Sukanya Das vs Arindam Das
2021 Latest Caselaw 3581 Cal

AD. 5 & 6.
July 6, 2021.
 MNS.

                                C. O. No. 2932 of 2019

                                     Sukanya Das
                                          Vs.
                                     Arindam Das

                                         with

                                C. O. No. 2637 of 2019

                                     Arindam Das
                                          Vs.
                                     Sukanya Das

                               (Via video conference)


                      Mr. Surya Prasad Chattopadhyay,
                      Mr. Arjun Samanta,
                      Mr. Saptarshi Kumar Mal

                                   ... for the petitioner in
                                      C. O. 2932 of 2019 &
                                     opposite party in
                                      C. O. 2637 of 2019.

                      Ms. Lopita Banerji,
                      Mr. Avijit Chakraborty

                                  ... for the petitioner in
                                     C. O. 2637of 2019 &
                                     opposite party in
                                     C. O. 2932 of 2019
                      .

C. O. 2932 of 2019 and C. O. No. 2637 of

2019 have been filed respectively by the husband

and the wife against the self-same order of

alimony granted by the court below under Section

36 of the Special Marriage Act, 1954 (hereinafter

referred to as the Act of 1954). The amount

granted to the wife was to the tune of Rs.15,000/-

(Rupees fifteen thousand) only per month for

herself and Rs.20,000/- (Rupees twenty

thousand) only per month for her minor son from

the date of filing of the petition, that is, since

March 13, 2015.

Learned counsel appearing for the

husband contends that the wife has sufficient

income of her own to maintain herself and the

husband has already been paying an amount of

Rs.8,000/- (Rupees eight thousand) only per

month by way of alimony to the wife, pursuant to

an order passed in a separate proceeding under

the Protection of Women from Domestic Violence

Act, 2005 (hereinafter referred to as "the Act of

2005").

Moreover, it is contended that the

husband himself is having to reside in a rented

accommodation and to incur such rents while the

wife has been accommodated along with the child

on the second floor of the matrimonial home of

the wife, thus, taking care of her requirements

regarding accommodation.

That apart, learned counsel contends that

the entire education expenses of the child is

being borne by the husband/father and, as such,

no further payments are required on that score.

Learned counsel appearing for the wife

argues that the amount directed by the forum

under the Act of 2005 is meager in comparison to

the status of the husband, who earns substantial

amounts of money and has also defaulted in

paying some of the amounts of monthly

maintenance as directed by the other forum.

It is further submitted that the education

expenses and other expenses of the child are

much more than what has been directed by the

court below. As such, the wife seeks an

increment in the amounts of alimony granted to

the wife as well as to the child.

Upon hearing learned counsel appearing

for the parties and going through the materials on

record, it is evident that sufficient documents in

support of the alleged respective incomes of the

parties were not disclosed in the court below.

There have been varying allegations at different

points of time regarding the respective incomes of

the parties. Moreover, although it is seen from

the record that the husband has already been

paying a certain monthly amount to the wife by

way of maintenance for the wife as well as the

child, in the absence of any specific affidavit-of-

assets and income and supporting documents by

the parties, as directed by the Supreme Court in

Rajnesh Vs. Neha and Another, reported at

(2021) 2 SCC 324, it is not possible for either the

court below or this Court to ascertain the actual

financial requirements and incomes of the parties.

However, keeping in mind the fact that the

parties are required to share the costs of the child

in the ratio of their respective incomes, it would

be reasonable if the husband is directed to pay

Rs.35,000/- (Rupees thirty five thousand) only per

month covering the entire costs of the child

(including education expenses and other ancillary

charges) and the amount of Rs.8,000/- (Rupees

eight thousand) only per month for the wife for the

time being on an ad hoc basis..

In view of the absence of appropriate and

adequate documents before the court below to

arrive at definite conclusions, it would be a futile

exercise to depend on conjecture and surmise to

arrive at the actual requirement of the parties and

their respective incomes.

Accordingly, C. O. No. 2932 of 2019 and

C. O. No. 2637 of 2019 are disposed of by

directing the Additional District Judge, Third Fast

Track Court at Barasat, District- North 24

Parganas, to rehear and dispose of afresh the

alimony application filed under the Act of 1954

pending at the behest of the wife, upon granting

opportunity to both the parties to file their

respective affidavits and documents of income

and assets as well as other relevant supporting

documents, in consonance with the judgment

rendered by the Supreme Court in Rajnesh Vs.

Neha & Another, reported at (2021) 2 SCC 324.

Such affidavits and documents shall be

filed by the parties within a fortnight from

communication of this order to the trial court. If

necessary, the trial court shall permit the parties

to lead evidence/further evidence on such

affidavits and documents for the limited purpose

of disposing of the alimony application. In any

event, the said alimony application shall be

disposed of afresh by the trial court within three

months from the date of communication of this

order to the court below. It is expected that the

parties shall cooperate with the court in early

disposal of the matter by not seeking

unnecessary adjournments.

The husband shall go on paying

Rs.35,000/- (Rupees thirty five thousand) only per

month on an ad hoc basis to cover the expenses

of the child and Rs. 8,000/- (Rupees eight

thousand) only per month to the wife to cover the

expenses of the wife for the time being. Such

payments shall be made on a monthly basis, the

first of which instalments shall be made by the

15th of August, 2021 for the month of July, 2021

and thereafter for every month by the fifteenth

day of each succeeding month, subject to final

adjudication by the court below.

It is made clear that this ad hoc direction is

merely on a temporary basis and the amount paid

shall be adjusted from the amount of alimony, if

ultimately granted by the court below to the wife.

The trial court shall be free to proceed in

adjudicating the alimony application

independently on its own merits, without being

influenced in any manner by any of the

observations made herein apart from the specific

directions given in this order regarding

compliance of the judgement of the Supreme

Court.

The wife shall be free to accept such

payments made by the husband. Such payment

and acceptance shall be without prejudice to the

rights and contentions of the parties in the

proceeding pending before the court below.

It is further clarified that, till disposal of the

application under the Act of 1954, the husband

shall not be required to pay any further amount

directly to the school in lieu of education and

other charges for the child. Such amounts shall

be covered for the time being by the ad hoc

amount of Rs.35,000/- (Rupees thirty five

thousand) only as directed by this Court. That

apart, the payments made pursuant to this order

shall be adjusted with any other payment being

made by the husband at the present juncture

pursuant to any order of any other judicial forum

and/or otherwise and the husband shall go on

paying the largest amount directed, among the

aforesaid several directions, if any, of different

forums.

The parties as well as the court below shall

act on the written communication of the learned

advocates of the parties, coupled with server

copy of this order, without insisting upon prior

production of a certified copy thereof.

There will be no order as to costs.

Urgent photostat certified copies of this

order, if applied for, be made available to the

parties upon compliance with the requisite

formalities.

(Sabyasachi Bhattacharyya, J.)