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IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
Before:
The Hon’ble Justice Hiranmay Bhattacharyya
C.O. 2088 of 2019
Saibal Ghosh
Vs.
Mousumi Ghosh
For the petitioner : Mrs. Susmita Saha Dutta
Mr. Niladri Saha
For the opposite party : Mr. Animesh Kanti Ghoshal
Mrs. Chandramala Mukherjee
Heard on : 06.12.2019
Judgment on : 13.12.2019
Hiranmay Bhattacharyya, J.:
The husband has filed the instant application under SectionArticle 227
of the Constitution of India challenging an order dated April 4, 2019
passed by the Additional District Judge, Fourth Court at Alipore in
Matrimonial Suit no. 131 of 2009. He is aggrieved by the order
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enhancing the amount of alimony pendente lite as well as grant of
litigation cost.
The husband filed the matrimonial suit under Sectionsection 27 of the
Special Marriage Act for dissolution of the marriage. In the wedlock a
male child was born who has now attained the age of majority.
Initially, the wife filed an application under Sectionsection 36 read with 38 of
the SectionSpecial Marriage Act praying for an order of alimony pendente lite
at the rate of Rs. 20,000 per month for self and Rs. 6,000 per month
for the son who was then a minor. Litigation cost of Rs. 10,000 was
also prayed for. The said application was registered as misc case no.
50 of 2009.
On a contested hearing, the Trial Judge by an order being no 56
dated January 10, 2011 allowed the said misc case in part directing
the husband to pay alimony pendente lite at the rate of Rs. 4,000 per
month for the wife and Rs. 3,000 per month for the minor child with
effect from the date of order. The husband was further directed to pay
the litigation cost of Rs. 8,000 to the wife.
Thereafter, on June 17, 2015, the wife filed an application
praying for enhancement of maintenance which was rejected by the
Trial Judge by an order dated August 18, 2018. The wife challenged
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the said order by filing a Civil Order no. 65 of 2019 before this
Hon’ble Court which was allowed on contest thereby setting aside the
order dated August 18, 2018. The Trial Court was directed to take up
for hearing of the applications filed by the wife respectively for
enhancement of alimony dated June 17, 2015 and the connected
application for a direction upon the husband to produce relevant
documents pertaining to his income afresh and to decide those on
merits within one month from the date of communication of the order
to the court below.
Pursuant to the order passed by this court in CO No. 65 of
2019, the Trial Court directed the husband to produce the documents
pertaining to his income but the husband did not comply with such
direction. The Trial Judge by an order dated April 4, 2019 allowed the
application dated June 17, 2015 thereby modifying the order of
maintenance passed on January 10, 2011 in misc case no. 50 of
2009 by directing the husband to pay Rs. 22,000 per month for the
wife with effect from the date of the application. The husband was
also directed to pay litigation cost of Rs. 50,000 to the wife. The
husband challenged the said order dated April 4, 2019 in this civil
order.
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In the application for enhancement of maintenance pendente
lite, the wife/opposite party herein stated that the husband is a big
businessman and owns 3-4 separate residential houses in Kolkata
and Delhi and his present monthly income is more than Rs. 3 lakhs.
He leads a luxurious lifestyle and is maintaining two four wheeler
luxury cars. It was also alleged that the husband is member of
different clubs. The wife further stated that due to the present high
market price and considering the status of the husband the alimony
granted earlier is insufficient and she requires Rs. 50,000 per month
as alimony pendente lite and litigation cost of Rs. 1 lakh.
By filing a written objection to the application for enhancement
of maintenance pendente lite the husband denied that he runs a big
business and owns several immovable properties. He also denied that
his monthly income is Rs. 3 lakhs or more. He claims to have opened
a Family Health Suraksha Policy in the joint name of himself and his
son and paying the premium. He alleges that the wife and the son are
also getting the sum of Rs. 10,000 from two life insurance policies.
