Calcutta High Court (Appellete Side)
Dr. Abhijit Ghosh vs Dr. Jayita Ghosh (Nee Chatterjee) on 5 February, 2019
Author: Sahidullah Munshi
Bench: Sahidullah Munshi
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.)