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2013 DIGILAW 329 (CAL)

Achyut Kumar Bhattacharjee v. Jarita Bhattacharjee

2013-06-07

PRASENJIT MANDAL

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Judgment :- Prasenjit Mandal, J. Challenge is to the order dated January 7, 2013 passed by the learned Additional District Judge 5th Court, North 24 Parganas at Barasat in Matrimonial Suit No.1545 of 2012 thereby disposing of an application under Section 24 of the Hindu Marriage Act filed by the wife/opposite party herein. The short fact necessary for the purpose of disposal of this application is that, the marriage between the parties was solemnized according to the Hindu rites and customs on March 13, 2008 and after the marriage both the parties started living in the State of Orissa. Thereafter, the husband/petitioner herein was transferred to Assam in the month of March 2009 and the opposite party accompanied him. One daughter was born in the wedlock on September 6, 2009. The opposite party herein left the house of the petitioner alleging that the husband had tortured upon her. She has no source of income and so she was compelled to stay in the house of her retired father along with her minor child. The husband/petitioner herein instituted the aforesaid suit for restitution of conjugal rights. He is an Officer of the NTPC Ltd. (PSU) and thus, he draws salary of more than Rs.1,00,000/-(one lakh) per month. The wife/opposite party has claimed maintenance to the tune of Rs.24,000/-(twenty four thousand) per month for herself and Rs.16,000/-(sixteen thousand) per month for her minor daughter, total in Rs.40,000/-(forty thousand) per month. She has also claimed Rs.30,000/-(thirty thousand) as litigation cost in the said suit. On the basis of affidavits, the learned Trial Judge granted alimony at the rate of Rs.15,000/-(fifteen thousand) per month for the wife/opposite party herein and Rs.10,000/-(ten thousand) per month for her minor daughter. A sum of Rs.10,000/-(ten thousand) was also awarded as litigation cost. The order was effected from the month of order. Being aggrieved by such order, this application has been preferred. Now, the question is whether the impugned order should be sustained. Upon hearing the learned Counsel for the parties and on going thought the materials on record, I find that it is an admitted position that the parties to the case are husband and wife and that one daughter was born in the wedlock on September 6, 2009. So, daughter is now about 4½ years of age and her schooling has not been started as yet. So, daughter is now about 4½ years of age and her schooling has not been started as yet. Admittedly, the wife has been residing at her father’s house along with the daughter and the husband filed the aforesaid suit for restitution of conjugal rights. The daughter of the petitioner having no income, is entitled to get alimony from her father. It is also an admitted position that the wife has filed an application under Section 125 of the Cr.P.C. for maintenance and another criminal case under Section 498A/406 of the I.P.C. against the husband. Admittedly, the husband was paying an amount of Rs.5,000/-(five thousand) per month previously to the wife for her maintenance and he has enhanced the said amount to Rs.7,500/-(seven thousand five hundred) per month. It is not in dispute that the husband is an officer of the NTPC working at Gouhati and his basic pay is Rs.45,000/-(forty five thousand) and odd. Beside the basic pay the husband gets D.A., M.A. etc., the quantum of which cannot be determined on the basis of affidavits. Anyway, the husband has filed a certificate of his pay indicating his basic pay and take home salary to the tune of Rs.34,000/-(thirty four thousand). The husband did not disclose what was the amount of D.A. and M.A. etc., in respect of the basic pay he was drawing. So, it is clear that husband has suppressed something about his income. In that case certain guess work relating to pay is permissible. So far as the wife is concerned, there is no evidence that she has herself any independent income after the marriage. So, there is no dispute that she requires alimony for herself and the daughter during the pendency of the suit. In consideration of the price hike of the essential commodities of the present day, there is no dispute that the amount of Rs.7,500/-(seven thousand five hundred) as is being paid by the husband to the wife is not enough for the maintenance of the two. Since the education of the child has not yet been started, I think if an amount of Rs.5,000/-(five thousand) is granted as alimony for the child it will be enough for the child for the time being. Since the education of the child has not yet been started, I think if an amount of Rs.5,000/-(five thousand) is granted as alimony for the child it will be enough for the child for the time being. So far as alimony for the wife is concerned, upon due consideration of the materials on record and the fact that the wife/opposite party is residing at her father’s house and that her father is a retired person, I am of the view that if a sum of Rs.10,000/-(ten thousand) per month is granted to the wife per month as her alimony, justice will be done. The learned Trial Judge has also made guess work taking in view of the D.A. admissible to the Central Government employees, but, at present I do not find any basis for calculation of D.A. of the petitioner to the tune of 70% of his basic pay. Anyway, the husband has the liability to maintain his old parents as per materials on record. So, I am of the view that the amount of Rs.10,000/-(ten thousand) per month as alimony for the wife will serve the ends of justice. The litigation costs of Rs.10,000/-(ten thousand) as awarded by the learned Trial Judge, in my view, should not be interfered with. The application is, therefore, allowed to the extent indicated above. The impugned order is modified to that extent. The other terms and conditions relating to mode of payment etc., shall remain as it is. The arrears of maintenance must be paid by the petitioner to the wife/opposite party herein within two months from date without fail. He must pay the litigation costs to the wife/opposite party herein within 30 days from date. Considering the circumstances, there will be no order as to costs. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.