Nirmalya Bhattacharya vs Bachendri Ray

Sabyasachi Bhattacharyya, J

The petitioner‐husband has preferred the instant application under Article 227 of the Constitution of India, against an order granting alimony to the opposite party‐wife at the rate of Rs.15,000/‐ per month and Rs.30,000/‐ towards litigation costs.

The matter arises from a suit filed by the petitioner‐husband inter alia for declaration that the marriage dated February 8, 2014 is voidable at the instance of the petitioner, for declaring that the registered marriage certificate is invalid and for consequential reliefs. The primary allegation in the suit related to cruelty on the part of the wife - both physical and mental ‐ but also mentioned non‐ consummation of the marriage between the parties due to failure on the part of the opposite party‐wife.

The petitioner, with leave from court, argues in person. At the outset, the petitioner submits that he is unemployed at present. It is submitted by the husband/petitioner that, although the petitioner resigned from his previous employment at the Cognizant Technology Solutions US Corporation and produced the said resignation letter along with acknowledgement letter, which were considered by the court below, the trial court awarded alimony on the premise that the acceptance of such resignation was not proved by the husband.

It is argued that, after the conclusion of hearing of the alimony matter, the husband obtained such acceptance of his resignation from the concerned employer and sought to file the same along with other documents, along with a firisti and a put‐up petition, before delivery of the impugned order. However, the trial court refused to take note of such documents.

The husband further argues that the wife is highly educated, having a degree of MBA as well as B‐Tech and has been working in renowned companies like the TCS (Tata Consultancy Services) and IBM.

Although a resignation letter of the wife, apparently accepted on May 25, 2012 by the Operation Manager of IBM, was produced in the court below, the husband disputes the veracity of such document and also submits that, even after such purported resignation, the wife has been working but suppressed her income in the court below.

The husband further submits that, despite the wife having suppressed all documents as to her income, the husband himself produced the Income Tax returns of the wife for the years 2010, 2012 and 2013, which showed the substantial income of the wife and her capacity to earn.

The husband next argues that he produced documents to show that he is a cancer patient and is undergoing treatment in and out of Kolkata. Such treatment involves substantial expenses, apart from the husband having his dependent and ailing parents to look after, which factors were not considered by the trial court at all.

Learned counsel for the opposite party‐ wife submits that the husband is a Senior Associate, Projects with the Cognizant Technology Solutions US Corporation and earns a handsome salary, which justifies the alimony awarded by the trial court. It is argued that since the husband suppressed his income by not producing any document thereof, it was justified for the court below to resort to reasonable guesswork and pass an order of alimony and litigation costs.

Learned counsel for the opposite party further argues that several criminal cases are pending against the husband at the instance of the wife, for having allegedly forged several documents, including documents purportedly relating to the income of the wife. As such, the husband has not approached this court with clean hands.

Both sides admit that there was a previous attempt by the husband to obtain a decree of nullity against the wife.

Upon hearing both sides, it is seen that both the parties are well‐educated, and have sufficient capacity to earn to maintain themselves. Since, under Section 24 of the Hindu Marriage Act, unlike other similar statutes, both the spouses have the entitlement to pray for alimony, the well‐settled yardstick, that an able‐ bodied person having capacity to earn has to pay alimony to the other spouse, can be applied to both spouses.

In the present case, it would be partial to apply such yardstick only to the husband to the exclusion of the wife, since both the parties are able‐bodied and have capacity to earn, which is evident from the employment of the parties at renowned concerns, past or present.

Even though the wife satisfied the trial court, upon production of relevant documents as to her resignation, that she has resigned from her post at the IBM, it is evident that the wife has been consistently working at renowned institutions like the TCS and the IBM and as such, cannot be said not to have the capacity to earn sufficiently to maintain herself. In fact, the Income Tax returns of the wife for certain past years ought to have been looked into by the court below to assess the capacity of the wife to earn. The choice of resignation exercised by the wife was her own, but merely such action cannot justify the conclusion that she is incapable of earning income sufficiently to maintain herself.

On the other hand, the husband produced sufficient prima facie material to show that he tendered his resignation to Cognizant, his employer, which was apparently acknowledged. However, despite the husband having sought to produce documents pertaining to the subsequent acceptance of such resignation, which apparently occurred after the conclusion of the hearing of the alimony application, the trial court ought, for the ends of justice, to have permitted such documents to be produced formally by the husband.

Thus, several factors ought to have been considered by the trial judge, as discussed above, while deciding the alimony application.

That apart, the complaints filed by the wife against the husband, regarding the alleged forgery of documents as to her income by the husband, cannot be a consideration in the present proceeding under Section 24 of the Hindu Marriage Act.

Even the maintainability of the present suit cannot be a determinant of the quantum of alimony to be awarded to the wife.

Taking the above factors into consideration, it would be appropriate if the matter is remanded back to the trial court for a re‐adjudication of the matter on merits, permitting both sides to produce further documents in support of their respective cases for the purpose of a proper and complete adjudication of the alimony matter.

Accordingly, C.O. No. 1766 of 2016, along with C.A.N. 4829 of 2019, are disposed of, thereby setting aside the impugned order and directing the trial court to grant opportunity to both sides to produce further documentary or oral evidence, if they so choose, for the purpose of proving their respective cases in connection with the alimony application. Upon such adduction of additional evidence and upon giving a further hearing to the parties, the trial court shall dispose of the alimony application afresh in accordance with law, without being influenced unduly in any manner by any of the observations made in this order or the order impugned herein.

The trial court is requested to dispose of the matter as early as the business of the said court permits, upon granting adequate opportunity to both sides to lead further evidence.

There will be no order as to costs.

Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.