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2010 DIGILAW 947 (CAL)

Pradip Kumar Sarkar v. Maitrayee Sinha

2010-08-09

PRASENJIT MANDAL

body2010
JUDGMENT Prasenjit Mandal, J. 1. THIS application is at the instance of the husband and is directed against the order no.18 dated 02.06.2008 passed by the learned Additional District Judge, Second Fast Track Court, Siliguri in Misc. Case No.2 of 2008 arising out of the Matrimonial Suit No.140 of 2007. By the impugned order, the learned Trial Judge has directed payment of maintenance to both the parties to the suit to the extent that the husband would pay Rs.4,500/- per month and the wife would pay Rs.2,500/- per month for maintenance of their child. Being aggrieved, the husband has preferred this application for setting aside the impugned order. 2. ADMITTEDLY, one matrimonial suit is pending between the husband and wife under Section 13 of the Hindu Marriage Act before the learned Additional District Judge, Second Fast Track Court, Siliguri filed by the wife/plaintiff. In that suit, the husband appeared and filed a written statement. The wife filed an application under Section 26 of the Hindu Marriage Act claiming maintenance at the rate of Rs.7,000/- per month for the child till disposal of the suit. Both the parties being the service holder, the application was disposed of in the manner as stated above. Thereafter, the husband has preferred this application. Mr. Talukdar, learned Advocate appearing on behalf of the husband/petitioner herein submits that the wife is a teacher of a primary school and she earns more than Rs.8,000/- per month. On several occasion, the husband requested the wife to allow him to meet his son but he was denied by the wife to meet his child and even she misbehaved with the husband. He also submits that the husband is ready and willing to bear the expenses that will be needed for education of his son; provided he is permitted to pay up the dues directly to the educational institution where the son studies. Even the husband has a computer, he can share the computer with his son if the wife permits. For that reason, no claim to have the computer for the child, should be considered. Mr. Talukdar also contends that the wife is a schoolteacher and so she is financially solvent to meet the demand of the son. 3. MS. Sarkar, learned Advocate appearing on behalf of the wife/opposite party herein, vehemently objects against such a contention of Mr. For that reason, no claim to have the computer for the child, should be considered. Mr. Talukdar also contends that the wife is a schoolteacher and so she is financially solvent to meet the demand of the son. 3. MS. Sarkar, learned Advocate appearing on behalf of the wife/opposite party herein, vehemently objects against such a contention of Mr. Talukdar stating, inter alia, that the school authority of the son, will not allow the husband to make payment because the son is under the care and custody of the wife and if such prayer is granted, there may be awkward situation for maintenance and the welfare of the child may be hampered. Question of sharing the computer does not arise. It will not serve any purpose. 4. UPON due consideration of the rival contention of the parties and on perusal of the materials on record, I find that admittedly the marriage between the two parties held, parties were blessed with a son and that now the son is studying in an education institution. Admittedly, the wife is a primary school teacher and she earns more than Rs.8,000/- per month. Admittedly, the husband is also a service holder and according to his own admission, he gets the gross salary of Rs.17,000/- per month. Thus, I find that both the spouses are service holders with the difference of pay of 2 : 1 ratio with regard to the husband and the wife. The learned Trial Court assessed the quantum of maintenance that is necessary for the child is to the extent of Rs.7,000/- per month and he has made distribution of the claim in the ratio of Rs.4,500/- and Rs.2,500/- payable by the husband and the wife respectively. Having regard to the income of the spouses, I hold, that the learned Trial Judge has rightly made distribution of the payment according to the income of the spouses. 5. AS regards the computer, the contention of the husband that he would share the computer with the child cannot be accepted because it may create many problems afterwards relating to the child being influenced by the father and his education might be hampered. Mr. Talukdar submits that the xerox copy shown to the court indicates that one computer was given to the son. This paper, I hold, is not clear, at all, if any computer was given to the son. Mr. Talukdar submits that the xerox copy shown to the court indicates that one computer was given to the son. This paper, I hold, is not clear, at all, if any computer was given to the son. Moreover, such paper is not supported by affidavit. The wife also did not admit such contention. Therefore, such contention of the husband, I hold, has been rightly rejected by the learned Trial Judge by the impugned order. The Court directed that both the parties shall pay the costs of the computer in equal share. This is the discretionary power exercised by the Court and having regard to the income of both the parties, I am of the view that if such order sustains, the wife will not suffer any financial loss much because it will be a one time payment. Therefore, the exercise of such discretionary power, I am of the view, should not be interfered with. 6. AFTER close of the argument Mr. Talukdar hands over three pages of certain xerox copy to show that husband has paid certain amount. First of all, upon hearing both the sides, I find that these xerox copies are ineligible and it is not supported by any affidavit. However, both the learned lawyers are directed to take necessary instructions from their respective parties and then to take necessary steps for realisation of the money from the husband. If the amount has actually been paid, as appearing from the ineligible copy, such amount must be adjusted. Still then, if there are dues for payment from the husband to the wife, such arrears of payment must be made within 30 days from this day failing which the wife will be at liberty to take appropriate steps for realisation of the dues. With the above orders, the application is disposed of. Considering the circumstances, there will be no order as to costs.