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Judgments of Supreme Court of India and High Courts

(Koelia Biswas Nee De vs Pinakee Biswas) on 12 February, 2018

1

2
12.02.2018
rrc
C.A.N. 3612 of 2014
with
C.A.N. 7075 of 2016
with
C.A.N. 7208 of 2016
in
F.A.T. 183 of 2016
with
F. A. 319 of 2014
(Koelia Biswas nee De Vs. Pinakee Biswas)

Mr. Biswajit Basu
Mr. Sudarsan Roy
…..For the appellant/wife

Mr. Asis C. Bagchi
Mr. Hiranmoy Bhattacharya
Mr. Soumyadeep Biswas
…..For the respondent/husband

A petition for divorce under Section 13 of the Hindu

Marriage Act, 1955 (hereafter the ‘Act’) filed by the husband

was decreed. F.A. 319 of 2014 at the instance of the wife is

directed against such decree. The wife had prayed for

restitution of conjugal rights by filing a petition under

Section 9 of the Act. Feeling aggrieved by the dismissal of

such petition, F.A.T. 183 of 2016 has been presented by the

wife.

Several interim applications have been filed by the

parties in such appeals. The first application is C.A.N. 3612

of 2014, filed in F.A. 319 of 2014, by the husband. It is

treated as on day’s list with the consent of the parties. In

such application, an order has been prayed for to have the
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son of the parties (hereafter the child) admitted in any

ranking residential school in India or abroad at the primary

school stage as well as for a direction on the wife to extend

necessary assistance and co-operation with regard to

admission of the child in such residential school. This

application was followed by another application at the

instance of the husband, numbered as C.A.N. 7208 of 2016,

wherein he prayed for an order for medical examination of

the child for ascertaining the extent of his disability.

The wife, in her turn, filed C.A.N. 7075 of 2016 praying

for alimony pendente lite. She claimed Rs.1,20,000/- towards

monthly maintenance of herself and the child together with

Rs.1,00,000/- on account of medical expenses of the latter.

She also prayed for litigation costs of Rs.1,00,000/-.

It is not in dispute that the child is an autist. It is further

not in dispute that the wife having filed an application under

Section 125 of the Code of Criminal Procedure, the husband

has been directed to pay Rs.20,000/- per month to her for

her own maintenance as well as Rs.10,000/- per month for

the child. It is also not in dispute that the husband has been

complying with such order.

When the applications were first heard by us, we

considered it necessary to have the child examined. He was
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examined by the doctors at S.S.K.M. Hospital and thereafter,

by the doctors at NIMHANS, Bengaluru. The reports relating

to medical examination of the child and the nature of

treatment that he requires are on record. The applications

had been heard in-part by us on 20th September, 2017.

However, due to insufficiency of time at our disposal [one of

us (Debi Prosad Dey, J.) would be demitting office soon], we

consider it fit and proper to dispose of C.A.N. 3612 of 2014

and C.A.N. 7208 of 2016 at this stage by the order proposed

hereunder.

We also make it clear that the application for

maintenance being C.A.N 7075 of 2016 shall no longer be

treated as ‘heard in-part’ and may be placed for

consideration of the regular Bench, subject to Their

Lordships’ convenience.

The disability from which the child suffers is quite

serious. Without entering into details, his disability can be

guaged from the fact that being nine years old, he weighs

nearly 105 kgs. Previous orders recorded by us were directed

to achieve his well-being, considering that because of the

marital discord of his parents he should not suffer.

The wife, after the child was examined by the doctors at

NIMHANS, filed a supplementary affidavit. In paragraph 11
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of such affidavit, she has given the break up of expenses

under 13 heads likely to be incurred by her towards medical

treatment of the child, totalling to Rs.34,640/- per month.

In paragraph 12 thereof, she has also disclosed that one

time payment of Rs.22,500/- is required for admission of the

child to a special school as well as for

assessment/evaluation by professional specialists at

Monovikas Kendra.

By our order dated 30th January, 2018, we had granted

liberty to the husband to controvert the contents of such

supplementary affidavit. Today, an affidavit-in-opposition

has been filed on behalf of the husband. It appears that his

constituted attorney has affirmed such affidavit.

