin Burn Vs. Steel Authority of India Limited reported in 1988 (2) CLJ 416.

(2.) To deal with the point as to whether the present petitioner waived her wight to challenge the quantum of money as granted in her favour as maintenance under the Act, which is termed as alimony pendent lite by filling this appeal praying enhancement of the same after accepting the minimum amount as awarded. The factors namely on estoppel by representation and/or estoppel by conduct as well as by election to be considered. It is in the domain of conduct by electing an amount awarded in her favour but, thereafter, challenge of the same in revision. To apply the doctrine of estoppel due to action of election, the ingredients as required to be fulfilled is that a party must elect in between the two options consciously. In this revisional application, the petitioner herein has not challenge the jurisdiction of the Court to pass the maintenance amount in her favour but contended that on the basis of income of the husband, the amount to be enhanced and non-grant of higher amount is the illegality in the impugned order. So, this cannot be termed as blowing hot and cold in the same breath, which is the basic root of applicability of the doctrine of approbate and reprobate. Doctrine of approbate and reprobate has its root in the Scotish law, By accepting Rs. 800.00 to maintain her livelihood in one hand and by assailing this order by which he got this amount on the ground to enhance the same, cannot be said as any action coming within the field of approbate and reprobate. By filling this revision, the present petitioner has not reprobate. It is not a case, accordingly, that the petitioner is blowing hot and cold but it is a case where the petitioner is blowing hot and hotter by contending that minimum amount was granted in her favour. This point whether a wight to appeal against a judgment would be attracted by the doctrine of approbate and reprobate came up for consideration before the Court of appeal in England, in the case of Mills Vs. Duckworth reported in (1938) 1 All ER 318. In that case, the plaintiffs in an action for damages for negligence obtained a judgment in their favour. They took an amount awarded out of money which have been paid into the Court, and then appealed on the quantum of damages. It was contended that, having taken money out of Court and thereby approbated the judgment, they could not now reprobate it by appealing. It was held by the Court of appeal, "the plaintiffs arc entitled to appeal. It could not be said that, by appealing as to the quantum of damages, they were re-probating the judgment". A similar question also dealt with by the House of Lords in England in the case of Lissenden Vs. C.A.V. Bosch Ltd. reported in (1940)1 All HR 425. In that case an award of workman's compensation was made in favour of a workman in respect of his incapacity caused by industrial disease together with costs of arbitration. The workman received, and signed a receipt for, the arrears of compensation due under the award, and the taxed costs were paid to his Solicitors. The workman, thereafter, appealed from the award in so far as it terminated the weekly payments of compensation on Oct. 31, 1938, on the ground that he had not wholly recovered from the effects of the industrial disease. House of Lords "in accepting the arrears of compensation, the workman was exercising a legal right to be paid-what was admittedly due to him, and, in serving his notice of appeal, he was exercising another and independent legal right of claiming the further relief to which he maintained he was entitled. The case, therefore, was not one of election, and the workman had a right of appeal". In another case before the Madras High Court, an identical question cropped up in the case of Dr C.S. Krishnaswami Ayyar Vs. Mohanlal Binjani & Anr. reported in AIR 1949 Madras 535. In this case an order for eviction was passed by the Chief Judge of Madras, Small Cause Court against the tenant of a house and time was, thereafter, granted, by consent of the parties, for vacating the house. Tenant preferred an appeal on enjoying such extended period and a point was raised that he was precluded from applying to the High Court for a writ of certiorari against the order. Division Bench of Madras High Court held "no question of election arose in such a case. The order in question was not a conditional order under which the tenant accepted any benefit so as to preclude him from disputing its validity. The principle of election would be applicable only when there are alternative rights". In the instant case, acceptance of Rs. 800.00 as granted by learned Court below as maintenance and, thereafter, preference of this revisional application praying enhancement of the amount cannot be said as two identical options to elect. Application hernia is for enhancement of the amount and by this process, the petitioner herein surely cannot be said to reprobate in preferring the revision by action of approbate on accepting the amount granted in the impugned order. Hence, in that view of the matter, the principle of estoppel by election is not applicable in the instant case. The judgment as referred to by the opposite party distinguishable on that point. The said case relates to West Bengal Tenancy Act where on accepting enhancement of rental under a lease agreement tenant challenged the matter. This judgment has no relevance in the present case to apply the doctrine of election and doctrine of approbate and reprobate as herein the petitioner is blowing hot and hotter and not hot and cold. However, considering the income of the husband qua, the amount as granted by the learned Court below, I am of the view that the learned Court below came to an erroneous finding and the impugned order is vitiated with illegality due to consideration of the loan amount as payable by the husband as statutory payments and thereby deduction of same from the monthly salary of the husband to determine monthly salary. Hence, considering the price index and other factors accordingly, the impugned order is modified by enhancing the amount of maintenance i.e., "alimony pendent lite" to the tune of Rs. 1,500.00per month in lieu of Rs. 800.00 as granted by the learned Court below. Hence, this revisional application is allowed to that extent by modification of the impugned order to that effect.

(3.) A cost of Rs. 100.00 is imposed upon the opposite party in this revisional application due to his conduct namely, to place his submission even after the judgment was delivered though his learned Advocate at length submitted his case strongly by citing judgment. Such amount to be paid to the petitioner within a week from this date. Let urgent xerox certified copy of this order, if applied for, be given to the parties expeditiously.