Calcutta High Court (Appellete Side)
Archan Roy vs Munmun Roy on 26 March, 2013
Author: Harish Tandon
Bench: Harish Tandon
1 26.3.13 C.O. 740 of 2013 Archan Roy
-vs-
Munmun Roy Mr. Piyush Chaturvedi Ms. Anwesha Saha Mr. Prajnadeepta Roy ... For Petitioner Ms. Sutapa Sanyal Mr. Kaustav Chandra Das Mr. Nityananda Pati ... For Opposite Party This revisional application is directed against Order No. 36 dated April 25, 2012, passed by the Additional District Judge, Alipore, in Miscellaneous Case ac No. 44 of 2011, by which an application, under Section 24 of the Hindu Marriage Act, 1955, is disposed of and Order No. 8 dated January 3, 2013, passed by the Additional District Judge, Alipore in Miscellaneous Case No. 23 of 2012 by which an application for review of the Order No. 36 dated April 25, 2012 passed in Miscellaneous Case No. 44 of 2011 is dismissed on contest.
In a matrimonial proceeding initiated by the husband/petitioner under Section 13 of the Hindu Marriage Act, l955, the wife/opposite party took out an application under Section 24 of the Hindu Marriage Act, l955, claiming monthly alimony of Rs.5,000/- for herself and Rs.6,000/- for the minor girl; apart from the litigation expenses of Rs, 1,24,000/-.
It has been categorically averred in the application that the husband/petitioner is working to the post of Train Ticket Examiner in South Eastern Railways and draws a monthly salary of Rs.30,000/- and odd.
It is further averred that the
husband/petitioner owns a flat in Mayfair 'Malay
Apartment' at Uttarpara which has been let out at a monthly rent of Rs.5000/-.
It is disclosed that the husband/petitioner 2 owns four plots of land in the State of Madhya Pradesh. The wife/opposite party further disclosed in the said application that she has received an amount of Rs.2,00,000/- in the year 2006 from the husband/petitioner and the said amount could be adjusted against the maintenance that may be awarded and/or granted to her.
In the written objection, the husband/petitioner evasively denied the averments
relating to his monthly income and expressly contended that his parents are living in a separate mess and he has to send some money for their sustenance. There is no reflection in the written objection relating to the actual income of the husband/petitioner except bare denial to the statement of the wife that his monthly income is more than Rs.30,000/-.
Although Mr. Chaturvedi, the learned advocate appearing for the petitioner, vehemently submits that the trial Court did not take into consideration the various documents produced by his client but it reveals that he chose not to adduce any evidence under Section 24 of the Hindu Marriage Act, 1955.
Perusing the certified copy of the evidence, adduced by the wife/opposite party, it appears that the wife/opposite party has expressly contended that the mother of the petitioner is working as an Assistant Headmistress of Nawpara Prathamik Vidyalaya (South Circle) at Diamond Harbour. There is no cross- examination on the said issue. Therefore, this Court can safely proceed that the alleged story of maintaining the parents by sending some money is untrue.
Though this Court found some questions were put relating to the unemployment of the younger brother of the husband but the wife has denied the same.
When one of the parents is in gainful employment, the story of maintaining the unemployed 3 younger brother is unconceivable. Furthermore, not a single scrap of document was produced before the trial Court by the husband/petitioner wherefrom it could be gathered that the younger brother is dependent upon the husband/petitioner.
According to the petitioner, his monthly income varies on each month because of some variable incentives; depending upon performance of certain duties. According to Mr. Chaturvedi, such amount being flexible, the trial Court, taking the same as static, should not have proceeded to determine the monthly income of the husband/petitioner.
It is settled law that the income of the husband is his special knowledge and initial onus rests upon him to prove the same by disclosing his income and such onus cannot be shifted upon the wife.
If the husband has concealed and/or suppressed his actual income, there is no impediment on the part of the Court to determine the actual income from other attending circumstances even by applying some guess work.
