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Kalyan Dey Chowdhury v. Rita Dey Chowdhury Nee Nandy - (Supreme Court) (19 Apr 2017)

Maintenance is dependant on factual situation of case and Court can moulding claim for maintenance based on various factors



Challenge in present appeal is to order passed by High Court reviewing an order passed earlier in an application filed under Section 25(2) of Hindu Marriage Act, 1955, thereby enhancing amount of maintenance from Rs. 16,000/- per month to Rs. 23,000/- per month. Appellant 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 is also submitted that, Respondent is a qualified beautician and Montessori teacher and earns Rs. 30,000/- per month and son has also attained eighteen years of age and hence, enhanced maintenance amount is on higher side and prayed for restoring original order.

Section 25 of Hindu Marriage Act, 1955 confers power upon 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 Court to vary, modify or discharge any order for permanent alimony or permanent maintenance that may have been made in any proceeding under Act under provisions contained in Sub-section (1) of Section 25. In exercising power under Section 25 (2), Court would have regard to "change in circumstances of parties". There must be some change in 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 order as Court may deem just.

Review petition under Order XLVII Rule 1 Code of Civil Procedure,1908 (CPC) was filed by Respondent-wife pursuant to liberty granted by this Court, when earlier order awarding a maintenance of Rs. 16,000/- to Respondent-wife as well as to her minor son was under challenge before this Court. As pointed out by High Court, in February 2015, 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, net salary of Appellant is stated to be Rs. 95,527/-. Following Dr. Kulbhushan Kumar v. Raj Kumari and Anr., in this case, it was held that 25% of husband's net salary would be just and proper to be awarded as maintenance to Respondent-wife. Amount of permanent alimony awarded to wife must be befitting status of parties and capacity of spouse to pay maintenance. Maintenance is always dependant on factual situation of case and Court would be justified in moulding claim for maintenance based on various factors. Since in February, 2016, net salary of husband was Rs. 95,000/- per month, High Court was justified in enhancing maintenance amount. However, since Appellant has also got married second time and has a child from second marriage, in interest of justice, Supreme Court reduced amount of maintenance of Rs. 23,000/- to Rs. 20,000/- per month and modified impugned judgment.

Relevant : Dr. Kulbhushan Kumar v. Raj Kumari and Anr.MANU/SC/0349/1970: (1970) 3 SCC 129


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