Niladri Sekhar Basu vs Smt. Sarmistha Basu

Prasenjit Mandal, J.—Challenge is to the Order No. 46 dated April 19, 2008 passed by the learned Additional District Judge, 4th Court, Alipore in Misc. Case No. 21 of 2005 arising out of a Matrimonial Suit No. 27 of 2003. The parties to this application were married according to Hindu Customs and Rites on November 15, 1985 and thereafter they lived together and two daughters were born in the wedlock but the relationship between the two became strained and the wife filed a suit for dissolution of marriage in 1998. Ultimately, the said suit was dismissed on the prayer of the wife. Thereafter, in 2003, the wife filed another matrimonial proceeding being Matrimonial suit No. 27 of 2003 before the learned District Judge at Alipore for dissolution of marriage and in that suit she filed an application u/s 24 of the Hindu Marriage Act claiming pendente lite alimony and litigation costs. On the basis of the materials-on-record, the learned Trial Judge, by the impugned order, granted alimony at the rate of Rs. 9,000/-per month for the three and litigation costs of Rs. 2,500/-. Being aggrieved by such order, the husband has filed this application. Now, the question is whether the impugned order should be sustained.

Upon hearing the learned Advocates for the parties and on going through the materials-on-record, I find that the marriage between the two is not in dispute. At present it is not in dispute that the wife is living separately with her two daughters and the eldest daughter is residing at Bangalore and doing higher studies. The youngest daughter is residing with the mother in Kolkata and she is a student of Loretto High School. While granting alimony and the litigation costs, the learned Trial Judge did not accept the contention of the husband that his monthly income is to the tune of Rs. 9,000/- per month. He is relied on the Income Tax Return submitted by the husband showing the actual income of the husband as Rs. 1,71,000/- only per annum.

The contention of the husband is that his income from the service is to the tune of Rs. 8,921/- only per month as per Annexure ''A'' to the application and this paper should have been taken as basis for determining the quantum of alimony.

Mr. Siblal Basu, learned Advocate appearing for the petitioner, has contended that the learned Trial Judge has not considered this paper properly but has considered the income tax return filed by the husband/petitioner herein.

Mr. Basu has also contended that the alimony should be granted so that the wife and the two children are able to maintain the status of the husband and not higher. In the instant case, the eldest daughter is making higher studies at Bangalore at heavy expenses and the youngest daughter is studying at Loreto High School and such type of rendering education to the children are beyond the status of the husband and as such, in consideration of his income, he is unable to make such payment.

On the other hand, Mr. M.M. Goswami, learned Advocate appearing for the opposite party has contended that the pay certificate has produced by the husband cannot be accepted because it relates to the year of 2006 and the learned Trial Judge has rightly accepted the income tax return submitted by the husband as his true income for the relevant period.

Having considered the materials-on-record and the above submissions, I find that the salary certificate appearing at Annexure ''A'' relates to the month of October, 2006 whereas the impugned order was passed on April 19, 2008 that is more than 1 year and 6 months. So, in the mean time the salary of the husband might have been changed and he has produced the certificate which may be favourable to him. Therefore, the learned Trial Judge was right in rejecting the said paper. The learned Trial Judge has relied on the income tax return and such income tax return shows the income of the husband to the tune of 1,77,056/- only per annum for the purpose of calculation of the Income Tax of the husband. The husband is not in a position to deny this material-on-record. This paper could well be taken into consideration to determine the income of the husband from different sources for the purpose of determining the alimony. So, the learned Trial Judge was right in accepting the income of the husband as noted in the Income Tax Return appearing at page No. s 19 & 20 of the application. However, since the petitioner has contended that it is too excessive to bear such alimony for him.

I am of the view that since the eldest daughter is making higher studies in Bangalore, the amount of Rs. 4,000/- only per month for the eldest daughter should not be disturbed. However, the alimony for the wife and the youngest daughter should be at the rate of Rs. 2,000/- only per month for each in all 8,000/- only per month. However, after completion of the higher studies at Bangalore, the husband will be at liberty to pray for alteration of the alimony in respect of the eldest daughter if the situation demands.

The impugned orders so far as alimony pendente lite is concerned is modified to that extent.

As regards litigation costs, since a very nominal amount of Rs. 2,500/- only has been awarded and so, this quantum of litigation costs should not be interfered with. The other terms and conditions relating to mode of payment, etc. are not also interfered with.

This revisional application is 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.