Both Parents should share Children Expeses

CALCUTTA HIGH COURT

Before :- Jyotirmay Bhattacharya, J.
C.O. No. 2451 of 2003. D/d. 07.04.2005.

Sri Subhendu Dutta – Petitioner
Versus
Smt. Rita Dutta – Respondent

For the Petitioner :- Mr. S. S. Haque, Mr. Sk. Kamaluddin, Mr. Sk. Salauddin Mollah and Mr. Subhrajit Chakraborty, Advocates.
For the Respondent :- Mr. Bhaskar Ghosh, Mr. K.K. Maity and Mr. Prasanta Bishal, Advocates.
Hindu Marriage Act, 1955, Section 24 – Evidence Act, 1872, Section 106 – Maintenance – Income – Burden of proof – To disclose the income of the husband which is within the special knowledge of husband, lies on husband – When wife knows very well the different source of income of husband, she cannot be claimed the benefit of section 106 of the Evidence Act.[Para 20]

Cases referred :
Vinod Dulerai Mehta v. Kanak Vinod Mehta, AIR 1990 Bombay 120.
Chitra v. Dhrubo Jyoti, AIR 1988 Calcutta 98.
Chandana Guha Roy v. Goutam Guha Roy, 2004(1) Indian Civil Cases (Cal.) 350.

JUDGMENT
Jyotirmay Bhattacharya, J. –

This application under Article 227 of the Constitution of India is directed against an order being Order No. 22 dated 19th September, 2003 passed by the learned Additional District Judge, 13th Court at Alipore in Mat Suit No. 12 of 2002.

2. By the said order, the Application of the wife/opposite party under Section 24 of the Hindu Marriage Act was allowed. The petitioner was directed to pay a sum of Rs. 10,500/- per month towards the alimony pendente lite for his wife/opposite party as well as the costs of maintenance of two sons with effect from the date of filing of the said application. The petitioner was permitted to pay the arrear alimony by ten equal monthly instalments commencing from October, 2003. The current alimony was directed to be paid within 7th of each succeeding month. The petitioner was also directed to pay the litigation cost of Rs. 10,000/- to the wife/opposite party by instalments.

3. Such an order is under challenge in this application under Article 227 of the Constitution of India at the instance of the husband/petitioner.

4. In a suit for divorce filed by the petitioner (husband), the wife/opposite party filed an application claiming a consolidated amount of Rs. 25,000/- towards the alimony pendente lite of herself as well as the cost of maintenance of her two sons. The wife/opposite party also claimed a sum of Rs. 10,000/- towards the litigation cost from the petitioner (husband).

5. The wife/opposite party claimed that her husband (petitioner) who is a well – known architect, planner and interior designer has been carrying on business of consultancy in India and abroad. He is maintaining a big office in Central Calcutta employing number of staffs under him. The husband/petitioner is also associated with various big industrial offices and firms. The wife/opposite party claimed that the income of the husband/petitioner is not less than Rs. 1,00,000/- per month.

6. On the basis of these allegations, the wife/opposite party filed the said application under Section 24 of the Hindu Marriage Act claiming the reliefs, as indicated above.

7. The petitioner/husband contested the said application of the wife/opposite party, inter alia, on the following grounds :
(i) Initially, at the time of marriage, the husband/petitioner was in service, receiving salary of rupees seven thousand and odd. Subsequently, the husband/petitioner resigned from the service and started his own consultancy business. The husband/petitioner claims that his monthly income from his business is about Rs. 5,000/- per month.
(ii) The husband/petitioner further claims that at the time of marriage, the wife/opposite party was also in employment under I.T.D.C., a Central Government undertaking. Subsequently, however, in 1992, the wife/opposite party resigned from the service and started her business in dealing with sarees.
(iii) The husband/petitioner claims that the wife/opposite party has substantial income out of the said business. She maintains her bank accounts in different banks. She purchased ornaments worth Rs. 50,000/- from her own income. She purchased various U.S. 64 Units and has her own locker.
(iv) Thus, the husband/petitioner claims that since the wife/opposite party has substantial income out of her business to maintain herself, she is not entitled to any alimony pendente lite from the husband/petitioner.
(v) The husband/petitioner further claims that he paid Rs. 62,000/- towards the admission fee of his eldest son in the National University of Juridical Sciences, Kolkata.
(vi) The petitioner, however, made some grievances against the wife/opposite party, as she admitted the youngest son for his schooling in Shyama Prasad Vidyalaya, New Delhi without consulting the husband/petitioner.
(vii) The husband/petitioner expressed his inability to pay such a huge amount as claimed by the wife/opposite party towards the maintenance of the youngest son of the couple.

