Calcutta High Court (Appellete Side)
Sanjay Kapoor vs Mitana Kapoor on 28 January, 2010
Author: Biswanath Somadder
Bench: Biswanath Somadder
1 28.1.2010
C. O. 2564 of 2005 Sanjay Kapoor -vs- Mitana Kapoor Mr. Saptangshu Basu, Mr. Sumanta Biswas ......For the petitioner Mr. Sabyasachi Bhattacharyya, Mr. Chandrodoy Roy ....For the opposite party Heard the learned counsel appearing for the parties.
This is an application under Article 227 of the Constitution of India in respect of a judgment and order bearing No. 103 dated 29th June, 2005, passed by the learned Additional District and Sessions Judge, Sixth Fast Track Court at Alipore, District: 24-Parganas (South) in Miscellaneous Case No. 17 of 2004 arising out of Matrimonial Suit No. 48 of 2004.
The petitioner in the instant application is the defendant in the matrimonial proceeding which was instituted by his wife, being the opposite party herein. The impugned order has been passed by the learned court below in an application filed by the wife for grant of alimony pendente lite under section 36 of the Special Marriage Act, 1954. The learned court below, upon considering the respective contentions of the parties, allowed the prayer for grant of alimony pendente lite, in part. From the operative portion of the order it appears that the husband was directed to pay Rs. 7,000/- per month as alimony pendente lite to his wife and Rs. 4,000/- per month for his minor daughter through her mother with effect from 1st October, 2002. The husband was further directed to pay Rs. 5,000/- as cost of litigation to his wife. The learned court below also fixed tenth of each calendar month as the date within which the husband was required to pay the monthly alimony amount as stated above. The arrear of alimony pendente lite, with effect from 1st October, 2002, was directed to be paid in fifteen equal monthly instalments along with current alimony pendente lite.
The learned counsel appearing on behalf of the petitioner submits that while coming to its findings, the learned court below did not indicate the basis on which he arrived at such conclusion. He submits that his client had disclosed the annual return 2 of income filed before the income-tax authorities wherefrom it would have been clear before the learned court below that his annual income was only Rs. 23,750/-. As such, he submits that the quantification by the learned court below was without any basis and fell much beyond the scope of reasonable guesswork, as is permissible in such cases. In this context, he has relied on a judgment of the Supreme Court of India rendered in Smt. Jasbir Kaur Sehgal Vs. District Judge, Dehradun, and others, reported in A.I.R. 1997 S.C. 3397 (paragraph 7). Relying on this judgment he submits that when there are diverse claims made by the parties, guesswork does enter for arriving at a figure that could be construed as income. However, the same cannot be beyond a degree of reasonableness, which is lacking in the instant case. He submits that unless the income of the husband was quantified, the learned court below could not have quantified the disbursement amount. In the facts and circumstances of the instant case, he submits that the learned court below ought to have concluded otherwise.
On the other hand, the learned counsel , appearing on behalf of the opposite party, being the petitioner's wife, submits that the impugned order was passed upon appreciation of facts pleaded as well as materials available on record and it is not open to this court, while exercising its jurisdiction under Article 227 of the Constitution of India, to reappraise the matter or sit in appeal. He also relies on the same judgment of the Supreme Court as cited by the learned counsel for the petitioner and submits that in such matters, when diverse claims are made by the parties, whatever guesswork enters the mind of the court for arriving at the income of the husband, cannot be said to be unreasonable since it cannot be done by any mathematical precision, unless and until conclusion arrived at by the court was so perverse or so unreasonable that no court could have reached it. In the facts and circumstances of the instant case, the learned counsel for the opposite party submits that the impugned order does not fall within such category and, therefore, this court ought not to interfere with it.
After considering the submissions made by the learned counsel for the parties and upon perusing the application and the order impugned, it appears that the only question that comes up for consideration in the instant case is whether this court can exercise its jurisdiction under Article 227 of the Constitution of India to interfere with an order passed by a learned court below exercising its jurisdiction to grant 3 payment of alimony pendente lite under section 36 of the Special Marriage Act, 1954, in a case where the quantification of the amount directed to be paid has not been done with mathematical precision or even falls within the realm of guesswork. In order to answer this point it is necessary to consider, at first, the relevant observations made by the learned court below in the order impugned, which enabled the court to reach its conclusion and then consider the same in the backdrop of the observations made by the Supreme Court in the aforesaid judgment, which has been relied on by both the parties.
The relevant observations made by the learned court below are reproduced hereinbelow:
"Petitioner/Mitana Kapoor is having no income of her own to support herself and her daughter as well. On the contrary, there is no challenge by the O. P. that he is having no multi-business , as alleged by the Petitioner. Without any controversy the O. P. has been providing school fees of the child, and also the books and other miscellaneous items for the school. The only point of challenge, as raised by O. P. in this case is that his income from all sources has been considerably reduced following the T. V. interview, made by his wife subjecting him a tremendous criticism by the people. For such criticism of the people his different businesses have been seriously affected resulting in a down-fall of his annual income. Seen the documents, furnished by O.P./Sanjay Kapoor including the income tax Return for the year 2002-03 and 2003-04.
