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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  5369    OF 2017 (Arising out of SLP(C) No. 34653 of 2016)

KALYAN DEY CHOWDHURY                     .....Appellant

Versus

RITA DEY CHOWDHURY NEE NANDY        .....Respondent

J U D G M E N T

R. BANUMATHI, J.

Leave granted.

2. Challenge in this appeal is to the order dated 15.09.2016 passed

by the High Court at Calcutta in RVW No.85 of 2016 in C.O. No.4228

of 2012, reviewing an order dated 02.02.2015 passed earlier in an

application filed under Section 25(2) of the Hindu Marriage Act, 1955,

thereby enhancing the amount of maintenance from Rs.16,000/- per

month to Rs.23,000/- per month.

3. Parties are entangled in several rounds of litigation. Background

facts in a nutshell are as follows: The marriage of the appellant and

the respondent was solemnized on 10.08.1995 as per Hindu rites and

customs at the appellant’s residence at Kalna. A male child was born

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on 04.10.1996  at Chandannagore who is now a major pursuing his

college  education.  After  the  birth  of  child,  it  is  alleged  that  the

respondent continued in her parent’s house. The appellant-husband

requested the respondent to return to the matrimonial home at Kalna

alongwith  the  child.   It  is  alleged  that  instead  of  acceding  to  the

request  of  the  appellant-husband  and  returning  back  to  the

matrimonial  home,  the  respondent-wife  insisted  that  the

appellant-husband shifts to her father’s place at Chandannagore.

4. Appellant  filed  an  application  under  Section  9  of  the  Hindu

Marriage  Act,  1955  for  restitution  of  conjugal  rights  against  the

respondent-wife in Matrimonial Suit No.370 of 1997 before the District

Judge, Burdwan on 23.12.1997.  On receipt of summons in the above

matrimonial  suit  on  9.02.1998,  the  respondent-wife  lodged  an  FIR

bearing P.S. Case No.25 dated 13.02.1998 under Sections 498A and

406  IPC  against  the  appellant  and  his  parents  at  P.S.

Chandannagore.  The  appellant  and  his  parents  were  granted

anticipatory bail by the Sessions Judge, Burdwan on 20.05.1998 in

the FIR filed by the respondent-wife. The respondent-wife also filed a

maintenance  case  being  Misc.  Case  No.24/98  under  Section  125

Cr.P.C.  against  the  appellant-husband  claiming  maintenance  for

herself and the minor son.

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5. On 10.08.2000, the Additional District Judge, Burdwan passed

decree  of  restitution  of  conjugal  rights  in  favour  of  the

appellant-husband.  However, the respondent  did  not  reconcile  and

preferred an appeal against the said decree of restitution of conjugal

rights before the High Court being F.A. No.198 of 2001.  In the High

Court,  by  an  order  dated  24.05.2001  an  interim arrangement  was

made directing the appellant herein to go to the parental home of the

respondent-wife at Chandannagore and take back the wife and the

child to his residence at Kalna and make necessary arrangement for

living  with  his  wife  and  child  separately  from  the  parents  of  the

husband in the first floor of the matrimonial home. Subsequently, the

interim arrangement was recalled.  The interim arrangement did not

work  and the  appeal  filed  by  the  respondent-wife  was  allowed  on

13.08.2003.

6. In  the  year  2003,  respondent-wife  filed  a  Matrimonial  Suit

No.533  of  2003  before  the  District  Judge  Hooghly  against  the

appellant-husband under Section 10 of the Act for judicial separation.

According to the appellant, though he filed written objections denying

allegations made against him, he could not attend the hearing and it is

alleged that he was manhandled in the court premises by some men

of the respondent-wife.  Ex parte decree for judicial separation was

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ordered  on  19.05.2006,  as  a  consequence  of  which  decree  for

permanent alimony was also ordered under Section 25 of the Hindu

Marriage  Act  to  the  respondent-wife  amounting  to  Rs.2,500/-  per

month and             Rs. 2,000/- per month to the minor son.

7. In the meanwhile, the appellant-husband and his parents were

acquitted of all  the charges by the Additional District  and Sessions

Judge, 2nd Fast Track Court, Serempore on 20.07.2006 in the case

filed  alleging  dowry  harassment.   Being  aggrieved  by  the  order

hereinabove, the respondent-wife filed a revision petition being CRR

No. 3087 of 2006 before the High Court at Calcutta which came to be

dismissed on 21.03.2011.  

