Calcutta High Court (Appellete Side)
Saibal Ghosh vs Mousumi Ghosh on 13 December, 2019
Author: Hiranmay Bhattacharyya
Bench: Hiranmay Bhattacharyya
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IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
Before:
The Hon'ble Justice Hiranmay Bhattacharyya
C.O. 2088 of 2019
Saibal Ghosh
Vs.
Mousumi Ghosh
For the petitioner : Mrs. Susmita Saha Dutta
Mr. Niladri Saha
For the opposite party : Mr. Animesh Kanti Ghoshal
Mrs. Chandramala Mukherjee
Heard on : 06.12.2019
Judgment on : 13.12.2019
Hiranmay Bhattacharyya, J.:
The husband has filed the instant application under Article 227 of the Constitution of India challenging an order dated April 4, 2019 passed by the Additional District Judge, Fourth Court at Alipore in Matrimonial Suit no. 131 of 2009. He is aggrieved by the order 2 enhancing the amount of alimony pendente lite as well as grant of litigation cost.
The husband filed the matrimonial suit under section 27 of the Special Marriage Act for dissolution of the marriage. In the wedlock a male child was born who has now attained the age of majority. Initially, the wife filed an application under section 36 read with 38 of the Special Marriage Act praying for an order of alimony pendente lite at the rate of Rs. 20,000 per month for self and Rs. 6,000 per month for the son who was then a minor. Litigation cost of Rs. 10,000 was also prayed for. The said application was registered as misc case no. 50 of 2009.
On a contested hearing, the Trial Judge by an order being no 56 dated January 10, 2011 allowed the said misc case in part directing the husband to pay alimony pendente lite at the rate of Rs. 4,000 per month for the wife and Rs. 3,000 per month for the minor child with effect from the date of order. The husband was further directed to pay the litigation cost of Rs. 8,000 to the wife.
Thereafter, on June 17, 2015, the wife filed an application praying for enhancement of maintenance which was rejected by the Trial Judge by an order dated August 18, 2018. The wife challenged 3 the said order by filing a Civil Order no. 65 of 2019 before this Hon'ble Court which was allowed on contest thereby setting aside the order dated August 18, 2018. The Trial Court was directed to take up for hearing of the applications filed by the wife respectively for enhancement of alimony dated June 17, 2015 and the connected application for a direction upon the husband to produce relevant documents pertaining to his income afresh and to decide those on merits within one month from the date of communication of the order to the court below.
Pursuant to the order passed by this court in CO No. 65 of 2019, the Trial Court directed the husband to produce the documents pertaining to his income but the husband did not comply with such direction. The Trial Judge by an order dated April 4, 2019 allowed the application dated June 17, 2015 thereby modifying the order of maintenance passed on January 10, 2011 in misc case no. 50 of 2009 by directing the husband to pay Rs. 22,000 per month for the wife with effect from the date of the application. The husband was also directed to pay litigation cost of Rs. 50,000 to the wife. The husband challenged the said order dated April 4, 2019 in this civil order.
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In the application for enhancement of maintenance pendente lite, the wife/opposite party herein stated that the husband is a big businessman and owns 3-4 separate residential houses in Kolkata and Delhi and his present monthly income is more than Rs. 3 lakhs. He leads a luxurious lifestyle and is maintaining two four wheeler luxury cars. It was also alleged that the husband is member of different clubs. The wife further stated that due to the present high market price and considering the status of the husband the alimony granted earlier is insufficient and she requires Rs. 50,000 per month as alimony pendente lite and litigation cost of Rs. 1 lakh.
By filing a written objection to the application for enhancement of maintenance pendente lite the husband denied that he runs a big business and owns several immovable properties. He also denied that his monthly income is Rs. 3 lakhs or more. He claims to have opened a Family Health Suraksha Policy in the joint name of himself and his son and paying the premium. He alleges that the wife and the son are also getting the sum of Rs. 10,000 from two life insurance policies. The husband asserted that his present income is Rs. 2,08,000 per annum from business. The husband also claims that he has to bear the medical expenses of his ailing mother. Reference of a statement 5 made by the wife in the affidavit in chief in connection with misc case no 7 of 2008 that she has her business under name and style "Swajal" at shop no. 49 VIP market, P- 187, CIT Road, Kolkata - 54 was also made.
