Granting Litigation Costs To Wife In Matrimonial Suit Is The Rule & Rejection Is Exception; Same Principle May Not Apply When Wife Institutes Suit: Calcutta HC

In a significant ruling, the Calcutta High Court has affirmed that wives who leave their matrimonial homes due to disputes or compelling circumstances cannot be burdened with the costs of litigation when faced with matrimonial suits instituted against them by their husbands.

"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. In such a case the decision with regard to litigation costs may be taken after considering objection and affidavit of assets," the Bench observed. 

The decision, handed down by Single-Judge Bench of Justice Biswaroop Chowdhury on May 3, underscores the need to protect the dignity and financial well-being of women in such situations.

"As dignity of a women is to be protected it should be ensured that women are not compelled to incur unnecessary expenditure and face hardship," the Bench observed. 

The Court's order highlights the plight of wives who, due to conflicts in their marital relationships, find themselves in situations of mental distress and instability, prompting them to seek refuge at their parental homes or take up employment for sustenance. Recognizing the financial strain on such wives, the Court emphasized that while they may be able to support themselves to some extent, they should not be compelled to bear the costs of legal proceedings initiated against them by their husbands.

"It is to be remembered 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, the wife has to go to her paternal house, and either she has to take up some work to earn her livelihood if she is not already employed or has to depend on her parents. 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," it said.

The Court articulated that maintenance, which typically covers expenses like food, clothing, shelter, and medical needs, does not encompass litigation costs. Therefore, it would be unjust to expect wives to finance legal battles initiated by their spouses, particularly when they lack access to joint marital income and have limited means of support.

"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......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 said. 

The Judgment was delivered in response to an Application filed by a husband contesting a lower court's decision to allocate monthly litigation costs of Rs. 3,000 to his estranged wife for her defense in a matrimonial suit. The husband argued that the lower court had not considered relevant factors such as asset affidavits before awarding litigation costs. Meanwhile, the wife contested the lower court's decision to offset the litigation costs against the maintenance amount granted under Section 125 of the Criminal Procedure Code (CrPC).

In its deliberation, the High Court emphasized the importance of expeditiously addressing the issue of litigation costs, particularly considering the time and resources wives must invest in legal representation during matrimonial disputes. The Bench stressed that wives, as respondents in such cases, have the right to seek litigation costs from the outset to alleviate the financial burden of defending themselves in court.

"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, respondent wife should not be compelled to incur further expenditure in conducting her case, and should not be made to wait till application for maintenance penden-te lite is decide. 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 Bench said. 

Furthermore, the Court clarified that the provision of maintenance aims to ensure the basic needs and dignity of the wife, whereas litigation costs are intended to facilitate her defense against matrimonial suits without financial hardship. Therefore, the two are distinct and should not be conflated or adjusted against each other.

The Court said that 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 Bench noted that the wife is already awarded maintenance under Section 125 of the CrPC proceedings, and proceedings under protection of women from Domestic Violence Act prima-facie shows that she has no sufficient income to maintain herself. "Thus, the question of directing the wife to bear her own litigation cost does not and cannot arise. However the principle adapted by the Learned Judge while deciding litigation costs is not fully correct," it said. 

The Court emphasized that 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 and on the other hand, 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 Learned Advocate of the applicant and court fees as discussed above are taken into consideration. Thus there is no scope to adjust maintenance awarded from litigation costs and thereafter directing payment," it said. 

In the interest of justice, the Court reduced the litigation costs from Rs. 3,000/- to Rs. 2,000/- per month. While upholding the lower court's decision to award litigation costs to the wife, the Court underscored that such costs should not be offset against maintenance payments.

"A litigation costs is awarded with the objective that a litigant in whose favour the Order is passed is able to pursue the litigation without hardship. Hence it is incumbent upon the Court to ensure that litigation costs are paid before proceeding with the suit specially when the party in whose favour litigation cost is awarded is respondent wife," the Bench observed. 

Consequently, the Court ordered, "The petitioner Partha Sakha Maity shall make the payment to Bijali Maity within 10th day of every month in advance. The first payment shall be made within 10th of May 2024. In the event any amount is due and payble in terms of earlier order passed by this Court on 28/04/2022. in C.O. 111 of 2022, such payment to be made by 15/05/2024. With regard to the Order no. 62 dated 11.03.2022 passed in Matrimonial Suit No. 22 of 2018 by Learned Additional District Judge 2nd Court Contai the said order stands modified to the extent with the direction that the Learned Court shall proceed with the suit only when the litigation costs in terms of this order is paid. It is clarified that in the event there is any breach in payment of litigation costs every month the Learned Court shall stay the proceedings of the suit till it is cleared."

Cause Title: Partha Sakha Maity v. Bijali Maity 

Appearance:-

Appellant: Advocates SP Dalapati, Sourav Mondal, Asumdipta Santra, Soumava Santra, Amarnath Sen

Respondent: Advocates Malay Dhar, Shouvik Naskar, Amit Bikram Mahata and Subhangi Panigrahi

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