Calcutta High Court (Appellete Side)
Monojit Basu vs Shyamasree Basu (Nee Ghosh) on 8 August, 2022
FAT 522 of 2019
Item-3. CAN 3 of 2021
08-08-2022
CAN 4 of 2022
CAN 5 of 2022
sg Ct. 8 CAN 6 of 2022
Monojit Basu
Versus
Shyamasree Basu (nee Ghosh)
Mr. Monojit Basu, Adv.
... appellant-in-person
Mr. Debashish Roy, Adv.
Ms. Sumitra Das, Adv.
Ms. Riya Chatterjee, Adv.
...for the respondent
The appellant is appearing in person on the virtual mode. In
spite of our repeated directions, he has not paid maintenance of his
minor son in terms of the order dated 1st August, 2011. We have
recorded in our previous order that a sum of Rs.1.82 lakhs would
be due and payable towards arrear maintenance of the son in terms
of the order dated 1st August, 2011. Mr. Monojit Basu is evading
the process of law and he is not appearing physically although he
was directed to be personally present today and to file an affidavit
of compliance.
On 1st July, 2022, we have specifically directed Mr. Basu to
file an affidavit disclosing the details as mentioned in enclosure-1
of the judgment of the Hon'ble Supreme Court in Rajnesh vs.
Neha, reported in 2021(2) SCC 314. Thereafter, various orders
were passed.
Mr. Basu appears to have written a letter to the Hon'ble the
Chief Justice of the Calcutta High Court with a request to assign
this matter to a different Bench. However, the Hon'ble the Chief
Justice declined the request. We have also recorded this fact in our
order dated 3rd August, 2022.
Mr. Basu has submitted an affidavit disclosing the status of
SLP pending before the Hon'ble Supreme Court to the email
address of the learned Registrar General and a copy of the same
has been produced before us by the registry. The said affidavit is
taken on record
Mr. Debashish Roy, learned Counsel representing the
respondent/wife has produced before us a print out of the email
received from Mr. Basu, in which he has disclosed the filing of
Special Leave Petition. It is stated that the SLP with provisional
No.12936 of 2022 was filed on 24th July, 2022 and another SLP
with provisional No. 13236 of 2022 was filed on 31st June, 2022.
It is submitted by Mr. Basu that the Registry of the Hon'ble
Supreme Court has requested Mr. Basu to write a letter showing
urgency and now he is going to file an application showing
urgency.
It appears from the Special Leave Petition that the orders
dated 16th June, 2022 and 24th June, 2022 are the subject matter of
challenge in this Special Leave Petition. On 16th June, 2022, we
took up CAN 3 of 2021, an application filed by the respondent
towards maintenance of her minor son. Upon hearing both parties,
we pass the following order:
"The appellant is appearing in person. In spite of
repeated opportunities being given to the appellant to file
an affidavit to the application for payment of
maintenance pendente lite to the minor son, no affidavit-
in-opposition has filed till this date. This application
was filed on 22nd September, 2021 and the record would
show that several opportunities have been given to the
appellant to file affidavit-in-opposition to the said
petition.
In the event by the adjourned date, no affidavit-
in-opposition is filed, we shall presume that the appellant
has no objection to the claim made by the respondent
towards payment of maintenance at the rate of
Rs.25,000/- per month for the minor son.
Such affidavit-in-opposition shall be filed by
Tuesday, i.e., 21st June, 2022. Reply thereto, if any, shall
be filed by Thursday, i.e., 23rd June, 2022.
Mr. Monojit Basu, appears in person submits that
no amount is due and payable to the minor son towards
maintenance as directed by the Trial Court.
The said affidavit must disclose the documents
made till date towards maintenance of the minor son in
terms of the direction passed by the Trial Court on 1 st
August, 2011.
The application stands adjourned till Friday, i.e.,
24th June, 2022."
Thereafter on 24th June, 2022, we directed the appellant to
pay a sum of Rs.50,000/- within 27th June, 2022 on account of
arrear maintenance to the minor son subject to the final
adjudication of the pending applications and the matter was
adjourned till 1st July, 2022. Till date, in spite of repeated
directions and an opportunity is being given to the appellant, he
did not either pay the aforesaid sum nor file any affidavit
disclosing the payments made so far towards maintenance of his
minor child pursuant to the order dated 1st August, 2011.
Mr. Basu urged before us that he would not disclose the said
affidavit unless the wife files an affidavit in terms of Rajnesh
(supra).
For the purpose of adjudication of CAN 3 of 2021, the wife
has filed an affidavit. The wife has also filed a separate affidavit
disclosing her present income and the other liabilities. However, it
cannot be denied that the maintenance for the son, as directed by
the learned Trial Court in its order dated 1st August, 2011 for a
sum of Rs.6500/- per month, requires an affidavit to be filed by
the wife disclosing her assets and liabilities to justify a claim
towards arrear maintenance on the basis of the aforesaid order.
We have not finally adjudicated on the application for
maintenance but we have only directed Mr. Basu to comply with
the order dated 1st August, 2011. Mr. Basu, has made oral
submission which are not convincing at all.
In the event Mr. Basu fails to file an affidavit and disclose
his assets and liabilities in terms of the judgement of the Hon'ble
Supreme Court in Rajnesh (supra) within a period of two weeks
from date, we shall take appropriate proceedings against Mr.
Basu.
Mr. Basu, is directed to be personally present on the
adjourned date.
This order is, however, subject to the outcome of the
pending Special Leave Petition.
In CAN 5 of 2022, Mr. Basu has disclosed a certified issued
by the ICICI Bank showing that he and his wife have taken a
home loan of a sum of Rs.29,75,000/- in respect of a flat at
Bangalore. It clearly shows that Mr. Basu has adequate income to
purchase a property. However, he has submitted that although he
had taken benefit of the EMIs spent by him under the Income Tax,
but the respondent/wife might have taken similar benefit which
could only be ascertained in the event the Income Tax Return of
the wife is filed.
However, we find that the said submission is irrelevant for
deciding the maintenance of the child as both the parties are
required to maintain the child. The only issue needs to be decided
is the quantum of maintenance for the minor child depending upon
the respective income of the parties. Admittedly, Mr. Basu is in
possession of the Bangalore flat for which the loan was sanctioned
in the joint names of the parties.
Let the matter be listed on 22nd August, 2022.
(Siddhartha Roy Chowdhury, J.) (Soumen Sen, J.)