8. The appellant-husband filed a divorce petition being Matrimonial

Suit No.71 of 2007 which was renumbered as Suit No.193 of 2010

under Section 13(1)(ia) of the Hindu Marriage Act for dissolution of

marriage.  In  the said  divorce petition,  the respondent-wife  filed  an

application for permanent alimony under Section 25 of the Act.  By an

order dated 19.05.2006, passed by the Additional District Judge, 1st

Court,  Hooghly  in  Matrimonial  Suit  No.533 of  2003,  enhanced the

amount of maintenance to Rs. 8,000/- per month in F.A. No. 193 of

2008.

9. On 10.10.2010, the respondent filed an amendment application

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before the Court being Misc. Case No.2 of 2010 in Matrimonial Suit

No.533  of  2003  under  Section  25(2)  of  the  Act  praying  for

enhancement of maintenance amounting to Rs.10,000/- per month for

herself  and  Rs.  6,000/-  for  her  minor  son.   Vide order  dated

10.10.2012, the said application was allowed and maintenance at the

rate of Rs.6000/- each was ordered for the respondent and her minor

son.    

10. Aggrieved  by  this  order,  respondent-wife  preferred  a  revision

petition under Article 227 of the Constitution of India before the High

Court  being  C.O.  No.4228  of  2012.    During  its  pendency,  the

Matrimonial  Suit  No.193  of  2010  was  decreed  and  the  marriage

between  the  parties  came  to  be  dissolved  by  the  order  of  the

Additional  District  Judge,  1st Fast  Track  Court,  Serampore  on

30.11.2012.  Post-divorce, the appellant herein re-married and has a

male child born out of the second wedlock.

11. By an order dated 02.02.2015, the High Court disposed of the

above revision petition by directing the appellant-husband to pay a

sum of Rs.16,000/- towards the maintenance of the respondent-wife

as  well  as  her  minor  son.   Aggrieved  by  this  order,  the

respondent-wife preferred a Special Leave Petition (C) No.12968 of

2015 which was disposed of as withdrawn with liberty to approach the

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High  Court  by  way  of  review.   Pursuant  to  the  above  order,

respondent-wife filed a review application being RVW No.85 of 2016

arising out of CO NO.4228 of 2012. Upon hearing both the parties, by

order dated 15.09.2016, the learned Single Judge of the High Court

modified  the  order  under  review  and  enhanced  the  amount  of

maintenance  from Rs.16,000/-  to  Rs.23,000/-  which  is  the  subject

matter of challenge in this appeal.

12. Learned counsel for the appellant Mr. Pijush K. Roy submitted

that in exercise of review jurisdiction, the High Court ought not to have

enhanced the maintenance amount from Rs.16,000/- to Rs.23,000/-.

It was further submitted that the appellant-husband is posted at Malda

Medical  College,  Malda,  West  Bengal  and  gets  a  net  salary  of

Rs.87,500/-   per  month  and  while  so,  the  appellant  would  find  it

difficult  to  pay  enhanced  maintenance  amount  of  Rs.23,000/-  per

month to the respondent-wife.  It is also submitted that the respondent

is  a  qualified  beautician  and  Montessori  teacher  and  earns

Rs.30,000/- per month and the son has also attained eighteen years

of age and hence the enhanced maintenance amount of Rs.23,000/-

per month is on the higher side and prayed for restoring the original

order of Rs.16,000/- per month.

13. Per contra, learned counsel for the respondent-wife        Ms.

Supriya Juneja submitted that the High Court on perusal of the pay

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slip and the expenditure of appellant-husband has arrived at the right

conclusion of granting Rs.23,000/- as maintenance to the respondent.

The learned counsel has also further submitted that even though the

son has attained majority and since the son is aged only eighteen

years  and  is  presently  studying  in  a  college  and  for  meeting  the

expenses  of  higher  education  and  other  requirements,  enhanced

maintenance amount of Rs.23,000/- per month is a reasonable one

and the impugned order warrants no interference.

14. We  have  considered  the  rival  contentions  and  perused  the

impugned judgment and other materials on record.  

