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07.01.2020
Court No. 19
Item No. 12
CP
C.O. 2203 of 2018
Suhan Basu
vs.
Indrita Basu
Mr. Soujanya Bandyopadhyay.
…..for the petitioner.
Mr. Indranath Mukherjee,
Mr. Sukanta Mondal.
…..for the opposite party.
This is an application filed by the husband in Matrimonial Suit No. 193 of
2014, pending before the Additional District Judge, Fast Track, 1st Court at
Howrah, being aggrieved by an order dated April 30, 2018 passed in Misc. Case
No. 57 of 2015. By the order impugned, the application filed by the opposite
party/wife for maintenance pendente lite under Section 36 of the Special
Marriage Act, 1954 was allowed. The petitioner/husband was directed to pay
Rs.50,000/- per month as maintenance pendente lite with effect from the date of
the said order and the same was to be paid within 10th day of each succeeding
month till the disposal of the Mat Suit No. 193 of 2014. The petitioner was also
directed to pay litigation cost of Rs.2 lakhs in two equal instalments, first of such
instalments to be paid within May 10, 2018. The learned court below upon
consideration of the evidence of the petitioner as also the income tax return came
to a finding that the husband was running his own company under the name
and style of ZENX Engineering Solutions Private Limited in New Delhi and was a
Director of the Company which was asserted by the wife in her application but
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not categorically denied by the husband in the written objection. The court noted
that although in the evidence, the petitioner deposed that he was earning salary
from the company, he did not produce his salary slip or the bank statement to
show the transmission of his salary from the said company. The
acknowledgement of his income tax return for the Assessment Year 2016-2017
was filed before the leaned court below which showed that he had a gross total
income of Rs.9,42,447/-. The learned court below disbelieved the contention of
the husband and drew an adverse inference as the bank statement and the
salary slip was withheld by the husband, and the learned court held that the
husband had suppressed his actual income. The learned court also held that
although the business of running the company was not denied, the husband
failed to produce the accounts of business to prove his income.
It is an admitted position that the wife, although qualified, was not
employed and it is also an admitted position that the mother of the petitioner is a
retired teacher who has her own income, as will be evident from the documents
annexed to the supplementary affidavit filed before this Court as per earlier
direction, which shows that both the petitioner and his mother are directors of
the said company. The petitioner has 70% of the share in that company and his
mother earned remuneration as a director thereof. There are no children and no
dependents of the petitioner. The accounts and directors report of the Company
filed by the petitioner before this Court as per direction as also the income tax
assessment does not reflect that any amount is being deducted on account of
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loan or otherwise. The income tax assessment under Section 143 of the Income
Tax Act shows gross income of the husband to be more than Rs.12,73,000/- .
Considering the documents which have been filed by way of multiple
supplementary affidavits, it appears that the learned court below has rightly held
that the actual income of the husband was suppressed as the company’s director
would have more income. Moreover the petitioner failed to produce any
document to show that he received salary from the company. The bank
statement was also not filed and the court has held that atleast Rs.1,50,000/-
would be the monthly income and awarded 1/3 of the said income as
maintenance pendente lite. The contrary stand of the petitioner at different
stages of the proceeding is alarming. He had deposed on oath and by filing
affidavits claiming his income to be Rs.20,000/- per month and again
Rs.60,000/- per month and, ultimately, the income tax assessment reflects that
the income was much beyond the amount as had been deposed by him. The
learned court below upon consideration of all these aspects as also the aspect of
dependence of the opposite party/wife upon her father, has awarded the said
amount. The evidence of the wife is clear and she has maintained that the
husband earns more that Rs.10,0000/- per month from the company. The
balance sheet of the company also reveals that the petitioner earns Director’s
remuneration. The income tax returns of the company shows that the company
has its own income.
