Doctr hubby told to pay rs 15K pm. His tax returns, affidavits disbelieved. Wife also gets 20K legal costs (one time) !! Cal HC GEM
Notes
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* Marriage on November 22, 2010
* living separately since October 28, 2012
* Husband has filed petition for dissolution of marriage
* Aablaa naari wife has filed restituion of conjugal rights
* wife has ALSO filed for INTERIM maintenance
* district judge has granted Rs 20000 p.m. interim maintenance !!
* Husband has shown IT return and also shown prescrptions proving that he earns maximum of Rs 30000 p.m. and haa expenses of Rs 27500
* Still husband asked to pay Rs 15000 p.m. to ablaa
* The wife stayed with the husband for a period of 2 years and so she can understand the total income of the husband.
* case to go on !!
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CASE FROM JUDIS / INDIAN KANOON WEB SITE
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IN THE HIGH COURT AT CALCUTTA CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
C.O. No. 2754 of 2013
With
C.O. No. 2676 of 2013
Present :
The Hon'ble Mr. Justice Prasenjit Mandal
Dr. Soumik Dasgupta.
Versus
Poulami Dasgupta.
For the petitioner : Mr. Biswarup Bhattacharjee, Mr. R.L. Mitra, Ms. Priyanka Dhar.
For the opposite party : Mr. Sabyasachi Bhattacharjee, Ms. S. Bhattacharjee.
Heard On: 07.08.2013
Judgement On: August 29, 2013.
Prasenjit Mandal, J.:
These two applications are directed against the Order no.9 dated June 18, 2013 passed by the learned Additional District Judge, 2nd Court, Barrackpore in Matrimonial Suit No.1314 of 2012 thereby allowing in part an application under Section 24 of the Hindu Marriage Act, 1955.
The husband/petitioner herein of the C.O. No.2676 of 2013 instituted the aforesaid suit for dissolution of marriage under Section 13 (1)(ia) of the Hindu Marriage Act, 1955. The wife/opposite party herein of the C.O. No.2676 of 2013 is contesting the said matrimonial suit by filing a written statement claiming a counter-claim for restitution of the conjugal rights in the aforesaid suit. She filed an application under Section 24 of the Hindu Marriage Act, 1955 praying for alimony at the rate of Rs.35,000/- per month and the litigation costs of Rs.4,000/- per month. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/
Upon due consideration of the materials on record, the learned Trial Judge granted the alimony pendente lite at the rate of Rs.20,000/- per month in favour of the wife from the date of the order. But, the prayer for litigation costs has been rejected. Being aggrieved by such order, the wife has preferred the Civil Revision No.2754 of 2013 for enhancement of the alimony and grant of litigation costs.
On the other hand, the husband has filed the C.O. No.2676 of 2013 for granting a lesser amount of alimony pendente lite. Since both the applications have been preferred against the same and one order, they are disposed of by this common judgment and order. The question is whether the impugned order should be sustained.
Upon hearing the learned Counsel for the parties and on going through the materials on record, I find that admittedly, the marriage between the two was solemnized on November 22, 2010 in accordance with Hindu rites and customs. They have been living separately since October 28, 2012. Admittedly, the wife is residing at her paternal house. It is also an admitted position that the husband is a Pediatrician. Admittedly, the wife does not want divorce at all and that is why, by way of a counter- claim she has prayed for a decree for restitution of conjugal rights. Admittedly, the parties have no issue. Admittedly, the husband is an M.B.B.S. D.C.H. Child specialist. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/
The wife has contended that the husband earns Rs.80,000/- per month minimum from his medical profession. On the other hand, husband has contended that his earning is Rs.30,000/- per month.
Mr. Biswarup Bhattacharjee, learned Advocate appearing for the husband has contended that the husband has filed materials such as Income Tax Return, prescriptions issued by him etc., which indicate that the income of the husband cannot be more than Rs.30,000/- per month and he has drawn my attention to the probable expenditure that the husband is to incur as appearing in Page No.61 of the application of the husband to the tune of Rs.27,500/-.
He has also contended that the wife is a teacher of the D.A.V. School, Chinar Park, Baguiati and she earns by salary from the said school and also by private tuition. So, it is not correct that the wife is depending on her parents.
Mr. Bhattacharjee has also referred to the Income Tax Return filed by the husband as appearing at Page No.67 to show that the annual gross total income of the husband is to the tune of Rs.2,18,992/- and as such the Court is not justified at all in granting the alimony at the exorbitant rate.
