Rajesh Burmann vs Mitul Chatterjee (Barman)

2

3. Shortly stated the facts of the case

are that the appellant Rajesh Burman is the

husband of respondent Mitul Chatterjee

(Burman). The marriage between the parties was

solemnized on January 26, 2000 at Calcutta. The

wife permanently joined matrimonial home by

coming to Bombay on February 25, 2001 where her

husband was serving.

4. According to the appellant, on June

16, 2001, he was stuck up in the office work

and could not reach at home after office hours.

At about 9.30 p.m., the respondent-wife came to

the office of her husband and abused him for

being late and not coming back in time. At 1.30

a.m. in the night, he returned home but as soon

as he arrived, his wife became furious and

violently abusive in presence of her father and

grand parents.

5. It is the say of the appellant that he

wanted to walk out and to allow her anger to

cool down. He was leaving fast through a stair

case which was a rotated three fold stair of 3

about 4 steps + 8 steps + 7 steps. According to

the appellant-husband, his wife came out to

prevent him from getting down but mis-stepped

being sleeping drowsy in the dead hour and

claded in long sleeping gown. She, hence, fell

down and suffered injury in the left arm

resulting in fracture. Medical treatment was

given to her.

6. It was stated by the appellant that

even according to the wife, it was a case of

accident wherein she received injuries. After

long period of ten days, on June 26, 2001, the

wife-respondent herein lodged a complaint in

local police station against her husband

(appellant) and her-in-laws for offences

punishable under Sections 498A, 325, 406 and

506 read with Section 34 of the Indian Penal

Code, 1860 (IPC). It was also alleged by her

that it was her husband who had pushed her and

caused injuries. The appellant has stated that

he as well as his mother (mother-in-law of the

respondent) were arrested. The appellant was 4

constrained to approach the High Court of

Bombay for quashing criminal proceedings and

obtained stay of further proceedings. Due to

shock, however, his mother suffered heart

attack and died. The appellant is facing

criminal trial. It has also come on record

that the wife was operated twice; first

operation was performed in the Bombay Hospital

on June 19/20, 2001 and the second operation

was performed on May 02, 2002.

7. It may also be stated at this stage

that the relations between the husband and wife

are far from cordial and friendly. The

respondent-wife has filed a suit for

dissolution of marriage and for a decree of

divorce on July 01, 2001 against the appellant-

husband under Section 27 of the Special

Marriage Act, 1954 (hereinafter referred to as

`the 1954 Act') in the Court of District Judge,

Aliore, 24 Parganas (S), West Bengal. In the

suit, prayers were sought to declare that the

marriage between the parties was liable to be 5

dissolved by a decree of divorce at the

instance of plaintiff-wife, to return goods

lying under the care, custody and control of

the defendant-husband, to pay alimony pendente

lite as also permanent alimony, to pay costs

and to grant such other relief as the Court may

deem fit and proper. The appellant-husband is

contesting the suit.

8. According to the appellant, though he

was not responsible for the injuries sustained

by his wife, a false claim was put forward by

her against the appellant-husband for

reimbursement of medical expenses. It was his

case that the respondent-wife had received

amount from Insurance Company towards medical

expenses and reimbursement had already been

made. Yet by suppressing all those facts and

with a view to harass the husband, she

preferred a claim for medical reimbursement by

filing an application under Section 151 of the

Code of Civil Procedure, 1908 (hereinafter

referred to as `the Code') in the pending suit 6

praying therein that the husband may be

directed to pay a sum of Rs.3,82,262-75 paise

towards medical reimbursement.

9. The appellant contested the claim of

reimbursement of wife by filing counter

affidavit taking several grounds inter alia

contending that the petition filed by the wife

was not maintainable; there was suppression of

facts on her part; she was gainfully employed

and was not entitled to any amount from him;

she had already received the amount from the

Insurance Company and the husband was not

liable to pay anything to her. It was,

therefore, prayed by the husband that the

application was devoid of any merit and was

liable to be dismissed.

10. The learned Judge, however, rejected

all the contentions of the husband. He held

that the wife was entitled to medical

reimbursement but observed that admittedly, the

wife had received an amount of Rs.76,181/- out

of the total expenses incurred by her from the 7

Insurance Company. The said amount was,

therefore, required to be deducted.

Accordingly, the trial Court directed the

husband to pay an amount of Rs.3,06,181/-.

