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Item No. 14
12.12.2023
Court. No. 19

GB
C.O. 51 of 2023
With
CAN 2 of 2023

Sri Vivek Agarwal
Vs.

Ekta Kumari Agarwal (Bagaria)

Mr. Pratip Mukherjee,
Mr. Arpit Agarwal,
Mr. Yashashwi Sundariya
… for the Petitioner.

Mr. Manjit Singh,
Ms. Tiya Mukherjee,
Mr. Biswajit Mal
… for the Opposite Party.

The revisional application has been filed challenging

an order dated November 30, 2022, passed by the learned

Additional Principal Judge, Family Court at Calcutta in

Matrimonial Suit No.145 of 2019. By the order impugned, the

learned court disposed of an application under Section 36 of

the Special Marriage Act on contest. Maintenance pendente

lite at the rate of Rs.30,000/- per month was made payable

to the wife along with a one time litigation cost of

Rs.50,000/-. Direction was that the maintenance pendente

lite shall be paid month by month within 10th of each

succeeding month to the bank account of the wife or by

cheque from the date of the application. In case of default,

the wife would be entitled to execute the order.

The grounds on which the learned court came to such

a quantum, are as follows:-

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a) From the bio data which was given to the wife’s

family at the time of proposal for marriage

indicated that the petitioner owned three shops

under the name and style of M.S. Creation, Maya

Creation and the third shop at Park street, which

was let out.

B) The petitioner was owner of several flats and also

owned an Ertiga car.

C) The petitioner was wealthy and was living in

opulence.

D) That the petitioner had also developed an amorous

relationship with another woman.

E) That the price of essential commodities had sky

rocketed.

Mr. Mukherjee, learned advocate appearing on behalf

of the petitioner submits that the entire finding of the

learned court is based on the bio data which was neither a

part of the evidence nor proved before the Court. The

affidavit of assets filed by the husband declares the

husband’s income as Rs.25,000/- per month as per the

income tax return, which is a public document. The bio data

could not be relied upon. It is further submitted that the flats

were owned by the parents and subsequently sold. Mr.

Mukherjee further contends that the factum that the

petitioner had developed an amorous relationship with

another woman, should not be a ground for granting an

abnormally high amount as maintenance pendente lite.
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This Court, on the earlier occasion, had directed Mr.

Singh to file a supplementary affidavit to name the source

who had handed over the bio data. In the supplementary

affidavit, the name of the person who had negotiated the

marriage, her phone number and address have been

mentioned.

Thus, this Court is, prima facie, satisfied that the bio

data was not created by the opposite party/wife. However,

whether such bio data was actually tendered as evidence, is

not available with the records. In Clause-J of the affidavit of

assets regarding income of the spouse, the opposite party has

categorically stated that the husband’s income is

Rs.1,50,000/- from the two shop rooms. One at 58, Hari

Ram Goenka Street, in the name of M.B. Creation and

another in the name of M.S. Creation. Several landed

property and flats in Prerna Apartments and Siddha Pynes,

have also been mentioned.

Thus, it cannot be ruled out that the affidavit of assets

filed by the wife mentioned the factum of landed property,

shops and the flats. As it is the contention of the husband

that none of these assets are in the name of the husband, it is

to be proved in evidence. In any event, the issue as to

whether the bio data was prepared to woo the opposite party

into marriage with an impression that the petitioner was

wealthy, is a matter which has to be decided on evidence.

Under such circumstances, this Court is of the view

that the order impugned deserves to be set aside only on the

ground that oral and documentary evidence should be led by
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the parties on the question of quantum of maintenance,

because of the following reasons:-

1) The Marriage was negotiated on the basis of an

alleged bio data which indicates that the petitioner

was owner of flats, cars, shops etc., but the

petitioner denies such fact.

2) The wife has alleged that the petitioner travels

abroad on occasions, for pleasure, which indicates

that the petitioner is wealthy and has a higher

income than what has been admitted.

3) The petitioner has alleged that the wife imparts

private tuition and has income of her own.

The order impugned is set aside. The matter is

remanded to the learned trial court for further hearing of the

application for maintenance pendente lite, upon allowing the

parties to adduce evidence on the points stated hereinabove.

Both parties shall be entitled to adduce oral and

documentary evidence. The petitioner will continue to pay a

sum of Rs.20,000/- per month within 10th of each

succeeding month to the wife, till disposal of the application.

This amount is provisionally fixed by this Court, taking into

account the standard of living which the opposite party was

enjoying when she was at her husband’s place and the

standard of living the husband enjoys. The rent that may be

payable by her, her living expenses, medical expenses, etc.,

are also taken into account. It is well-settled that the wife

should be able to maintain a standard of living which she was
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enjoying in her matrimonial home and which her husband

still enjoys.

With regard to the arrears, the petitioner will pay a

sum of Rs.3,00,000/- on an ad hoc basis in four equal

monthly instalments, along with the current maintenance.

First of such instalment shall be paid within January 10,

2024 along with current maintenance and thereby month by

month every month, till the entire amount is liquidated.

Fraction, if any, shall be added in the last instalment.

The application under Section 36 shall be decided

afresh and disposed of within a period of two months from

date.

Accordingly, the revisional application is disposed of.

With the disposal of the revisional application, CAN 2

of 2023 is disposed of.

This order shall continue till the final disposal of the

application under Section 36 of the Special Marriage Act.

All the parties are directed to act on the basis of the

server copy of this order.

(Shampa Sarkar, J.)