The expression “maintenance” and “support” had fallen for consideration
in Rajesh Burman v. Mitul Chatterjee (Burman) reported in (2009) 1 SCC
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398, the Hon’ble Supreme Court in the said decision considered Sections 36 and
37 of the Special Marriage Act and upon examination of the said two expressions
“maintenance” and “support” it was held as follows:-
“25. Reading the scheme of the Act, it is clear that a wife is entitled to “maintenance
and support”. In our considered opinion, the learned counsel for the respondent wife is
right in submitting that the two terms “maintenance” and “support” are comprehensive
in nature and of wide amplitude.
26. The term “maintenance” is defined in Black’s Law Dictionary (6th Edn., pp.953-
54) thus:
“…The furnishing by one person to another, for his or her support, of the means
of living, or food, clothing, shelter, etc. particularly where the legal relation of the
parties is such that one is bound to support the other, as between father and child,
or husband and wife.”
Likewise, the word “support” as defined in the said dictionary (p.1439) reads as
under:
“That which furnishes a livelihood; a source or means of living; subsistence,
sustenance, maintenance, or living. In a broad sense the term includes all such
means of living as would enable one to live in the degree of comfort, suitable and
become to his station of life. It is said to include anything requisite of housing,
feeding, clothing, health, proper recreation, vacation, travelling expense, or other
proper cognate purposes; also, proper care, nursing, and medical attendance in
sickness, and suitable burial at death.”
The Delhi High Court in Radhika Narang v. Karun Raj Narang reported at
2009 (1) DMC 814 (Delhi) held that the purpose of providing maintenance is to
secure a wife as far as possible the status and facilities enjoyed by her prior to
her separation from her husband. The determination of the maintenance
allowance not being governed by any rigid or inflexible rule but it gives wide
power and discretion to the Court to do justice. For the purpose of fixation of
quantum the status of the husband as well as the status of the wife are to be
taken into consideration. Perceptibility of the income is not the test. The
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requirement is potentiality. In spite of absence of any documentary evidence to
prove the monthly income of the husband, the Court can award maintenance
allowance in order to do justice keeping in mind the social reality and the nature
of the work of the husband. Moreover, there can be an enhancement of
maintenance allowance due to change in the circumstance which includes rise in
the cost of living and increase of earning of the husband. (Narayan Chandra
Das v. Geeta Rani Das reported at 2006 (2) CLT 85 (HC).
The Act does not prescribe any formula to be applied in determining the
quantum of alimony pendente lite. In Soma Chowdhury (Sarkar) v. Pradip
Kumar Chowdhury reported at 2009 (1) CHN 282 it was observed:-
“It is now settled law that the amount of alimony pendente lite should vary between
one-third and one-fifth of the income of the earning spouse depending upon the facts
and circumstances of the case.”
There is no rigid and inflexible rule that can be applied in determining the
maintenance amount. It does not enact any mathematical formula of one-third
or any other proportion.
The Hon’ble Supreme Court in Jasbir Kaur Sehgal v. District Judge, Dehradun,
1997 (4) RCR (Civil) 65: (1997) 7 SCC 7 observed:
“No set formula can be laid for fixing the amount of maintenance. It has, in the very
nature of things, to depend on the facts and circumstances of each case. Some scope
for leverage can, however, be always there. The court has to consider the status of the
parties, their respective needs, the capacity of the husband to pay having regard to his
reasonable expenses for his own maintenance and of those he is obliged under the law
and statutory but involuntary payments or deductions. The amount of maintenance
fixed for the wife should be such as she can live in reasonable comfort considering her
status and the mode of life she was used to when she lived with her husband and also
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that she does not feel handicapped in the prosecution of her case. At the same time, the
amount so fixed cannot be excessive or extortionate.”
