SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Unknown vs Dr. Jayita Ghosh (Nee Chatterjee) on 5 February, 2019

IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE

BEFORE:

The Hon’ble Justice SAHIDULLAH MUNSHI

C.O. No.1634 of 2018

DR. ABHIJIT GHOSH
… Petitioner (husband)

– Versus-

DR. JAYITA GHOSH (NEE CHATTERJEE)
… Opposite Party (wife)

Ms. Aniruddha Chatterjee,
Mr. Srijib Chakraborty,
Mr. Raja Tarafdar,
Mr. Subhadeep Sen,
Mr. Asif Sohail Tarafdar

… For the petitioner

Mr. Sudeshna Basu Thakur

… For the opposite party

Heard on : 14.12.2018, 04.01.2019, 11.01.2019 18.01.2019.

Judgment on : February 5, 2019.

Sahidullah Munshi, J.:-

This revisional application is directed against Order no. 33 dated

1st May, 2018 passed by the learned Additional District Judge, 16th

Court, Alipore in Miscellaneous Case No. 420 of 2017. The
2

Miscellaneous Case arose out of an application under Section 24 of the

Hindu Marriage Act filed by the wife in Matrimonial Suit No. 53 of 2015

(renumbered as No. 2 of 2017) initiated by the husband under Section

13(1) (i-a) of the Hindu Marriage Act, 1955 against the opposite

party/wife. The husband resides in Malaysia whereas the wife resides in

India.

Before the present application under Section 24 of the Hindu

Marriage Act had been filed before this Court the wife/opposite party

filed an application under Section 12 of the Protection of Women from

Domestic Violence Act, 2005 (hereinafter referred to as the ‘PWDV Act’),

registered as A.C. No. 1159 of 2013 together with an application under

Section 23 of the said Act on 26th February, 2014 before the learned

Judicial Magistrate, 4th Court at Alipore. In the said proceeding the

learned Magistrate was pleased to dispose of the application under

Section 23 of the PWDV Act of 2005 directing the petitioner to pay a

sum of Rs.50,000/- (Rupees Fifty Thousand) only, per month.

Considering the income of the petitioner/husband at Rs.1,43,000/- RM

only (Malaysian currency) commonly known of ‘Ringgit Malaysian’

which is equivalent to Rs.2,43,100/- (Rupees Two Lakh Forty Three

Thousand One Hundred) only, per month at the relevant point of time.

It is not disputed that the said amount of Rs.50,000/- is being paid by

the husband/petitioner every month.

In the application the wife/opposite party further stated that

though she is a qualified doctor but due to various ailments she lost her
3

job and she is presently a housewife having no means to maintain

herself and suffering from various ailments. She has also stated that the

husband/petitioner has got several houses in India but he does not

allow the wife to stay at any of such houses, on the contrary, she has

been residing in a rented house. It is the specific averment made by the

wife/opposite party in her application under Section 24 of the Hindu

Marriage Act that the husband who is also a renowned Doctor, in the

Domestic Violence case, admitted that he had been earning 5,000 R.M.

from hospital and 3000-6000 R.M from Locums and after deduction, his

total earning was 1,43,000/- R.M which is equivalent to Rs.2,43,100/-

per month. She submitted that due to the high cost of living it would be

difficult for her to meet the expenses of her livelihood at the same

standard of living which she used to live with her husband in Malaysia

and it is also difficult for her to contest the Matrimonial Suit with the

said paltry amount of Rs.50,000/- unless the Court directs alimony

pendente lite for a sum of Rs.1,00,000/- (Rupees One Lakh) only per

month and Rs.2,00,000/-(Rupees Two Lakh) only towards litigation

cost.

