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CASE NO.: Appeal (civil)  4909 of 2005

PETITIONER: Rita Dutta & another                                     

RESPONDENT: Subhendu Dutta                                   

DATE OF JUDGMENT: 11/08/2005

BENCH: ASHOK BHAN & S.B. SINHA

JUDGMENT: J U D G M E N T [@ SLP(C) NO.11708 OF 2005]

BHAN, J.

       Leave granted.

       This appeal is directed against the order  passed by the High Court of Calcutta in C.O. No.2451  of 2003 whereby the High Court has modified the  order passed by the trial Court granting maintenance  allowance pendente lite.  The High Court by the  impugned order has held that appellant no.1 i.e.  wife of the respondent-husband would not be entitled  to any maintenance pendente lite as well as the  litigation cost and amount of maintenance allowed to  his son Saurav Dutta has been reduced from  Rs.5,000/- to Rs.1,500/- per month.  The maintenance  allowance of the second son Gaurav Dutta has been  maintained.  

       Appellant no.1 and respondent were married  according to Hindu customary rites and ceremonies in  Calcutta on 26.02.1982.  Out of the wedlock two sons  namely, Saurav Dutta and Gaurav Dutta were born.   Saurav Dutta is a student of West Bengal National  University of Juridical Sciences, Kolkata and has  taken a study loan of Rs.2,43,000/- to pursue the  studies whereas the younger son Gaurav Dutta is  currently a student of the 1st year, Zoology  (Hons.), Zakir Hussein College, Delhi.  Appellant  no.1 was working as a Stenographer in the Indian  Tourism Development Corporation, a Central  Government Undertaking, since 15.07.1979 and was  posted at Hotel Airport Ashok, Calcutta.  She left  her service on 01.07.1992 under the Voluntary  Retirement Scheme to devote all her time and energy  for the upbringing of her sons and to look after her  husband.   

       After 20 years of marriage on 05.04.2002  respondent no.1 initiated divorce proceedings under  Section 13 of the Hindu Marriage Act, 1955 [for  short "the Act"] alleging therein that the appellant  no.1 had been meeting out unmitigated and relentless  cruelty, both mental and physical.  All these  allegations have been denied by appellant no.1.   Respondent left the matrimonial home and started  residing with his brother’s family at 6B, Waverly

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Lane, Taltola, Calcutta.  

       Appellant no.1 filed an application under  Section 24 of the Act in the Court of 13th  Additional District Judge at Alipore, Calcutta  claiming maintenance for herself and her two sons  from the respondent.  She claimed maintenance of  Rs.25,000/- per month for herself and her two sons  and Rs.10,000/- towards litigation expenses.    Admittedly that respondent was earlier working with  a well known firm of architect but later on resigned  his job and started his own consultancy firm.   It  was alleged that he was maintaining a big office in  the Central Calcutta and a number of employees were  working under him.  It was further averred that he  was associated with various industrial offices and  firms and his income was more than Rs.1,00,000/- per  month.   

Respondent in reply stated that appellant no.1  was running the business of selling saris from the  place of her residence.   That she had number of  fixed deposits and U.S. 64 units.  She had purchased  ornaments worth Rs.50,000/- out of her own income.    That out of the income derived by the appellant No.  1 she could maintain herself and her two sons  comfortably.  Regarding  his own income it was  stated that his net income was Rs.5,000/- only after  defraying the expenses of his office.   

       Trial Court in the absence of any documentary  evidence as to the income of the appellant no.1 and  disbelieving the statement made by the respondent  regarding his income awarded maintenance allowance  Rs.3,000/- per month for appellant no.1, Rs.2,500/-  for the younger son Gaurav Dutta and Rs.5,000/- per  month for the elder son Saurav Dutta.   

Respondent being aggrieved by the order of the  trial Court filed an appeal in the High Court which  has been partly accepted by the impugned order.    The High Court concurred with the finding recorded  by the trial Court that the respondent had failed to  disclose his true income.  He failed to produce the  balance sheet as well as the profit and loss account  of his business.   It was observed that it could not  be believed that an architect who is running his own  consultancy business employing a number of  employees, does not maintain the profit and loss  account of his business, though he is an assessee  under the Income-tax Act.   The Court refused to  believe the income of the respondent of Rs. 5,000/-  per month.  The High Court also came to the  conclusion that even the appellant No. 1 had not  disclosed her true income.  Keeping in view the  facts that she had her own income it was held that  she would not be entitled to any maintenance  allowance pendente lite.   The maintenance allowance  of Rs.2,500/- per month granted to the younger son  Gaurav Dutta has been maintained and the maintenance  allowance of Rs.5,000/- given to the elder son  Saurav Dutta has been reduced to Rs.1,500/- per  month on the ground that he had already  raised  study loan of Rs.2.43,000/- which is to be repaid in  60 equal monthly instalments after a moratorium

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period which is the course period plus one year  after completion of the course or six months after  getting job whichever is earlier.   

Being aggrieved the appellant no.1 and Saurav  Dutta (elder son) have come up in appeal.

Learned counsels for the parties have been  heard.

We agree with the findings recorded by the High  Court as well as the trial Court that the respondent  had not disclosed his true income.    He has failed  to produce the balance sheet as well as profit and  loss account which could show his real income.  The  income of Rs. 5,000/- disclosed by the respondent  seems to be grossly inadequate keeping in view that  he had standing of more than 25 years as a  professional architect.   The business of printing  or selling saris by appellant no.1 from her house  does not seem to be a big or lucrative business and  from the income of this business she cannot maintain  herself and her two growing sons pursuing their  studies in prestigious institutions.  No doubt she  has roof over her head but she requires money to  meet other day-to-day requirements and medical  expenses.  The sum of Rs.4,000/- awarded to the two  sons of appellant No. 1 as maintenance  pendente  lite is inadequate keeping in view today’s price  index.  Accordingly, we modify the order passed by  the High Court and increase the maintenance  allowance of Saurav Dutta who is studying in  West  Bengal National University of Juridical Sciences,  Kolkata to Rs.3,000/- per month instead of  Rs.1,500/- per month granted by the High Court.   Respondent is also directed to pay maintenance  allowance of Rs.1,500/- per month to appellant no.1  as well.   The maintenance allowance granted to the  second son Gaurav Dutta of Rs. 2,500/- per month is  maintained.

       In terms of this order appellant no.1 would be  entitled to Rs.1,500/- per month, Saurav Dutta  (elder son) would be entitled to Rs.3,000/- per  month and the  Gaurav Dutta (younger son) would be  entitled to Rs.2,500/- per month, total of which  comes to Rs.7,000/- per month.  Modified order will  take effect from the date of filing of application  under Section 24 of the Act.  

       Respondent is directed to pay the maintenance  allowance by 10th of every month.  Arrears be paid  in the next six months in equal instalments along  with the monthly maintenance allowance.  Appellants  shall also be entitled to Rs.10,000/- as litigation  expenses, the same be paid, if not already paid.  

       This appeal is allowed in the above terms with  costs which is assessed at Rs.5,000/-.