LexKALYAN DEY CHOWDHURY versus RITA DEY CHOWDHURY NEE NANDY
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
A 8 [2017] 3 S.C.R. 356 KALYAN DEY CHOWDHURY v. RITA DEY CHOWDHURY NEE NANDY ·; (Civil Appeal No. 5369 of2017) APRIL 19,2017 [R. BANUMATHI AND MOHAN M. SHANTANAGOUDAR, JJ.t Hindu Marriage Act, 1955 - s.25(2) and ss. 9, JO, 13(l)(ia) - Maintenance - "Change in the circumstances of the parties" - C Monthly maintenance of Rs.16,0001- granted to respondent-wife and son, increased to Rs.23,0001- by High Court in review - Challenge by appellant-husband - Plea of respondent-wife that in terms of the pay and expenditure of the husband, High Court rightly enhanced the maintenance - On appeal, held: There must be some D change in the circumstances of either party to be taken into account when an application is made uls. 25(2) for variation, modification or rescission of the order for permanent maintenance - Maintenance is always dependant on the factual situation of the; case - Amount of permanent alimony awarded to the w!fe must be befitting the status of the parties and the capacity of the spo;use to pay E maintenance - At the relevant time, the net salary of the husband had increased, thus, High Court was justified in enhancing the maintenance amount - However, since the appellant has· remarried and has a child from the second marriage, in the interest of justice, the amount of maintenance reduced ji-0111 Rs.23,0001- to Rs.20,0001 F - per month - Code of Civil Procedure, 1908 - Or. XL VJI, 1'. l - Penal Code, 1860 - ss. 498A, 406 - Code of Criminal Procedure, 1973 - s. 125 - Constitution of India -Art. 227. Partly allowing the appeal, the Court HELD: 1. Section 25 of the Hindu Marriage Act, 1955 G 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 comfers ample power on the Court to vary, modify or discharge an:y order for permanent alimony or permanent maintenance tha1t may have been made in any proceeding under the Act under th1e provisions H 356 KALYAN DEY CHOWDHURY v. RITA DEY CHOWDHURY 357 NEE NANDY contained in sub-section (1) of Section 25. In exercising the power A 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, B modification or rescission of the order as the court may deem just. [Para 151(361-C-El 2. 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 C on the factual situation of the case and the court would be justified in moulding the claim for maintenance passed on various factors. The earlier order awarding a maintenance of Rs. 16,000/- to the respondent-wife as well as to her minor son was passed on 02.02.2015. As pointed out by the High Court, in February· 2015, the appellant-husband was getting a net salary of Rs. 63,842/-. D 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, it is proper to reduce the amount of E maintenance of Rs.23,000/- to Rs.20,000/- per month as maintenance to the respondent-wife and son. [Para 161(361-G- H; 362-A-B] Dr. Kulbhushan Kumar v. Raj Kumari and Anr. (1970) 3 SCC 129 : [1971] 2 SCR 672 - reaffirmed. Case Law Reference (1971) 2 SCR 672 Para 16 reaffirmed CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5369 of2017. F From the Judgment and Order dated 15.09.2016 of the High Court G at Calcutta in RVW No. 85 of2016 arising out of CO 4228 of2012. Pijush K. Roy, Sanjay Sarkar, Kakali Roy, Rajan K. Chourasia, Advs. for the Appellant. Ms. Supriya Juneja, Aditya Singla, Advs. for the Respondent. H 358 SUPREME COURT REPORTS [2017] 3 S.C.R. A The Judgment of the Court was delivered by 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 of2016 in C.O. No.4228 of 2012, reviewing an order dated 02.02.2015 passed earlier in an B application filed under Section 25(2) of the Hindu Marriage Act, 1955, thereby
Excerpt shown. Read the full judgment & AI analysis in Lexace.