This application was contested by the husband/petitioner by

filing affidavit-in-opposition. In the affidavit-in-opposition the husband

made out a case that Malaysian Ringgit has since devalued

tremendously over the last 4 years, thereby the husband’s income has

also decreased compared to what he was earning in 2014 when the

learned Judicial Magistrate passed the order on 26.02.2014 in A.C. No.
4

1159 of 2013. According to the petitioner the value has decreased by

25% almost. As a ground for not allowing the wife’s prayer for the

aforesaid alimony pendente lite the petitioner has also pointed out that

he lost his lucrative job with a Singapore owned Hospital in Malaysia,

that is, Regency Hospital in January, 2014, as a result of his long

absence from work without prior notice and this happened because of

his sudden arrest in India under Section 498A of the Indian Penal Code

a proceeding initiated by the wife and even after bail granted to him, he

had to stay in Kolkata absenting himself from his job for over two

months. Because of his financial desperation he had to take a job of

lower emolument for his survival in Malayasia. According to the

husband, his income came down in 2015 and 2016 to R.M. 118573.5/-

which should be considered to be a substantial drop compared to his

earlier earnings. From a chart given in the affidavit-in-opposition, it

appears that while in 2013 his monthly income according to Indian

Rupee was Rs.2,25,223.74/- (Rupees Two Lakh Twenty Five Thousand

Two Hundred Twenty Three and Seventy Four Paisa) only, whereas, in

2017, his monthly income has dropped at (INR) Rs.1,46,238/- (Rupees

One Lakh Forty Six Thousand Two Hundred Thirty Eight) only. That

apart, it is the positive assertion made by the husband that he has to

spend huge sum of money on his son’s higher education particularly

that he has been in United Kingdom and has joined a professional

Engineering College in the United Kingdom. In his affidavit-in-

opposition, it is specifically averred and it would be appearing from the
5

chart given in paragraph 5 thereof that he has to make payment of a

sum of Rs.1,75,981/- (Rupees One Lakh Seventy Five Thousand Nine

Hundred Eighty One) only, as fixed monthly expenses for his rental

accommodation, son’s education fees and hostel fees, son’s

miscellaneous expenses and tutorials, car instalment, car maintenance

and petrol, maid-servant, monthly payment to the wife and food and

miscellaneous expenses totalling Rs.1,75,981/- (Rupees One Lakh

Seventy Five Thousand Nine Hundred Eighty One) only. If the sum of

Rs.50,000/- which is being paid to the wife is deducted, then also the

husband has to make payment of a sum of Rs.(1,75,981 – 50,000)

Rs.1,25,981/- only, per month.

In support of such statement the petitioner has also annexed

copy of Income Tax Return which has been marked with the letter ‘AA’.

It is also the case of the husband that the wife maintains various Bank

accounts and fixed deposits where she has a deposit over Rs.1 Crore in

her three Bank accounts and there is also a deposit of Rs.32 Lakh in

ICICI Bank, Gariahat Branch. Therefore, according to the husband,

with the income of Rs.1,46,238/- (INR) he is not in a position to meet

the claim of the wife as has been prayed for in the application. The

husband has also annexed documents to show the salary drawn by him

from his employer that is annexed at page 34 of the petition. In this

background of the matter, the learned Court below has passed the

impugned order and directed the husband to make payment of a sum of

Rs.80,000/- (Rupees Eighty Thousand) only, per month towards
6

alimony pendente lite which, however, includes the amount of

Rs.50,000/- per month as awarded by the learned Magistrate in a

domestic violence case. Question arises whether the learned Court

below has exercised its judicial discretion in considering the merits of

the application under Section 24 of the Hindu Marriage Act and

whether, while passing the order directing husband to pay the said sum

the learned Court below considered the scope for making such order

and whether the amount so directed to be paid, is within the

permissible limit of Section 24 of the Hindu Marriage Act and whether

the said amount is proportionate to the income of the husband and/or

standard of living he maintains in Malaysia. The reasons given by the

learned Court below does not reflect whether it has considered anything

independently that the wife is entitled to maintenance, if at all, and

whether the wife is unable to maintain herself for which maintenance is

to be directed for and if the Court holds that the wife is unable to

maintain herself, then what should be the amount apt for her

maintenance. The reasons attributed to the grant of alimony pendente

lite by the impugned order are of the following nature :

1) The Court has held that the wife is getting a maintenance of

Rs.50,000/- per month as per the order passed in the

domestic violence proceeding;

2) The Court has held that the husband has got an income of

about Rs.1,46,000/- per month, which was the finding
7

made by the learned Magistrate while granting the award of

Rs.50,000/- to the wife in the domestic violence case.

I have heard the parties at length and perused the documents on

record. The learned Magistrate has mentioned in the impugned order

that the husband earns more than Rs.2,25,000/- per month according

to Indian currency in the year 2014 and his averment that the income

has reduced, is not believable. The learned Court below has also held

that the documents filed by the husband in support of his present

income are not sufficient to prove his income at all. The learned Judge

has also held that it is not disputed that the opposite party/husband is

a Doctor and has several houses in India and also in Malaysia and,

according to the statement made in the written objection, he spent his

life in a luxurious manner maintaining car etc. and the wife is entitled

to get the similar status. On perusal of the materials disclosed in the

application I am of the view that the learned Court below has

considered the case hypothetically and avoided to take note of the

pleadings as well as the documents placed on record. Although,

affidavit-in-opposition was filed by the husband bringing on record that

his income substantially decreased from that what he was getting in

2013 and when he produced documents in support thereof, there is no

logic for the learned Court below to hold that those documents are not

sufficient unless those are rebutted by any cogent evidence produced by

the wife so that the veracity of the documents can be disputed.

