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2018 DIGILAW 94 (CAL)

Arun Kumar Majumdar v. Chitra Majumdar

2018-01-11

HARISH TANDON

body2018
JUDGMENT : Harish Tandon, J. 1. This revisional application is directed against an Order No. 34 dated 13.04.2017 passed by the Additional District Judge, Fast Track Court III, Howrah in Miscellaneous Case No. 12 of 2016 by which an application under section 36 of the Special Marriage Act is disposed of. The husband/petitioner filed Matrimonial Suit No. 543 of 2015 for dissolution of marriage by decree of divorce inter alia on the ground of cruelty. Shorn of unnecessary details, the marriage between the parties was solemnized on 23rd May, 1993 according to the Hindu Rights and Customs but was subsequently registered under the Special Marriage Act. The petitioner was admittedly employed as teacher in Augastine's Public School and the opposite party was also employed therein. Twin sons were born of the said wedlock on 30th May, 1995 and are admittedly in her custody." It is alleged by the petitioner in the said Matrimonial Suit that the wife was all along irresponsible in looking after children and used to come at late night. Whenever the protest was raised by the petitioner, was confronted with the threat and insult in slang languages. It is further alleged that the petitioner was always tortured inhumanely and in barbaric manner and was thrown out of his house by the wife in the year 1999. The wife had also initiated a proceeding under section 498A of the Indian Penal Code alleging torture in the garb of dowry and had also initiated a proceeding under section 125 of the Code of Criminal Procedure claiming maintenance. 2. In the said Matrimonial Suit the wife/opposite party took out an application under section 36 of the Special Marriage Act claiming maintenance of Rs. 20,000/- per month and a further sum of Rs. 5,000/- per month and Rs. 50,000/- on account of medical treatment and the litigation cost. According to the wife, she was working in the same school that of the husband's/petitioner's till 17th June, 1997 and used to give her salary to him every month. It is alleged in the said application that the petitioner was negligent and all along avoid and refusing to maintain the wife and the two children at the instigation of in-laws. She further asserted that she is suffering from Glaucoma and is under constant treatment. It is alleged in the said application that the petitioner was negligent and all along avoid and refusing to maintain the wife and the two children at the instigation of in-laws. She further asserted that she is suffering from Glaucoma and is under constant treatment. Because of such disease, she was compelled to give up her service on 13th August, 2013 and she did not complete requisite continuous service to get pension. The wife alleged that the husband is earning Rs. 1,00,000/- per month not only from salary but also from the drawing school which he runs in the name and style 'Shilpayan'. Apart from the same, the husband is selling the portrait and one can visualize the income as the husband has recently purchased a flat in a nearby locality. 3. Naturally, the husband is denying such allegations and it is a specific case of the husband that he has since retired and is getting a paltry pension amounting to Rs. 1,988/- per month which is very difficult to maintain him. The husband denies the purchase of a flat at a consideration of Rs. 32,00,000/-. 4. It is only the husband/petitioner who deposed in the matter and was cross examined by the wife. The Trial Court awarded the maintenance at Rs. 18,000/- per month which the husband feels to be too exorbitant and challenged the said order in the instant revisional application. 5. The learned Advocate for the petitioner vehemently submits that the Court did not take into consideration that the husband is a pensioner and gets a little sum under rupees two thousand per month and therefore awarding a sum of Rs. 18,000/- is not in commensurate therewith. It is further submitted that the wife did not depose in the matter and therefore the Court ought to have taken the statement made by the husband to be sacrosanct and placed reliance upon a judgment of the Apex Court in case of Muddasani Venkata Narsaiah (Dead) through Legal Representatives v. Muddasani Sarojana reported in AIR 2016 SC 2250 . 6. It is further submitted that the Court did not take into consideration the actual income of the husband disclosed by him and awarded the maintenance at an astronomical rate which is impermissible in view of the Division Bench judgment of this Court delivered in case of Ashit v. Susmita reported in 90 CWN 1060. 6. It is further submitted that the Court did not take into consideration the actual income of the husband disclosed by him and awarded the maintenance at an astronomical rate which is impermissible in view of the Division Bench judgment of this Court delivered in case of Ashit v. Susmita reported in 90 CWN 1060. It is, thus, submitted that the Trial "Court committed grave error in passing the impugned order and the same is required to be set aside. 