8. Both the parties adduced their respective evidences in connection with the said proceeding.

9. The husband/petitioner disclosed his income by producing the Income-tax Saral Return to support his claim towards his income. The husband/petitioner has also produced certain documents to prove the volume of business of the wife/opposite party.

10. Similarly, the wife/opposite party has also produced certain deposit slips relating to the bank accounts standing in the name of the firm of the consultancy business of the husband/petitioner to show that the income of the husband/petitioner is much more than the income which he disclosed in his Income-tax Return.

11. Admittedly, at the time of marriage, both were in their respective employment. It is also an admitted position that subsequently both of them resigned from their respective services and got themselves involved in their respective businesses.

12. While considering the said application under Section 24 of the Hindu Marriage Act, the learned Court below held that both the parties concealed their actual income from their respective businesses. However, the learned Court below found that since both the parties have income of their own, the sons should be maintained by both the parties with their proportionate contribution.

13. Ultimately, however, without assessing the actual income of the respective parties, the learned Court below directed the husband/petitioner to pay a sum of Rs. 3,000/- per month towards alimony of her wife/opposite party, a sum of Rs. 2,500/- for the youngest son and a sum of Rs. 5,000/- per month for the eldest son for their education and maintenance.

14. Such an order was passed by the learned court below on the presumption that the husband/petitioner has got a lucrative income.

15. Let me now consider how far such an order can be supported and/or maintained.

16. On consideration of the materials on record, I find that when the learned court below found that both the parties have their own income out of their respective businesses, the Court below ought not to have passed any order directing the husband/petitioner to pay any amount towards the alimony pendente lite to the wife/opposite party as the wife/opposite party was also found to be guilty for concealment of her actual income.

17. The wife/opposite party who admittedly has her own business and is maintaining her own bank accounts and locker cannot claim any maintenance pendente lite from her husband without proving that the income which she is receiving from her said business is insufficient to maintain herself according to the status of the husband. The bank accounts which the wife maintains have not been produced before the Court to show her actual income from the business. One of the bank accounts which she maintained was just closed immediately seven days before giving her evidence in connection with the sand proceeding. The balance sheet of the business has also not been produced by the wife/opposite party.

18. Under such circumstances, the learned court below should have refused to grant alimony pendente lite to the wife by drawing adverse presumption against the wife/opposite party for non-production of the materials available in her custody.

19. Overall consideration of the materials shows that the husband/petitioner has also concealed his real income before this Court, as he also withheld the production of the balance sheet and other records pertaining to his business income in Court. But at the same time, the Court should not be unmindful that here is the case where the husband has disclosed his income and/or the source of his income. Such disclosure may not be accurate, but still then he cannot be accused for non-disclosure of his income as well as the source of his income.

20. Thus, when the wife/opposite party knows very well the different sources of income of the husband, she cannot claim the benefit of Section 106 of the Evidence Act by claiming that the onus to disclose the income of the husband which is within the special knowledge of the husband lies upon the husband. It is no doubt true that since the amount which the husband earns is within the special knowledge of the husband, the husband is required to disclose his income before the Court under Section 106 of the Evidence Act failing which the Court can presume against the husband by accepting the allegation of wife as to the amount of income which the husband derives from his business.

21. But here in the instant case, as I have indicated above that the husband has not only disclosed his income but also disclosed the source of his income.

22. Under these circumstances, the Court cannot presume that the allegation of the wife regarding the income of the husband is correct. Excepting production of certain bank deposit slips pertaining to the business account of the consultancy business, the wife has not proved any further material before the Court below to show that the husband has lucrative income from his business.

23. I do not find any material on record for coming to the conclusion that the deposit which was made in the firm account is the actual income of the husband. In any event, I hold that the husband has also suppressed his real income by withholding the production of the profit and loss account of his business. No one can believe that an architect who is running his own consultancy business employing a number of employees, does not maintain the profit and loss account of his business, though he is an assesses under the Income-tax Act.

