Bidesh Ghosh Vs Samapti Ghosh — Calcutta HC (2024) — LawSathi Research

Bidesh Ghosh Vs Samapti Ghosh — Calcutta HC (2024) — LawSathi Research

What the court decided

AI extract

Outcome

Revisional application disposed of with directions: impugned Order No. 41 dated July 08, 2022 set aside and alimony pendente lite application (Misc. Case No. 314 of 2019) sent for fresh consideration; husband to file written objection and affidavit of assets and liabilities within two weeks from date; wife entitled to rejoinder; Trial Judge to dispose of the application expeditiously per the proviso to Section 36 of the Act of 1954 without unnecessary adjournments; petitioner to pay Rs. 3,000/- per month ad interim maintenance pendente lite meanwhile; all payments (including those under the order dated December 14, 2023) without prejudice and adjustable against arrear maintenance fixed by the final order; no order as to costs.

Issue for consideration

Whether the learned Trial Judge's ex parte direction (Order No. 41 dated July 08, 2022) for alimony pendente lite of Rs. 10,000/- per month plus Rs. 10,000/- litigation expenses requires fresh consideration, affording the husband an opportunity to disclose his disposable income, assets and liabilities for proper adjudication of the quantum. +1 more

Court's answer

The disposable income of the husband needs to be ascertained for the effective adjudication of an application for alimony pendente lite; since this fact is within the husband's special knowledge, he must be given an opportunity to disclose his income, assets and liabilities so the Court can arrive at a just and proper quantum for the wife.

Ratio / Principle

The application for alimony pendente lite requires a fresh consideration.

Key takeaways

The husband shall file written objection to the alimony application and an affidavit as to his assets and liabilities within two weeks from date; the wife shall be entitled to file rejoinder to the written objection and to the affidavit.ratio¶19
Adhering to the mandate of the proviso appended to Section 36 of the Act of 1954, the learned Trial Judge shall make all endeavour to dispose of the alimony application as expeditiously as possible and shall not grant any unnecessary adjournment to either party.ratio¶20

Detailed headnote1 paragraphs

Alimony pendente lite - ex parte interim award set aside for fresh consideration - Calcutta High Court (C.O. No. 810 of 2023, Biswajit Basu, J., disposed 04.09.2024). The husband-petitioner challenged Order No. 41 dated July 08, 2022 of the 10th Additional District Judge, Alipore, whereby the wife's alimony pendente lite application (Misc. Case No. 314 of 2019) in the pending Matrimonial Suit No. 3224 of 2018 was allowed ex parte at Rs. 10,000/- per month plus Rs. 10,000/- litigation expenses. Holding that the husband's disposable income, being within his special knowledge, must be ascertained for effective adjudication of quantum, the Court set aside the impugned order and directed fresh consideration: husband to file written objection and affidavit of assets and liabilities within two weeks; wife free to file rejoinder; Trial Judge, adhering to the mandate of the proviso appended to Section 36 of the Act of 1954, to conclude the matter expeditiously without unnecessary adjournments. Meanwhile the husband was ordered to pay Rs. 3,000/- per month as ad interim maintenance pendente lite, with all payments (including under the order dated December 14, 2023) without prejudice and adjustable against arrear maintenance ultimately fixed. Disposed of without costs.

37 sandip Ct. 19 04.09.2024

In The High Court At Calcutta Civil Revisional Jurisdiction

C.O. No. 810 of 2023

Sri Bidesh Ghosh

Vs.

Smt. Samapti Ghosh

Ms. Sohini Chakraborty,

Mr. Sandip Ganguly,

Mr. Koushik Bhattacharya … For the petitioner.

Mr. D. K. Adhikari, Mr. Chandra Sekhar Mukherjee

… For the opposite party.

The petitioner has filed the connected Matrimonial Suit No. 3224 of 2018 for dissolution of his marriage with the opposite party by a decree of divorce.

The said suit is pending before the 10^th Court of learned Additional District Judge at Alipore, District – 24 Parganas (South).

The learned Trial Judge by the order impugned being Order No. 41 dated July 08, 2022 has allowed an application filed by the opposite party for alimony pendente lite registered as Misc. Case No. 314 of 2019, ex parte thereby directing payment of alimony pendente lite @ Rs. 10,000/- per month from the date of filing of the said application for alimony pendente lite and payment of a further sum of Rs. 10,000/- on account of litigation expenses.

The petitioner is praying for a chance to contest the said application.

2

The disposable income of the husband needs to be ascertained for the effective adjudication of an application for alimony pendente lite and the said fact since is within the special knowledge of the husband, opportunity should be given to him to disclose his such income, assets and liabilities in the said proceeding, as the same would enable the Court to arrive at a just and proper finding regarding the quantum of alimony pendente lite to be awarded in favour of the wife.

The application for alimony therefore requires a fresh consideration.

The husband shall file written objection to the application and shall also file the affidavit as to his assets and liabilities within a period of two weeks from date ; the wife shall be entitled to file rejoinder to the said written objection and to the said affidavit.

Ad hearing to the mandate of the proviso appended to Section 36 of the said Act of 1954 the learned Trial Judge shall make all endeavour to dispose of the said application as expeditiously as possible and in doing so shall not grant any unnecessary adjournment to either of the parties.

The petitioner during pendency of the said application shall pay a sum of Rs. 3,000/- per month by way of ad interim maintenance pendente lite to the opposite party.

3

The payments to be made in terms of this order and the payments already made in terms of the order dated December 14, 2023 passed in the present revisional application are without prejudice to the right and contention of the parties and would be adjusted against the arrear maintenance to be calculated in terms of the final order to be passed.

To facilitate the entire exercise, the order impugned is set aside.

C.O. 810 of 2023 is disposed of with the above terms without any order as to costs.

Urgent Photostat certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.

(Biswajit Basu, J.)