NILOY @ NILOY GHOSH vs. SMT DEBOLINA

The petitioner is the husband of the respondent. The relationship between the parties is not in dispute. Due to certain marital discord, they have been residing separately. The petitioner herein has instituted the petition in M.C.No.745/2013 seeking dissolution of marriage. In the pending proceedings, the respondent has filed an application under Section 24 of the Hindu Marriage Act seeking interim maintenance. The Court below by order dated 15.07.2014 has directed the petitioner to pay the monthly maintenance of Rs.15,000/-

The petitioner while assailing the order passed by the Court below would contend that the maintenance as ordered is on the higher side. It is contended that the Court below in fact has taken note of the fact that a sum of Rs.3,500/- was being paid and yet a sum of Rs.15,000/- is ordered, though the net salary of the petitioner was accepted at Rs.45,662/- as noticed by the Court below. It is the further contention of the learned counsel for the petitioner that the Court below has also not taken into consideration that the rental is also being paid by the petitioner and in that view, a consideration was required to be made. It is also contended by the learned counsel that the respondent is a qualified law

Learned counsel for the respondent however would seek to sustain the order passed by the Court below. It is pointed out that though a contention is raised on behalf of the petitioner that the respondent has her independent income, no material whatsoever is placed on record. In that light, it is contended that when there is no dispute with regard to the relationship between the parties and the employment of the petitioner and the income thereof, the maintenance as ordered is justified. The learned counsel would also point out that though at the point when the Court below made the consideration, the salary was Rs.82,791/-, there has been increment in the salary and the income as disclosed for the purpose of

In the light of the rival contentions, I have perused the petition papers including the order impugned in this petition. As noticed, there is no dispute with regard to the relationship between the parties. Further, as rightly contended by the learned counsel for the respondent, the petitioner has not placed any material on record to indicate that the respondent has her independent income. Though there is no serious dispute with regard to the fact that the respondent is a qualified Law Graduate, the contention on behalf of the respondent that she does not have her independent income and in that circumstance, if only the petitioner had brought material on record, the same could have been taken into consideration. Further the contention of the learned counsel for the petitioner that the respondent has the capacity to earn though can be taken note of, in a

That apart, the Court below while taking note of the rival contentions has taken note of the avocation of the petitioner and as on the date of the consideration, the salary was in a sum of Rs.82,791/-. Though the net salary indicated in the salary certificate was Rs.45,662/-, the deduction in any event was to enure to the benefit of the petitioner himself. Therefore in that circumstance, when such income was available and the net salary itself was Rs.45,662/- certainly the Court below was justified in awarding about one-third of the same amounting to Rs.15,000/- to the respondent towards her maintenance.

However, to the extent of the Court below directing that the said amount of Rs.15,000/- would be in addition to the sum of Rs.3,500/- would not be justified since the Court below while taking note of the fact that a sum of Rs.3,500/- was being paid towards maintenance ought to have included the same and thereafter appropriate maintenance should have been granted.

Since I have arrived at the conclusion that one- third of the net pay which had been taken note at that point in time would be just and proper, the order impugned dated 15.07.2014 is therefore modified to hold that the interim maintenance payable by the petitioner to the respondent shall be at the rate of Rs.15,000/- per month from the date of the application which will include the sum of Rs.3,500/- being paid. The said amount shall be continued to be paid by the petitioner to the respondent during the pendency of the proceedings