24. Mr. Ghosh learned Advocate, appearing for the opposite party rightly pointed out by referring to the decision of the Bombay High Court in the case of Vinod Dulerai Mehta v. Kanak Vinod Mehta, reported in AIR 1990Bom. 120, wherein it was held that “as is common knowledge, income-tax returns did not reflect the true position of the income of a party for several reasons, and cannot be taken as the sole guide for determining it in proceedings such as the present one”.

25. Accordingly, I hold that in the absence of disclosure of the supporting documents such as the balance sheet of the business etc., the actual income of the husband cannot be ascertained from the income-tax return only. But at the same time, I hold that the principles as laid down by this Court in the decisions cited by Mr. Ghosh, viz., Chitra v. Dhrubo Jyoti, reported in AIR 1988 Calcutta 98 and Chandana Guha Roy v. Goutam Guha Roy reported in 2004 (1) CHN 397 : 2004(1) Indian Civil Cases (Cal) 350, regarding the onus of proof of the income of the husband, is not applicable to the present case, as in the instant case the husband has disclosed his income and the source of his income unlike in the cases which were referred to above, wherein the husband did not disclose his income at all.

26. Even on consideration of materials on record this Court cannot come to the conclusion that the husband has lucrative income as the admitted position is that the husband was unable to purchase the flat by his own savings. The wife also claimed that here husband had to depend upon the contribution of the wife for purchasing the said flat. Thus, when the opposite party herself claims that the flat was purchased with her contribution and the decorations were also made with her contribution, this Court is unable to conclude that the husband has lucrative income as held by the learned court below.

27. The husband/petitioner, however, in course of hearing of this application though expressed his dissatisfaction for not consulting him before sending the youngest child to Delhi for his schooling but still then he candidly submitted before this Court that he would not avoid his responsibility for maintaining the said son.

28. In such view of the matter, I do not want to disturb that part of the order by which the learned trial judge directed the petitioner (husband) to pay a sum of Rs. 2,500/- towards the cost of maintenance of the youngest son including his educational expenses.

29. With regard to the other part of the order by which the husband/petitioner was directed to pay a sum of Rs. 5,000/- per month towards the educational expenses and maintenance of the eldest son of the petitioner, this Court finds that the amount which was so granted is excessive as admittedly the educational expenses of the said son is being borne by the bank loan under “Centvidyarthi” Scheme of the Central Bank of India under which a sum of Rs. 2,43,000/- was sanctioned by the Bank towards the educational expenses of the said son of the petitioner with a stipulation that the loan is to be repaid in 60 equal monthly instalments after a moratorium period. Moratorium period under the said Scheme is course period + one year after completion of the course or six months after getting job whichever is earlier.

30. Thus, when the educational expenses are borne by the Bank loan extended under the said Scheme by the Central Bank of India with the aforesaid stipulation, the wife/opposite party cannot claim any amount towards the educational expenses of the said son.

31. It is rightly pointed out by Mr. Ghosh that apart from the educational expenses of the said son, the other expenses are required to be incurred for maintenance of the said son. A statement has been filed by the wife/opposite party disclosing the expenses which are required to be borne for the said son. It appears from the said statement that excluding the equational expenses a sum of Rs. 3,000/- per month is required for meeting the other expenses of the said son.

32. I hold that the said expenses should be borne equally by both the parents when both the parents are earning members of the family. Thus, I modify the said part of the order of the learned trial Judge and direct the husband to pay a sum of Rs. 1,500/-towards the cost of maintenance of the elder son of the parties.

33. The order of maintenance will remain effective from the date of filing of this application under Section 24 of the Hindu Marriage Act. The husband/petitioner is, thus, directed to pay arrears, if any, upto the month of March, 2005 to the opposite party in terms of this order after adjustment of the amount which the husband/petitioner paid to the wife from time to time in terms of different orders passed either by this Court or by the learned Court below in connection with the said proceeding under Section 24 of the Hindu Marriage Act within a period of three months from the date. The husband/petitioner is also directed to pay the current alimony commencing from the month of April, 2005 within 7th of each succeeding month.

34. In view of the fact that the wife has her own income from her business, the husband/petitioner need not pay any litigation costs to the wife/opposite party.

35. The application is, thus, disposed of.

36. Urgent xerox certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard. Later

37. Mr. Maity, learned Advocate, appearing for the opposite party, prays for stay of operation of this judgment which is opposed by the learned Advocate for the petitioner.

38. Having considered the respective submissions of the learn Advocates for the parties, I direct that the judgment will remain stayed for a month from date.

Order accordingly.

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