11. The appellant-husband challenged the

said order passed by the trial Court by

approaching the High Court of Calcutta invoking

Article 227 of the Constitution. The High Court

partly allowed the petition observing that the

trial Judge did not commit any error of law or

of jurisdiction in ordering the husband to pay

to the wife medical reimbursement. He, however,

held that the wife was not entitled to the

amount reportedly spent for air-fare i.e. an

amount of Rs.21,568/- plus Rs.62,155/- totaling

Rs.83,723/-. Accordingly, the said amount was

deducted and the remaining amount was ordered

to be paid.

12. The above decision of the High Court

is challenged in the present proceedings by the

husband.

8

13. We have heard learned counsel for the

parties.

14. The learned counsel for the appellant

strenuously contended that both the Courts had

committed an error of law in granting medical

reimbursement to the wife. It was urged that

the appellant-husband was not responsible for

the injuries sustained by the wife. It was a

case of accident-pure and simple and the wife

was to be blamed for it. No order, therefore,

could have been passed by the Courts directing

the appellant-husband to pay any amount to the

wife. It was also urged that the parties are

governed by the 1954 Act which does not provide

for such expenses. An application under Section

151 of the Code filed by the wife was,

therefore, not maintainable and the Court had

no jurisdiction to entertain such application

or to make any order. It was further urged that

an equitable relief could not be granted in

favour of the applicant-wife who suppressed

material facts. She had not stated that she had 9

been gainfully employed and did not depend on

husband. Initially, it was not disclosed by her

that she had received any amount from the

Insurance Company. She had also claimed air

fare charges to which she was not entitled and

the High Court reduced the said amount. All

actions had been taken by the wife only with a

view to harass the appellant-husband and in the

totality of circumstances, the application was

liable to be dismissed.

15. The learned counsel for the

respondent-wife, on the other hand, supported

the order passed by the trial Court and

modified by the High Court. According to him,

the wife was entitled to the amount claimed by

her. It was stated that so far as the gainful

employment of wife is concerned, the said issue

is no more in controversy. The wife was held

entitled to maintenance and the said right has

been upheld upto this Court. Regarding medical

expenses, the wife had to undergo two major

operations and still she is not completely 10

cured. In future, she will have to undergo

further operation as also to take medical

treatment. She has spent substantial amount.

16. According to her, she was pushed by

her husband from the stair case. His intention

was to cause such injuries which may result in

her death. Fortunately, however, she survived.

It was also submitted that air fare charges

were also incurred in connection with medical

treatment of the wife but the High Court had

reduced the amount. That, however, does not

mean that the wife is not entitled to medical

expenses granted in her favour by the Courts

below.

17. It was also submitted that the terms

`maintenance' and `support' are very wide so as

to include medical expenses and both the Courts

were right in granting medical reimbursement.

This Court may not interfere with the order in

exercise of discretionary power under Article

136 of the Constitution.

11

18. Having heard learned counsel for the

parties, in our opinion, no interference is

called for against the order passed by the

trial Court and modified by the High Court. So

far as maintainability of application filed by

the wife is concerned, we see no substance in

the contention of the learned counsel for the

husband that such an application is not

tenable. Proceedings had been initiated in

accordance with the provisions of the 1954 Act

and matrimonial suit was pending. In the

circumstances, in our view, it was open to the

applicant wife who had initiated the

proceedings for dissolution of marriage in a

competent Court to institute such application.

Even otherwise, looking to the scheme of the

Act, it is clear that provisions of the Code

would apply to Courts exercising power under

the Act. The preliminary objection raised by

the learned counsel for the appellant as to the

jurisdiction of the trial Court has no

substance and must be rejected.

12

19. It was also contended that the Act is

`self contained Code' and hence while

interpreting the provisions of the 1954 Act,

interpretation on various provisions of the

Hindu Marriage Act, 1955 or Hindu Adoptions &

Maintenance Act, 1956 cannot be blindly

accepted nor a case can be decided on the basis

of those decisions. It was submitted that

whether the wife is entitled to the relief of

medical expenses should be considered under the

Act of 1954. The decisions of some High Courts

on which reliance has been placed by the Courts

below are not under the 1954 Act but they are

either under the Hindu Marriage Act, 1955 or

Hindu Adoptions & Maintenance Act, 1956. The

counsel urged that it has been held by this

Court that no relief can be claimed under one

statute relying on the provisions of the other

statute [vide Chand Dhawan (Smt.) v.

