SUTAPA PAUL ALIAS SUTAPA KARMAKAR v. PRANJAL KARMAKAR
2017-02-06
ASHIS KUMAR CHAKRABORTY
body2017
DigiLaw.ai
JUDGMENT : Ashis Kumar Chakraborty, J. The subject matter of challenge in this revisional application is the order dated March 01, 2016 passed by the learned Additional District Judge, 14th Court at Alipore, South 24-Parganas in Misc. Case No.3125 of 2015, arising out of Matrimonial Suit No.100 of 2009. 2. The facts giving rise to this revisional application are that the petitioner is the wife of the opposite party, the latter filed the matrimonial suit, against the petitioner, before the learned Court below claiming a decree for restitution of conjugal rights. Subsequently, the opposite party amended the plaint filed in the matrimonial suit claiming a decree for divorce against the petitioner. Thus, the suit was converted from a suit for restitution of conjugal rights to a suit for divorce. In the suit, the petitioner filed an application, being Misc. Case No. 1 of 2010, under Section 24 of the Hindu Marriage Act, 1955 praying for alimony pendente lite. In the said application the petitioner prayed a direction against the opposite party to pay her Rs.20,000/-, per month on account of maintenance for herself and her minor child and a further sum of Rs.50,000/- on account of litigation cost. By order dated October 01, 2012 the learned Court below, disposed of the said Misc. Case No.1 of 2010 by directing the opposite party to pay alimony pendente lite to the petitioner at the rate of Rs.10,000/- per month for herself and Rs.5,000/- per month for the maintenance of her minor daughter with effect from January 22, 2010. In the year 2015 the petitioner claimed that the income of the opposite party has increased and he is drawing a monthly salary of more than Rs.2,00,000/-. She also alleged that in the meantime, the educational expenses of her minor child has also increased. On these grounds, the petitioner filed a fresh application, being Misc. Case No.3152 of 2015, before the learned Court below, praying for enhancement of the alimony pendente lite to be paid by the opposite party at least at Rs.40,000/- per month. She also prayed for a direction upon the opposite party to pay her Rs.50,000/- on account of litigation cost. The opposite party contested the said application. He also filed written objection to the petitioner's application.
She also prayed for a direction upon the opposite party to pay her Rs.50,000/- on account of litigation cost. The opposite party contested the said application. He also filed written objection to the petitioner's application. In his written objection, the opposite party barely denied that his present monthly income has increased to more than Rs.2,00,000/- and he did not even disclose his salary slip or any other document to substantiate his present monthly income. By order dated March 1, 2016 the learned Court below disposed of the said Misc. Case No.3152 of 2015 by directing the opposite party to pay to the petitioner enhanced alimony pendente lite of Rs.15,000/-, per month for herself and Rs.10,000/-, per month for her minor daughter with effect from that date. As mentioned earlier, it is the said order dated March 01, 2016 which has been challenged by the petitioner in this revisional application. 3. Assailing the impugned order, Mr. Hiranmoy Bhattacharyya strongly contended that when the opposite party did not disclose any document to substantiate his present monthly income, the learned Court below ought to have drawn an adverse inference against him and enhanced the alimony pendente lite for herself and for her minor daughter as prayed for in the application, being Misc. 3152 of 2015. It was urged that in the facts of the present case, the learned Court below committed an error of law in not enhancing the alimony pendente lite to be paid by the opposite party to the petitioner for herself and for her minor daughter at Rs.40,000/- per month as claimed by the petitioner. 4. Per contra, Mr. Kamalesh Bhattacharyya learned advocate appearing for the opposite party submitted that the impugned order passed by the learned Court below suffers from no infirmity and the next date of final hearing of the matrimonial suit is fixed some time in March, 2017. He submitted that the petitioner is already receiving the enhanced amount of maintenance for herself and for her minor daughter as directed by the impugned order passed by the learned Court below. On these grounds, he contended that this Court should not interfere with the impugned order passed by the learned Court below. Mr. Bhattacharyya, however, in his usual fairness, did not dispute that the learned Court below has passed the impugned order by ignoring the fact that the opposite party did not disclose his present monthly income. 5.
On these grounds, he contended that this Court should not interfere with the impugned order passed by the learned Court below. Mr. Bhattacharyya, however, in his usual fairness, did not dispute that the learned Court below has passed the impugned order by ignoring the fact that the opposite party did not disclose his present monthly income. 5. I have considered the materials on record, as well as the submissions advanced by the learned advocates appearing for the respective parties. It is a fact that the petitioner is already receiving the enhanced monthly alimony pendente lite on account of herself and her minor daughter from the opposite party as directed by the impugned order passed by the learned Court below. It is also a fact that after obtaining the certified copy of the impugned order on April 25, 2016 the petitioner filed this revisional application on June 06, 2016. Therefore, the petitioner cannot be faulted for receiving the monthly maintenance from the opposite party as per the impugned order. 6. In the present case, when the opposite party in the written objection barely denied the assertion made by the petitioner about the increase of his monthly income at more than Rs.2,00,000/- and he did not disclose any document to substantiate his present income, I find that the learned advocate of the petitioner is justified in his submission that the learned Court below committed an error of law in not drawing an adverse inference against the opposite party. Thus, the impugned order passed by the learned Court below cannot be sustained. 7. Accordingly, the revisional application, being C.O. 2213 of 2016, succeeds and the impugned order dated March 01, 2016 stands set aside. 8. The learned Court below is requested to decide the application, being Misc. Case No. 3152 of 2015, filed by the petitioner afresh on the pleadings of the respective parties already on record. It is also made clear that in the event, the learned Court below increases the alimony pendente lite to be paid by the opposite party to the petitioner in excess of the amount as fixed by the impugned order dated March 01, 2016, the opposite party shall be given credit of the amount of the alimony pendente lite already paid by him to the petitioner on account of herself and the minor daughter. 9.
9. The learned Court below is requested to make an endeavour to expeditiously dispose of the application, Misc. Case No. 3152 of 2015 filed by the petitioner, preferably within a period of two months from the ate of communication of this order, without granting any adjournment to either of the parties. 10. Urgent certified website copy of this order, if applied for, be made available to the parties upon compliance of all requisite formalities.