Sukanta Mondal vs Amrita Mondal (Saha)

Sabyasachi Bhattacharyya, J

The present challenge is directed against an order of alimony granted at the rate of Rs.70,000/- per month to the wife-opposite party and litigation costs of Rs.45,000/- .

Learned counsel for the petitioner argues that the petitioner produced sufficient documents to establish that he had no regular income, apart from interest from certain bank accounts and investments.

In fact, placing reliance on paragraph 11 of the alimony application of the wife itself, the petitioner's counsel points out that even the opposite party stated that the petitioner has monthly income from bank interest, rent from tenants, security, debentures and other profits, amounting to Rs.2,00,000/- per month approximately. No regular salary or other employment of the husband was alleged even in the alimony application itself.

It is further submitted that the trial court proceeded on the premise that the husband did not disclose his income appropriately, but did not arrive at any finding, even on a reasonable guesswork, as to the actual income of the husband. It is further submitted on behalf of the petitioner that Section 106 of the Indian Evidence Act applies to both the wife and the petitioner-husband, inasmuch as the opposite party also did not produce documents relating to her actual income, apart from producing certain income tax documents. As such, in view of the admitted monthly income of the wife being Rs.22,000/-, it is submitted by the petitioner that the opposite party was not entitled to any alimony at all, let alone the exorbitant sum of Rs.70,000/- per month.

Learned counsel for the opposite party, on the other hand, submits that it is well-settled in law that the court can resort to reasonable guesswork to arrive at a finding as to the income of the husband, in the event husband does not produce any document as to his actual income. Learned counsel for the opposite party submits that since the income of the husband from securities and bank accounts alone is admittedly around Rs.5,00,000/- per year, it can very well be guessed as to what is his regular income otherwise. It is further pointed out by learned counsel for the opposite party that the husband even admitted in his cross-examination that he has a "monthly income". It is further submitted on behalf of the opposite party that the husband tried to misguide the trial court as far as his income is concerned, for which it was entirely justified for the trial court to arrive at its own finding as to the income of the husband and pass the impugned order.

Learned counsel for the opposite party argues that one of the premises for grant of alimony is the respective status of the parties, which, in the present case, is established by the number of the mobile phones, other assets and a family cinema business belonging to the husband.

It is further submitted that the husband owns several vehicles as well, which go on to show the status of the husband and is commensurate with the alimony granted by the trial court.

It is lastly argued on behalf of the opposite party that the trial court was in the best position to notice the demeanour of the husband as a witness and it is not permissible to interfere with the observations as to the demeanour of the husband, arrived at by the trial court, before whom the witness was present, within the limited scope of Article 227 of the Constitution of India.

A consideration of the materials-on- record shows that the wife admitted that her monthly income from a partnership business of her family is Rs.22,000/-. However, as pointed out by learned counsel for the petitioner, there was a previous order dated December 17, 2018 passed by this Court in C.O. No. 4136 of 2018, which recorded that, on the prayer of the learned advocate appearing on behalf of the opposite party-wife, the opposite party was granted liberty to use affidavit-in-opposition disclosing documents relating to the partnership business , in which the opposite party was one of the partners, and other related documents, if she wished to do so, within a particular period.

As such, the petitioner argued validly, an adverse inference could be drawn against the wife for not disclosing her income from the partnership business.

Moreover, the trial court apparently proceeded merely on the basis of assets allegedly owned by the husband, which cannot by themselves be factors for granting alimony pendente lite, although those may be relevant for granting permanent alimony.

It is well-settled that the current incomes of the parties have to be considered while granting alimony under Section 24 of the Hindu Marriage Act as well as under Section 36 of the Special Marriage Act, which have common considerations to a certain extent.

Moreover, it is seen from the impugned order that even as per the finding of the trial court, the yearly income of the husband from his bank account interest and investments amounted to Rs.5,00,893/-. The trial court took an adverse inference against the husband for disclosing that his income was Rs.40,000/- per month, which was not far off from the actual monthly income of the husband, as arrived at by the trial court on the basis of his annual income.

Such minor discrepancy was not sufficient to draw an adverse inference and to disbelieve the husband-petitioner as regards his income altogether.

Moreover, the statement/admission of the husband as regards his monthly income of Rs.40,000/- from the "paternal income benefits" could not be equated with the husband having an employment somewhere. The statement itself, read in conjunction with the allegation made by the opposite party-wife in her own alimony application, go on to show that the income of the husband is restricted to the interest obtained from his savings and investments, which were substantially disclosed by the husband in the court below.

As such, the trial court was not justified in applying the principle embodied in Section 106 of the Indian Evidence Act to the husband alone, since the opposite party-wife has also suppressed her income from the partnership firm and her profit-sharing ratio therein. Moreover, Section 36 of the Special Marriage Act makes it a pre-condition for the wife not to have any independent income sufficient for her support and the necessary expenses of the proceeding, for the Court to order the husband to pay to her the expenses of the proceeding and monthly alimony, as the court thinks reasonable.

In the present case, nothing was proved about the alleged status of the husband to compensate the wife by granting an exorbitant alimony to the tune of Rs.70,000/- per month, which could not be commensurate with the status of the husband, at least from the materials which were produced before the court below by either side. Owning three mobile phones or certain vehicles, and having certain assets, could not ipso facto be an indicator of the status of the husband, sufficient to justify grant of alimony to the tune of Rs.70,000/- per month.

More importantly, the court below did not take into consideration the admitted monthly income of the wife to the tune of Rs.22,000/-, which, even without taking into consideration any profit which she may be earning from the partnership firm, would be independent income sufficient for her support, to preclude the court from invoking the provisions of Section 36 of the Special Marriage Act at all.

As such, the trial court acted without jurisdiction in awarding an alimony of Rs.70,000/- per month to the wife or, for that matter, alimony at all, in view of the sufficient independent income of the wife to support herself as well as in granting litigation costs, in view of the independent income of the wife.

Accordingly, C.O. No. 3214 of 2019 is allowed on contest, thereby setting aside the impugned order without, however, any order as to costs.

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