A learned Single Judge of the Delhi High Court in the case of Annurita
Vohra v. Sandeep Vohra, reported in 2004 (3) RCR (Civil) 362: 110 (2004) DLT
546, while applying the above judgment laid down the following principles of law
for ascertaining the quantum of maintenance:-
“In other words the court must first arrive at the net disposable income of the
husband or the dominant earning spouse. If the other spouse is also working these
earnings must be kept in mind. This would constitute the Family Resource Cake which
would then be cut up and distributed amongst the members of the family. The
apportionment of the cake must be in consonance with the financial requirements of the
family members, which is exactly what happens when the spouses are one
homogeneous unit. Ms. Geeta Luthra, learned counsel for the Respondent had fervently
contended that normally 1/5th of the disposable income is allowed to the wife. She has
not shown any authority or precedent for this proposition and the only source or
foundation for it may be traceable to Section 36 of the Indian Divorce Act, 1869. This
archaic statute mercifully does not apply to the parties before the Court, and is a
vestige of a bygone era where the wife/woman was considered inferior to the husband
as somewhat akin to his chattels. The law has advanced appreciably, and for the
better. In the face of Legislatures reluctant to bring about any change over fifty years
ago the Courts held that the deserted wife was entitled to an equal division of
matrimonial assets. I would be extremely loath to restrict maintenance to 1/5th of the
Husband’s income where this would be insufficient for the Wife to live in a manner
commensurative with her Husband’s status or similar to the lifestyle enjoyed by her
before the marital severance. In my view, a satisfactory approach would be to divide
the Family Resource Cake in two portions to the Husband since he has to incur extra
expenses in the course of making his earning, and one share each to other members.”
The Hon’ble Supreme Court in the case of Dr. Kulbhushan Kunwar v. Raj
Kumari, AIR 1971 Supreme Court 234 approved the principle enunciated in Mt.
Ekradeshwari v. Homeshwar, AIR 1929 PC 128 that Maintenance depends upon
a gathering together of all the facts of the situation, the income of the parties, a
survey of the conditions and necessities, regard being had to the scale and mode
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of living, and to the age, habits wants and class of life of the parties. The Hon’ble
Supreme Court in the case of Mangat Mal v. Punni Devi, 1995 (3) RRR 632: (1995)
6 SCC 88 held as follows Maintenance, necessarily must encompass a provision
for residence. Maintenance is given so that the lady can live in the manner, more
or less, to which she was accustomed. The concept of maintenance must,
therefore, include provision for food and clothing and the like and take into
account the basic need of a roof over the head. The Hon’ble Supreme Court in the
case of Maharani Kesarkunverba v. I.T. Commissioner, AIR 1960 Supreme Court
1343, held that Maintenance must vary according to the position and status of a
person. It does not only mean food and raiment.
In this case the maintenance was awarded by the learned court below by
taking into account the status of the husband, who was a director of a private
company operating from New Delhi having his own office at Chittaranjan Park.
The husband was an employee of DCPL prior to starting his own company. The
wife was unemployed. Before her separation she was used a particular living
standard. A provision for own accommodation was also considered while
computing the amount.
The litigation cost of Rs. 2 lakhs was awarded on consideration of the fact
that the Matrimonial Suit was filed in Delhi and the wife being a resident of
Howrah had to visit Delhi and contest the proceedings and, ultimately, at the
instance of the wife who moved an application for transfer of the suit before the
Hon’ble Supreme Court, the suit was transferred to Howrah. Thus, substantial
amount of money was spent by the wife while contesting the proceedings and, as
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such, the litigation cost of Rs.2 lakh in two equal instalments is not excessive.
Admittedly, the petitioner is an engineer from Jadavpur University, one of the
premier institutions of the State, and he is in a position to pay maintenance
pendente lite as directed by the learned court below. This Court sitting in
jurisdiction under Article 227 of the Constitution of India cannot sit in appeal
over the facts found by the learned court below. I do not find any perversity in
the order impugned.
The revisional application is thus dismissed.
There shall be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be given to the
parties as expeditiously as possible subject to compliance of all usual formalities.
(Shampa Sarkar, J.)
