Courts should award litigation costs to wife at outset in matrimonial case filed by husband: Calcutta High Court

A wife who leaves or is compelled to leave her matrimonial house cannot be asked to incur the costs of litigation of the matrimonial suit instituted against her by her husband, the Calcutta High Court recent said [Partha Sakha Maity vs Bijali Maity]..Thus, courts should grant 'litigation costs' to the wife at the outset when the husband institutes a matrimonial suit against her, single-judge Justice Biswaroop Chowdhury held in his May 3 order.The Court noted that when a wife leaves matrimonial home due to some disputes and differences and sometimes under compelling circumstances there is an element of depression and mental instability. In such a situation, she has to go to her parental house and has to either depend on her parents for livelihood or take up some work to earn her livelihood if she is not already employed."In such a situation it would not be just and proper to compel the wife concerned to bear the litigation costs till application for maintenance pendent lite is decided. A wife may earn her livelihood after leaving matrimonial home, and she may be able to maintain herself to some extent but as maintenance includes food clothing, shelter, medical expenses and other incidental expenses for a decent living but the same does not include litigation costs, she may not be compelled to pay litigation costs in a suit not instituted by her but against her by her husband," the judge held.A wife after incurring expenditure for food clothing and shelter may be able to make some savings for future contingencies but that does not make her liable for payment of litigation costs in a matrimonial suit instituted by her husband, the judge added."A wife while living separately is unable to get the benefits of joint income of her husband and herself thus when she has to depend on her own earning she is required to make some savings for future contingencies. Thus it would be unreasonable to compel the wife to incur the litigation costs in a case instituted against her by her husband unless the income and savings are exorbitant compared to the nominal litigation costs or that she has large number of assets and huge income from the same or when she is provided an Advocate from Legal Service Authority," the Court underscored.As dignity of a woman is to be protected, it should be ensured that women are not compelled to incur unnecessary expenditure and face hardships, the Court underlined..The ruling came on an application filed by a husband challenging the decision of a lower court, which ordered him to pay monthly litigation costs of ₹3,000 to his estranged wife so that she can contest the matrimonial suit instituted by the husband.While the husband challenged the order on the ground that the concerned court did not consider the affidavit of assets and other technicalities before ordering litigation costs, the wife too challenged the order of the lower court to the extent it 'adjusted' the litigation costs within the maintenance amount ordered under section 125 of the Criminal Procedure Code (CrPC)..In its order, the High Court noted that for consideration of the issue of quantum of maintenance during pendency of case, statement of income and affidavit of assets to be filed by the parties have to be considered.This would take certain amount of time and few dates would be required to be fixed for the said purpose, the Court said. Since the wife will also be required to incur legal expenditure for the said period including advocate’s fees, the decision with regard to awarding costs should not be deferred till the decision on the application for maintenance is pronounced. "A wife when required to appear in Court has to engage an Advocate and pay some fees along with incidental costs for appearance in Court. Thus, when initial expenditure is incurred, wife should not be compelled to incur further expenditure in conducting her case, and should not be made to wait till application for maintenance pendente lite is decided," the Court said.It further emphasised that a wife who is compelled to come to court and answer the claim of her husband in a matrimonial suit has every right to claim litigation costs at the outset. "The litigation costs should be awarded on the very first day of moving the application at the motion stage, and should not be deferred till decision on considering objections and affidavit of assets and evidence," the judge held.In the event upon considering the written objections and affidavit of assets and evidence, the Court comes to the conclusion that the income of the wife is exorbitant or she has several assets providing huge income or there exists a very exceptional circumstance for which litigation costs may not be granted, then the Court may modify vary or alter or recall the litigation costs granted on the very first date at the motion stage, the judge made it clear. "Thus, granting litigation costs to wife when she is respondent in a matrimonial suit is the rule and rejection is exception. However the same principles may not apply with regard to litigation costs when wife has instituted the matrimonial suit and is the petitioner in the said suit," the Court stated.Further, it said that the trial court erred in making adjustment of the amount received by the respondent wife as maintenance from the litigation cost adjudicated by the court."The purpose of awarding maintenance is to protect the wife from starvation and to ensure that she lives decent life, and litigation costs are not taken into consideration while awarding maintenance. The litigation costs are awarded so that a wife against whom matrimonial suit is instituted can contest the same without hardship. While awarding maintenance, the factors namely food, clothing, shelter medical expenses are normally taken into consideration, and while awarding litigation costs, fees of the Advocate of the applicant and court fees are taken into consideration," the High Court explained..In view of the above, it High Court upheld the order of the lower court ordering litigation costs but clarified that the litigation costs cannot be adjusted against the maintenance amount..Advocates SP Dalapati, Sourav Mondal, Asumdipta Santra, Soumava Santra and Amarnath Sen appeared for the husband.Advocates Malay Dhar, Shouvik Naskar, Amit Bikram Mahata and Subhangi Panigrahi represented the wife..[Read Judgment]