A direction is given to the learned Trial Court to dispose of the application under Section 36 of the Special Marriage Act afresh by allowing the parties to adduce evidence, oral and documentary, which are necessary for taking appropriate decision.
Date: 15.6.2016.
Acts: Section 36 of the Special Marriage Act
HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
C.O. 4458 of 2015
Present: The Hon’ble Justice Ishan Chandra Das
For the Petitioner: Mr. Uday Narayan Choudhury, Mr. Vinay Kumar Purohit.
For the Opposite Party : Ms. Sudipa Roy, Ms. Kakali Samajpaty.
Heard On : 10.6.2016, 15.6.2016.
Judgement On: 15.6.2016.
Ishan Chandra Das, J.
Heard learned counsel for the parties.
Questioning the propriety of the order no. 15 dated 28th September, 2015 passed by the learned Additional District Judge, Malda, in Mat Suit No. 306 of 2014, the present revisional application has been preferred. While disposing of the application under Section 36 of the Special Marriage Act, the prayer of the petitioner herein for providing maintenance to the tune of Rs.10,000/- per month, as prayed for in her application dated 10th February, 2015 was not favourably considered by the learned court below.
The background of the said application is that the petitioner herein is a deserted wife of the opposite party and at one point of time, she could maintain herself by way of her hawking business selling from door to door, but now due to her incapacity to earn her livelihood, she is praying for maintenance from her husband to the tune of Rs.10,000/- per month. The learned Trial Court while disposing of the said application held that since the petitioner herein purchased a flat in her name and could maintain herself since her separation, she would not be entitled to a separate maintenance to maintain herself. In this context, the observation of the learned Trial Court is quoted below for careful consideration of the facts in issue :
“There is no doubt the respondent at present is living in separately and petitioner is not paying any maintenance to her. Now regarding the income of the petitioner except the statements made by the respondent in her application no other document has been filed in support of it. On the other hand, the petitioner has stated that the respondent has got income of her own to maintain herself, but no document has been filed. It has also not been stated by the petitioner that any case for maintenance had been filed by the petitioner for herself. From the documents it is proved that the respondent had purchased a flat in her name. The said flat was purchased before they started to live in separation, as per order of the learned District Judge’s Court. As it is prima facie proved that the respondent/wife had got income of her own she is not entitled to get maintenance for her livelihood. Further it appears that since separation respondent did not claim maintenance from the petitioner by filing any case till the petitioner had filed the instant case. This also shows that she has income to maintain herself.”
In the order impugned, learned Trial Court held that the petitioner/wife was forced to face the litigation as the said application was filed at the instance of the husband/opposite party, she would be entitled to litigation cost and allowed the same in part.
Learned counsel for the petitioner herein, in course of argument submitted that the learned Trial Court while disposing of the application under Section 36 of the Special Marriage Act, did not allow the parties to adduce evidence in support of their respective claims. Drawing my attention to the provision of 36 of the Special Marriage Act, he pointed out that where in any proceeding under Chapter V or VI of this Act, it appears to the District Court that the wife has no independent income sufficient for her support and the necessary expenses of the proceeding, it may, on the application of the wife, order the husband to pay to her the expenses of the proceeding, and weekly or monthly during proceeding such sum as having regard to the husband’s income, it may seem to the court to be reasonable. Clarifying the provision of Section 36 of the Act, he also urged that the husband must be directed to maintain the status of his wife identical to the husband’s status and the parties should be given liberty to substantiate their respective claims by evidence.
Learned Trial Court while disposing of the application under Section 36 of the Act, accepted that the wife was not financially sound to bear the litigation cost, but at the same time held that the wife did not require subsistence allowance since she has got sufficient income to maintain herself.
Such a contradictory finding should not be held good. Hence, taking into consideration the facts of the case, I am of the opinion that the parties herein should be asked to establish their respective cases before the matter is disposed of.
Accordingly, without going into any controversy, I simply set aside the order impugned and a direction is given to the learned Trial Court to dispose of the application under Section 36 of the Special Marriage Act afresh by allowing the parties to adduce evidence, oral and documentary, which are necessary for taking appropriate decision and such process should be completed within a period of three months from the date of communication of this order.
However, the litigation cost to the tune of Rs.20,000/- already paid to the wife/petitioner shall be adjusted but subject to the result of the proceeding. With the aforesaid observation and direction, this revisional application is disposed of. There will be no order as to costs.
(Ishan Chandra Das, J.) ac
Date: 15.6.2016.
