KALYAN DEY CHOWDHURYversusRITA DEY CHOWDHURY NEE NANDY

                            [2017] 3 S.C.R. 356


A                      KALYAN DEY CHOWDHURY
                                       v.
                    RITA DEY CHOWDHURY
                                ·;
                                       NEE NANDY
                      (Civil Appeal No. 5369 of2017)
8                       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.
                                                                       F
                       Case Law Reference
        (1971) 2 SCR 672       Para 16         reaffirmed
     CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5369
of2017.
      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.
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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 enhancing the amount of maintenance from Rs.16,000/- per month
  to Rs.23,000/-per month.
          3. Parties are entangled in several rounds oflitigation. Background
  facts in a nutshell are as follows: The marriage of the appellant and the
C respondent was solemnized on 10.08.1995 as per Hindu rites and customs
  at the appellant's residence at Kaina. A male child was born on 04.l 0.1996
  at Chandannagore who is now _a major pursuing his college education.
  After the birth of child, it is alleged that the respondent continued in her
  parent's house. The appellant-husband requested the respondent to return
D to the matrimonial home at Kaina alongwith the child. It is alleged that
  instead of acceding to the request of the appellant-husband and returning
  back to the matrimonial home, the respondent-wife insisted that the
  appellant-husband shifts to her father's place at Chandannagore.
        4. Appellant filed an application under Section 9 of the Hindu
E Marriage Act, 1955 for restitution of conjugal rights against the
  respondent-wife in Matrimonial Suit No.370of1997 before the District
  Judge, Burdwan on 23.12.1997. On receipt of summons in the above
  matrimonial suit on 9.02.1998, the respondent-wife lodged an FIR bearing
  P.S. Case No.25 dated 13.02.1998 under Sections 498A and 406 IPC
  against the appellant and his parents at P.S. Chandannagore. The
F appellant and his parents were granted anticipatory bail by the Sessions
  Judge, Burdwan on 20.05.1998 in the FIR filed by the respondent-wife.
  The respondent-wife also filed a maintenance case being Misc. Case
  No.24/98 under Section 125 Cr.P.C. against the appellant-husband
  claiming maintenance for herself and the minor son.
G        5: On 10.08.2000, the Additional District Judge, Burdwan passed
  decree of restitution of conjugal rights in favour of the appellant-husband.
  However, the respondent did not reconcile and preferred an appeal against
  the said decree of restitution of conjugal rights before the High Court
  being F.A. No.198 of 2001. In the High Court, by an order dated
H 24.05.2001 an interim arrangement was made directing the appellant
  KALYAN DEY CHOWDHURY v. RITA DEY CHOWDHURY                                  359
            NEE NANDY [R. BANUMATHI, J.]

herein to go to the parental home of the respondent-wife at A
Chandannagore and take back the wife and the child to his residence at
Kaina and make necessary arrangement for living with his wife and
child separately from the parents of the husband in the first floor of the
matrimonial home. Subsequently, the interim arrangement was recalled.
The interim arrangement did not work and the appeal filed by the B
respondent-wife was allowed on 13 .08.2003.
       6. In the year 2003, respondent-wife filed a Matrimonial Suit
No.533 of2003 before the District Judge Hooghly against the appellant-
husband under Section I0 of the Act for judicial separation. According
to the appellant, though he filed written objections denying allegations C
made against him, he could not attend the hearing and it is alleged that
he was manhandled in the court premises by some men of the respondent-
wife. Ex parte decree for judicial separation was ordered on 19 .05.2006,
as a consequence of which decree for permanent alimony was also
ordered under Section 25 of the Hindu Marriage Act to the respondent-
wife amounting to Rs.2,500/- per month and Rs. 2,000/- per month to D
the minor son.
       7. In the meanwhile, the appellant-husband and his parents were
acquitted of all the charges by the Additional District and Sessions Judge,
2"d Fast Track Court, Serempore on 20.07.2006 in the case filed alleging
dowry harassment. Being aggrieved by the order hereinabove, the               E
respondent-wife filed a revision petition being CRR No. 3087 of2006
before the High Court at Calcutta which came to be dismissed on
21.03.2011.
       8. The appellant-husband filed a divorce petition being Matrimonial
Suit No.71 of2007 which was renumbered as Suit No.193 of2010under . F
Section 13(1 )(ia) of the Hindu Marriage Act for dissolution of 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, 1" Court, Hooghly
in Matrimonial SuitNo.533 of2003, enhanced the amount of maintenance
to Rs. 8,000/- per month in F.A. No. 193 of 2008.                          G
      9. On 10.10.2010, the respondent filed an amendment application
before the Court being Misc. Case No.2 of 20 I0 in Matrimonial Suit
No.533 of2003 under Section 25(2) of the Act praying for enhancement
of maintenance amounting to Rs.10,000/-per month for herself and Rs.
                                                                              H
360            SUPREME COURT REPORTS                          [2017] 3 S.C.R.


A 6,0001- 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
B Court being C.O. No.4228 of2012. During its pendency, the Matrimonial
  Suit No.193 of2010 was decreed and the marriage between the parties
  came to be dissolved by the order of the Additional District Judge, l"
  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.
c        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 of2015 which was disposed of
  as withdrawn with liberty to approach the High Court by way of review.
D Pursuant to the above order, respondent-wife filed a review application
  being RVW No.85 of2016 arising out of CO N0.4228 of2012. 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
E 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/-. lt
   was further submitted that the appellant-husband is posted at Maida
 F 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
 G amount ofRs.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
H
  KALYAN DEY CHOWDHURY v. RITA DEY CHOWDHURY -                         361
            NEE NANDY [R. BANUMATHI, J.]

conclusion of granting Rs.23,000/- as maintenance to the respondent. A
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 oraer B
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 c
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 D
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
j•                                                                       E
       16. The review J?etition under Order XLVII Rufe 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_ F
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. Jn February, 2016, the net salary of
the appellant is stated to be Rs.95,527/-. Fo1lowingDr. Kulbhiishan
Kumar VS. Raj Kumari and Anr. (1970) 3 sec 129, in this case, it was
held that 25% of the husband's net salary would be just and proper to be G
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-majntenance H
                                                              .·.\
                            •

362             SUPREME COURT REPORTS                         [2017] 3 S.C.R.


A 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 maint~~e ~ount. 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
B maintenance of Rs.23,000/- to Rs.20,000/- per month as maintenance to
   the respondent-wife and son.
         17. In the result, the maintenance amount ofRs.23,000/-a~ard5Jd
  to the respondent-wife is reduced to Rs.20,000/- per month and the
  impugned judgment is modified and this appeal is partly allowed. The
  maintenance of Rs.20,000/- per month is payable to the respo_ndent-
C wife on or before l Qth of every succeeding english calendar mou*· No
  costs.


      Divya Pandey                                           Appeal partly allowed.




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