Debopriya Chattaraj vs Amit Kumar Chattaraj

Harish Tandon, J.—This revisional application is directed against order no. 30 dated 23rd February, 2016 passed by the learned Additional District Judge, 8th Court, Alipore in Miscellaneous Case No. 17 of 2015, by which an application under Section 36 of the Special Marriage Act is disposed of.

Admittedly, the husband filed a suit for divorce under the Special Marriage Act, inter alia, on the ground of desertion and cruelty. After entering appearance, the wife filed an application claiming alimony pendente lite along with the litigation cost.

It is alleged in the said petition that the husband is a highly educated person and is employed in T.C.S. as a high ranking officer and get monthly salary of Rs. 1,50,000/-. Indubitably, a daughter is born of the said wedlock and is residing with the mother. The minor daughter is a school going student and is currently studying in Class-I. The husband not only denied the monthly income as disclosed in the petition filed by the wife but also volunteers to say that his income is nearly Rs. 80,000/- per month.

The Trial Court thought that the matter should not be decided on affidavits and invited the parties to lead oral and documentary evidence in support of their respective stands.

Though the husband mentioned that the wife being an educated lady has her own income sufficient to cater her need, but ultimately could not produce any cogent evidence in this regard. The Court proceeded as if the wife has no income of her own and, therefore, is dependent upon the income of the husband. A salary slip was produced before the Trial Court by the husband and it is held by the Trial Court that the gross salary of the husband is above Rs. 1,00,000/-. The Court after allowing the statutory deductions arrived at a positive finding that the net income of the husband is Rs. 86,599/- per month and proceeded to award the maintenance of Rs. 13,000/- per month to the wife and Rs. 9,000/- for the minor daughter.

Learned advocate appearing on behalf of the petitioner submits that the husband has, in fact, concealed his actual income, which is within his special knowledge and, therefore, failed to discharge the onus cast on him under Section 106 of the Indian Evidence Act.

I am not agreeable to accept such submission advanced at the Bar. Section 106 of the Indian Evidence Act postulates that if a fact is within the special knowledge of a person, the onus lies on him to disclose such fact. It is also equally true that if a person has suppressed the relevant fact within his special knowledge, the Court can draw an adverse inference and can proceed to pass an order accordingly.

In the instant case, the husband has not suppressed his income as the salary slip was produced before the Trial Court wherefrom his income can be reflected. If the wife says that the said salary slip does not reflect the actual income of the husband, the onus shifts on her to rebut such presumption. There is no material produced by the wife before the Trial Court, which may throw light on the salary slip produced by the husband in order to arrive at a definite conclusion that what has been shown therein is not the true and correct statement.

The petitioner further says that the quantum of maintenance should be determined on various factors viz., the income of the other spouse, the status in the society, the position in his professional career so on so forth. To buttress the aforesaid submission reliance is placed upon a Division Bench judgment of this Court passed in Chitra Sen Gupta v. Dhruba Jyoti Sen Gupta, reported in 1987 (1) Calcutta High Court Notes 450.

It is, thus, contended that the expression "to support" lexically means to supply the necessities and, therefore, the Court must take due regard to the income and the stand of the husband vis-a-vis the necessities to maintain the status and dignity of the husband. There is no quarrel to the proposition as laid down in the said report. The expression "sufficient for her support", appearing in Section 36 of the Special Marriage Act, must depend upon the status, position and the income of the other spouse. There should be an objectivity in ascertaining the quantum of maintenance depending upon the various factors, which may vary from case to case.

There cannot be a straight jacket formula for ascertainment of the quantum of maintenance as suggested by the learned advocate appearing on behalf of the petitioner. According to him, there is plethora of judgments rendered by the different High Courts awarding the maintenance as ⅕th of the total income and in some of them it is ⅓rd.

As indicated above, the decision in a case is what it decides in relation to the special facts involved therein. Neither Section 24 of the Hindu Marriage Act nor Section 36 of the Special Marriage Act contains any such provision and, therefore, this Court cannot accept the submission of the petitioner in this regard.

The quantum of maintenance varies not only on the income of the husband but his position and status in the society. The Court while ascertaining the quantum of maintenance must bear in mind the comfort, luxury and other facilities and amenities enjoyed by the wife while living with the husband in the matrimonial house. Even the judgment of the Division Bench supports the above view, which can be seen from the observations recorded in paragraph 3 thereof, which is quoted herein below:

"The learned Counsel has next urged that under section 24 of the Hindu Marriage Act, a spouse is entitled to maintenance pendente lite only if she or he "has no independent income sufficient for her or his support". The learned Counsel has pointed out that the wife petitioner in this case has admittedly a regular gross monthly income of more than Rs. 1900/- per month and a net monthly income of not less than Rs. 1200/- per month as an Upper Division Clerk and the learned Counsel has accordingly contended that she has sufficient independent income for her support and, therefore, is not entitled to any maintenance under section 24 of the Hindu Marriage Act."

In the instant case, the husband during the cross-examination admits that the total expenditure of the minor daughter ranges between Rs. 5,000/- to Rs. 6,000/- per month. Though the petitioner, in the supplementary affidavit filed before this Court, intended to impress the Court that the annual fees and the other fees towards education of the minor daughter reveal something more than what has been awarded by the Trial Court. The petitioner wanted to bring some more facts that studying in a Convent School sometimes invites other expenditures for which no documentary evidence can be produced.

The Court is not denuded to take judicial notice of the prevalent practise developed in recent period of time. There is hardly any doubt that apart from the educational fees there are other expenditures, which the parents have to incur towards child in course of his/her upbringing. The husband admits that there would be expenditure for education of the child at Rs. 6,000/- per month. This Court feels that the quantum awarded by the Trial Court for maintenance of the daughter at Rs. 9,000/- is on the lower side.

So far as the quantum of maintenance awarded to wife is concerned, she is admittedly residing in her parents house and, therefore, sum of Rs. 13,000/- per month cannot be said to be shockingly low and is not sufficient to cater her daily needs.

This Court modifies the impugned order to the extent that the husband shall pay a sum of Rs. 12,000/- to the minor daughter instead of Rs. 9,000/- as awarded by the Trial Court. So far as the maintenance granted to the wife is concerned, it is un-interfered with.

The wife says that the husband has not paid the maintenance, which has been denied by the husband. The parties are at liberty to take appropriate steps in this regard.

The arrears amount towards maintenance of the minor daughter shall be paid by the husband along with the current monthly alimony in six instalments.

With these observations, the revisional application is disposed of.

However, there shall be no order as to costs.