Sougata Mukherjee vs Paromita Mukherjee

The present challenge is at the instance of the plaintiff-husband in a divorce suit against an order, whereby the petitioner was directed to pay alimony

at the rate of Rs. 18,000/- (Rupees eighteen thousand) only per month and litigation costs of Rs.10,000/(Rupees ten thousand) only to the opposite

party-wife. Learned counsel for the petitioner argues that the trial court resorted purely to conjecture to factor in the alleged income of the petitioner-

husband from private tuition.

It is evident from the impugned order, he submits, that there is absolutely no basis of such conjecture and as such, the assessment of income of the

husband in the impugned order suffers from infirmity on that score. This apart, the husband has to bear some liability towards his mother in lieu of her

medical expenses and other necessary expenses. Such expenses were not given due credit while assessing the income of the husband.

It is submitted further, if the Form-16 of the husband is seen in the context of the income tax payment of the husband, it will be seen that the actual

income of the husband, after statutory deductions, would be much less than as has been shown in the salary slip of the husband. Learned counsel for

the petitioner cites an unreported judgment rendered by a coordinate Bench of this Court on March 29, 2011, in the matter of Soumen Bhattacharjee

Vs. Paramita Bhattacharjee (Ganguly) (C. O. No. 128 of 2011) in support of the proposition that the amount paid by the husband for maintenance of

his parents is to be considered while assessing the alimony payable to the wife.

Learned counsel for the petitioner also cites a judgement reported at II (1997) DMC 447, to bolster his argument as to the rate at which alimony is to

be granted, being a standard 1/5th of the husband’s average net income. He, further, cites a judgment reported at (1994) 2 CALLT 97 HC (Smt.

Rina Sen Vs. Aloke Kumar Sen), to substantiate the proposition that ordinarily 1/5th of the net income of the husband is granted as alimony.

Learned counsel for the opposite party-wife, while controverting the arguments advanced on behalf of the petitioner, submits that in the impugned

order itself, it was recorded by the trial court that the trial court was not inclined to hold that the husband has any other source of income or the wife

has any other income. By relying on such recording, learned counsel seeks to establish that, although in previous portion of the impugned order the

court proceeded on a presumption that the husband has income from private tuition, in the latter portion, while assessing the income of the husband,

earning from private tuition might not have been considered.

Learned counsel for the opposite party also places reliance on the pay slip of the husband, which the opposite party obtained by taking out a query

under the Right to Information Act, from which it is evident that the gross income of the husband was Rs. 52,620/- (Rupees fifty two thousand six

hundred and twenty) only per month and the net income was Rs. 45,847/- (Rupees forty five thousand eight hundred forty seven) only, at least for the

month of February, 2018.

Thus, it is submitted on behalf of the opposite party, that the trial court was absolutely justified in passing alimony at the rate of Rs. 18,000/- (Rupees

eighteen thousand) only per month and litigation costs of Rs.10,000/- (Rupees ten thousand) only. A perusal of the impugned order shows that,

although in one place the trial court held that the opposite party-husband had no other source of income, apparently such “other source of incomeâ€

was meant to be those other than the salary as well as income from private tuition of the husband.

In fact, the subsequent sentence to that in which it was recorded that the husband had no other source of income, the court below proceeded on the

premise that the husband used to earn Rs. 50,000/- to 55,000/- per month from his salary and by way of private tuition. It is clear from the impugned

order that the trial court proceeded on conjecture alone in arriving at the finding that the husband had annual income of Rs. 6,00,000/(Rupees six lakh)

only, on the arbitrary presumption that he has income from private tuition, which is not borne out in the petition.

However, this Court is unable to accept the contention of the learned counsel for the petitioner-husband, that deductions in the Form-16 have to be

considered in preference over pay slip of the husband, produced by the wife, to correctly assess the income of the husband. The pay slip of the

husband clearly shows that net income of the husband was to Rs.45,847/- (Rupees forty five thousand eight hundred forty seven) only at least for the

month of February, 2018 which indicated his monthly income.

The argument, that the expenses by the husband for his ailing mother have to be factored in, cannot be accepted. Although such credit was given to

expenses for parents in the unreported judgment cited by learned counsel for the petitioner, such finding in the said judgement could not be said to

have laid down a general ratio in that regard. In every case of alimony, assessment has to be made on the facts of the case and there cannot be any

hard and fast rule as to the exact fraction of the income at which alimony is to be granted. In fact, in the present case, the mother of the husband

herself earns Rs. 10,000/(Rupees ten thousand) only per month as pension and it cannot be said that she is dependent entirely on the petitioner.

Moreover, the liability of husband to pay alimony to the wife is irrespective and independent of his other liabilities. Although a pragmatic approach has

to be taken in granting alimony, a judicial exercise of discretion on proper yardsticks ought not to be interfered with under Article 227 of the

Constitution at the drop of a hat. In the instant case, the only erroneous yardstick applied by the trial court was to resort to conjecture in arriving at a

finding that the husband had income from private tuition, which had no basis whatsoever.

Even if income from private tuition is overlooked, the net salary of the husband is more than Rs. 45,000/- per month, as is evident from the pay slip of

the husband, produced by the opposite party-wife. Taking the rule of thumb of granting alimony to be 1/5th to 1/3rd of the net income of the husband,

as is the general approach adopted by courts, 1/3rd of the said amount comes to a little more than Rs. 15,000/- per month. Hence, it may be said that

the amount of Rs.18,000/- of alimony was a bit on the exorbitant side, at least by Rs. 3,000/- per month.

Accordingly, C. O. 1635 of 2018 is disposed of by modifying the impugned order to the extent that the present petitioner-husband will pay to the

opposite party-wife Rs.15,000/- (Rupees fifteen thousand) only per month as alimony from the date of the application, as directed by the trial court.

The arrears amount will have to be paid by the petitioner-husband to the opposite party-wife within six months from this date. The quantum of

litigation costs, that is, Rs. 10,000/- (Rupees ten thousand) only is not interfered with and will have to be paid by the husband within the time as

stipulated by the court below.

The current alimony will commence with Rs. 15,000/- (Rupees fifteen thousand) only per month from June, 2018, payable within July 7, 2018. The

petitioner-husband will go on paying current alimony thereafter within the seventh day of each succeeding month for each English calendar month.

There will be, however, 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.