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A.W. Lobo Vs. J.A. Lobo - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata
Decided On
Reported inAIR1939Cal753
AppellantA.W. Lobo
RespondentJ.A. Lobo
Excerpt:
- .....suit instituted by the wife against her husband. one report deals with the amount payable as alimony pendente lite and the other deals with the amount payable as costs. both these enquiries were referred to the registrar and he made his report on 22nd february 1939. both the reports were filed on 8th march 1939. when the reports came up for further directions the husband appeared in person and objected to the reports. this was on 18th april 1939. before this date the husband took no steps. the objections of the husband are twofold. as regards the amount fixed for alimony pendente lite the husband says that the registrar took into account his gross income, not his net income. by net income the husband means income left after meeting all what he terms his necessary expenses. the next.....
Judgment:

Sen, J.

1. There are two reports by the Registrar in the matrimonial suit instituted by the wife against her husband. One report deals with the amount payable as alimony pendente lite and the other deals with the amount payable as costs. Both these enquiries were referred to the Registrar and he made his report on 22nd February 1939. Both the reports were filed on 8th March 1939. When the reports came up for further directions the husband appeared in person and objected to the reports. This was on 18th April 1939. Before this date the husband took no steps. The objections of the husband are twofold. As regards the amount fixed for alimony pendente lite the husband says that the Registrar took into account his gross income, not his net income. By net income the husband means income left after meeting all what he terms his necessary expenses. The next objection is that the wife is not entitled either to alimony pendente lite or to her costs because she has private means of her own. As the husband appeared in person and as I wanted to be advised on the matter. I asked Mr. Sekhar Bose to appear for the husband, and he has very kindly done so. I express my thanks to Mr. Bose for the assistance he has given to me.

2. Learned Counsel appearing on behalf of the wife points out that these objections of the husband cannot be entertained inasmuch as the report has become confirmed by efflux of time. He draws my attention to Rule 89 of Ch. 26 of the Rules of the Original Side of this Court. Rule 89 lays down that 'an application to discharge or vary a report shall be made by motion upon notice to be given within 14 days of the filing thereof.' In the present case there has been no motion filed against the report and the objections were taken over a month after the report had been filed. Learned Counsel on behalf of the husband seeks to invoke the aid of Rule 91 and 92 of Ch. 26. He says that the fact that the Registrar has not taken into account the expenses of the husband is an error of law and that therefore the provisions of Rule 91 come into operation. He also says that Rule 92 comes into operation because the failure of the Registrar to take this element into consideration amounts to a mistake within the meaning of Rule 92. I am of opinion that the husband cannot avail himself of the provision of Rule 92 as there is a procedure laid down under the Rule which has not been followed by the husband. The Rule says that

a report after It has become binding will cot be reopened except on the ground of fraud, surprise or mistake or such other ground as may be allowed by the Court on an application to the Court by motion which may be granted on such terms and conditions as to costs and otherwise as to the Court shall seem fit.

3. Now there is no motion before me at all to vary the report. As regards the application of Rule 91 I am of opinion that there has been no error of law on the part of the Registrar. It is true that alimony pendente lite should be calculated on the net income of the husband. This is provided in Section 36, Divorce Act. The interpretation put upon the word 'net' by the learned Counsel for the husband is, in my opinion, incorrect. Net income merely means income after allowing for the cost of collection, income-tax and similar deductions. Net income does not mean any sum which is left over after the husband has spent all that he considers necessary for his maintenance. In my opinion the contention for the learned Counsel for the wife is correct. The reports cannot be challenged at this stage. I accordingly confirm both the reports. The learned Registrar has, in making his report regarding the payment of alimony pendente lite, made certain suggestions regarding the amount of maintenance which should be paid for the children. As there was no reference to the learned Registrar upon this point that part of the report cannot be confirmed. The result is that the husband is directed to pay alimony pendente lite of Rs. 17 to the petitioner, his wife. He will also pay into Court the sum of Rs. 1800 as costs or furnish security for that sum to the satisfaction of the Registrar within a month. The alimony pendente lite will be paid from the date of the application for such alimony. The petitioner will get the costs of this application. Certified for counsel. These orders are made without prejudice to the right, if any, of the husband to apply to sue or defend in forma pauperis.


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