SMT. SUDIPTA MUKHERJEE Vs. DIBYENDU MUKHERJEE

JUDGEMENT

(1.) The instant revisional application is taken up for hearing on contest being directed against Order No. 70 dated 19.1.98 passed by the 2nd Court of Additional District Judge, Howrah in Matrimonial Suit No. 140 of 1993. The impugned order arises out of an application for variation and/or enhancement of maintenance. It appears that at an earlier point of time by Order No. 33 dated 21.4.95 in the connected matrimonial suit while disposing of the application under section 24 of the Hindu Marriage Act the then Presiding Judge made some suggestions which were found acceptable to both the parties as a result whereof it was so fixed. It has been submitted that the revisionist petitioner has agreed to the proposal keeping in view the amount of maintenance awarded by the criminal Court in 8 proceeding under section 125 of the Code of Criminal Procedure. It has been alleged that the order passed by the criminal Court was put under challenge before higher forums as a result whereof at the material point of lime the amount of maintenance as awarded by the criminal Court could not be sustained and that was reduced. Be that as it may, the petitioner alleges that by passage of time since April 1995 to 1998 upto date there has been a lapse of a period of about three years being followed by change of circumstances and situation warranting a revision of the amount of maintenance. The learned Judge in the impugned order while referring to the consent has made a peculiar observation that consenting to an amount would bind the parties as they must have thought about future inflation or-deflation which may arise in India. Not to speak of a lay litigant even do economist in this country being in this state of disarray can anticipate the behavioural pattern of the price level particularly in the wake of slump in international money market. It is well-known that even the wages of the workers are linked up with cost index and, inconsequence thereof, the wife is also entitled to a revision in the amount of maintenance commensurate with the price level. This cannot be a valid reference for a ground for a litigant of a petition to pin down the party. The said reasoning appears to be not only extraneous but also absurd. Accordingly, the learned Judge in the impugned order has missed the central proposition in law that maintenance per se is not a fixed concept as it is a variable one oscillating with every change of situation or circumstance. Accordingly, the learned Judge has gone wrong in formulation of his premise on the basis of such erroneous conception that the application is not maintainable. Accordingly, the impugned order is set aside for misdirection in exercise of jurisdiction by the learned Judge and the concerned Trial Court is hereby directed to de novo consider the application for variation of maintenance in accordance with law on appraisal of merits by way of scrutiny from the records. As such, the impugned order is set aside and the application for variation of maintenance is remitted back to the Trial Court for fresh hearing in the line as indicated above as early as possible in view of the grievance of the husband opposite party that the same is resulting in delay in disposal of the matrimonial proceeding. Accordingly, the concerned Court being the Second Court of Additional District Judge, Howrah is hereby directed to dispose of the pending application for variation of maintenance without being influenced by any of the observations contained in his earlier order by the end of March, 1998 latest.

(2.) Subject to the above observations, the revisional application stands allowed.

(3.) Let this order be transmitted to the Trial Court by a special messenger the cost whereof will be deposited by the opposite party by Wednesday next. Revisional application allowed.