CHANDANA GUHA ROY Vs. GOUTAM GUHA ROY

JUDGEMENT

(1.) This revisional application has been made challenging the Order No. 21 dated 4-2-2002 passed by the learned Addl. District Judge. 5th Court, Alipore in Misc. Case No. 5 of 2001 arising out of MAT Suit No. 54/2000. The husband/O.P. filed a Matrimonial Suit being MAT Suit No. 54/ 2000 praying for divorce. The petitioner got married with the respondent and the marriage was solemnised according to Hindu Rites and Customs on 9-4-1998. The petitioner alleged that she was sent to have parental home by the husband-respondent on 26-7-2000 and the petitioner had to depend on her father. The petitioner did not pay the single farthing to the petitioner even if when she became ill, her medical expenses were not also borne by the husband. According to the petitioner, she was tortured when she was in the matrimonial home and ultimately when the petitioner was forced to go to her parental house the respondent did not pay or did not look after the petitioner and as such the petitioner had to pass her days with great financial hardship. In such a circumstance the petitioner filed an application under Section 24 of the Hindu Marriage Act, 1955 claiming alimony pendente lite and the said petition filed in the said Matrimonial Suit was numbered as Misc. Case No. 5/ 2001. The petitioner also stated that she has also filed an application under Section 125 of the Cr.P.C. before the Chief Judicial Magistrate, Barasat which is still pending. According to the petitioner, the husband-respondent is a diploma-holder in Mechanical Engineering (L.M.E.) and he is an employee of Garrison Engineering Company Pvt. Ltd. and he earns Rs.10,000/- per month. The petitioner claimed alimony pendente lite to the tune of Rs. 3000/- per month. The husband-respondent has also filed an application for maintenance against the wife claiming that the wife is a graduate and out of private tuition she earns Rs. 5000/- per month and the husband has claimed maintenance of Rs.2000/- per month from the wife. The husband-respondent filed objection before the trial Court to the application for maintenance filed by the petitioner under Section 24 of the Hindu Marriage Act. In the said objection the husband -respondent submitted that he was the store-in-charge of Garrison Engineering Company. The petitioner-wife filed a criminal case before Maniktala Police Station and the respondent-husband was arrested in connection with the said criminal case and when he came out on bail his service was terminated and since then he is unemployed and moving like a vagabond. The respondent -husband also filed an application for maintenance claiming alimony to the tune of Rs. 2000/- per month and alleging that since the wife-petitioner is earning Rs. 5000/- per month out of private coaching, he is entitled to get maintenance. After hearing the wife-petitioner and the husband-O.P. before the trial Court, the learned Trial Judge rejected both the petitions one filed by the petitioner-wife and the other filed by the husband-respondent.

(2.) Challenging the aforesaid rejection order the wife has come to this Court.

(3.) The learned counsel for the petitioner submits that the learned Trial Judge did not exercise his jurisdiction properly and without any application of mind or without considering the provision of statute or without considering the evidence on record, the learned Trial Judge passed the impugned order. The learned Counsel submits that the learned Trial Judge should have considered that in view of the provisions of Section 106 of the Indian Evidence Act the burden of proof of income of the husband was lying with the husband since the fact of his income and the quantum of his income cannot be within the knowledge in specific of the wife-petitioner. The learned Counsel for the petitioner also submits that the basis of the impugned order is surmise and not evidence on record. The learned Counsel for the petitioner submits that the wife as disclosed certain income of the husband and thereafter the husband-respondent should have disclosed in evidence regarding his actual income. The learned Counsel for the petitioner also submitted that the learned Trial Judge went on wrong in deciding that since the petitioner is an Arts Graduate she cannot sit idle and arrived at a wrong presumption that she must have some earning. The learned Counsel also submits that the learned Trial Judge failed to consider that the husband-respondent is also a Diploma Engineer and if the Arts Graduate can have some earning the Diploma Engineer cannot be also a vagabond. The learned Counsel placed reliance on a judgment reported in AIR 1988 Cal 98, Chitra Sengupta v. Dhrubajyoti Sengupta. In this judgment the Honble Division Bench of this High Court observed "but that apart, monthly income of a husband may not very often be within the knowledge of the wife, particularly in a case like this where the relation is considerably strained and the spouses are living a part for a considerably long period". The Honble Division Bench also observed that onus under. Section 106 of the Evidence Act would be on the husband to disclose the same and if he fails to do so without any good reasons, the Court would be entitled to presume against him and to accept the allegations of the wife as to the amount of income derived from such reasonable sources as would be available to her. The Honble Division Bench in this case quoting from a decision reported in AIR 1917 Privy Council (sic) observed "a practice has grown up in Indian Procedure of those in possession of important documents or information lying by, trusting to the abstract doctrine of the onus of proof, and failing accordingly to furnish to the Courts the best material for this decision. With regard to third parties, this may be right enough; they have no responsibility for the conduct of the suit; but with regard to the parties to the suit it is, in Their Lordships opinion, an inversion of sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the written evidence in their possession which would throw light upon the proposition."