The husband asserted that his present income is Rs. 2,08,000 per
annum from business. The husband also claims that he has to bear
the medical expenses of his ailing mother. Reference of a statement
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made by the wife in the affidavit in chief in connection with misc case
no 7 of 2008 that she has her business under name and style
“Swajal” at shop no. 49 VIP market, P- 187, CIT Road, Kolkata – 54
was also made.
Ms. Susmita Saha Dutta, the Learned Advocate appearing for
the petitioner submitted that the amount of maintenance pendente
lite of Rs. 22,000 as fixed by the trial judge is an exorbitant and
excessive one. She submitted that the husband do not have the
capacity to pay the said amount of maintenance as the income of the
husband is diminishing day by day. The Learned Advocate for the
petitioner submitted that the wife is having an independent source of
income and as such she is not entitled to alimony pendente lite. She
further submitted that the wife is residing at the property owned by
the husband and the Learned Trial Judge while arriving at the
amount of alimony did not take into consideration such fact.
Mr. Ghoshal learned senior advocate appearing on behalf of the
wife submitted that the court below was perfectly justified by
enhancing the amount of alimony which was granted earlier. He
submitted that taking into consideration the rising price index, the
amount of alimony which was initially granted by the court in misc
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case no. 50 of 2009 is not sufficient to meet the requirement of the
wife. Mr. Ghoshal submitted that the husband is guilty of non
compliance of the direction of the court for not disclosing his true
income inspite of specific direction passed by this court in CO No. 65
of 2019 as well as by the learned court below. Lastly he submitted
that the instant civil revision application should be dismissed.
The acknowledgment issued by the Income Tax Department for
the assessment year 2009-10 has been annexed to this Civil Order to
show that the gross total income of the husband was Rs. 1,79,625 for
the assessment year 2009-10. The said Acknowledgement is for a
period much prior to the date of filing the application for
enhancement. The same relates to a period when the Misc Case No.
50 of 2009 was decided. As such the said document is not relevant
for arriving at a finding with regard to the present income of the
husband/ petitioner while deciding the enhancement petition. Several
certificates dated May 4, 2019, April 28, 2018, May 7, 2017, May 3,
2016 and May 16, 2015 for the financial years 2018-19, 2017-18,
2016-17, 2015-16 and 2014-15 respectively have been annexed to
this Civil Order in support of the claim of the husband that he does
not have the capacity to pay the alimony pendente lite at the
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enhanced rate. The certificate dated May 4, 2019 was issued after the
passing of the impugned order and as such the same cannot be taken
into consideration. It appears from the impugned order that at the
time of hearing of the impugned application only the certificate dated
May 16, 2015 was relied upon to show that the income of the
husband is only Rs. 2, 06,400/-. As such the other certificates
annexed to this application and relied upon by the Learned Advocate
for the petitioner at the time of hearing cannot be taken into
consideration while deciding the instant Civil Order. The Trial Judge
after considering the evidence of the respective parties gave a detailed
reasoning for not accepting the certificate of income dated May 16,
2015. The Trial Court was perfectly justified by not accepting the
income disclosed in the certificate dated 16.05.15 to be the income of
the husband.
Inspite of direction passed by this court as well as the Trial
Court the husband has deliberately withheld the best evidence
relating to his income. Admittedly, the husband is a businessman. No
accounts relating to the business carried on by the husband has been
produced before the court below. The income earned by the husband
would be within his special knowledge. Under Section 106 of the
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SectionEvidence Act, onus lies upon the husband to disclose the same. In
this case, the husband has made an attempt to conceal his true
income for which an adverse inference against him about his income
that it is much higher than what has been disclosed to the court is to
be drawn in the instant case. For the reasons as aforesaid it is
difficult to accept the submission of the Learned Advocate for the
petitioner that the income of the husband is decreasing day by day.
The Learned Advocate for the husband/ petitioner also laid
much stress on the cross-examination of the wife in connection with
the Misc Case no. 50 of 2009 where she had stated that she worked
for gains at “Swajal”, P-187, CIT Road, VIP market, shop no. 49,
Kolkata- 54 and submitted that since the wife is having an
independent source of income she is not entitled to alimony pendente
lite.
