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2011 DIGILAW 633 (CAL)

Santanu Basak v. Aparajita Basak

2011-05-05

PRASENJIT MANDAL

body2011
Judgment :- Prasenjit Mandal, J. These two revisional applications are at the instance of the husband and are directed against the Order No.11 dated June 15, 2009 and Order No.14 dated November 3, 2009 passed by the learned Additional District Judge, First Tract 3rd Court, Barrackpore in Matrimonial Suit No.269 of 2008 thereby disposing an application for enhancement of alimony and another application for attachment of the salary of the husband. Since the two applications relate to alimony and attachment of the salary of the husband and they are in between the same parties, they are disposed of by this common judgment. For conveyance, I am discussing the C.O. No.3228 of 2009. C.O. No.3228 of 2009:- The husband / petitioner herein instituted a matrimonial suit being Matrimonial Suit No.269 of 2008 under Section 13(1)(ia) of the Hindu Marriage Act, 1955 for dissolution of the marriage by a decree of divorce on the ground of cruelty. The husband is an employee Katni Refractory Works, ACE Refractory Ltd. (M.P.). The petitioner was married to the opposite party after death of his first wife. But, after marriage with the opposite party, the petitioner realised that the opposite party is a mentally ill person. She is taking medicine. Such fact was suppressed at the time of the marriage. He filed a suit for divorce on the ground already stated. The wife / opposite party is contesting the said suit by filing a written statement denying all the material allegations. She filed an application claiming for alimony. That application was allowed granting alimony at the rate of Rs.2,000/- per month. Subsequently by the impugned order, the alimony was enhanced to Rs.4,000/-per month. The husband filed an application under Order 23 Rule 1 of the C.P.C. and that application was not disposed of, but kept pending. Being aggrieved, this application has been filed. Now, the question is whether the impugned order should be sustained. Upon hearing the learned counsel for the petitioner and on going through the materials on record, I find that initially the husband was directed to pay alimony to the opposite party at the rate of Rs.2,000/- per month. Subsequently, the wife / opposite party filed an application for enhancement of the alimony on the ground that the salary of the husband had been increased and that she was not in a position to maintain herself with nominal amount of Rs.2,000/-. Subsequently, the wife / opposite party filed an application for enhancement of the alimony on the ground that the salary of the husband had been increased and that she was not in a position to maintain herself with nominal amount of Rs.2,000/-. So, she prayed for directing the husband to pay alimony at the rate of Rs.4,000/- per month till disposal of the matrimonial suit. The wife has contended that the husband earns Rs.25,000/- per month from his service. On the other hand, the husband has stated that he earns Rs.15,000/- per month from service. But he has to maintain his daughter born in the wedlock of his first marriage. He has to maintain his old parents. He has been paying the alimony at the rate of Rs.2,000/- all along. The learned Trial Judge disposed of the application on the basis of the application supported by affidavits and he has held that the husband has admitted that he earns Rs.15,000/- per month from his service. He has also recorded that the market price of essential commodities has been increased. The wife has to bear the medical treatment and as such, he directed the husband to pay to the wife alimony at the rate of Rs.4,000/- per month. In consideration of the situation, I am of the view that since evidence has not been adduced and the parties have proceeded with the matter on the basis of the application supported by affidavit etc. in consideration of the present price hike days and the fact that the wife is to maintain her medical treatment, the alimony at the rate of Rs.4,000/- per month cannot be stated to be excessive. In fact, the husband has been paying such amount of Rs.4,000/- per month to the wife by way of money order. In support of his contention, the husband has filed the xerox copies of the receipts. Though, the wife was duly notified, she has preferred not to contest this application. By a supplementary affidavit, the husband has informed this Hon’ble Court that he is complying with the orders passed by the learned Trial Judge. Under the circumstances, I do not find anything to disbelieve in the supplementary affidavit. Under the circumstances, I am of the view that so far as the alimony part of the order impugned is concerned, it should not be interfered with. Under the circumstances, I do not find anything to disbelieve in the supplementary affidavit. Under the circumstances, I am of the view that so far as the alimony part of the order impugned is concerned, it should not be interfered with. The grievance of husband is that he filed an application under Order 23 Rule 1 of the C.P.C. and that application has been kept pending without any order. Since, the application for withdrawal of the suit with liberty has been prayed for, it should be disposed of as early as possible. Accordingly, the learned Trial Judge is directed to dispose of the said application within 30 days from the date of communication of this order to him. The revisional application is, therefore, disposed of in the manner indicated above. C.O. No.3909 of 2009:- In view of the observations made above, I am of the opinion that the order of attachment of Rs.50,000/- from the salary of the husband is not justified at all. So, the impugned order cannot be sustained. Accordingly, the revisional application is allowed. The Order No.14 dated November 3, 2009 passed by the learned Additional District Judge, 1st Track Court, Barrackpore in Matrimonial Suit No.269 of 2008 is hereby set aside.