JUDGMENT : 1. A petition for divorce under Section 13 of the Hindu Marriage Act, 1955 (hereafter the ‘Act’) filed by the husband was decreed. F.A. 319 of 2014 at the instance of the wife is directed against such decree. The wife had prayed for restitution of conjugal rights by filing a petition under Section 9 of the Act. Feeling aggrieved by the dismissal of such petition, F.A.T. 183 of 2016 has been presented by the wife. 2. Several interim applications have been filed by the parties in such appeals. The first application is C.A.N. 3612 of 2014, filed in F.A. 319 of 2014, by the husband. It is treated as on day’s list with the consent of the parties. In such application, an order has been prayed for to have the son of the parties (hereafter the child) admitted in any ranking residential school in India or abroad at the primary school stage as well as for a direction on the wife to extend necessary assistance and co-operation with regard to admission of the child in such residential school. This application was followed by another application at the instance of the husband, numbered as C.A.N. 7208 of 2016, wherein he prayed for an order for medical examination of the child for ascertaining the extent of his disability. 3. The wife, in her turn, filed C.A.N. 7075 of 2016 praying for alimony pendente lite. She claimed Rs.1,20,000/- towards monthly maintenance of herself and the child together with Rs.1,00,000/- on account of medical expenses of the latter. She also prayed for litigation costs of Rs.1,00,000/-. 4. It is not in dispute that the child is an autist. It is further not in dispute that the wife having filed an application under Section 125 of the Code of Criminal Procedure, the husband has been directed to pay Rs.20,000/- per month to her for her own maintenance as well as Rs.10,000/- per month for the child. It is also not in dispute that the husband has been complying with such order. 5. When the applications were first heard by us, we considered it necessary to have the child examined. He was examined by the doctors at S.S.K.M. Hospital and thereafter, by the doctors at NIMHANS, Bengaluru. The reports relating to medical examination of the child and the nature of treatment that he requires are on record.
5. When the applications were first heard by us, we considered it necessary to have the child examined. He was examined by the doctors at S.S.K.M. Hospital and thereafter, by the doctors at NIMHANS, Bengaluru. The reports relating to medical examination of the child and the nature of treatment that he requires are on record. The applications had been heard in-part by us on 20th September, 2017. However, due to insufficiency of time at our disposal [one of us (Debi Prosad Dey, J.) would be demitting office soon], we consider it fit and proper to dispose of C.A.N. 3612 of 2014 and C.A.N. 7208 of 2016 at this stage by the order proposed hereunder. 6. We also make it clear that the application for maintenance being C.A.N 7075 of 2016 shall no longer be treated as ‘heard in-part’ and may be placed for consideration of the regular Bench, subject to Their Lordships’ convenience. 7. The disability from which the child suffers is quite serious. Without entering into details, his disability can be guaged from the fact that being nine years old, he weighs nearly 105 kgs. Previous orders recorded by us were directed to achieve his well-being, considering that because of the marital discord of his parents he should not suffer. 8. The wife, after the child was examined by the doctors at NIMHANS, filed a supplementary affidavit. In paragraph 11 of such affidavit, she has given the break up of expenses under 13 heads likely to be incurred by her towards medical treatment of the child, totalling to Rs.34,640/- per month. In paragraph 12 thereof, she has also disclosed that one time payment of Rs.22,500/- is required for admission of the child to a special school as well as for assessment/evaluation by professional specialists at Monovikas Kendra. 9. By our order dated 30th January, 2018, we had granted liberty to the husband to controvert the contents of such supplementary affidavit. Today, an affidavit-in-opposition has been filed on behalf of the husband. It appears that his constituted attorney has affirmed such affidavit. 10. The said affidavit-in-opposition consists of 19 paragraphs. The so-called attorney of the husband has verified paragraphs 1 to 18 of the affidavit as true to his knowledge.
