JUDGMENT
D.B. Dutta.J.
1. Order No. 88 dated 24th July, 1998 passed in Matrimonial Suit No. 140 of 1993 of the second Court of Additional District Judge, Howrah forms the subject matter of the present revislonal application under section 115 of CPC.
2. The case has a chequered career. A couple are fighting litigations both under the Hindu Marriage Act and section 125 of the Criminal Procedure Code. The husband filed a suit for divorce under section 13 of the Hindu Marriage Act and the wife filed an application under section 9 of the Hindu Marriage Act for restitution of conjugal life. Maintenance was claimed by the wife for herself as well as her minor child under section 125 of the Cr.PC and also under sections 24 and 26 of the Hindu Marriage Act. The facts relevant for the purpose of disposal of the present application may be stated as follows. On 20.3.95, there was an order by the Chief Judicial Magistrate, Alipore under section 125 Cr.PC awarding maintenance at the rate of Rs. 800 per month for the wife and at the rate of Rs. 600 for the child. On 21.4.95, the matrimonial court took into account the aforesaid magisterial order dated 20.3.95 and granted maintenance pendente lite only to the extent of Rs. 500 for the wife under section 24 of the Hindu Marriage Act. Against the magisterial order, the husband came up in revision before the Sessions Judge and finally the Sessions Court modified the magisterial order so far as the rates are concerned. In place of Rs. 800 for the wife and Rs. 600 for the child, it reduced the amounts to Rs. 6CO and 500 respectively. This order dated 29.11.97 has since been challenged in a subsequent revision before the High Court by the husband and the High Court by its interim order dated 20.4.98 directed the husband to pay a maintenance allowance to the wife and the child on ad hoc basis at a rate of Rs. 1100 per month and the said criminal revision case being 651 of 1998 is still awaiting disposal. Prior to the passing of this order of the High Court
dated 20.4.98, the matrimonial court, on being approached by the wife by an application dated 6.9.97 under section 24 for enhancement of maintenance pendente lite for herself and also by an another application dated 26.3.98 for enhancement of maintenance pendente lite for the child, by its order dated 16.4.98, without taking any evidence, enhanced the maintenance pendente llte to Rs. 800 each for the wife and the child allowing, however, an adjustment therefrom of Rs. 1100 which was awarded by the criminal court under section 125 Cr.PC by its order dated 29.11.97. The said order of the matrimonial court dated 16.4.98 was, however, challenged before this High Court in Civil Revision No. 1019 of 1998 and the High Court by its order dated 24.8.98 remanded the matter back to the matrimonial court for re-hearing. After the re-hearing the matrimonial court by its order dated 24.7.98 allowed both the petitions of the wife for enhancement of maintenance pendente lite under sections 24 and 26 of the Hindu Marriage Act directing payment of maintenance pendent elite at the rate of Rs. 1500 per month for the wife and Rs. 1000 per month for child after allowing an adjustment of a sum of Rs. 600 for the wife and Rs. 500 for the child as awarded by the criminal court by order dated 29.11.97 under section 125 Cr.PC. In other words, by virtue of the Impugned order, in addition to the amount which has been awarded by the High Court in Criminal Revision 651 of 1998 of ad hoc basis by order dated 20.4.98, under section 125 Cr.PC. the husband is to pay a further sum of Rs. 1400 towards the maintenance pendente Ute for the wife and the child taken together under sections 24 and 26 of the Hindu Marriage Act.
3. In challenging the impugned order, Mr. S.P. Roychowdhury argued that in determining the quantum of enhancement, the matrimonial court based its finding on conjectures and surmises and lost sight of relevant pieces of evidence which have been adduced on behalf of the husband petitioner for the purpose of assessment of his actual Income. A Supreme Court decision : Vinod Kumar Arora v. Surjit Kaur has been cited on this point.
4. Mr. Anupam Kr. Chatterjee, the learned senior counsel appearing for the respondent wife, supported the Impugned order and contended that the lower court’s assessment of the oral evidence is not subject to Interference of the High Court under section 115 CPC. A reference has been made to : Thakurdas Majhi v. Chand Majhi. Relying on a Supreme Court decision in : Josbir Kaur Sehgal v. District Judge. Dehradun, it was was submitted by Mr. Chatterjee that in the instant case there has been an attempt by the husband petitioner to conceal his true income and as such, the court would be justified to draw an adverse inference against him about his Income that it is much more than what is being disclosed to the court and as such, no jurisdictlonal error can be said to have been committed by the learned trial court in making its own assessment of the income of the husband.