Therefore, the learned Court below has committed gross illegality in
8

avoiding to consider those documents by which the husband’s actual

income was sought to be reflected. During hearing before this Court, the

learned Counsel appearing for the wife submitted that the said

document was, although, in English script, but could not be understood

by the Court because the language was Malaysian. If that be so, the

learned Court below itself could have asked the parties to have a

translation or could have referred the matter to official Translator for

getting it translated. That having not been done, it is unjustified for a

Court to come to a conclusion that the document is not sufficient

and/or not believable to substantiate that the figure which has been

mentioned in the said document is the correct figure reflecting the

salary of the husband. The learned Court below has also failed to

consider independently the need of the wife on the day when the

application under Section 24 of the Hindu Marriage Act was considered

by him. It is not the law that since the husband earns a lot the wife is to

get a substantial share out of the same. But in passing an order under

Section 24 of the Hindu Marriage Act, the Court has to consider

whether the petitioner/wife has no independent income sufficient for

her support and the necessary expenses of the proceeding, only in that

event the Court can grant maintenance pendente lite for her

maintenance and litigation cost. In a proceeding under Section 24 of the

Hindu Marriage Act, it is the bounden duty of the Court to verify

whether the petitioner has got the ability to maintain herself or not. If

that ability is lacking then definitely, the Court can grant maintenance
9

and if so, then at what rate? In this case, the husband has shown a

chart of expenses and there is no evidence on record to justify that the

said chart is false. Therefore, in my opinion, the learned Court below

has failed to arrive at an independent finding with regard to the ability

of the wife to maintain herself and also, while awarding maintenance to

assess the need of the wife for her sustenance in a prestigious way. The

Court has observed that the husband has too many houses in India but

no particulars of those houses could be furnished either before the

Court below or even in the affidavit filed before this Court. The

impugned order does not show any reflection thereof. It is not apparent

from the record. Therefore, Court ought not to have been swayed by

such misleading statement made by the opposite party/wife. It further

appears that the Court below has been misled by the order of the

learned Judicial Magistrate and without relying on the documentary

evidence, the learned Court below has simply taken it for granted that

the wife is entitled more because the order being passed by a higher

Court. Since the Judicial Magistrate has awarded a sum of Rs.50,000/-

only, then the Court of Additional District Judge should pass an order

by awarding the wife a sum of Rs.80,000/- only. This is not the way to

assess the need of the wife for grant of pendente lite maintenance. So far

the expenses incurred by the husband in Malaysia, Court has not spent

a single word with regard to his expenses and even it has not been held

that those are exaggerated amount shown by the husband. No amount

of denial of the same is apparent from the record by the wife. Therefore,
10

there is no reason for the learned Court below to hold that the wife

should get a sum of Rs.80,000/- which is almost 55% of the present

income of the husband.

Therefore, I do not find any justification on the part of the learned

Court below to pass such an order directing the husband to pay a sum

of Rs.80,000/- only, per month. While passing the impugned order, the

learned Court below has not made any whisper about the future of the

petitioner’s son who is taking higher study as if the mother has no

concern for the son. On the contrary, the learned Court below has come

to a finding that the petitioner has been suffering from severe ailments

since long and she has to spend huge amount for the medical expenses

and that she has no income of her own, but such statement has no

documentary support at least not available with the application under

Section 24 of the said Act. However, while filing affidavit-in-opposition

before this Court, the wife has disclosed a certificate being Annexure ‘G’

at page 51 that she has been suffering from Type-2 Diabetes, I.H.D. and

border line hypertension. This was a certificate issued on 10th

September, 2018 much after the order impugned and she had to be

admitted once in Repose Clinic and Research Centre Pvt. Ltd. which is

apparent from her discharge certificate dated 09.05.2018 that she was

suffering from split ear lobula, which has nothing to do with the heart

disease. There is no document furnished before this Court to show that

she is suffering from any serious ailment or that she had to frequently

visit the Doctors. Therefore, what led the learned Court below to come
11

to a finding that she is suffering from various diseases is not at all

understood.

Order impugned is, therefore, set aside. However, to meet the

ends of justice I direct that the opposite party/wife will be entitled to a

maintenance at the same rate which has been directed by the Judicial

Magistrate, that is, at the rate of Rs.50,000/- (Rupees Fifty Thousand)

only per month which was never challenged by either of the parties. In

addition, the wife/opposite party shall also be entitled to a sum of

Rs.50,000/- (Rupees Fifty Thousand) only towards litigation cost.

Since it is admitted that the wife is a qualified Doctor by

profession and since it has been submitted by the wife that she is not

earning now, this order will not stand in the way of the husband

seeking appropriate relief if he can subsequently furnish before the

Court that wife has got sufficient income to maintain herself from out of

her profession or from any other employment in future.

Revisional application is, thus allowed to the above extent.

Urgent Photostat certified copy of this judgment, if applied for, be

delivered to the learned advocates for the respective parties upon

compliance of all usual formalities.

(Sahidullah Munshi, J.)

Leave a Reply

Your email address will not be published. Required fields are marked *

Copyright © 2020 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

MyNation FoundationMyNation FoundationMyNation Foundation