Even if the contention of Mr. Chaturvedi is accepted that the Court should not have arrived at the conclusion that the monthly income of the husband/petitioner is Rs.30,000/- because of variability of certain incentives, this Court can safely proceed by applying the average annual income which cannot be less than Rs.26,000/- per month.
As already indicated above, there is no liability upon the petitioner to maintain his parents or the unemployed brother, the petitioner cannot claim that he has some liability and responsibility by incurring some money on them.
Admittedly, the girl child is a student and this Court is informed that she at present is studying in Class IV. The husband/petitioner certainly owes some 4 responsibility for the expenses required to be incurred towards her education, and other needs.
This Court cannot overlook the categorical assertion of the wife/opposite party that the husband/petitioner owes a flat at Uttarpara and is getting rent from the tenant inducted therein.
Apart from bare denial in paragraph 7 of the written statement, this Court does not find any positive assertion being made in this regard. Such bare and evasive denial does not rebut the presumption that the husband is also having some income on account of rent.
Therefore, this Court finds that the trial Court has granted monthly alimony pendente lite to the wife as well as the minor girl child by applying the principle of 1/3rd of the total income of the husband as there is no responsibility and liability upon the petitioner to maintain any dependent, including the parents and the unemployed brother.
This Court, therefore, does not find that the trial Court has committed any infirmity and/or illegality in awarding maintenance to the wife and the child amounting to Rs.11,000/- per month.
This Court, however, finds that it has escaped from the notice of the trial Court that in the application under Section 24 of the said Act, the wife/opposite party admitted to have received a sum of Rs.2,00.000/- and further prayed for adjustments of the said amount from the monthly maintenance.
This Court, therefore, records that the entire alimony pendente lite which has been awarded by the trial Court shall be adjusted against the payment of Rs.2,00,000/-, received by the wife/opposite party in the year 2006. The husband/petitioner shall be entitled to adjust a sum of Rs.3,000/- per month from the monthly alimony pendente lite commencing from the month of March 2013 to be paid on or before the 7th day of April 5 2013.
The husband/petitioner shall go on paying the monthly maintenance for all subsequent months upon adjusting a sum of Rs.3,000/- per month within the seventh day of each succeeding months.
After adjustment of the entire amount, the husband/petitioner shall go on paying the maintenance as has been awarded by the trial Court and affirmed by this Court, subject, however, to any variation in view of the changed and subsequent circumstances.
The trial Court has awarded maintenance on and from the date of the order. It is the discretion of the Court to award monthly alimony pendente lite either from the date of making of the application or from the date of the order or on any other subsequent date depending upon the facts of each case.
This Court, therefore, does not find that such discretion is erroneous, unreasonable and/or beyond the legal parameters.
The trial Court awarded a sum of Rs.24,000/- towards litigation expenses which this Courts finds to be on a higher side and thus reduces the amount of litigation expenses to Rs.15,000/-; to be paid by the husband/petitioner to the wife/opposite party along with the monthly alimony pendente lite commencing from the month of March 2013.
The impugned order dated 25th April 2012, thus, stands modified to the extent indicated above.
The petitioner tried to review the said order by filing a review application. In the said application what is tried to be contended is that the order passed by the trial Court suffers from error by process of reasoning.
The conscience decision cannot be equated with the decision based on the error apparent on the record.
The scope under Order 47 Rule 1 of the Code 6 of Civil Procedure is limited and cannot be invoked to re- open and/or rehear the entire issue. Therefore, this Court does not find any illegality and/or infirmity in the order by which the application for review was rejected by the trial Court.
This Court does not find any illegality and/or infirmity in the impugned order dated January 3, 2013.
The revisional application is, thus, disposed of. However, there shall be no order as to costs.
Urgent photostat certified copy be supplied to the parties, if applied for, on priority basis.
(Harish Tandon, J.)