Jawaharlal Dhawan, (1993) 3 SCC 406 and M/s

MSCO Pvt. Ltd. v. Union of India & Ors., (1985)

1 SCC 51]. The 1954 Act does not provide for 13

medical expenses and hence on that ground also

no order could have been made.

20. We are unable to uphold the

contention. The Special Marriage Act, 1954, as

stated in the Preamble, provides a special form

of marriage in certain cases, for the

registration of such and certain other

marriages and for divorce. The Act provides for

solemnization of special marriages,

registration thereof, consequences of marriage

under the Act, restitution of conjugal rights,

judicial separation and nullity of marriage and

divorce. It also provides for jurisdiction of

Courts and procedure to be followed.

21. Section 36 of this Act deals with

`alimony pendente lite' and states;

Section 36 - Alimony pendente lite.-- Where in any proceeding under Chapter V or Chapter VI it appears to the district court that the wife has no independent income sufficient for her support and the necessary expenses of the proceeding, it may, on the application of the wife, order the husband to pay to her the expenses of the proceeding, and weekly or monthly during the proceeding such sum as 14

having regard to the husband's income, it may seem to the court to be reasonable.

Provided that the application for the payment of the expenses of the proceeding and such weekly or monthly sum during the proceeding under Chapter V or Chapter VI, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the husband.

22. Section 37 of the Act provides for

`permanent alimony and maintenance' and reads

thus;

Section 37 - Permanent alimony and maintenance.--(1) Any court exercising jurisdiction under Chapter V or Chapter VI may, at the time of passing any decree or at any time subsequent to the decree, on application made to it for the purpose, order that the husband shall secure to the wife for her maintenance and support, if necessary, by a charge on the husband's property such gross sum or such monthly or periodical payment of money for a term not exceeding her life, as, having regard to her own property, if any, her husband's property and ability, the conduct of the parties and other circumstances of the case, it may seem to the court to be just.

(2) If the district court is satisfied that there is a change in the circumstances of either party at any 15

time after it has made an order under sub-section (1), it may, at the instance of either party, vary, modify or rescind any such order in such manner as it may seem to the court to be just.

(3) If the district court is satisfied that the wife in whose favour an order has been made under this section has re-married or is not leading a chaste life, it may, at the instance of the husband vary, modify or rescind any such order and in such manner as the court may deem just.

23. Reading the scheme of the Act, it is

clear that a wife is entitled to `maintenance

and support'. In our considered opinion, the

learned counsel for the respondent-wife is

right in submitting that the two terms

`maintenance' and `support' are comprehensive

in nature and of wide amplitude.

24. The term `maintenance' is defined in

Black's Law Dictionary, (6th Edn., pp.953-54)

thus;

16

"The furnishing by one person to another, for his or her support, of the means of living, or food, clothing, shelter, etc., particularly where the legal relation of the parties is such that one is bound to support the other, as between father and child or husband and wife".

25. Likewise, the word `support' as

defined in the said Dictionary (p. 1439) reads

as under;

"That which furnishes a livelihood; a source or means of living;

subsistence, sustenance, maintenance, or living. In a broad sense the term includes all such means of living as would enable one to live in the degree of comfort suitable and becoming to his station of life. It is said to include anything requisite to housing, feeding, clothing, health, proper recreation, vacation, traveling expense, or other proper cognate purposes; also proper care, nursing and medical attendance in sickness and suitable burial at death".

26. The Court below also considered some

of the decisions cited before them. In Pradeep

Kumar Kapoor v. Ms. Shailja Kapoor, AIR 1989

Delhi 10, the High Court of Delhi interpreted 17

`maintenance' and `support' under Section 24 of

the Hindu Marriage Act, 1955 and observed;