The said affidavit-in-opposition consists of 19

paragraphs. The so-called attorney of the husband has

verified paragraphs 1 to 18 of the affidavit as true to his

knowledge. Considering the pleadings, we are at a loss to

comprehend as to how such an affidavit could be regarded

as legal evidence based on which the claim of the wife could

be said to have been effectively denied and disputed by the

husband. We have no hesitation in rejecting the affidavit

only on the ground that it has not been affirmed by a person

having direct knowledge of what transpired at Bengaluru,
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when the parties had been there in compliance with our

order for having the child medically treated. It is also rather

strange that the attorney has verified as true to his

knowledge that the wife has filed the supplementary affidavit

by giving speculative and imaginary figures relating to

expenses for extracting money from the petitioner.

Even if the affidavit had been sworn by the husband,

nothing much would have turned on it. It appears that the

contents of paragraphs 11 and 12 of the supplementary

affidavit of the wife have been very evasively denied by the

husband. While casting aspersions on the wife by alleging

that she is seeking to extract money from the husband in the

guise of medical treatment of the child, the affidavit is silent

as to what, according to the husband, could be a

conservative estimate of the expenses likely to be incurred by

the wife for treatment of the child in terms of the medical

examination report of NIMHANS to which the husband also

has access. Such affidavit does not inspire confidence and,

therefore, we have no other alternative but to discard it

altogether from our consideration.

In course of hearing, Mr. Bagchi, learned senior advocate

appearing for the husband has submitted that

Rs.15,76,000/- was shown as his gross income in the
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income tax return for the assessment year 2016-17. From an

earlier affidavit filed by the husband, it appears that he

spends in excess of Rs.21,000/- towards rent of his

residence in Bengaluru. He also pays installment amount of

Rs.42,000/- for having purchased a flat in Pune, from which

he has a rental income of Rs.24,000/-.

Although it has been the consistent stand of the

husband that he does not earn Rs.5,00,000/-, as alleged by

the wife in the application for alimony pendente lite, it has

surprised us that the husband by filing C.A.N. 3612 of 2014

wished to have the child admitted in a boarding school even

abroad. If at all what the husband has disclosed in the

income tax return as his income is accepted to be true, we

wonder how he could consider admission of the child in a

boarding school in a foreign country, where the expenses are

likely to be much on the higher side, to be within his

financial capacity. We do not wish to dilate more on the topic

since the said issue would fall for consideration while the

regular Bench decides C.A.N. 7075 of 2016, but we hasten to

add that the stand taken by the husband before us for the

present, has to be accepted with a pinch of salt.

Considering all aspects including the needs of the child

projected by the wife in her supplementary affidavit, which
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the husband has not been able to dislodge by filing an

appropriate counter-affidavit, we are of the clear view that

the husband should be directed to make payment of an

additional amount of Rs.35,000/- per month for the

expenses likely to be incurred by the wife for the medical

expenses of the child, apart from what has been directed by

the learned magistrate. We order accordingly.

The additional amount of Rs.35,000/- shall be paid by

the husband w.e.f. 1st January, 2018. The arrear for

January, 2018 and that for February, 2018 shall be cleared

within 15th March, 2018. For each succeeding month, i.e.

starting from March, 2018, the payment must reach the wife

by the 7th day of the following month. It is made clear that

the amount of Rs.80,000/- which the husband has paid in

terms of earlier orders passed by us would, however, not be

adjusted with the amount which the husband is required to

pay in terms of this order. This arrangement shall continue

until further/other orders are passed on C.A.N. 7075 of

2016.

The wife shall immediately intimate the husband the

details of her bank account where the sum of Rs.35,000/-

shall be credited every month by RTGS. The e-mail address

of the husband shall also be provided to the wife by the
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husband so that scanned copies of money receipts can be

mailed to him for his record by her.

It is also made clear that the payment as directed by this

order shall not be dependent on the satisfaction reached by

the husband that the amount has actually been incurred

towards medical expenses of the child since the husband is

not in a position to personally attend to the medical needs of

the child remaining present in Kolkata.

We wish we could dispose of C.A.N. 7075 of 2016 on

merits, as prayed for by the parties. Not much time is left for

us to rise for the day. It would also not be possible for us to

assemble once again in the near future; hence we are

constrained not to make any direction for enhancement of

alimony pendente lite for the wife. The wife shall be free to

press her claim in C.A.N. 7075 of 2016 before the regular

Bench. She shall also be entitled to renew her prayer for the

husband’s attendance at Kolkata, if at all the circumstances

so warrant.

In view of the aforesaid order, C.A.N. 7208 of 2016

stands disposed of. Nothing survives for consideration on

C.A.N. 3612 of 2014, which also stands disposed of.

( Dipankar Datta, J. )

( Debi Prosad Dey, J.)
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