He has also contended that the husband has to maintain his parents including the expenses of their medical treatment and other charges as indicated at Page No.61. So, the application under Section 24 of the Act should be dismissed. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/
On the other hand Mr. Sabyasachi Bhattcharjee, learned Advocate appearing for the wife has contended that the wife has given probable expenditure of Rs.35,000/- per month as per her application appearing at Page No.56. Moreover, the learned Trial Judge did not grant any litigation costs. So, the impugned order could be modified.
Having regard to the materials on record and the submissions, I am of the view that the husband did not come to the Court with clean hands. He has suppressed his total income as a Pediatrician by sitting in different Nursing Homes, Medical Shops, Rajarhat Gopalpur Municipality etc. The Income Tax Return does not support the income even claimed by the husband, because if the gross annual income of Rs.2,18,992/- as indicated in the Income Tax Return is divided by 12, his monthly income will be less than Rs.20,000/- whereas, he has admitted that he earns Rs.30,000/- per month. The prescription of the husband as appearing at Page No.71 indicates that the husband is not only a child specialist attached to different Nursing Homes, but, also to other medical shops such as Anita Medical Hall, Success Diagnostics, Drug Centre and also at his residence. By a rejoinder, he has admitted that he also gets remuneration for working at Rajarhat Gopalpur Municipality. The contention that the doctor having been engaged in the profession in different medical shops, residence and Rajarhat Gopalpur Municipality would earn Rs.30,000/- only per month as claimed by him, cannot be believed.
I have shown earlier that he has suppressed the fact by tendering the Income Tax Return, which is not at all in conformity with his admission of earning of Rs.30,000/- only per month. The wife stayed with the husband for a period of 2 years and so she can understand the total income of the husband.
In such circumstances when the husband did not come to the Court with clean hands, the Court is to deal with the mater by guesswork as to the income of the husband. The husband has contended that the wife earns from a school at Baguiati and by private tuition, but, there is no material at all to that effect. Accordingly, it is held that the statement of the wife that she has no income should be accepted. So, the wife is entitled to get the alimony as well as the litigation costs from the husband.
So far as the quantum of alimony is concerned, as noted above, upon certain guesswork as to the income of the husband and the materials on record and the engagement of the husband in different Nursing Homes, Municipality, Medical Shops etc., it is not absurd to hold that the husband earns Rs.80,000/- per month. The husband has contended that he earns Rs.30,000/- per month minimum and his expenditure is Rs.27,500/- per month meaning thereby, a nominal amount is left for granting the maintenance to the wife i.e. the balance amount. This is, in my view, is nothing but to frustrate the prayer of the wife. The learned Trial Judge has rightly held that the wife is entitled to lead the same status as the husband enjoys as a medical practitioner. This being the position, upon due consideration of the materials on record, certain guesswork as to income of the husband and the fact that the husband has not come to the Court with clean hands as to his income, I am of the view that the husband should be directed to pay the alimony pendente lite at the rate of Rs.15,000/- per month. The learned Trial Judge has granted the alimony with effect the date of the order and since it is the discretion of the learned Trial Judge, I am of the view that this discretionary power should not be interfered with. As regards the quantum of litigation costs, in my view, since the learned Trial Judge has held that the wife has no income, certainly, she should be entitled to get the litigation costs from the husband particularly, when she has expressed her eagerness to have a decree for restitution of conjugal rights.
Accordingly, upon due consideration of the entire situation as recorded above, I am of the view that, for the time being, the husband should have directed to pay the litigation costs of Rs.20,000/- only to the wife and such amount must be paid within 30 days from date. In that view of the matter, the impugned order cannot be sustained.
The impugned order is, therefore, modified in the following manner:-
i) That the husband is directed to pay the alimony pendente lite to the wife at the rate of Rs.15,000/- only per month with effect from the date of the order passed by the learned Trial Judge, i.e., w.e.f. June 18, 2013;
ii) That the husband is also directed to pay the litigation costs of Rs.20,000/- only to the wife within a period of 30 days from date for the time being;
iii) That the arrears of alimony must be paid within 30 days from date; and
iv) That the husband is directed to pay the current alimony within the 10th day of the succeeding English Calendar Month.
Both the applications are disposed of in the manner indicated above.
Considering the circumstances, there will be no order as to costs.
Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.
(Prasenjit Mandal, J.)
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