Case: Kalyan Dey Chowdhury Vs. Rita Dey Chowdhury Nee Nandy

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 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by this order, the respondent-wife preferred a Special Leave Petition (C) No.12968 of 2015 which was disposed of as withdrawn with liberty to approach the High Court by way of review.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 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 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 husbands 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 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]14. We have considered the rival contentions and perused the impugned judgment and other materials on record15. 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 2516. 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 husbands 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 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