15. Section 25 of the Hindu Marriage Act, 1955 confers power upon

the court to grant a permanent alimony to either spouse who claims

the same by making an application.  Sub-section (2) of Section 25 of

Hindu Marriage Act confers ample power on the court to vary, modify

or  discharge  any  order  for  permanent  alimony  or  permanent

maintenance that may have been made in any proceeding under the

Act under the provisions contained in sub-section (1) of Section 25.

In exercising the power under Section 25 (2), the court would have

regard to the “change in the circumstances of  the parties”.   There

must be some change in the circumstances of either party which may

have to be taken into account when an application is made under

sub-section (2) of Section 25 for variation, modification or rescission

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of the order as the court may deem just.   

16. The review petition under Order XLVII Rule 1 CPC came to be

filed by the respondent-wife pursuant to the liberty  granted by this

Court  when  the  earlier  order  dated  02.02.2015  awarding  a

maintenance of Rs.16,000/- to the respondent-wife as well as to her

minor son was under challenge before this Court.  As pointed out by

the High Court, in February 2015, the appellant-husband was getting

a net salary of Rs.63,842/- after deduction of Rs.24,000/- on account

of GPF and Rs.12,000/- towards income-tax.  In February, 2016, the

net salary of the appellant is stated to be Rs.95,527/-.  Following Dr.

Kulbhushan Kumar vs. Raj Kumari and Anr. (1970) 3 SCC 129, in

this case, it was held that 25% of the husband’s net salary would be

just  and  proper  to  be  awarded  as  maintenance  to  the

respondent-wife.  The amount of permanent alimony awarded to the

wife must be befitting the status of the parties and the capacity of the

spouse to pay maintenance.  Maintenance is always dependant on

the factual situation of the case and the court would be justified in

moulding the claim for maintenance passed on various factors.  Since

in February, 2016, the net salary of the husband was Rs. 95,000/- per

month,  the High Court  was justified in enhancing the maintenance

amount.  However, since the appellant has also got married second

time and has a child  from the  second marriage,  in  the interest  of

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justice, we think it  proper to reduce the amount of maintenance of

Rs.23,000/-  to  Rs.20,000/-  per  month  as  maintenance  to  the

respondent-wife and son.

17. In the result, the maintenance amount of Rs.23,000/- awarded to

the  respondent-wife  is  reduced  to  Rs.20,000/-  per  month  and  the

impugned judgment is modified and this appeal is partly allowed. The

maintenance  of  Rs.20,000/-  per  month  is  payable  to  the

respondent-wife  on  or  before  10th of  every  succeeding  english

calendar month.  No costs.  

 ..….…...........……………………….J.             [R. BANUMATHI]

         ……...............………………………..J.   [MOHAN M. SHANTANAGOUDAR]

New Delhi; April 19, 2017

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ITEM NO.1A                 COURT NO.7               SECTION XVI (For judgment)                S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS CIVIL APPEAL NO.5369/2017 @ Petition(s) for Special Leave to Appeal (C) No(s).  34653/2016 (Arising out of impugned final judgment and order dated  15/09/2016 in CO No. 4228/2012 15/09/2016 in RVW No. 85/2016 passed by the  High Court Of Calcutta) KALYAN DEY CHOWDHURY                               Petitioner(s)                                 VERSUS RITA DEY CHOWDHURY NEE NANDY                       Respondent(s)

Date : 19/04/2017 This matter was called on for pronouncement of  judgment today.

For Petitioner(s)    Mr. Rajan K. Chourasia,Adv.                       For Respondent(s)    Mrs Sarla Chandra,Adv.                      Ms.Supriya Juneja,Adv.

Ms. Mehaak Jaggi, Adv.        

 Hon'ble  Mrs.  Justice  R.  Banumathi  pronounced  the reportable judgment  of the Bench comprising Her Lordship and Hon'ble Mr. Justice Mohan M. Shantanagoudar.

Leave granted.

The  appeal  is  partly  allowed.  The  maintenance  of Rs.20,000/- p.m. is payable to the respondent-wife on or before 10th of every succeeding English Calendar Month.

No costs.  Application, if any, also stands disposed of.

(USHA BHARDWAJ)            (RENU DIWAN)      AR-CUM-PS  ASSISTANT REGISTRAR       Signed reportable judgment is placed on the file.