The trial judge after considering the effect of the said statement
in the cross-examination arrived at a finding in Misc Case no. 50 of
2009 that the wife did not have any source of income and directed the
husband to pay alimony pendente lite. The said order was not
challenged by the husband. On the contrary, the husband claims to
have been paying alimony at the rate fixed by the court in the order
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passed in the said misc case to the wife. Thus the said order has been
accepted by the husband. It is well settled that the principles of res
judicata applies at different stages of the same proceeding. Thus, the
submission of the Learned Advocate for the petitioner that the wife is
having an independent source of income and as such is not entitled
to alimony pendente lite cannot be accepted at all.
The Learned Advocate for the petitioner by drawing the
attention of the Court to the affidavit in chief filed by the wife in misc
case no. 7 of 2008 that the wife is residing separately at 25/B,
Pratapaditya Road submits that since the wife is residing at the
property owned by the husband, the amount of maintenance
pendente lite awarded by the court below is to be reduced by taking
into consideration the fact that the wife do not have to incur any
expenses on account of her residence.
It does not appear from the application for enhancement of
maintenance that the wife has claimed such enhancement as the cost
for residing at the property has increased. In the written objection to
such application it is not the case of the husband that he has to
incur any expenditure for the wife’s stay at her matrimonial home.
The wife’s right to stay at her matrimonial home cannot be disputed
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by the husband and since it does not appear from the records that
the wife has claimed enhancement on account of increase in cost for
residing at the said property, the submission of the Learned Advocate
for the husband that the amount of alimony pendente lite granted by
the court below is to be reduced for such purpose cannot be
accepted.
There is no set formula for fixing the amount of maintenance.
The amount of maintenance depends on the facts and circumstance
of each case and it varies from case to case. Some leverage is to be
given to the court for fixing the amount of maintenance. The court
while fixing the amount of maintenance should take into
consideration various factors including the status of the parties, the
needs of the wife and the capacity of the husband to pay. While
deciding on the capacity of the husband to pay, the court has also to
take into consideration the reasonable expenses of the husband for
his own maintenance and of the persons whom he is obliged to
maintain. Inspite of making a statement in the written objection that
he has to bear the medical expenses of his ailing mother, the
petitioner has not stated specifically as to the amount which he is
spending for the medical expenses of his mother for reasons best
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known to the petitioner. The court also has to take into consideration
the statutory liabilities, if any, of the husband while determining the
capacity of the husband to pay. The written objection is totally silent
about the expenses required for the maintenance of the petitioner.
Also there is no reference of any statutory liability of the husband in
the said Written Objection.
The amount of maintenance for the wife should be fixed in such
a manner that she can live comfortably considering her status and
the mode of life she was used to when she was living with her
husband. A reasonable amount should also be awarded to the wife on
account of litigation cost to enable her to prosecute her case
effectively. The court also has to keep in mind that the amount so
fixed is not excessive.
Since the husband concealed his true income, the court
below was justified in drawing an adverse inference against him
about his income. The Trial Court took into consideration the painful
condition of the wife while living with her son and was of the view
that the amount of Rs. 22,000 should be just and proper for her
monthly maintenance. It is well settled that the court while exercising
the jurisdiction under SectionArticle 227 of the Constitution of India cannot
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re-appreciate the evidence. The court below has applied the correct
legal tests while adjudicating the application for enhancement of
maintenance pendente lite and was justified in awarding a sum of Rs.
22,000 as monthly maintenance. The litigation cost of Rs. 50,000
awarded by the Trial Judge appears to be a reasonable one taking
into consideration the litigations between the parties.
There is no infirmity in the impugned order. The impugned
order does not suffer from perversity. The Trial Judge neither
committed any error of jurisdiction nor there has been any flagrant
violation of the settled law. No interference is thus called for under
SectionArticle 227 of the Constitution of India. CO No. 2088 of 2019 is
dismissed without any order as to costs.
Urgent photostat certified copies, if applied for, be supplied to
the parties upon compliance of all formalities.
(Hiranmay Bhattacharyya, J.)