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Sri Binod Prasad vs Smt. Payel Sarkar on 1 March, 2019

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1.3.
3
AGM
2019
Ct C.O. 3170 OF 2018
24
Sri Binod Prasad
Vs
Smt. Payel Sarkar

Mr. Sanojit Ghosh,
Mr. S. L. Adak, … For the petitioners.

The instant application under Article 227 of the
Constitution of India is at the instance of the husband
in a suit for divorce under Section 27 of the Special
Marriage Act, 1954 and is directed against an order
dated June 18, 2010 passed by learned Court below in
Matrimonial Suit No. 04 of 2017 (Matrimonial Suit No.
30 of 2017) whereby the husband/petitioner herein was
directed to pay Rs. 8,000/- per month as maintenance
pendente lite to the minor son of the parties.

The wife filed an application under Section 36 read
with Section 38 of the Special Marriage Act, 1954
praying for alimony pendente lite at the rate of Rs.
10,000/- per month for herself and Rs. 20,000/- per
month for the child and a further sum of Rs. 30,000/-
towards litigation costs.

It was specifically stated in the said application
that the husband is a businessman running his business
of gold jewellery in a posh area at Benachity and earns
about Rs. 80,000/- per month and also that he has no
responsibilities apart from maintaining the wife and the
child.

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The husband/petitioner herein contested the
application for alimony pendente lite by filing a written
objection denying the allegations contained in the
application for alimony and by contending that he has
no ability to maintain himself with the meagre income
from jewelley shop as he earns a sum of Rs. 8,000/- –
Rs. 9,000/- per month. It has been further stated in the
said written objection that he is paying Rs. 14,000/- on
account of LIC premium. He further stated that he has
to incur a substantial amount on account of mediclaim
premium, electricity expenses, house tax and
maintenance and personal expenses. The written
objection is vague with regard to the expenses he has
to incur per month itemwise against each heads of
expenses. It was further stated in the written objection
that wife has independent income of her own as a
teacher of a Government School.

The learned Trial Judge after taking into
consideration the averments contained in the
application for alimony pendente lite, the written
objection filed by the husband as well as the documents
produced by the respective parties allowed the
application dated November 2, 2017 in part on contest.
The husband was directed to pay Rs. 8,000/- per
month as maintenance pendente lite to the minor son
and the said order is to take effect from the dte of filing
of the application, i.e., from the month of November,
2017. It was further directed in the said order that the
arrears on account of alimony shall be paid by seven
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equal installments along with the maintenance of the
current month.

I have heard the learned advocate appearing on
behalf of the petitioner and have perused the
documents available on record.

Admittedly the son was studying in Class IX in an
English medium school at Durgapur at the time of filing
of the application for alimony pendente lite and
sufficient amount is required for the maintenance and
educational expenses of the son. The petitioner herein
has only annexed a copy of the acknowledgement of
the Income Tax Return for the assessment year 2017-
18 along with the instant Civil Revisional application but
has not disclosed the Profit and Loss Account and the
Balance Sheet of the petitioner herein. As such adverse
inference is to be drawn against the petitioner herein
for suppressing the said documents. The Income Tax
return is filed on the basis of self declaration of the
income made by the assessee, i.e., petitioner herein
and the same is inconclusive in determining the amount
of alimony to be paid.

The petitioner being the father of the son is duty
bound to provide maintenance for the son who was
studying in Class IX at the time of filing of the
application.

The Trial Court has exercised its discretion rightly
in the matter by directing the husband to pay a sum of
Rs. 8,000/- per month as maintenance pendente lite for
the minor son only after taking into consideration the
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fact that the wife has independent income sufficient to
support her.

The order passed by the learned Trial Judge does
not suffer from any illegality or any material irregularity
and, as such, there is no reason to interfere with such
order.

In view of the observations made hereinabove the
C.O. 3170 of 2018 is disposed of.

There will be no order as to costs.

(Hiranmay Bhattacharyya, J)

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