5. Undisputedly, the petitioner husband is employed as a High School Teacher- The acquitance roll for the month of May, 1998 has been exibited before the trial court which would reveal the fact that the gross salary of the petitioner husband for that month works out to Rs. 7228 and after deductions, the take-home salary was Rs. 4169. The relevant document
would also suggest that the deduction against advance was to the tune of Rs. 936 and odd while there was a further deduction to the extent of Rs. 2000 towards as hoc salary recovery. The circumstances under which this particular deduction Rs.2000 was made from the gross salary due for the month of May 1998 has not been explained by the husband. Going by the particulars appearing in the acquftance roll. It seems that this deduction of Rs. 2000 was meant only for that month perhaps against some excess drawal of pay and allowances made earlier. The trial court, however, did not consider this aspect of the matter and relied op the figure mentioned in the column meant for net amount as the real income of the husband in determining the quantum of enhancement. It is undisputed that the husband petitioner is also a licenced draughtsman holding some engineer-Ing degree or certificate entitled AMISE. According to the wife respondent, the husband’s income from the professional services that he renders towards his clients on account of this engineering degree or certificate is Rs. 7000 to 10.000. The husband, however, appears to have denied the fact that he had had such income. According to the wife, the husband has another Income by running tutorial home. The trial court, however, rejected the plea of the wife on this score. O.P.W 2, a clerk of the Building Department of Howrah Municipal Corporation, came to depose on being deputed by Chief Architect of the Corporation. It transpire from the evidence that by the sumons Issued by the court the licence standing in the name of the husband petitioner was directed to be brought to court for the period from 1987 to 1993 to show what Jobs were done by the petitioner as surveyor. By the summons, records were also directed to be produced to show whether the said licence was renewed and the same is still existing or not The witness has brought a report which he himself prepared subsequent to the receipt of summons as per direction of the Chief Architect and he proved his report which goes to suggest that no Job was done by the petitioner for the years 1996-1997 to 1998-1999. Nothing has been brought to show as to what jobs were done by the petitioner during the period from 1987 to 1996 including the years 1987-1993 as required to be brought in response to the summons that was Issued by the court. Undisputedly, the licence is being renewed from time to time by the petitioner on payment of renewal fee of Rs. 600 every three years. It is in evidence that the petitioner has his own ambassador car and has a telephone in his name. The trial court observed that it cannot be ascertained what amount the husband gets out of his profession connected with his engineering certificate and yet the trial court was pleased to hold that he has some Income out of It. It appears to have assessed such Income at about Rs. 3000. Challenge has been thrown to this part of the finding which, according to Mr. Roychowdhury. Is based on mere surmise and conjecture. It is true that even a concurrent finding of fact would be liable to be Interfered with in revlslonal Jurisdiction under section 115 CPC when such findings are based on mere conjectures and surmises and not on evidence. But here on a careful consideration of the Impugned order, it cannot be said that the trial court proceeded merely on surmises and conjecture in assessing the Income of the husband and determining the enhancement of maintenance pendente lite. In Jasbir Kaur Sehgal’ case (supra), the Supreme Court held :
“No set formula can be laid for fixing the amount of maintenance. It has, in the very nature of things, to depend on the facts and circumstances of each case. Some scope for leverage can. however, be always there. The court has to consider the status of the parties, their respective needs, the capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and of those he is obliged under the law and statutory but in voluntary payments or deductions. The amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with her husband and also that she does not feel handicapped in the prosecution of her case. At the same time, the amount so fixed cannot be excessive or extortionate….. Considering the diverse claims made by the parties, one Inflating the
income and the other suppressing, an element of conjecture and guess
work does enter for arriving at the Income of the husband. It cannot be
done by any arathematlcal presclslon.”
6. Undisputedly, the petitioner is not required to maintain anybody else. Regard being had to the status of the wife and her needs as revealed from the materials on record and upon consideration of all the facts and circumstances which are relevant for the purpose of determining the Income of the husband, especially the fact that there was a deduction of Rs. 2000 from the gross salary of the husband for the particular month of May, 1998 towards the ad hoc salary recovery as Indicated above, I am of the view that the learned. Matrimonial Court did not at all commit any jurisdictional error, Impropriety, illegality or Irregularity so as to justify any interference in exercise of the revisional jurisdiction of this court in fixing the amount of maintenance pendente lite as it did by the impugned order. The application, therefore, fails and is hereby accordingly dismissed without, however, any order as to costs.
7. Petition dismissed