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2011 DIGILAW 489 (CAL)

Aditya Malhotra v. Namrata Malhotra

2011-04-05

PRASENJIT MANDAL

body2011
Judgment :- Prasenjit Mandal, J. These two applications are directed against the Order No.53 dated January 15, 2007 passed by the learned Civil Judge (Senior Division), 8th Court, Alipore in T.S. No.62 of 2005 thereby disposing of an application for interim maintenance. Since the two applications have arisen out of the common order, they are disposed of by this common judgment. For convenience, I am taking up the C.O. No.758 of 2007 first. C.O. No.758 of 2007 This application has been preferred by the defendant husband in a suit under the provisions of Section 18 of the Hindu Adoption and Maintenance Act, 1956. The wife/opposite party herein instituted the suit under the provisions of Section 18 of the Hindu Adoption and Maintenance Act claiming maintenance for herself and her twin daughters contending, inter alia, that the marriage between the parties was solemnised according to Hindu rights & rituals in Kolkata. The parties to the marriage resided at Ranchi (Jharkhand). They were blessed with twin daughters on April 17, 2003. Thereafter, the wife/opposite party herein went to her father’s house in Kolkata. She preferred to stay at her paternal’s house on the pre-text that she was required medical treatment. After several persuasions, the wife/opposite party herein came to her in-laws house in July 2003. Then the opposite party went to her father’s house on November 30, 2003. The parents of the opposite party lodged a complaint on December 3, 2003 against all the members of the petitioner’s family before the West Bengal Commission for Women. The petitioner persuaded her to return to Ranchi in vain. Ultimately, the petitioner filed an application under Section 9 of the Hindu Marriage Act, 1955 on March 19, 2004. The wife/opposite party lodged a suit under the provisions of the Hindu Adoption and Maintenance Act being T.S. No.10 of 2004 claiming maintenance for herself and for her twin daughters. The petitioner filed an objection against the said petition. The parties filed documents in support of their respected contentions. By an order dated March 13, 2006, the learned Civil Judge (Sr. Division) allowed the prayer for interim maintenance granting Rs.20,000/- per month for the O.P. herself, Rs.15,000/- per month for the two twin daughters and also a litigation cost of Rs.50,000/- w.e.f. the date of filing of the application. Being aggrieved by that order, the husband preferred a civil revision. Division) allowed the prayer for interim maintenance granting Rs.20,000/- per month for the O.P. herself, Rs.15,000/- per month for the two twin daughters and also a litigation cost of Rs.50,000/- w.e.f. the date of filing of the application. Being aggrieved by that order, the husband preferred a civil revision. While disposing of the said civil revision, by an order dated September 11, 2006, one of the learned Judges of this Hon’ble Court directed the learned Trial Judge to decide the matter afresh and the parties were allowed to adduce evidence/material in support of their respective contentions. Accordingly, both the parties, particularly, the husband filed certain documents in support of his contention. Thereafter, by the impugned order, the learned Trial Judge directed the husband/petitioner herein to pay interim maintenance at the rate of Rs.8,000 only per month for the wife and Rs.12,000 per month for the twin daughters and a sum of Rs.20,000 as litigation cost. Being aggrieved by the said impugned order, the husband has preferred this revisional application. The wife/opposite party herein filed the other civil revision being C.O. No.645 of 2007 for enhancement. Now, the question is whether the impugned order should be sustained. Upon hearing the learned Counsel for the parties and on going through the materials on record, I find that the following facts are not disputed:- i) That the parties were married according to Hindu rights & customs on November 17, 1997 in Kolkata. ii) After marriage, the parties stayed at Ranchi (Jharkhand). iii) At the time of marriage, the husband was a partner of M/s. Victor Corporation (India). This concern was a partnership business as per partnership date of 1994-95 whereby the father of the petitioner held 50 per cent share, the husband became 20 per cent shareholder and his brother became the rest 25 per cent shareholder. iv) Twin daughters were born in the wedlock between the parties on April 17, 2003. v) Since, the last part of 2003, the wife has been residing at her father’s house in Kolkata along with her twin daughters. vi) The wife/opposite party herein is not a service holder. vii) That since the wife has been staying at her father’s house, the husband did not pay any maintenance either for the wife or for the twin daughters. vi) The wife/opposite party herein is not a service holder. vii) That since the wife has been staying at her father’s house, the husband did not pay any maintenance either for the wife or for the twin daughters. During the pendency of the hearing of the application for interim maintenance, the husband paid a sum of Rs.50,000/- in one occasion and Rs.25,000/- on a subsequent occasion as per order of the Court and such amounts are to be adjusted as per order to be passed for interim maintenance. viii) The matrimonial proceeding under Section 9 of the Hindu Marriage Act lodged by the husband has been dismissed for default. Thereafter, the husband filed a suit for dissolution of the marriage between the parties and the said matrimonial suit is still pending. ix) The husband is a qualified person and he holds the degree of MBA. Mr. Roy chowdhury, learned Senior Advocate appearing for the husband contends that as per order dated September 11, 2006 C.O. No.1749 of 2006, this Hon’ble Court has observed that there must be some documents in support of the claim of the wife that the husband has got income of Rs.50 lac per year or in that region. Every order is to be substantiated by materials. There should be a reasoned order regarding payment of maintenance. The fixation of maintenance as granted by the learned Trial Judge having