"Under Section 24 of the Act, the court has to see if the applicant who may either be wife or husband has no independent income sufficient for her or his support and the necessary expenses of the proceeding, and then award expenses of the proceeding and such sum every month, having regard to the applicant's own income and the income of the respondent which may seem to the court to be reasonable. This section may be contrasted with Section 25 of the Act which deals with permanent alimony and maintenance. Under Section 25, the court may order the respondent to pay to the applicant for her or his maintenance and support, till her or his lifetime, either a lumpsum amount or such monthly or periodical sum, having regard to the respondent's own income and other property, if any, and the income and other property of the applicant, the conduct of the parties and other circumstances of the case, which the court might deem just. It may be noticed that heading of Section 24 of the Act is "Maintenance pendente lite and expenses of proceedings". The section, however, does not use the word "maintenance", but, to me, it appears that the words "support" and "maintenance" are synonymous, "Support" means "to provide money for a person to live on", like "he supports a family" or "he supports his old mother." Maintenance is "an act of maintaining", i.e. to support with money. For example, "he is too poor to 18

maintain his family". It may be useful at this stage to refer to the definition of "maintenance" as given in the Hindu Adoptions and Maintenance Act, 1956 (for short 'the Act of 1956'). Under Section 3 of that Act, "maintenance" includes-(i) in all cases, provision for food, clothing, residence, education and medical attendance and treatment ; (ii) in the case of an unmarried daughter also the reasonable expenses of and incident to her marriage. I would, therefore, think that when we talk of maintenance and support, the definition of "maintenance" as given in the Act of 1956 should be adopted. Section 18 of the Act of 1956 also refers to maintenance of wife and gives the circumstances under which a Hindu wife is entitled to live separately from her husband without forfeiting her claim to maintenance".

27. In Atul Sashikant Mude v. Niranjana

Atul Mude, AIR 1998 Bombay 234, the Court

considered the provisions of the Hindu

Adoptions and Maintenance Act, 1956 and held

that a Court is empowered to pass interim and

ad-interim orders of maintenance. It was held

that the inclusive definition of the

`maintenance' under the Act would include food, 19

clothing, residence, education, medical

attendance and treatment.

28. In R. Suresh v. Smt. Chandra, AIR 2003

Karnataka 183, a similar question arose before

the High Court of Karnataka. Construing the

word `support' in Section 24 of the Hindu

Marriage Act, 1955, the Court held that the

word `support' occurring in the said section

can be given the same meaning attributed to the

word `maintenance' as defined in Section 3 of

the Hindu Adoptions and Maintenance Act, 1956

which would include provisions for food,

clothing, residence, education, medical

attendance and treatment.

29. Recently, in Ajay Saxena v. Smt.

Rachna Saxena, AIR 2007 Delhi 39, analysing the

provisions of Hindu Adoptions and Maintenance

Act, 1956, the Court held that in a suit under

Section 18 of the Act, the wife can claim

interim maintenance. It was further held that

such interim maintenance may also cover

expenses incurred towards medical treatment. 20

Obligation of the husband to pay such expenses

cannot be deferred till final adjudication of

the suit. Nor can husband avoid obligation to

pay further sum to his wife towards medical

reimbursement on the ground that the amount of

interim maintenance being passed included

entire expenses on medical treatment. [See also

Mangat Mal & Anr. V. Puni Devi (Smt) & Anr.,

(1995) 6 SCC 88].

30. As already indicated earlier, the

right of the wife to claim interim maintenance

has been upheld by the Court and the said

decision has attained finality. Apart from the

provisions of Hindu Marriage Act, 1955 or Hindu

Adoptions and Maintenance Act, 1956, in our

considered opinion, the two expressions,

`maintenance' and `support' in the Act of 1954

are comprehensive and of wide amplitude and

they would take within their sweep medical

expenses.

31. On the basis of material on record,

the trial Court, after hearing the parties, 21

held that the wife was entitled to medical

expenses which order was slightly modified by

the High Court upholding her right to get

medical reimbursement from her husband. We see

no infirmity in the decision or reasoning of

the Courts below which calls for our

interference in exercise of discretionary and

equitable jurisdiction under Article 136 of the

Constitution. The appeal in our view,

therefore, has no substance and must be

dismissed.

32. For the foregoing reasons, the appeal

deserves to be dismissed and is accordingly

dismissed with costs.

33. The learned counsel for the appellant-

husband at this stage prayed for instalments or

extension of time to make payment as per the

order of the High Court. In our opinion, the

prayer is reasonable. On the facts and in the

circumstances of the case, ends of justice

would be met if we grant some time to the

appellant-husband to pay the amount. Let the 22

said amount be paid by the husband latest by

December 31, 2008.

34. Ordered accordingly.

.........................................................J. (C.K. THAKKER)

NEW DELHI, .........................................................J. NOVEMBER 04, 2008. (D.K. JAIN)