Ms. Susmita Saha Dutta, the Learned Advocate appearing for the petitioner submitted that the amount of maintenance pendente lite of Rs. 22,000 as fixed by the trial judge is an exorbitant and excessive one. She submitted that the husband do not have the capacity to pay the said amount of maintenance as the income of the husband is diminishing day by day. The Learned Advocate for the petitioner submitted that the wife is having an independent source of income and as such she is not entitled to alimony pendente lite. She further submitted that the wife is residing at the property owned by the husband and the Learned Trial Judge while arriving at the amount of alimony did not take into consideration such fact.
Mr. Ghoshal learned senior advocate appearing on behalf of the wife submitted that the court below was perfectly justified by enhancing the amount of alimony which was granted earlier. He submitted that taking into consideration the rising price index, the amount of alimony which was initially granted by the court in misc 6 case no. 50 of 2009 is not sufficient to meet the requirement of the wife. Mr. Ghoshal submitted that the husband is guilty of non compliance of the direction of the court for not disclosing his true income inspite of specific direction passed by this court in CO No. 65 of 2019 as well as by the learned court below. Lastly he submitted that the instant civil revision application should be dismissed.
The acknowledgment issued by the Income Tax Department for the assessment year 2009-10 has been annexed to this Civil Order to show that the gross total income of the husband was Rs. 1,79,625 for the assessment year 2009-10. The said Acknowledgement is for a period much prior to the date of filing the application for enhancement. The same relates to a period when the Misc Case No. 50 of 2009 was decided. As such the said document is not relevant for arriving at a finding with regard to the present income of the husband/ petitioner while deciding the enhancement petition. Several certificates dated May 4, 2019, April 28, 2018, May 7, 2017, May 3, 2016 and May 16, 2015 for the financial years 2018-19, 2017-18, 2016-17, 2015-16 and 2014-15 respectively have been annexed to this Civil Order in support of the claim of the husband that he does not have the capacity to pay the alimony pendente lite at the 7 enhanced rate. The certificate dated May 4, 2019 was issued after the passing of the impugned order and as such the same cannot be taken into consideration. It appears from the impugned order that at the time of hearing of the impugned application only the certificate dated May 16, 2015 was relied upon to show that the income of the husband is only Rs. 2, 06,400/-. As such the other certificates annexed to this application and relied upon by the Learned Advocate for the petitioner at the time of hearing cannot be taken into consideration while deciding the instant Civil Order. The Trial Judge after considering the evidence of the respective parties gave a detailed reasoning for not accepting the certificate of income dated May 16, 2015. The Trial Court was perfectly justified by not accepting the income disclosed in the certificate dated 16.05.15 to be the income of the husband.
Inspite of direction passed by this court as well as the Trial Court the husband has deliberately withheld the best evidence relating to his income. Admittedly, the husband is a businessman. No accounts relating to the business carried on by the husband has been produced before the court below. The income earned by the husband would be within his special knowledge. Under Section 106 of the 8 Evidence Act, onus lies upon the husband to disclose the same. In this case, the husband has made an attempt to conceal his true income for which an adverse inference against him about his income that it is much higher than what has been disclosed to the court is to be drawn in the instant case. For the reasons as aforesaid it is difficult to accept the submission of the Learned Advocate for the petitioner that the income of the husband is decreasing day by day.
The Learned Advocate for the husband/ petitioner also laid much stress on the cross-examination of the wife in connection with the Misc Case no. 50 of 2009 where she had stated that she worked for gains at "Swajal", P-187, CIT Road, VIP market, shop no. 49, Kolkata- 54 and submitted that since the wife is having an independent source of income she is not entitled to alimony pendente lite.
