Rajesh Burmann Vs.
Mitul Chatterjee (Barman)  INSC 1862 (4 November 2008)
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. OF 2008 ARISING OUT OF
SPECIAL LEAVE PETITION (CIVIL) NO. 14183 OF 2007 RAJESH BURMANN ... APPELLANT
C.K. THAKKER, J.
present appeal is directed against the judgment and order dated January 06,
2006 in Order No. 22 of 2002 in Matrimonial Suit NO. 4 of 2005, passed by the
Court of Additional District Judge, 7th Court, South, 24 Parganas, Alipore and
modified by the High Court of Calcutta on February 13, 2007 in C.O. No. 2975 of
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.
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.
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.
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.
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.
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.
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.
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.
trial Court directed the husband to pay an amount of Rs.3,06,181/-.
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.
above decision of the High Court is challenged in the present proceedings by
have heard learned counsel for the parties.
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.
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.
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
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.
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
This Court may not
interfere with the order in exercise of discretionary power under Article 136
of the Constitution.
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
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.
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.
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.
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.
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.
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.
term `maintenance' is defined in Black's Law Dictionary, (6th Edn., pp.953-54)
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".
the word `support' as defined in the said Dictionary (p. 1439) reads as under;
furnishes a livelihood; a source or means of living;
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".
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;
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
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".
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.
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.
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].
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.
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.
the foregoing reasons, the appeal deserves to be dismissed and is accordingly
dismissed with costs.
learned counsel for the appellant- husband at this stage prayed for installments
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.
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