not been based on materials on record, the impugned order should be set aside. The husband is an employee of the business of his father. Previously, he was a partner but the partnership firm has been dissolved. The husband earned Rs.7,000/- only per month and now Rs.8,000/- per month. So, after remand the impugned order passed by the learned Trial Judge cannot be sustained. The findings of the learned Trial Judges are based on conjecture and speculative and so it cannot be supported. The income tax return filed by the husband indicates that the husband earns Rs.8,000/- per month now and such contention of the husband will be apparent from the materials filed by the husband after remand. Therefore, it is impossible for the husband to pay up the huge amount of interim maintenance has granted by the Trial Court. Thus, he submits that the impugned order should be set aside. On the other hand, Mr. Therefore, it is impossible for the husband to pay up the huge amount of interim maintenance has granted by the Trial Court. Thus, he submits that the impugned order should be set aside. On the other hand, Mr. Basu appearing for the wife contends that from the materials filed by the husband, it is obvious that the contention of the husband is not genuine. Even, the Income Tax Return shows that the husband has huge income. Otherwise, the husband would not have got income from other sources. It is also obvious from the papers that the husband is a member of several renowned clubs and he expends huge money in several organizations for the benefit of the children. But he did not pay any maintenance for his twin daughters. Therefore, the affidavit and the documents filed by the husband are not believable. So, the income as narrated by the wife should be accepted. Thus, Mr. Basu submits that the impugned order should not be sustained. Interim maintenance at the enhanced rate as claimed by the wife should be granted in favour of the wife and the twin daughters. As regards the income of the husband, the wife has clearly stated that the husband is an MBA. He comes of a rich family. They have family business in the name and style of M/s. Victor Corporation (India). The husband is a dealer in S.K.F. & N.R.B. Bearings, Fonnor Bolt, Oil Sealseot and also in the construction business and/or development of properties and thus, from different sources, the husband’s minimum income is of approximately Rs.50 lac per year. It may be pointed out that the wife stayed in the house of the husband since marriage up to the end of 2003 and, therefore, it is obvious for her to know the approximate income of the husband. It is difficult for the wife to collect materials to show the income of the husband. But the husband has full knowledge about his income and this is his special knowledge. He is, therefore, required to show the convincing materials to show his income. But he did not do so. He claims that he earns Rs.8,000/- per month as an employee. The wife has specifically stated the income of the husband in his application supported by an affidavit. He is, therefore, required to show the convincing materials to show his income. But he did not do so. He claims that he earns Rs.8,000/- per month as an employee. The wife has specifically stated the income of the husband in his application supported by an affidavit. Save and except oral statement supported by an affidavit, it is difficult for the wife to state the actual income of her husband. In this regard, the husband has contended that the family business has been turned into a proprietorship business as per deed of resolution of the partnership business. At present he is an employee of his father’s proprietorship business. The husband has filed certificates to show that previously he earned Rs.7,000/- per month from his employer and now he ears Rs.8,000/- per month from the said proprietorship business as an employee of the said concern. I have stated earlier that the husband is a qualified person. He is an MBA. The contention of the husband that though he is possessing the degree of MBA, he is working as an ordinary employee of his father’s concern and thus, he earns Rs.8,000/-per month at present, I hold, is difficult to believe. No prudent man would believe it. So far as the certificate from his employer is concerned, I am of the view that the learned Trial Judge has rightly commented that it is not difficult for the husband to get the certificates from his father that he is an ordinary employee of the concern of his father. Such type of certificate could be gathered at any time. So, no reliance could be placed on such certificates. So far as the dissolution of the partnership firm, the learned Trial Judge has rightly observed to the effect “what prevented the husband to file the deed of dissolution of the firm to substantiate the fact”. No deed of dissolution has been produced. Therefore, I am of the view that the learned Trial Judge has rightly disbelieved the contention of the husband that the partnership firm has been dissolved. The learned Trial Judge has rightly held that the husband is still a partner of the said firm having 25 per cent share. No deed of dissolution has been produced. Therefore, I am of the view that the learned Trial Judge has rightly disbelieved the contention of the husband that the partnership firm has been dissolved. The learned Trial Judge has rightly held that the husband is still a partner of the said firm having 25 per cent share. As regards the copy of the SARAL Form filed by the husband, I find that though the income as claimed by the husband has been reflected in the for the assessment years 2003-04, 2004-05 and 2005-06, the said copies lay down income of the husband from various sources such as interests from different sources including bonds huge deposits in P.P.F. purchase of N.S.Cs. Such deposits appear disproportionate to his income as disclosed by him. In consideration of the income from other sources as reflected in the Returns, it is obvious that the investments in the respective financial years was much more than the income claimed by the husband such as Rs.7,000/- or 8,000/- per month. So, unless and until, the husband earns huge amount from different sources such