Where the wife has sufficient income to maintain herself, she will not qualify for getting alimony for herself: Calcutta High Court.

Within the contemplation of section 36 of the Special Marriage Act, a wife will not qualify for getting alimony for herself, if she has sufficient income to maintain herself. A single Judge bench comprising Hon’ble Justice Sabyasachi Bhattacharyya, in the matter of Sri Samit Kapoor Vs. Punam Kapoor Nee Bansal (C.O. No. 1169 of 2021), dealt with an issue where the petitioner presented a revisional application against the same order of alimony granted by the Trial Court, awarding Rs.1 lakh for the wife and the child from the date of the impugned order and litigation costs of Rs.40,000/-.

In the present revisional application the husband submitted that the wife had suppressed her income, but on checking the documents and the affidavits on record, it got revealed that the wife had several bank accounts with HDFC and Kotak Mahindra Banks. The husband had also indicated in the revisional application, the wife’s Income Tax return indicates that her gross annual income is Rs.1,15,959/-, whereas the income from interest and investments, including a fixed deposit worth Rs.19,50,000/-. The husband also disclosed in the application the several installments of previous payments made by the husband during the pendency of the alimony application. The husband submitted that the educational and educational expenses of their minor child was being paid by the husband. Further, the husband also pointed that the charges shown by the wife for transport in a school vehicle, was all superfluous as the child was admittedly autistic, she was sent to school in the personal vehicle of the parties, which was used by the wife. Thereby the counsel on behalf of the husband prayed before the court to set aside the order of alimony. However, the husband agreed to bear the educational expenses as well as the medical expenses of the child of the parties.

The counsel for the wife contended that the wife had already disclosed the break-up of expenses of the wife as well as the child elaborately. The counsel submitted that the husband suppressed his income. The counsel for the wife in support of the case Ashrukana Das Vs. Raj Kumkar Das, reported at (2016) 1 CLJ 383, stated that the wife was entitled to alimony under section 36 of the Special Marriage Act.

The court held that-“ the wife does not qualify for getting alimony for herself within the contemplation of Section 36 of the Special Marriage Act, since the wife has sufficient income to maintain herself. Moreover, adverse inference ought to have been drawn by the Trial Court against the wife for suppression of her income from the interests derived from her huge investments, fixed deposits and bank balance”. Further, the court held that the for the requirements of the child, both the parents should bear it in the ratio of their respective incomes. Where no clear picture of the actual income of the parties can be derived from the affidavits-of-assets, it would be assumed that the husband ought to bear the expenses of the child in view of his liability as a father, since he has substantial earnings as compared to his wife.

Thereby the court disposed of the applications by modifying the impugned order, passed by the Additional District Judge, in connection with Matrimonial Suit, which stated that the husband shall, from the date of the impugned order, that is, from the month of February 2021 pay maintenance for the child of the parties at the rate of Rs.50,000/- per month, including all expenses of the child.  Moreover, the court held that the husband shall pay an amount of Rs.50,000/- in lieu of maintenance of the child by the fifteenth of each succeeding month for which the alimony falls due. Lastly, the court made it clear that the order shall remain in effect till disposal of the Matrimonial Suit and, in the event, there was any substantial increase in the medical expenses of the child, the wife would be at liberty to approach the Trial Court, with cogent proof, for a direction upon the husband to pay such expenses.

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