Army man’s income ‘not assessed’, Calcutta High Court rejects wife’s maintenance hike

It also noted that the son had already attained the age of 18 before the maintenance application was filed, and therefore he was not entitled to maintenance under the provisions of the Criminal Procedure Code (CrPC).

Wife alleges cruelty, desertion

The couple got married according to Muslim rites in December 1989. The marriage was later registered before a Muslim registrar and kazi appointed by the West Bengal government. The couple then had two children – a daughter and a son. The husband later joined the Indian Army in 1991 and began serving as a havildar.

Justice Chaitali Chatterjee Das directed both parties to file affidavits of assets and liabilities so the magistrate can determine the maintenance amount.

The petitioner-wife alleged that marital discord developed and that she was subjected to physical and mental cruelty. She further alleged that the husband deserted her in 2012 after being posted in North India, leaving her and their son without financial support. The daughter died sometime during the period of litigation.

Appearing for the wife, advocates Sobhendu Sekhar Roy, Debabriya Samanta and Samrat Ghosh submitted that she had no independent source of income and approached the Army authorities, following which deductions were ordered from the husband’s salary towards maintenance for her and her son.

Thereafter, she filed proceedings under the Protection of Women from Domestic Violence Act, seeking maintenance. A magistrate initially granted Rs 7,000 per month, which was later enhanced to Rs 14,000 per month. The husband challenged the enhancement before the appellate court, which reduced the maintenance to Rs 7,000 per month. The wife then approached the high court challenging the reduction.

No proper basis for hike: Order

The court agreed with the appellate court that there was no proper basis for enhancing the maintenance from Rs 7,000 to Rs 14,000 per month. The magistrate had passed the final order without recording evidence or giving reasons for the enhancement.

Referring to the Supreme Court judgment, the court noted that under the principles laid down, both parties must file affidavits of their assets and liabilities so that the court can assess their actual income and determine the appropriate maintenance.

It observed that at the stage of final determination, both sides must get an opportunity to produce evidence and cross-examine, and the court must ascertain the actual income and financial capacity of the parties. The court stressed that reasons are essential for a judicial decision, noting that the magistrate had failed to explain why the maintenance was increased to Rs 14,000.

“From the facts and circumstances, it is evident that the magistrate passed the final order without calling for any evidence and further failed to ascertain the actual income of the husband and also to assign any reason regarding the quantum so arrived at or even the entitlement of the applicant,” the order highlighted.

The high court ultimately upheld the reduction, observing that the Rs 14,000 final maintenance order had been passed without evidence, without assessing the husband’s actual income and without providing reasons for the enhancement. It directed both parties to file affidavits of assets and liabilities so that the magistrate could determine the appropriate maintenance afresh.