SRI SANKARIPADA MUKHOPADHYAY Vs. MS. PARAMITA MUKHERJEE

JUDGEMENT

(1.) This application under Sec. 115 of the Code of Civil Procedure was filed by the husband/opposite party of the application under Sec. 13(ia) of Hindu Marriage Act, 1956 in connection with Matrimonial Suit No. 1/2000 being a suit for dissolving the marriage by a decree of divorce on the grounds of cruelty and desertion filed by respondent herein, assailing the Order No. 36 dated 21st Feb., 2002 passed by learned Additional District Judge, XIIIth Court at Alipore whereby and where under learned Court below allowing the application filed under Sec. 24 of the Hindu Marriage Act directed the husband/respondent to pay alimony pendente lite to the tune of Rs. 12000.00 per month to the applicant/wife payable on the 15th day of each succeeding month with effect from the date of the application. It is further directed that the arrear amounts be paid along with current monthly alimony pendente lite by 12 equal instalments. Litigation cost of Rs. 10000.00 also was allowed payable in 2 equal instalments. The revisional application was entertained by Bhaskar Bhattacharya, J. and by the order dated 19th March, 2002 stay of the operation of the impugned order on condition of payment of Rs. 2000.00 per month without deducting the money order commission was passed. It was further directed that payment of such amount for the month of March, 2002 must be sent by 25th March, 2002.

(2.) The revisional application came up for final hearing before this Court. By the order dated 13th March, 2003, the earlier order passed by Bhaskar Bhattacharya, J. was modified by directing payment of Rs. 2 lacs by bank draft without prejudice to the rights and contentions of the petitioner. On 16th May, 2003 by bank draft, said amount of Rs. 2 lakhs was paid. The wife/opposite party was granted liberty to encash the same and to utilise the amount for her maintenance and educational expenditure without prejudice to her rights and contentions. In the affidavit, since the wife-opposite party contended that husband/petitioner was capable to pay the amount as ordered by the learned Court below being Rs. 12000.00 per month, husband/petitioner was directed to submit the necessary documents as proof of income by submitting the Income Tax return and Income Tax Certificate. By a Supplementary Affidavit, some documents were filed. To resolve the dispute finally, the Court had given personal hearing of the parties in Chamber on 15th Jan., 2004. Since amicable settlement was not materialized, ultimately the matter was posted for hearing. The husband/petitioner has filed a Supplementary Affidavit disclosing his assets.

(3.) When the matter was finally taken up for hearing, learned Advocate for the wife/opposite party raised a question that this application under Sec. 115 of the Code of Civil Procedure is not maintainable in view of the amendment of the Code of Civil Procedure w.e.f. 1st July, 2002 by Amendment Act 146 of 1991. This point has now been settled by the judgment of the Apex Court passed in the case Shiv Shakti Coop. Housing Society, Nagpur Vs. Swaraj Developers & Ors., reported in (2003) 6 SCC 659, Surya Dev Rai Vs. Ram Chander Rai & Ors., reported in (2003) 6 SCC 675. Following that judgment I am of the view, the revisional application is not maintainable under Sec. 115 of the Civil Procedure Code.