The trial judge after considering the effect of the said statement in the cross-examination arrived at a finding in Misc Case no. 50 of 2009 that the wife did not have any source of income and directed the husband to pay alimony pendente lite. The said order was not challenged by the husband. On the contrary, the husband claims to have been paying alimony at the rate fixed by the court in the order 9 passed in the said misc case to the wife. Thus the said order has been accepted by the husband. It is well settled that the principles of res judicata applies at different stages of the same proceeding. Thus, the submission of the Learned Advocate for the petitioner that the wife is having an independent source of income and as such is not entitled to alimony pendente lite cannot be accepted at all.
The Learned Advocate for the petitioner by drawing the attention of the Court to the affidavit in chief filed by the wife in misc case no. 7 of 2008 that the wife is residing separately at 25/B, Pratapaditya Road submits that since the wife is residing at the property owned by the husband, the amount of maintenance pendente lite awarded by the court below is to be reduced by taking into consideration the fact that the wife do not have to incur any expenses on account of her residence.
It does not appear from the application for enhancement of maintenance that the wife has claimed such enhancement as the cost for residing at the property has increased. In the written objection to such application it is not the case of the husband that he has to incur any expenditure for the wife's stay at her matrimonial home. The wife's right to stay at her matrimonial home cannot be disputed 10 by the husband and since it does not appear from the records that the wife has claimed enhancement on account of increase in cost for residing at the said property, the submission of the Learned Advocate for the husband that the amount of alimony pendente lite granted by the court below is to be reduced for such purpose cannot be accepted.
There is no set formula for fixing the amount of maintenance. The amount of maintenance depends on the facts and circumstance of each case and it varies from case to case. Some leverage is to be given to the court for fixing the amount of maintenance. The court while fixing the amount of maintenance should take into consideration various factors including the status of the parties, the needs of the wife and the capacity of the husband to pay. While deciding on the capacity of the husband to pay, the court has also to take into consideration the reasonable expenses of the husband for his own maintenance and of the persons whom he is obliged to maintain. Inspite of making a statement in the written objection that he has to bear the medical expenses of his ailing mother, the petitioner has not stated specifically as to the amount which he is spending for the medical expenses of his mother for reasons best 11 known to the petitioner. The court also has to take into consideration the statutory liabilities, if any, of the husband while determining the capacity of the husband to pay. The written objection is totally silent about the expenses required for the maintenance of the petitioner. Also there is no reference of any statutory liability of the husband in the said Written Objection.
The amount of maintenance for the wife should be fixed in such a manner that she can live comfortably considering her status and the mode of life she was used to when she was living with her husband. A reasonable amount should also be awarded to the wife on account of litigation cost to enable her to prosecute her case effectively. The court also has to keep in mind that the amount so fixed is not excessive.
Since the husband concealed his true income, the court below was justified in drawing an adverse inference against him about his income. The Trial Court took into consideration the painful condition of the wife while living with her son and was of the view that the amount of Rs. 22,000 should be just and proper for her monthly maintenance. It is well settled that the court while exercising the jurisdiction under Article 227 of the Constitution of India cannot 12 re-appreciate the evidence. The court below has applied the correct legal tests while adjudicating the application for enhancement of maintenance pendente lite and was justified in awarding a sum of Rs. 22,000 as monthly maintenance. The litigation cost of Rs. 50,000 awarded by the Trial Judge appears to be a reasonable one taking into consideration the litigations between the parties.
There is no infirmity in the impugned order. The impugned order does not suffer from perversity. The Trial Judge neither committed any error of jurisdiction nor there has been any flagrant violation of the settled law. No interference is thus called for under Article 227 of the Constitution of India. CO No. 2088 of 2019 is dismissed without any order as to costs.
Urgent photostat certified copies, if applied for, be supplied to the parties upon compliance of all formalities.
(Hiranmay Bhattacharyya, J.)