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2013 DIGILAW 410 (CAL)

Subhadeep Chanda v. Aditi Chanda nee Roy

2013-07-04

PRASENJIT MANDAL

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Judgment :- Prasenjit Mandal, J. Challenge is to the Order No.23 dated March 25, 2013 passed by the learned Additional District Judge, 3rd Court, Alipore in Misc. Case No.19 of 2012 arising out of Matrimonial Suit No.2914 of 2011. The opposite party instituted a suit against the petitioner praying for a decree of nullity of the marriage contending, inter alia, that the husband treated her with cruelty. She noticed that after the marriage, the husband / petitioner herein refused to mix with her and he treated her with cruelty and for that reason she left the house of the husband on November 16, 2011. She lodged a complaint under Section 498A/406/34 of the I.P.C. against her husband before the Kasba Police Station and the said case is still pending. Thereafter, the wife / opposite party herein filed the aforesaid suit for divorce and she claimed alimony under Section 36 of the Special Marriage Act, praying for alimony pendent lite of Rs.8,000/- and an amount of Rs.5,000/- as litigation costs. While disposing of the said application for alimony, learned Trial Judge granted alimony at the rate of Rs.12, 000/- per month and litigation costs of Rs.10,000/. Being aggrieved, this application has been preferred by the husband / petitioner herein. Now, the question is whether the impugned order should be sustained. Upon hearing the learned Advocates of both the parties and on going through the materials on record, I am of the opinion that so far as the legality of the impugned order is concerned, the same cannot be sustained at all in view of the fact that, the learned Trial Judge has granted both the alimony and the litigation costs beyond the demands by the wife / opposite party herein. So, the impugned order cannot be sustained. During the pendency of the revisional application, the husband filed his income certificate showing his take home salary for the month of February 2012 after reasonable deduction was to the tune of Rs.25,967/- and for the month of March 2013, Rs.28,143/-. There is no dispute that the marriage between the two was solemnized according to the provisions of the Special Marriage Act on October 18, 2010 and, thereafter, the social marriage was held on November 16, 2011 according to the Hindu rites and customs. Admittedly, the wife started residing at the house of her husband at Kasba after the marriage. There is no dispute that the marriage between the two was solemnized according to the provisions of the Special Marriage Act on October 18, 2010 and, thereafter, the social marriage was held on November 16, 2011 according to the Hindu rites and customs. Admittedly, the wife started residing at the house of her husband at Kasba after the marriage. The wife has contended that she noticed the reluctance of the husband to maintain any physical relationship with her. The treatment of her husband was done in vain. On the allegation of torture and cruelty upon her, the wife left the house of the husband on February 16, 2011. Admittedly, since then she has been residing at her parents’ house. Parties have adduced evidence in support of their respective contention in the matter and at present there is no dispute that the husband is an employee of the H.S.B.C. Bank and he draws the salary as indicated above. While deposing, the wife has contended that she was in need of money of Rs.12,000/-as alimony costs for her education and other expenses. Anyway, such deposition on oath cannot be accepted in view of her prayer in the application for alimony as indicated earlier. Therefore, the quantum of alimony as granted cannot be supported. Admittedly, the wife has no income of her own at all and she is a student of the Journalism course. As noted above, the suit for divorce was instituted within a very short period of marriage solemnized on November 16, 2011. The husband has contended that his parents are fully dependent on him. He also contended that his father is suffering from various ailments. Anyway, I do not find much evidence in this respect. However, when there is scanty evidence relating to the ground of alimony, certain guess work could well be accepted and instead of sending the matter on remand, I am of the view that for expeditious disposal of the suit, the application for alimony should be disposed of on the basis of materials as available now and certain type of guess works. Upon due consideration of the materials on record and the submissions of the learned Advocates of both the sides, I am of the view that it would not be unjustified if the husband / petitioner herein is directed to pay the alimony of Rs.6,000/- per month and the litigation costs of Rs.5,000/- only. Upon due consideration of the materials on record and the submissions of the learned Advocates of both the sides, I am of the view that it would not be unjustified if the husband / petitioner herein is directed to pay the alimony of Rs.6,000/- per month and the litigation costs of Rs.5,000/- only. The application succeeds and the same is allowed to the extent indicated above. The impugned order is modified accordingly, directing the husband to pay the alimony pendente lite at the rate of Rs.6,000/- per month and the litigation costs of Rs.5,000/- only. The other terms and conditions as to mode of arrear payment and current payment shall remain unchanged. 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.