(1.) The present application under Article 227 of the Constitution of India has been preferred challenging an order dtd. 22/11/2019 passed by the learned Additional District and Sessions Judge at Kurseong, District Darjeeling in Civil Miscellaneous Case No. 01 of 2019 arising out of Matrimonial Suit No. 21 of 2017. Mr. Paul, learned advocate appearing for the husband/petitioner submits that the impugned order dtd. 22/11/2019 has been passed construing a document reflecting the proposed CTC as the actual income of the petitioner. The petitioner, in fact, earns about Rs.38,000.00 per month, as would be explicit from the pay slips annexed at pages 46 to 48 of the petition.
(2.) According to Mr. Paul, the learned Court below has also not taken into consideration the huge medical expenses borne by the petitioner for the treatment of his parents. The petitioner is the only son and his parents are dependent upon him. It has also not been considered that for the purpose of his employment, he has to travel and stay at various stations in rental accommodation. His net monthly income is about Rs.38,000.00 and he is paying to the opposite party about 1/3rd of his total income, which comes to about Rs.12,000.00 per month. The fact that he is paying an amount of Rs.12,000.00 stands admitted by the opposite party, as would be explicit from the averments made in paragraph 8 of the Sec. 24 application. The impugned order has been passed on the basis of a mere presumption that the petitioner is earning an amount of Rs.1,00,000.00. The opposite party had miserably failed to establish that the petitioner was earning such high amount. The findings are not based on any evidence on record and as such the impugned order is perverse and unsustainable in law. In support of such contention, reliance has been placed upon a judgment delivered in the case of Kalyan Dey Chowdhury - Vs- Rita Dey Chowdhury nee Nandy, reported in AIR 2017 SC 2383.
(3.) Per contra Ms. Dutta, learned advocate appearing for the opposite party submits that in the written objection to the Sec. 24 application the petitioner himself disclosed his income to be Rs.45,833.00. The rigors of such admission has been sought to be diluted by arguing a new case in the present revisional application stating that his total monthly income is only about Rs.38,000.00.