It is not unknown to this Court that each case has its own merits and demerits and each case is decide on the evidence, adduced by either of the parties top this case. It would not be irrelevant in the present context of this case to mention, that O.P./Sanjay Kapoor (For the Act VIII case and prayer u/s 38 of Spl. M. Act being tried analogously) made a prayer for custody of his minor daughter in a Act VIII Case No. 03 of 2004 showing therein his specific economic affluence together with his emotional concern for his lovely minor daughter. For his economic affluence he is even ready to put his only daughter to Heritage School. A man managing three business of three different nature together with his expertise knowledge over Feng Shui describing his him to be an Expert/Consultant of Feng Shui cannot be expected to have an annual income of Rs. 23,750/- (twenty three thousand seven hundred fifty) per annum. The income tax return , as furnished, is not at all determination to decide the quantum of alimony pendente lite in the given context of this case. There are other documents, like books of Accounts, etc. to show the actual state of affairs in connection with a business of a person, without which the reduction of annual income, as alleged, cannot be said to have been successfully established.
Mere providing tuition fees regularly to school for the daughter together with supplying books and other miscellaneous items, as per demand of the school would not ensure all round welfare of the minor daughter.
Considering the multi-dimensional business of the O.P./Sanjay Kapoor, the petitioner is required to be favoured with an order u/s. 36 of the Special Marriage Act for alimony pendente lite for herself and her minor daughter as well irrespective of the order of the Ld. Magistrate Court awarding ad interim maintenance to the extent of Rs. 3000/-( three thousand) per month for Petitioner and her minor daughter together. With the different incomes of O. P. /Sanjay Kapoor, he can ensure safely a modest living to his wife and daughter as well in commensurate with the status of himself O. P./ Sanjay Kapoor.4
In the prayer portion, Petitioner sought for costs of suitable accommodation to the extent of Rs. 10,000/- ( ten thousand) per month from her husband. There is nothing on record that in order to ensure better living for herself, and her minor daughter Petitioner has already been shifted to a better accommodation leaving paternal accommodation, and she has been put in face hardship to meet the expenses of better accommodation. Therefore, this Court cannot be made to pass an order with respect to the costs of suitable accommodation relying upon some contingencies."
The Supreme Court in the case of Smt. Jasbir Kaur Sehgal (supra) was considering the wife's appeal against the judgment of the High Court of Judicature at Allahabad dated 14th October, 1996, whereby she was awarded maintenance pendente lite under section 24 of the Hindu Marriage Act, 1955, at the rate of Rs. 1,500/- per month. From the facts of that case it appears that on an application filed by the wife before the trial Court in a proceeding for divorce initiated by her husband, she was awarded Rs. 2,500/- as expenses towards litigation and maintenance pendente lite at the rate of Rs. 1,000/- per month. Her revision before the District Judge, Dehradun, against this order was dismissed. She thereafter filed a petition under Article 227 of the Constitution of India before the High Court. By the impugned judgment, the High Court enhanced the maintenance to Rs. 1,500/- per month. After taking into consideration the factual matrix of the case and the contentions raised by the parties, in detail and extensively, the Supreme Court observed in paragraph 7 as follows:
"........It does appear to us from the affidavit of the husband that it conceals more than what it tells of his income and other assets. Attempt has been made to conceal his true income and that leads us to draw an adverse inference against the hus-
band about his income that it is much more than what is being disclosed to us........."
Thereafter, the Supreme Court further went on to observe in the same paragraph as follows :
"....... Considering the diverse claims made by the parties one inflating the income and the other su- ppressing an element of conjecture and guess work does enter for arriving at the income of the husba- nd. It cannot be done by any mathematical preci-
sion........."
While taking into consideration the admitted fact that the wife had no source of income and was also maintaining her eldest unmarried daughter, the Supreme Court, in paragraph 8 of the judgment, observed, inter alia, that no set formula could be laid for fixing the amount of maintenance. It has, in very nature of things, to depend on the facts and circumstances of each case. The Supreme Court, thereafter, observed as follows :
5
".......Some scope for liverage can, however, be al- ways there. Court has to consider the status of the parties, their respective needs, capacity of the hus- band to pay having regard to his reasonable ex-
penses for his own maintenance and those he is obliged under the law and statutory but involunta- ry payments or deductions. Amount of mainten-
ance 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 that she does not feel handicapped in the prosecution of he case. At the same time, the amount so fixed cannot be ex-
cessive or extortionate."
On a broad conspectus of the above observations made by the Supreme Court, it is clear that in such cases where the court considers grant of alimony pendente lite in the backdrop of diverse claims made by the parties, quantification can be made by resorting to reasonable guesswork and there is always some scope for leverage, since it cannot be done by any mathematical precision; provided, of course, the amount so fixed is not excessive or extortionate.
Keeping this view in mind, I am of the opinion that the impugned order of payment of alimony pendente lite passed by the learned court below, based on consideration of facts and observations made with regard thereto - relevant portion whereof has been quoted hereinabove - certainly cannot be termed to be so excessive or extortionate to bring it within the compass for interference by this court in exercise of its jurisdiction under Article 227 of the Constitution of India. Even otherwise, by no stretch of imagination, the conclusion of facts, as appearing from the impugned order, can be said to be so perverse or unreasonable so as to upset the same, 6 in exercise of this court's power under Article 227 of the Constitution of India.
For reasons stated above, the instant application is liable to be dismissed and is hereby dismissed.
Later :
Immediately after pronouncement of the judgment, the learned counsel for the petitioner prays for three weeks' stay of operation of this order, which is considered and allowed.
Let urgent photostat certified copy of this order, if applied for, be delivered to the learned counsel for the parties, upon compliance of all usual formalities.
( BISWANATH SOMADDER J. )