type of deposits to different concerns, bonds, etc. the amount of investment could not fetch such huge returns. Thus, the income tax returns, prima facie, show that the income as claimed by the husband is not believable. It also appears that the husband is a member of different clubs and organisations. So, unless he has income from other sources, he cannot be a member of such aristocratic clubs and organisations. Therefore, the income as claimed by the husband is not at all believable. The learned Trial Judge has rightly disbelieved the contention of the husband so far his income is concerned. As regards the income of the wife, the husband could not show that the wife has income from other sources. Such as investment in different sources, tuition, etc. The wife has categorically stated that she has no income and that the contention of the husband regarding her income is not true. The negative factor could only be denied by affidavit and there is no way of proving of such negative factor, save and except filing an affidavit. Therefore, the learned Trial Judge has rightly observed that the wife has no income. Moreover, the husband is bound to pay the interim maintenance for the twin daughters. The negative factor could only be denied by affidavit and there is no way of proving of such negative factor, save and except filing an affidavit. Therefore, the learned Trial Judge has rightly observed that the wife has no income. Moreover, the husband is bound to pay the interim maintenance for the twin daughters. But as per materials on record, the husband did not pay any maintenance for the twin daughters suo motu. As regards the quantum of maintenance from the above analysis of the fact, it is obvious that the husband has concealed his real income in order to frustrate the claim of the wife. He has prepared the papers to show the dissolution of the partnership firm. The wife is entitled to maintain the same standard of life of her husband. In consideration of the standard of life of the husband, the wife has claimed interim maintenance under different heads. Such factors should be considered at the time of trial of the suit. From the above facts, it reveals that the husband comes from a respectable family. He is an able-bodied person, capable of earning and he has prepared papers to evade payment of maintenance to the wife. When a husband takes such a recourse, according to the decision reported in AIR 2004 Calcutta 1961, he cannot avoid his liability to maintain his wife and children contending that his income has been lowered by the dissolution of the partnership firm. Similarly, in AIR 2010 Supreme Court 3554, it has been observed that a highly qualified person cannot evade his liability to pay interim maintenance on the pretest that he left the job. From the above facts, it is clear that the husband has enough means from different sources to pay the maintenance minimum to the extent of Rs.10,000/- per month for the wife and the maintenance for the twin daughters as directed and the payment of litigation cost as directed by the learned Trial Judge. From the above facts, it is clear that the husband has enough means from different sources to pay the maintenance minimum to the extent of Rs.10,000/- per month for the wife and the maintenance for the twin daughters as directed and the payment of litigation cost as directed by the learned Trial Judge. Since an interim order is being passed on the basis of the materials and affidavits filed by the parties without recording any evidence of either parties, I am of the view that the wife should get Rs.5,000/- per month for food charge and also Rs.5,000/-per month under other heads as claimed in her application in all Rs.10,000/- per month for herself from the date of filing of the application till the disposal of the suit. Since, the two daughters are at the age of about 8 years now, I think, the interim maintenance as granted by the learned Trial Judge for them after remand, should not be interfered with. Similarly, the litigation cost as granted by the learned Trial Judge should be maintained. The other findings of the learned Trial Judge should not also be interfered with. The prayer for setting aside the impugned order cannot be allowed. The impugned order should be modified accordingly. The revisional application is, therefore, disposed of in the manner indicated above. The husband/petitioner herein is directed to pay Rs.10,000/-per month to the wife/opposite herein for her interim maintenance w.e.f. the date of filing of the application. The other parts of the impugned order are not interfered with and the such other parts of the impugned order are hereby confirmed. Considering the circumstances, there will be no order as to costs. C.O. No.645 of 2007 In view of the above findings, the C.O. No.645 of 2007 filed by the wife for enhancement of the interim maintenance should be allowed in the manner indicated above. The impugned order is modified in the following manner. The husband/opposite party is directed to pay Rs.10,000/- per month to the wife/petitioner herein for her interim maintenance w.e.f. the date of filing of the application. The other parts of the impugned order are not interfered with and such other parts of the impugned order are hereby confirmed. The impugned order is modified in the following manner. The husband/opposite party is directed to pay Rs.10,000/- per month to the wife/petitioner herein for her interim maintenance w.e.f. the date of filing of the application. The other parts of the impugned order are not interfered with and such other parts of the impugned order are hereby confirmed. The arrears of maintenance must be paid within one year from this month as observed by the learned Trial Judge along with the current maintenance at the rate of Rs.22,000/- per month in all. There will be no order as to costs. The above observations have been made for the purpose of disposal of these two revisional applications. While disposing of the suit on merits, the learned Trial Judge shall not be swayed away by the above observations. He shall dispose of the suit independently on the basis of evidence adduced by the parties. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.