Shibanju Mukherjee vs Rajannya Mukherjee

Sabyasachi Bhattacharyya, J

The present challenge is at the behest of the husband in a matrimonial suit, against an order whereby alimony at the rate of Rs.17,000/- per month was granted to the opposite party/wife and Rs.30,000/- as litigation costs.

Learned senior counsel appearing for the petitioner submits that the court below itself found that the income of the opposite party per month is Rs.32,958/- , yet granted around half of that amount as alimony, which is by all standards exorbitant, without recording any specific reason for doing so. Moreover, with the leave of the Court, the petitioner files a supplementary affidavit today, which is kept on record, from which it appears that certain photocopies of documents, allegedly pertaining to the income of the opposite party/wife during a period after filing of the alimony application, have been annexed.

Learned counsel for the opposite party controverts the documents annexed to the supplementary affidavit and the veracity thereof. It is further submitted that all documents and materials produced before the court below regarding the income of both parties were fully considered by the trial court, as such not entitling the petitioner to produce further documents in that regard at this stage.

It is further submitted on behalf of the opposite party, that the trial court entered into the merits of the case and adverted to all the materials on record and as such, there was no jurisdictional error in the impugned order in granting alimony at the rate of Rs.17,000/- per month.

However, upon considering the materials on record and the impugned order, it prima facie appears that half of the income of the husband, found by the trial court itself, ought not to have been awarded as alimony since it would be exorbitant and unjust on the husband. Although there is no precise upper or lower limit to alimony which can be awarded as per the judicial opinion prevalent, there is no clear reflection in the impugned order as to the exact status of the parties and the respective conditions of living of the parties to justify an alimony much greater than the usual rule of thumb, which is between one/third and one/fifth of the income of the husband. Moreover, since certain documents have been prima facie produced before this Court by way of supplementary affidavit, relating to the income of the wife, after filing of the alimony application and alimony has been granted since the date of filing of the application, such documents would attain some relevance, in the event those are proved to be genuine.

Under such circumstances, it would be proper if the mater is remanded to the court below for re-adjudication of the alimony application, upon permitting both sides to adduce additional evidence, if necessary, and to decide the merits of the case afresh, upon hearing both sides.

Accordingly, C.O. 3063 of 2019 is disposed of by setting aside the impugned order and directing the trial court to decide the alimony application filed by the opposite party afresh, in the light of the observations made above, permitting both sides to adduce further evidence as to their respective incomes, if any, and other relevant factors. The fresh disposal of the alimony application shall be concluded by the trial court within November 30, 2019. As a condition of this order, the petitioner/husband shall go on paying an ad hoc amount of Rs. 10,000/- per month to the opposite party/wife, which shall be subject to the result of the alimony application, after it is decided afresh by the trial court, and shall be adjusted with the amount, if any, granted by the trial court. It is made clear that the ad hoc payments directed herein shall be without prejudice to the rights and contentions of the parties. Since the opposite party was not invited to file affidavit in opposition to the supplementary affidavit, it is deemed that the opposite party does not admit the allegations made in the supplementary affidavit.

There will be no order as to costs.

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