7. Learned Advocate appearing for the wife/opposite party submits that the actual income is within the special knowledge of the petitioner and he has concealed the same and therefore the Court has considered the overall facts in awarding maintenance. It is, further submitted that the petitioner is not a trustworthy deponent and the Court has rightly drawn an adverse inference in awarding the maintenance. The learned Advocate for the opposite party hand over the document of the year 1988 showing that the husband runs the drawing school which has been purposedly suppressed not only in the Affidavit in Opposition but also in the evidence. 8. On the backdrop of the aforesaid facts, the only point which needs consideration is whether the impugned order passed by the Trial Court determining the quantum of maintenance at Rs. 18000/- per month is sustainable or not. Indubitably the parties were employed at the time of marriage working in the same school. Twin sons were born of the said wedlock and have now attained majority. Yet they are studying and since the Statute is silent on the maintenance for the major children, the Court did not award maintenance to them. 9. Though in the opposition to an application for maintenance, the husband/petitioner denied the purchase of the flat but the moment the certified copy of the sale deed was filed before the Court below, he admitted such purchase. An explanation sought to be offered in this regard is that another property was sold and the retiral benefit which he received was invested in purchase of the said flat. 10. Section 106 of the Evidence Act imposes obligation on a person having special knowledge of facts to prove such facts. In other words, it is the onus on such person to prove the special fact which cannot be shifted on the other side. 10. Section 106 of the Evidence Act imposes obligation on a person having special knowledge of facts to prove such facts. In other words, it is the onus on such person to prove the special fact which cannot be shifted on the other side. If the particular facts are within knowledge of a person, the burden lies on him to present such facts whether in affirmative or in negative. 11. Section 114 of the Evidence Act postulates that the Court may presume the existence of any fact which is likely to have happened with regard to common course of natural events, human conduct and public and private business. Such presumption may be dawn adversarily if the person having special knowledge omits, neglects and consciously avoids the disclosure thereof as it may operate against him. No doubt, the actual income is within the knowledge of the petitioner and therefore the onus lies on him to prove it. Undoubtedly the petitioner discloses the salary and the amount received as pension but consciously suppressed the income from other sources namely the income from running the drawing school in the name of 'Shilpayan' and from selling the portrait. 12. It is openly stated before this Court that the petitioner is not running any drawing school which is proved to be untrue when the wife hands over the application forwarded by the petitioner seeking permission to hold the exhibition of his portraits. There is a clear admission on the part of the petitioner that he is running a drawing school in the name of 'Shilpayan' which was denied by him in the opposition filed by him as well as in the evidence. 13. Equally, this Court cannot overlook the fact that the wife was employed and as per her own statement she was in gainful employment till 2013. The wife has not deposed in the matter and disclosed her savings from such gainful employment. Though the judgment rendered in case of Mudassani (Supra) does not come in aid of the petitioner as a wife cross examined the petitioner and put her case made out in the application therein but this Court feels that the wife should depose in the matter to disclose her savings from her earlier employment to determine the quantum of maintenance to be awarded to her. It is hereby made clear that mere a paltry income from savings may not be considered to be reasonable for her sustenance, yet, the Court must take into account for assessing the quantum of maintenance to be awarded to her. 14. This Court, therefore, feels that it is a fit case for remand and the wife should be allowed to depose in the matter. 15. The order impugned is thus set aside. 16. The Trial Court is directed to allow the wife/opposite party to adduce evidence in support of the application for maintenance and thereafter shall determine the quantum of maintenance unaffected and swayed by any observations made hereinabove. 17. The Trial Court shall fix a date for Examination-in-Chief of the wife which shall not exceed beyond 2 (two) weeks from the date of the communication of the order and shall afford the opportunity of hearing to the husband/petitioner to cross examine her and the entire exercise shall be completed within 4 (four) weeks from the date of filing of the Examination-in-Chief. 18. The Trial Court shall make further endeavour to dispose of the application within 2 (two) weeks from the date of the closure of the evidence of the wife by recording proper and cogent reasons. 19. The revisional application is thus disposed of. No costs.