Prasenjit Mandal, J. - (1.) CHALLENGE is to the order no.33 dated August 19, 2010 passed by the learned Additional District judge, Second Court, Barasat in Matrimonial Suit No.113 of 2008 thereby allowing an application under Section 36 of the Special Marriage Act granting alimony at the rate of Rs.8,000/- per month for the wife and the minor son, subject adjustment of the amount paid in a proceeding under Section 125 of the Cr.P.C., effective from the date of filing of the application on November 13, 2006.
(2.) THE husband/petitioner herein instituted a suit being Matrimonial Suit No.113 of 2008 before the learned District Judge, North 24 Parganas under Section 27 of the Special Marriage Act. The wife/opposite party entered appearance and she is contesting the said suit. During pendency of the suit, she filed an application for alimony on November 13, 2006. That application for alimony was allowed by the impugned order granting alimony at the rate of Rs.8,000/- per month for the wife and the son effective from the date of filing of the application adjustable to the amount being paid in the proceeding under Section 125 of the Cr.P.C. Being aggrieved by that order, this application has been preferred by the husband. Now, the question is whether the impugned order should be sustained. Upon hearing the learned counsel for the petitioner and on going through the materials on record, I find that admittedly the parties were married under Special Marriage Act and one child was born out of the wedlock. Admittedly, the wife and the child have been residing in the house of the husband. The husband is residing in a rented flat under the compelling circumstances. The husband has contended that because of such a situation, he has to pay rent at the rate of Rs.3,500/- per month for his tenanted premises. The impugned order was passed on August 19, 2010 but effect has been given from November 13, 2006. The husband is a school teacher. The contention of the husband is that in 2006, his net salary was to the extent of Rs.12,411/- after deductions under different compulsory heads. Out of such money, the husband is paying Rs.7,000/- per month for the maintenance of the wife and the son. He is also paying monthly instalments of the loan taken by him for the construction of the house, at the rate of Rs.4,565/- per month. So, if the amount is paid at the enhanced rate, he will be left with nominal money for his own survival. He has to maintain other liabilities also. So, he prays for modification of the impugned order.
(3.) THE wife is not coming to raise any dispute with regard to the contention of the husband. THE husband has filed a number of salary certificates starting from the month of September, 2006 onwards showing under net salary from his service as a school teacher around Rs.12,000/- per month, Rs.13,000/- and odd per months, thereafter Rs.14,000/- and odd per month onwards and lastly the salary was increased to the extent of Rs.22,000/- and odd net per month from June, 2009. THEre is no contrary evidence with regard to such contention. This being the position, I have no other alternative but to accept the submission of the husband which is based on convincing salary certificates. There is no dispute that the husband has been paying maintenance at the rate of Rs.7,000/- per month to the wife and the son for their maintenance in a proceeding under Section 125 of the Cr.P.C. Therefore, if the amount is further enhanced effective from November 13, 2006, it will create hardship to the husband and he will not be able to manage himself with the meagre amount left after payment of the maintenance and alimony.;