Wife and Other Dependent not Entitled for more than One Fifth Income

Calcutta High Court

JUSTICE Basudeva Panigrahi

Dhananjoy Samanta Vs. Sabitri Samanta On 14 March 2000

Law Point:
Wife and Other Dependent Shall Not be Entitled to More Than 1/5th Each From Gross Amount — Petitioner receiving Rs. 5,700/- p.m. as salary as Assistant Teacher — Petitioner liable to pay @ Rs. 1,150/- to opposite party as maintenance per month and Rs. 1,000/- to female child month by month.

JUDGEMENT

I did not direct notice to be served upon the respondent since it can be disposed of even without hearing her.

2. This is an application under Section 482 of the Criminal Procedure Code for quashing the order passed in Criminal Revision No. 275 of 1998 by the learned Additional Sessions Judge, 4th Court, Midnapore and also the order passed by the learned Sub-Divisional Judicial Magistrate, Tamluk in Misc. Case No. 32 of 1992 in a proceeding under Section 125 of the Code of Criminal Procedure.

3. The opposite party is undisputedly the married wife of the petitioner and their marriage was said to have been solemnised on 17.5.1990 and out of their lawful wedlock a daughter was born. After some time the relationship of the petitioner and also the opposite party was strained as a reason whereof the opposite party left the matrimonial house and joined her parents’ house alongwith the female child. Since the petitioner did not take care of the opposite party so also the daughter, they filed an application under Section 125 of the Code of Criminal Procedure claiming maintenance from the petitioner. At the time of filing application the opposite party claimed maintenance at the rate of Rs. 500/- per month for self and Rs. 300/- for their daughter.

4. The learned S.D.J.M, Tamluk after considering the evidence adduced by both the parties enhanced the claim of maintenance of the opposite party and her daughter and awarded an amount of Rs. 1,500/- per month to the wife/opposite party and Rs. 1,000/- per month to the female child.

5. Being aggrieved by the judgment and the order passed by the learned Sub- Divisional Judicial Magistrate, the husband/petitioner filed a criminal revision which was, however, disposed of by the learned Additional District and Sessions Judge by upholding the order passed by the learned S.D.J.M. Therefore, the petitioner filed this case for quashing all those orders passed by the Court below.

6. Mr. Banerjee, learned Advocate appearing for the petitioner has strenuously urged that the order passed by the Courts below prima facie appears to be untenable inasmuch as the learned S.D.J.M. as well as the learned Additional Sessions Judge, should not have granted maintenance of the higher amount than what was asked for by the opposite party. It has been further submitted that although the opposite party had filed the application for enhancing the amount of maintenance but her prayer was not allowed by the learned Magistrate. Therefore, it was inappropriate for the Court to suo motu enhance the amount was not asked for by the opposite party.

7. I find that since an application for amendment was filed, the learned Magistrate instead of passing a separate order, must have deemed it proper to deal with it at the final hearing of the case. Therefore, it cannot be argued because there was not a formal order passed upon the amendment application, the learned Magistrate could not have granted the relief of enhancing the prayer of maintenance.

8. One striking feature I have noticed in this case is that the amendment of the maintenance amount raising the quantum from Rs. 500/- to Rs. 1,500/- came into force on and from 2nd August, 1993. But the learned Magistrate directed the petitioner to pay the amount from the date of application, i.e. on and from 6.2.1992. Therefore, in the above situation I direct the amount which has been asked by the Courts below against the petitioner to pay the maintenance amount, shall be effective only from the date of amendment, i.e. on and from 2nd August, 1993. In this regard a learned Judge of this Court considered the same question reported in II (1999) DMC 280=1999 C.Cr.LR (Cal.) 116, in the case of Kumarjit Roy Chowdhury v. Gopa Roy Chowdhury, where it has been held as follows :

“As per Sub-section (1) of Section 125 of the Code of Criminal Procedure, the quantum of maintenance was earlier prescribed at Rs. 500/- per month but the same has since been changed by the West Bengal Amendment being the Cr. P.C. (W.B. Amendment Act, 1992). By this amendment, which came into effect from August 2, 1993, the amount of maintenance as mentioned in to the sub-clause has been raised to Rs. 1,500/- per month.

In view of what has been noticed above, since the amendment has no retrospective effect, the impugned order simply needs modification so as to give effect of the maximum limit of the maintenance, which could be enforced prior to the amendment in the Act coming into force from August 2, 1993 which did prescribe limit of Rs. 500/- as monthly maintenance.”

9. While considering the question of quantum it has been also held by this Court in a Division Bench that the wife and other dependent shall not be entitled to more than 1/5th each from the gross amount. In this case from the judgment it appears that the petitioner was receiving Rs. 5,700/- as salary per month as Assistant Teacher. In that view of the matter the opposite party can claim not more than 1/5th of the said amount. Accordingly I hereby reduce the monthly maintenance amount from Rs. 1,500/-. Insofar as the female child is concerned the amount of Rs. 1,000/- has already been directed by the learned Magistrate which was affirmed by the revisional application. Therefore, I don’t find any justification to raise the amount further. Accordingly, the petitioner shall be liable to pay at the rate of Rs. 1,150/- to the opposite party as maintenance per month and similarly Rs. 1,000/- to the female child month by month.

10. Save and except the above modification I do not find any other illegality or irregularity to interfere with the order passed by the Revisional Court as well as the learned Magistrate. Accordingly, the application partly succeeds.

11. Petitioner is given liberty to take down the gist of the order for the purpose of communication.

12. Urgent xerox certified copy of the order if applied for, same be supplied within two weeks from the date of putting requisition for the same.

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