Today, an affidavit-in-opposition has been filed on behalf of the husband. It appears that his constituted attorney has affirmed such affidavit. 10. The said affidavit-in-opposition consists of 19 paragraphs. The so-called attorney of the husband has verified paragraphs 1 to 18 of the affidavit as true to his knowledge. Considering the pleadings, we are at a loss to comprehend as to how such an affidavit could be regarded as legal evidence based on which the claim of the wife could be said to have been effectively denied and disputed by the husband. We have no hesitation in rejecting the affidavit only on the ground that it has not been affirmed by a person having direct knowledge of what transpired at Bengaluru, when the parties had been there in compliance with our order for having the child medically treated. It is also rather strange that the attorney has verified as true to his knowledge that the wife has filed the supplementary affidavit by giving speculative and imaginary figures relating to expenses for extracting money from the petitioner. 11. Even if the affidavit had been sworn by the husband, nothing much would have turned on it. It appears that the contents of paragraphs 11 and 12 of the supplementary affidavit of the wife have been very evasively denied by the husband. While casting aspersions on the wife by alleging that she is seeking to extract money from the husband in the guise of medical treatment of the child, the affidavit is silent as to what, according to the husband, could be a conservative estimate of the expenses likely to be incurred by the wife for treatment of the child in terms of the medical examination report of NIMHANS to which the husband also has access. Such affidavit does not inspire confidence and, therefore, we have no other alternative but to discard it altogether from our consideration. 12. In course of hearing, Mr. Bagchi, learned senior advocate appearing for the husband has submitted that Rs.15,76,000/- was shown as his gross income in the income tax return for the assessment year 2016-17. From an earlier affidavit filed by the husband, it appears that he spends in excess of Rs.21,000/- towards rent of his residence in Bengaluru. He also pays installment amount of Rs.42,000/- for having purchased a flat in Pune, from which he has a rental income of Rs.24,000/-. 13.
From an earlier affidavit filed by the husband, it appears that he spends in excess of Rs.21,000/- towards rent of his residence in Bengaluru. He also pays installment amount of Rs.42,000/- for having purchased a flat in Pune, from which he has a rental income of Rs.24,000/-. 13. Although it has been the consistent stand of the husband that he does not earn Rs.5,00,000/-, as alleged by the wife in the application for alimony pendente lite, it has surprised us that the husband by filing C.A.N. 3612 of 2014 wished to have the child admitted in a boarding school even abroad. If at all what the husband has disclosed in the income tax return as his income is accepted to be true, we wonder how he could consider admission of the child in a boarding school in a foreign country, where the expenses are likely to be much on the higher side, to be within his financial capacity. We do not wish to dilate more on the topic since the said issue would fall for consideration while the regular Bench decides C.A.N. 7075 of 2016, but we hasten to add that the stand taken by the husband before us for the present, has to be accepted with a pinch of salt. 14. Considering all aspects including the needs of the child projected by the wife in her supplementary affidavit, which the husband has not been able to dislodge by filing an appropriate counter-affidavit, we are of the clear view that the husband should be directed to make payment of an additional amount of Rs.35,000/-per month for the expenses likely to be incurred by the wife for the medical expenses of the child, apart from what has been directed by the learned magistrate. We order accordingly. 15. The additional amount of Rs.35,000/- shall be paid by the husband w.e.f. 1st January, 2018. The arrear for January, 2018 and that for February, 2018 shall be cleared within 15th March, 2018. For each succeeding month, i.e. starting from March, 2018, the payment must reach the wife by the 7th day of the following month. It is made clear that the amount of Rs.80,000/- which the husband has paid in terms of earlier orders passed by us would, however, not be adjusted with the amount which the husband is required to pay in terms of this order.
It is made clear that the amount of Rs.80,000/- which the husband has paid in terms of earlier orders passed by us would, however, not be adjusted with the amount which the husband is required to pay in terms of this order. This arrangement shall continue until further/other orders are passed on C.A.N. 7075 of 2016. 16. The wife shall immediately intimate the husband the details of her bank account where the sum of Rs.35,000/-shall be credited every month by RTGS. The e-mail address of the husband shall also be provided to the wife by the husband so that scanned copies of money receipts can be mailed to him for his record by her. 17. It is also made clear that the payment as directed by this order shall not be dependent on the satisfaction reached by the husband that the amount has actually been incurred towards medical expenses of the child since the husband is not in a position to personally attend to the medical needs of the child remaining present in Kolkata. 18. We wish we could dispose of C.A.N. 7075 of 2016 on merits, as prayed for by the parties. Not much time is left for us to rise for the day. It would also not be possible for us to assemble once again in the near future; hence we are constrained not to make any direction for enhancement of alimony pendente lite for the wife. The wife shall be free to press her claim in C.A.N. 7075 of 2016 before the regular Bench. She shall also be entitled to renew her prayer for the husband’s attendance at Kolkata, if at all the circumstances so warrant. 19. In view of the aforesaid order, C.A.N. 7208 of 2016 stands disposed of. Nothing survives for consideration on C.A.N. 3612 of 2014, which also stands disposed of.