Debmalya Ghosh vs Papri Ghosh Nee Baidya

Affidavit-of-service filed in Court today be taken on record.

Both the parties are represented through their learned counsel in court today.

The husband has challenged an order of alimony, whereby the petitioner was directed to pay Rs.8,000/- (Rupees eight thousand) only per month as alimony to the wife and Rs.7,000/- (Rupees seven thousand) only per month for the minor son of the parties, who is about ten years of age now. The trial court also granted litigation costs of Rs.20,000/- (Rupees twenty thousand) only.

Learned counsel for the petitioner submits that although the wife admitted in the affidavit supporting her alimony application that she is in service and had also admitted in her plaint that she is working at AMRI Hospital, the wife alleged in her alimony application that she did not have sufficient income to maintain herself and was totally dependent on her brother.

As such, it is argued that the wife had special knowledge of her own income under Section 106 of the Indian Evidence Act, 1872, but failed to discharge her onus of disclosing such income.

On the other hand, the husband categorically stated in the written objection to the alimony application that the husband is a jobless person and does not have any earning at all. Despite such averments, the trial court cast the burden on the petitioner-husband to produce his proof of income, but relieved the wife of such a duty, despite her admission that she was working at the AMRI Hospital.

As such, it is argued that the impugned order ought to be set aside, being based on surmise.

Learned advocate appearing for the opposite party, on the other hand, submits that the wife candidly disclosed in her alimony application that she was in service, but also stated that she had no sufficient income of her own and was passing her days in tremendous financial stringency, in which the worst sufferer was the son.

It is also stated by the opposite party-wife in her alimony application that she is dependent upon her brother in that regard.

On the contrary, the husband, in the initial portion of his written objection to the alimony application, admitted that he had a small business of supplying electrical equipment under the name and style of "United Supplier" and supplied electrical goods to NJMC Jute Mill. It was also stated by the husband in his written objection that the said business was originally owned by the mother of the husband and the husband was paid on monthly basis for running the said business. It was never disclosed in the written objection as to how and when the husband became jobless and as such, the trial court was justified in disbelieving such averments.

As such, it is argued that the trial court acted well within its jurisdiction to grant alimony and litigation costs at the rate as stipulated in the impugned order.

The averments of the husband in his written objection to the alimony application undoubtedly show that the husband had been running a business of supplying electrical goods. As per Section 114 of the Indian Evidence Act, presumption was thus raised that the said situation continued, in the absence of any specific proof as to when and how the income of the husband from such business stopped. Onus of proof of closure of the business and/or terminus of such source of income was on the husband, which was never discharged by the husband.

Despite admitting such source of income, the husband/petitioner in his written objection all on a sudden made a statement that at present he is a jobless person and does not have any earning at all, without explaining as to how his income from the said business came to a terminus.

In such view of the matter, the court below was free to draw adverse inference against the husband in so far as his alleged joblessness was concerned.

On the other hand, although it was the duty of the opposite party-wife also to prove her income, the opposite party categorically averred that she was dependent on her brother and her income was not sufficient to maintain herself and her son.

Even if the allegation of the husband was true and the opposite party has been working as a staff nurse in the AMRI Hospital, the court below could not be said to be unjustified in arriving at the conclusion that the wife did not have sufficient income to maintain herself; in turn, justifying the grant of alimony under Section 24 of the Hindu Marriage Act, 1955.

It is well-settled that in the event both parties suppressed their respective incomes, the court was within its jurisdiction to apply reasonable guesswork to arrive at a finding as to the quantum of alimony to be granted. In the circumstances of the present case, the trial court did just that, which was an exercise within its jurisdiction and in consonance with law.

In such view of the matter, this Court is not inclined to interfere with the impugned order, which was a valid exercise of judicial discretion by the trial court.

Accordingly, C. O. No. 390 of 2019 is dismissed on contest, thereby affirming the impugned order.

However, the husband will go on paying current alimony at the rate as directed by the court below. As far as the arrears of alimony are concerned, the four equal instalments, as granted by the trial court, is granted from the present date, since the pendency of the present revisional application might have impeded the husband from paying such alimony so long.

There will be no order as to costs.

Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.