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Judgments of Supreme Court of India and High Courts

(Nilanjan Chowdhury vs Sudakshina Law (Chowdhury) on 30 March, 2017

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30.3.2017

tg.

Sl. No.20
CO 4529 of 2016

(Nilanjan Chowdhury -vs- Sudakshina Law (Chowdhury)
Mr. Om Narayan Rai
Mr. Sandeep Kumar Tiwari….for the petitioner

Mr. Probal Kumar Mukherjee, Senior Advocate
Mr. Rajat Dutta
Ms. Shaoni Dey …..for the opposite party/wife

The petitioner has filed this application under Article 227 of the Constitution

of India challenging the order no. 63 dated 24th November, 2016 passed by the

learned Additional District Judge, Fast Track Court-3, Alipore in Miscellaneous

Case no. 2 of 2016 arising out of Matrimonial Suit no. 1 of 2015, which has been

filed by the petitioner/ husband against the opposite party/wife on the ground of

cruelty for a decree of divorce.

Upon entering appearance the opposite party/wife filed an application being

Misc. Case no. 2 of 2016 praying for alimony pendente lite and for litigation cost.

The learned Judge was pleased to allow the misc. case on contest with litigation

cost of Rs. 5,000/- per month and Rs. 15,000/- per month for maintenance pendente

lite payable by

the husband/petitioner to the opposite party/wife from the date of passing of the

order till the date of disposal of the matrimonial suit.
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Mr. Om Narayan Rai, learned advocate for the petitioner submits that the

petitioner/husband being an employee of a private company, earned Rs. 30,000/-

per month and it has been admitted by the husband before the learned Trial Court

that he was working for gain at Chowdhury Estate Private Ltd. earning Rs.30,000/-

per month but he has failed to produce any salary slip or evidence showing his

actual income when he claimed that he has left the said job. It is further submitted

that the learned Trial Court has granted 50% of the earning of the husband if his

income is taken to be Rs. 30,000/- per month. Lastly, it is submitted that the wife

is residing in her matrimonial house and she has some earning compared to her

husband, but there is no tangible document on this ground.

Reference has been made to a decision in the case of Surendra Nath Arora -vs-

Puspa Arora reported in (1979) 1 CHN 15/(1978) 2 CLJ 602,

wherein it has been observed that “there is no hard and fast rule on the basis of

which the amount can be determined with precision. It depends on a variety of

facts and circumstances though ordinarily and in the absence of special

circumstances, one fifth of the husband’s income less wife’s income, if any, is taken

as a safe guide.”

In the facts and circumstances of the case, the plaintiff/petitioner/husband

appears to have suppressed the fact of his earning before the learned Trial Court, as

it is detected from the observation made in the order itself by having taken plea that
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he has left the job of private nature wherefrom he has to earn Rs. 30,000/- per

month.

Having heard the rival contentions of the parties and upon consideration of the

order impugned, I am not inclined to modify the quantum of maintenance pendente

lite @ Rs. 15,000/- per month payable by the husband to the wife from the date of

the order passed by the learned Trial Court.

However, the direction for litigation cost of Rs.5000/- per month payable by

the husband/petitioner to the wife/opposite party, is

required to be modified to the extent that the petitioner/husband shall pay a

consolidated sum of Rs. 30,000/- towards litigation cost for effective steps and

hearing of the matrimonial suit.

Thus, the revisional application, being CO 4529 of 2016, is disposed of

without any order as to costs.

The department is directed to send a copy of this order to the learned Trial

Court, so that the matrimonial suit is taken up for hearing as expeditiously as

possible, preferably within six months from the date of communication of this

order.

Urgent photostat certified copy of this order, if applied for, be furnished to the

parties on priority basis.

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(Shivakant Prasad, J.)

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