DIBYENDU MUKHERJEE Vs. SUDIPTA MUKHERJEE

JUDGEMENT

(1.) - Order No. 88 dated 24th July, 1998 passed in Matrimonial Suit No. 140 of 1993 of the second Court of Additional District Judge, Howrah forms the subject matter of the present revisional application under section 115 of CPC.

(2.) The case has a chequered career. A couple are fighting litigations both under the Hindu Marriage Act and section 125 of the Criminal Procedure Code. The husband filed a suit for divorce under section 13 of the Hindu Marriage Act and the wife filed an application under section 9 of the Hindu Marriage Act for restitution of conjugal life. Maintenance was claimed by the wife for herself as well as her minor child under section 125 of the Cr.PC and also under sections 24 and 26 of the Hindu Marriage Act. The facts relevant for the purpose of disposal of the present application may be stated as follows. On 20.3.95, there was an order by the Chief Judicial Magistrate, Alipore under section 125 Cr.PC awarding maintenance at the rate of Rs. 800 per month for the wife and at the rate of Rs. 600 for the child. On 21.4.95, the matrimonial court took into account the aforesaid magisterial order dated 20.3.95 and granted maintenance pendente lite only to the extent of Rs. 500 for the wife under section 24 of the Hindu Marriage Act. Against the magisterial order, the husband came up in revision before the Sessions Judge and finally the Sessions Court modified the magisterial order so far as the rates are concerned. In place of Rs. 800 for the wife and Rs. 600 for the child, it reduced the amounts to Rs. 600 and 500 respectively. This order dated 29.11.97 has since been challenged in a subsequent revision before the High Court by the husband and the High Court by its interim order dated 20.4.98 directed the husband to pay a maintenance allowance to the wife and the child on ad hoc basis at a rate of Rs. 1100 per month and the said criminal revision case being 651 of 1998 is still awaiting disposal. Prior to the passing of this order of the High Court dated 20.4.98, the matrimonial court, on being approached by the wife by an application dated 6.9.97 under section 24 for enhancement of maintenance pendente lite for herself and also by an another application dated 26.3.98 for enhancement of maintenance pendente lite for the child, by its order dated 16.4.98, without taking any evidence, enhanced the maintenance pendente lite to Rs. 800 each for the wife and the child allowing, however, an adjustment therefrom of Rs. 1100 which was awarded by the criminal court under section 125 Cr.PC by its order dated 29.11.97. The said order of the matrimonial court dated 16.4.98 was, however, challenged before this High Court in Civil Revision No. 1019 of 1998 and the High Court by its order dated 24.8.98 remanded the matter back to the matrimonial court for re-hearing. After the re-hearing the matrimonial court by its order dated 24.7.98 allowed both the petitions of the wife for enhancement of maintenance pendente lite under sections 24 and 26 of the Hindu Marriage Act directing payment of maintenance pendent elite at the rate of Rs. 1500 per month for the wife and Rs. 1000 per month for child after allowing an adjustment of a sum of Rs. 600 for the wife and Rs. 500 for the child as awarded by the criminal court by order dated 29.11.97 under section 125 Cr.PC. In other words, by virtue of the impugned order, in addition to the amount which has been awarded by the High Court in Criminal Revision 651 of 1998 of ad hoc basis by order dated 20.4.98, under section 125 Cr.PC, the husband is to pay a further sum of Rs. 1400 towards the maintenance pendente lite for the wife and the child taken together under sections 24 and 26 of the Hindu Marriage Act.

(3.) In challenging the impugned order, Mr. S.P. Roychowdhury argued that in determining the quantum of enhancement, the matrimonial court based its finding on conjectures and surmises and lost sight of relevant pieces of evidence which have been adduced on behalf of the husband petitioner for the purpose of assessment of his actual income. A Supreme Court decision reported in AIR 1987 Supreme Court 2179: Vinod Kumar Arora v. Surjit Kaur has been cited on this point.