MANU/SC/0457/2017

Equivalent Citation: 2017(175)AIC 193, AIR2017SC 2383, 2017(4)ALD176, 2017(5)ALLMR426, 2017 (123) ALR 287, 2017(3)ALT51, 2017 3
AWC 2259SC , 2017(3)BomC R765, (2018)1C ALLT42(SC ), 2017 (2) C C C 236 , 2017(2)C DR257(SC ), 2017(2) C HN (SC ) 212, 2017(2)C LJ(SC )97,
124(2017)C LT555, 2017(3)C TC 209, 2017(I)C LR(SC )1099, 121(1)C WN101, II(2017)DMC 1SC , 2017(2)HLR397, ILR2017(2)Kerala335,
2017(3)J.L.J.R.23, 2017(3)JC C 1953, 2017(2)JKJ1[SC ], 2017 (2) KHC 606, 2017(2)KLJ614, 2017(I)OLR946, 2017(3)PLJR72,
2017(2)RC R(C ivil)1033, 2017(2)RLW1154(SC ), 2017(5)SC ALE55, (2017)14SC C 200, 2017 (3) WLN 70 (SC )

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 5369 of 2017 (Arising out of SLP (C) No. 34653 of 2016)
Decided On: 19.04.2017
Appellants: Kalyan Dey Chowdhury
Vs.
Respondent: Rita Dey Chowdhury Nee Nandy
Hon'ble Judges/Coram:
R. Banumathi and Mohan M. Shantanagoudar, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Pijush K. Roy, Sanjay Sarkar, Kakali Roy and Rajan
K. Chourasia, Advs.
For Respondents/Defendant: Supriya Juneja and Aditya Singla, Advs.
Case Category:
FAMILY LAW MATTER - ALIMONY
Case Note:
Family - Enhancement of maintenance - Validity thereof - Section 25(2) of
Hindu Marriage Act, 1955 - High Court reviewing order passed earlier in
application filed under Section 25(2) - Enhanced amount of maintenance -
Hence, present appeal - Whether High Court ought not to have enhanced
maintenance amount
Facts:
The marriage of the Appellant and the Respondent was solemnized. A male
child was born. After the birth of child, it was alleged that the Respondent
continued in her parent's house. The Appellant filed an application Under
Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights
against the Respondent-wife. The Respondent-wife lodged an FIR Under
Sections 498A and 406 Indian Penal Code against the Appellant and his
parents. The Respondent-wife also filed a maintenance case Under Section
125 Code of Criminal Procedure against the Appellant-husband claiming
maintenance for herself and the minor son. The Respondent-wife filed a
Matrimonial Suit before the District Judge against the Appellant-husband
Under Section 10 of the Act for judicial separation. Ex parte decree for
judicial separation was ordered, 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 the minor son.

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The Appellant-husband and his parents were acquitted of all the charges by
the Additional District and Sessions Judge. Being aggrieved by the order
hereinabove, the Respondent-wife filed a revision petition before the High
Court at Calcutta which came to be dismissed. The Appellant-husband filed
a divorce petition Under 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. The
Additional District Judge enhanced the amount of maintenance to Rs.
8,000/- per month. The Respondent filed an amendment application before
the Court 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. The said application was allowed and
maintenance at the rate of Rs. 6000/- each was ordered for the Respondent
and her minor son.
Aggrieved by this order, Respondent-wife preferred a revision petition
before the High Court. During its pendency, the Matrimonial Suit was
decreed and the marriage between the parties came to be dissolved by the
order of the Additional District Judge. Post-divorce, the Appellant re-
married and had a male child born out of the second wedlock.
The High Court disposed of the 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 that order, the
Respondent-wife preferred a Special Leave Petition 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.
The 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/-.
Hence, the present appeal.
Held, while partly allowing the appeal:
(i) 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. [15]
(ii) The review petition came to be filed by the Respondent-wife pursuant
to the liberty granted by the present Court when the earlier order awarding
a maintenance of Rs. 16,000/- to the Respondent-wife as well as to her
minor son was under challenge before this Court. The amount of permanent
alimony awarded to the wife must be befitting the status of the parties and

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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 also got married second time and
had a child from the second marriage, in the interest of justice, the amount
of maintenance of Rs. 23,000/- was reduced to Rs. 20,000/- per month as
maintenance to the Respondent-wife and son. [16]
JUDGMENT
R. Banumathi, J.
1. 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 of 2016 in C.O. No. 4228 of 2012, reviewing an order
dated 02.02.2015 passed earlier in an 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 of litigation. Background facts in a nutshell
are as follows: The marriage of the Appellant and the Respondent was solemnized on
10.08.1995 as per Hindu rites and customs at the Appellant's residence at Kalna. A
male child was born on 04.10.1996 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 to the matrimonial home at Kalna 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 Marriage Act, 1955 for
restitution of conjugal rights against the Respondent-wife in Matrimonial Suit No. 370
of 1997 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 Indian Penal Code
against the Appellant and his parents at P.S. Chandannagore. The 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 Code of Criminal
Procedure against the Appellant-husband claiming maintenance for herself and the
minor son.
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 24.05.2001 an interim arrangement was made directing the
Appellant herein to go to the parental home of the Respondent-wife at
Chandannagore and take back the wife and the child to his residence at Kalna 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

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interim arrangement was recalled. The interim arrangement did not work and the
appeal filed by the Respondent-wife was allowed on 13.08.2003.
6. In the year 2003, Respondent-wife filed a Matrimonial Suit No. 533 of 2003 before
the District Judge Hooghly against the Appellant-husband Under Section 10 of the Act
for judicial separation. According to the Appellant, though he filed written objections
denying allegations 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 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, 2nd Fast Track Court,
Serampore on 20.07.2006 in the case filed alleging dowry harassment. Being
aggrieved by the order hereinabove, the Respondent-wife filed a revision petition
being CRR No. 3087 of 2006 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 of
2007 which was renumbered as Suit No. 193 of 2010 Under 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, 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.
1 0 . 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

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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.
1 3 . 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 Code of Civil Procedure 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 v. Raj
Kumari and Anr. MANU/SC/0349/1970 : (1970) 3 SCC 129, in this case, it was held
that 25% of the husband's 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

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the amount of maintenance of Rs. 23,000/- to Rs. 20,000/- per month as
maintenance to the Respondent-wife and son.
1 7 . In the result, the maintenance amount of Rs. 23,000/- awarded 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 Respondent-wife on or before 10th of every succeeding
English calendar month. No costs.
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