Rupak Das vs Trishita Das (Halder)
2021 Latest Caselaw 5074 Cal

S/L 10
27.09.2021
Court. No. 07
suvayan
                               CO 1453 of 2021
                          (Through Video Conference)

                                     Rupak Das
                                         Vs.
                                Trishita Das (Halder)


                Mr. Probal Kr. Mukherjee
                Ms. Shebatee Datta
                                                  ...for the Petitioner

                Mr. S. T. Mina
                Mr. Rajdeep Bhattacharya
                Ms. Sabnam De
                                                        ...for the Opposite Party


                        The respondent in a matrimonial suit filed under

Section 27 of the Special Marriage Act has challenged an

order no. 23 dated July 17, 2021 passed in Miscellaneous

Case no.318 of 2019 filed under Section 36 of the Special

Marriage Act arising out of matrimonial suit no. 3142 of

2018.

By the order impugned the learned Trial Judge

directed the husband/petitioner herein to pay a sum of

Rs.15,000/- per month to the wife/opposite party herein on

account of the maintenance for the minor son.

Mr. Mukherjee, learned Senior Advocate appearing

for the husband/petitioner draws the attention of this Court

to the averments made in the application under Section 36 of

the Special Marriage Act more particularly paragraph 15

thereof wherein the breakup of the expenses for the minor

son is given.

Mr. Mukherjee, submits that the learned Trial Judge

after arriving at a finding that a sum of Rs.15,000/- per

month is necessary to meet the educational as well as other

expenses of the son, directed the husband to pay the entire

amount without appreciating that the wife also has

independent source of income and is, therefore, under an

obligation to contribute towards the expenses on account of

the minor. Mr. Mukherjee, relies upon a judgement of the

Hon'ble Supreme Court of India reported at (2021) 2

Supreme Court Cases 324 (Rajnesh Vs. Neha & Anr.) and

submits that in case the wife is having her independent

income the educational as well as other expenses for the child

is to be shared proportionately between the parties.

Per contra, Mr. Mina, learned Advocate for the

opposite party submits that though in the application a sum

of Rs.18,000/- was claimed on account of the maintenance of

the minor son but due to passage of time the educational as

well as other expenses of the minor son has increased by

leaps and bounds. He submits that the income of the

husband has also increased substantially in the meantime.

According to him, the learned Trial Judge was justified in

directing the husband to pay a sum of Rs.15,000/- on

account of maintenance of the minor son.

I have heard the learned Advocate for the parties and

perused the materials on record. This Court while exercising

jurisdiction under Article 227 of the Constitution of India has

to decide as to whether the learned Trial Judge was justified

in passing the order impugned on the basis of the materials

that were available on record. It appears from the

application under Section 36 of the Special Marriage Act that

the wife has given a breakup of the expenses namely

educational, fooding, dresses, etc. for the son for the period

from January 2019 to June 2019. The wife claimed that the

expenses for the said period was Rs.17,700/- per month.

Record reveals that the application under Section 36 was

filed on July 1, 2019. Thus the breakup of the expenses for

the month of January 2019 to June 2019 can be considered to

be the expenses which the wife claimed to have incurred on

account of the maintenance of the minor son at the relevant

point of time when such application was filed.

The wife is a teacher of a High School. It is evident

from the pay slip for the month of December 2020 that the

net pay of the wife is Rs.52,628/-. The net pay of the

husband for the month of December 2020 is Rs.57,956/-.

In view of the judgment delivered by the Hon'ble

Supreme Court of India in Rajnesh Vs. Neha & Anr. (Supra),

the expenses of the minor son in the instant case is to be

shared proportionately between the parties as the wife has

sufficient income.

After taking into consideration the net salary of the

parties as well as the expenses on account of the son and the

decision of the Hon'ble Supreme Court of India that in case

the wife is working and having sufficient income, the

expenses on account of the child is to be shared

proportionately between the parties, this Court is of the

considered view that a sum of Rs.11,000/- per month is to be

paid by the husband to the wife for the maintenance of the

minor child. Since the wife claims that a sum of Rs.18,000/-

is required for the maintenance of the minor son, the balance

sum of Rs.7000/- is to be borne by the wife/opposite party

herein.

For the reasons as aforesaid, this Court holds that the

Trial Judge was not justified in directing the husband to pay

maintenance at the rate of Rs.15,000/- per month for the

son.

The learned Trial Judge, by the order impugned,

directed the husband to pay arrear maintenance from the

month of July 2019 taking into consideration the date of

filing of the application, and directed the husband to pay the

arrear maintenance within three months from the date of

passing of the order. The arrear maintenance for the son at

the rate of Rs.11,000/- per month starting from the month of

July 2019 till September 2021 which comes to Rs.2,97,000/-

shall be paid by the husband to the wife by three

installments. The first two installments shall be of

Rs.1,00,000/- each and the balance amount shall be paid in

the third installment. The first installment on account of

arrear maintenance shall be paid by the husband to the wife

on or before October 8, 2021. The second installment on

account of the arrear alimony shall be paid on or before

November 22, 2021 and the last installment shall be paid on

or before December 22, 2021. The current alimony for the

son starting from the month of October 2021 shall be paid

within November 10, 2021 and the husband shall continue to

pay the current alimony month by month thereafter within

10th of each succeeding English calendar month.

The learned Advocate for the wife/opposite party

submits that the husband may be directed to pay alimony on

account of the son both arrears as well as current to the Bank

account of the wife and the learned Advocate for the husband

on instruction submitted that such payments shall be made

to the Bank account of the wife. Details of the Bank account

shall be furnished by the learned advocate for the wife to the

learned Advocate of the husband on or before September 29,

2021.

The order impugned thus stands modified only to the

extent indicated herein before.

Co 1453 of 2021 accordingly stands disposed of.

There will be, however, no order as to costs.

Urgent Photostat certified copy of this order, if

applied for, be given to the parties on priority basis.

(Hiranmay Bhattacharyya, J.)