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2011 DIGILAW 37 (CAL)

Baidyanath Ray v. Suvra Ray Nee Hazra

2011-01-11

PRASENJIT MANDAL

body2011
JUDGMENT PRASENJIT MANDAL, J. 1. CHALLENGE is to the order no.8 dated December 6, 2008 passed by the learned Judge, Fast Track First Court, Barrackpore in Matrimonial Suit No.649 of 2008. 2. THE husband/petitioner filed the said suit under Section 13 of the Hindu Marriage Act before the learned District Judge, North 24 Parganas at Barasat. That suit was transferred to the learned Fast Track First Court at Barrackpore for disposal. In that suit, the wife/opposite party appeared and filed an application praying for alimony. That application was allowed directing the husband/petitioner to pay a sum of Rs.2,700/- per month as maintenance of the wife and her son and a litigation cost of Rs.5,000/-. Being aggrieved by the said order of alimony, the husband has come up with this revisional application. Now, the point for consideration is whether the impugned order should be sustained. Upon hearing the learned Advocate for the petitioner and on going through the materials on record, I find that the wife has claimed that the husband/petitioner earns Rs.10,000/- per month from his service and that beside the above income, he has landed properties and thus, he earns a lot of money. For that reason, she claimed maintenance to the extent of Rs.4,000/- per month for herself and her son and also a sum of Rs.700/- per month towards the expenses of the child and a litigation cost of Rs.6,000/-. The learned Trial Judge has granted alimony at the rate of Rs.1,500/- per month for the wife and Rs.1,200/- for the child and a litigation cost of Rs.5,000/-. 3. THE learned Advocate for the petitioner points out that the husband/petitioner earns nominal amount of Rs.5,850/- per month out of which he has to deduct Rs.630/- as P.F. and P. Tax of Rs.45/- and thus, the husband gets a net amount of Rs.5,175/- as his salary. THE learned Advocate has also drawn my attention to the page no.77 of the application which supports his contention. 4. THIS is a pay certificate issued by the employer in favour of the husband. There is no counter evidence on behalf of the wife that the husband has any other income beside this income. It is not shown to the Court what is the amount of income of the husband from his agricultural land. 4. THIS is a pay certificate issued by the employer in favour of the husband. There is no counter evidence on behalf of the wife that the husband has any other income beside this income. It is not shown to the Court what is the amount of income of the husband from his agricultural land. In absence of any evidence contrary to what has been shown at page 77 of the application, I have no other alternative but to accept the net income of the husband as Rs.5,175/- per month. THIS being the position, the payment of alimony to the extent of Rs.2,700/- cannot be supported. So far as liability of the husband as is appearing from the annexures, I find that the husband has contended that he is a heart patient and he has to expend a lot of money for that purpose. He has to pay the premium for the two insurance policies, one in the name of the husband himself and another in the name of the wife/opposite party herein. Beside that he has been paying maintenance to the wife at the rate of Rs.1,500/- per month as granted earlier in favour of the wife. Such fact has not been taken into consideration. 5. THIS being the position, upon due consideration of the materials on record, I am of the view that the order impugned needs modification. The learned Trial Judge has failed to exercise his jurisdiction properly in the matter. So far as the order of litigation cost of Rs.5,000/- is concerned, I am of the view that this amount should not be disturbed. The husband shall have to pay such amount. So far as the quantum of maintenance for the wife and her son, I find that the husband has been paying maintenance to the wife at the rate of Rs.1,500/- per month. THIS quantum of maintenance, I hold should be retained for the wife and not more. So far as alimony for the son, I am of the view that the husband should be directed to pay alimony at the rate of Rs.800/- per month only. In all the husband shall pay Rs.1,500/- for the wife per month and Rs.800/- per month for the son as alimony to the wife. So far as alimony for the son, I am of the view that the husband should be directed to pay alimony at the rate of Rs.800/- per month only. In all the husband shall pay Rs.1,500/- for the wife per month and Rs.800/- per month for the son as alimony to the wife. Such order shall be effective from the date of passing of the impugned order and it shall remain in force till the disposal of the application. I have recorded earlier that the quantum of litigation cost as granted shall not be disturbed. The cost for litigation must be paid within two months from date. The husband shall pay up all the arrear alimony at the above rate, less amount already paid as maintenance to the wife within 2 months and he shall go on paying current alimony within 7 days of the succeeding month. 6. THIS application is disposed of in the manner indicated above. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.